State Of Washington v. Richard Walksontop ( 2014 )

F EL " D
01JRT OF APPEALS
DIV1510IrlIi
AM 9: 17 20Ili FEB - 4
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OE WASHIM'U'1 "ON
DIVISION II
r Y-
EP TY
STATE OF WASHINGTON, No. 43528 -4 -II
Respondent,
V.
RICHARD WALKSONTOP, UNPUBLISHED OPINION
Penoyar, J. — Richard Walksontop appeals his convictions for burglary, robbery,
harassment, unlawful imprisonment, and assault. He argues that ( 1) the information failed to
include the essential elements of unlawful imprisonment because it did not include the statutory
definition of "restrain," ( 2) he was denied his right of allocution, ( 3) the trial court made errors in
his misdemeanor and felony judgment and sentences, and ( 4) the trial court erred when it
imposed legal financial obligations ( LFOs) without. finding that he had the ability to pay. He
also includes a statement of additional grounds ( SAG).
Division One of this court recently held that the statutory definition of "restrain" is not an
essential element of unlawful imprisonment. We agree; therefore, the information here is
sufficient. Additionally, Walksontop did not preserve for appeal the alleged errors regarding his
right of allocution and the imposition of LFOs, and his SAG does not sufficiently identify and
discuss the alleged errors. Accordingly, we do not review these arguments. Finally, the trial
court did err on both the misdemeanor and felony judgment and sentences when it failed to state
whether Walksontop' s misdemeanor sentences are to run concurrently or consecutively and
when it marked that a dismissed sentence enhancement applied. Therefore, we affirm the
convictions, but remand for clarification and correction of the judgment and sentences.
43528 -4 -II
FACTS
The State charged Walksontop with first degree burglary, two counts of second degree
robbery, two counts of harassment —death threats, unlawful imprisonment, and three counts of
fourth degree assault .after he forcibly entered an apartment and threatened and attacked the
occupants. The State also alleged that Walksontop was armed with a deadly weapon, a knife,
when he committed the crimes. The trial court dismissed the deadly weapon enhancement at the
close of the State' s case.
After a four -
day trial, a jury convicted Walksontop of all counts except one count of
second degree robbery. The trial court determined that an aggravating circumstance applied
because Walksontop' s offender score resulted in some of the crimes going unpunished, but it
sentenced him within the standard range. The trial court sentenced him to 364 days'
confinement for each of the misdemeanor assaults and 110 months' confinement for the felonies.
The misdemeanor judgment and sentence did not indicate whether the sentences are to be served
consecutively or concurrently and the felony judgment and sentence stated that a deadly weapon
enhancement applied even though the trial court dismissed that enhancement. The court also
imposed several LFOs on Walksontop. Walksontop appeals.
ANALYSIS
I. INFORMATION
First, Walksontop alleges that the information is defective because it does not include the
essential elements of unlawful imprisonment. Specifically, he argues that the information fails to
include the statutory definition of " restrain." Division One recently held that the definition of
restrain" is not an essential element of unlawful imprisonment. State v. Phuong, 174 Wash. App.
494, 545, 299 P.3d 37 ( 2013). We agree. Accordingly, the information here is sufficient.
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43528 -4 -II
All essential elements of a crime, statutory or otherwise, must be included in a charging
document in order to afford notice to an accused of the nature and cause of the accusation against
him." State v. Kjorsvik, 117 Wash. 2d 93, 97, 812 P.2d 86 ( 1991). When the information is
challenged for the first time on appeal, we liberally construe the information in favor of its
validity. Kjorsvik, 117 Wash. 2d at 105. In determining the sufficiency of the information, we
apply a prong test: "(
two - 1) do the necessary facts appear in any form, or by fair construction can
they be found, in the charging document; and, if so, ( 2) can the defendant show that he or she
was nonetheless actually prejudiced by the inartful language which caused a lack of notice ?"
Kjorsvik, 117 Wash. 2d at 105 -06. We review this issue de novo. State v. Campbell, 125 Wash. 2d
797, 800, 888 P.2d 1185 ( 1995).
A person is guilty of unlawful imprisonment if he knowingly restrains another person.
RCW 9A. 40. 040( 1). The legislature defines " restrain" as " restrict[ ing] a person' s movements
without consent and without legal authority in a manner [ that] interferes substantially with his or
her liberty." RCW 9A.40. 010( 6). The information alleged that Walksontop " did knowingly
Washington 9A.40. 040( 1)." Clerk' s
restrain [ S. I.], a human being; contrary to Revised Code of
Papers at 10. Walksontop argues that the information must also include the statutory definition
of "restrain."
State Johnson, _ Wn. App. _, 289 P.3d 662 ( 2012), review
Walksontop relies on v.
granted in part, 178 Wash. 2d 1001 ( 2013), a Division One case holding that charging language
identical to the language here was constitutionally deficient. But, based on a recent Supreme
Court case, State v. Allen, 176 Wash. 2d 611, 294 P.3d 679 ( 2013), Division One has since
implicitly overruled Johnson. In Allen, the State charged the defendant with felony harassment,
and the defendant argued that the information was deficient. because only " true threats" are
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II
criminalized and the information did not include a true threat requirement. 176 Wash. 2d at 626 -27.
Our Supreme Court disagreed, holding that the true threat requirement merely defined the
essential threat element in the felony harassment statute, and, thus, it was not error to omit the
true threat requirement from the information. Allen, 176 Wash. 2d at 629 -30.
Division One applied this same reasoning in Phuong, 174 Wn. App. 494. There, the
State charged the defendant with unlawful imprisonment and the defendant argued that the
information was deficient because it did not include the definition of " restrain." Phuong, 174
Wn. App. at 542. The court reversed its position in Johnson and held that, based on Allen, the
information was sufficient because the statutory definition of " restrain" merely defined an
essential element of unlawful imprisonment and was not itself an essential element. Phuong, 174
Wash. App. at 545.
We follow Allen here hold that the information is sufficient. The
and Phuong and
statutory definition of "restrain" is not an essential element of unlawful imprisonment; rather, it
merely defines an essential element of the crime.
II. ALLOCUTION
Walksontop next argues that he is entitled to resentencing before a new judge because he
was denied his right of allocution at sentencing. At sentencing, "[ t] he court shall ... allow
arguments from the ... offender ... as to the sentence to be imposed." RCW 9. 94A. 500( 1). The
trial court did not give Walksontop a chance to address the court before imposing the sentence,
but Walksontop failed to object to this omission.
RAP 2. 5( a) states that "[ t]he appellate court may refuse to review any claim of error
that] was not raised in the trial court." RAP 2. 5( a)( 3) further states that a party may raise
particular types of errors for the first time on appeal, including " manifest error[ s] affecting a
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43528 -4 -II
constitutional right." But Walksontop fails to argue that any of the exceptions listed in RAP
2. 5( a) apply. Therefore, we do not address his claims that the trial court erred when it did not
give him a chance to address the court. See State v. Hatchie, 161 Wash. 2d 390, 406, 166 P.3d 698
2007) ( holding that defendant failed to preserve any error regarding his right of allocution);
State v. Hughes, 154 Wash. 2d 118, 153, 110 P.3d 192 ( 2005) abrogated on other grounds by
Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 ( 2006) ( holding that
the right of allocution is statutory and not constitutional; thus, defendant' s failure to object at
trial precludes review).
III. SENTENCING ERRORS
Next, Walksontop argues that we should remand for the sentencing court to indicate on
the misdemeanor judgment and sentence whether his assault sentences are to be served
consecutively or concurrently and to remove the dismissed deadly weapon enhancement from the
felony judgment and sentence. The State concedes that remand is appropriate, and we agree.
Regarding the misdemeanor sentence, the sentencing reform act applies only to felony
offenders; accordingly, the trial court has discretion to impose consecutive sentences on
misdemeanor convictions. State v. Langford, 67 Wn. App. 572, 587, 837 P.2d 1037 ( 1992);
RCW 9. 94A.010. Here, the court did not indicate how the misdemeanor sentences will be
served. Because the sentencing court' s intent is unclear, we remand for clarification.
Additionally, the trial court marked that a deadly weapon enhancement applied on the
felony judgment and sentence, but it had dismissed this enhancement at the close of the State' s
case. A trial court may correct a clerical error in the judgment and sentence. State v. Snapp, 119
Wn. App. 614, 626, 82 P.3d 252 ( 2004). The trial court' s failure to remove the mark indicating
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that a deadly weapon enhancement applies is a clerical error. On remand, the sentencing court
should also correct this error in the felony judgment and sentence.
IV. LFOs
Finally, Walksontop argues that the trial court erred when it imposed LFOs without
finding that he had the ability to pay them. Because he did not object at trial, Walksontop has
waived this issue on appeal.
At sentencing, the trial court stated that it was entering standard fines, fees, and costs.
the following LFOs: $ 412. 10 restitution, $ 500
The felony judgment and sentence contained
victim assessment fee, $ 200 criminal filing fee, $ 250 jury demand fee, $ 1, 500 court appointed
diem, $ 500 fine, 100 DNA fee.' The trial court did
attorney fees, $ 2, 400 trial per and $ collection
not check the box on the judgment and sentence stating that the defendant has the ability to pay.
to the imposition the fines or fees. Therefore, he has
But Walksontop did not object court' s of
waived his ability to challenge the trial court' s imposition of LFOs. RAP 2. 5( a); Snapp, 119 Wn.
App. at 626 n.8.
Walksontop contends that he may raise this issue for the first time on appeal, citing State
Bertrand, 165 Wash. 393, 267 P.3d 511 ( 2011). But Bertrand is distinguishable. The
v. App.
defendant in that case was disabled and the sentencing court ordered her to begin payment on her
LFOs 60 days after entry of the judgment and sentence, while she would still be in confinement
for her 36 -month sentence. Bertrand, 165 Wn. App. at 398. Based on these facts, we reversed
that the defendant had the ability to pay the LFOs. Bertrand, 165 Wn.
the trial court' s finding
Several of these LFOs are mandatory, and Walksontop concedes that he cannot challenge their
imposition.
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App. at 404. By contrast, here, there is no evidence that Walksontop would be similarly unable
to pay. Therefore, we affirm the trial court' s imposition of LFOs.
V. SAG
Walksontop alleges several sources of error in his SAG. But he fails to provide any
argument regarding the errors; he merely lists the page numbers in the record where the errors
allegedly occurred. A defendant may file a SAG to identify and discuss those matters that he
believes were not adequately addressed by counsel' s brief. RAP 10. 10( a). We will not consider
a defendant' s SAG if it does not inform the court of the nature and occurrence of alleged errors.
RAP 10. 10( c). Here, Walksontop did not discuss or inform the court of the nature of the alleged
errors. Consequently, we decline to review his SAG.
We affirm the convictions, but remand to the sentencing court to clarify and correct
errors in both judgment and sentences.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
Yi J.
We concur:
Max a, J. ,
J- J
Lee, J.
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