State v. Bertrand , 165 Wash. App. 393 ( 2011 )

Hunt, J.

¶1 Shawny L. Bertrand appeals the trial court’s imposition of legal financial obligations (LFOs) and an enhanced sentence following her jury conviction for delivering a controlled substance (oxycodone). RCW 69.50-,401(2)(a). For the first time on appeal, she argues that (1) the unanimity language in the special verdict jury instruction, asking whether she delivered a controlled substance within 1,000 feet of a designated school bus stop (RCW 69.50.435), was error, citing Bashawj¹ and (2) the record is insufficient to support the trial court’s imposition of LFOs, especially its finding that she had the present or future ability to pay. We affirm Bertrand’s enhanced sentence because she did not preserve the special verdict unanimity instruction challenge below and she does not raise a manifest error implicating a specifically identified constitutional right that she may raise for the first time on appeal under RAP 2.5(a)(3). We also affirm the trial court’s imposition of LFOs, but we reverse and remand to the trial court to vacate its unsupported finding that Bertrand has the current or future ability to pay these LFOs.

FACTS

I. Controlled Drug Buy

¶2 In late March 2009, an informant working for the Centralia Police Department made a “controlled buy”² of prescription oxycodone pills from Shawny Lee Bertrand. Verbatim Report of Proceedings (VRP) (Jan. 13, 2010) at 28. The informant wore a court-approved wire device and tape recorded the drug purchase. The informant drove to Bertrand’s home and knocked on the front door; Bertrand’s mother let him inside. Finding Bertrand asleep, the informant woke her and explained that he had $300 for 15 oxycodone pills. Bertrand retrieved her prescription pill bottle, counted out 15 pills, and exchanged the pills for the informant’s $300. The informant left Bertrand’s home, returned to the police station, and turned the purchased drugs over to the police, who then completed standard “controlled buy” procedures.³ VRP (Jan. 13, 2010) at 38.

II. Procedure

¶3 The State charged Bertrand with unlawfully delivering a controlled substance (oxycodone) on or about March 23, 2009, and alleged that the sale had occurred within 1,000 feet of a designated school bus stop as the basis for an enhanced sentence under RCW 69.50.435. At Bertrand’s January 2010 trial, the Centralia School District’s assistant transportation director, Dale Dunham, testified that in March 2009, a designated, actively used school bus stop existed at the corner of “Ives and Lamar.” VHP (Jan. 13, 2010) at 76. A City of Centralia engineer technician testified that this bus stop was 883.71 feet from Bertrand’s home. This evidence was uncontroverted.

¶4 Bertrand and her family members testified that the drug sale allegation was false and that the informant usually stopped by Bertrand’s residence to see her daughter’s boyfriend. Bertrand acknowledged that she had a prescription for oxycodone in March 2009. But she contended that, during an earlier visit, the informant had planted the oxycodone pills at issue here to fulfill his police informant obligations and to better his position in his own legal proceedings. The State countered that none of the defense witnesses’ testimonies could explain the informant’s tape-recorded purchase of the oxycodone from Bertrand.

¶5 Apparently the State, Bertrand, and the trial court proposed jury instructions. Bertrand did not object to any of the trial court’s jury instructions. Jury instruction 13 explained the jury’s duties for considering the school-bus-stop special verdict:

If you find the defendant guilty of Delivery of a Controlled Substance as charged in Count I, it will then be your duty to determine whether or not the defendant delivered the controlled substance to a person within one thousand feet of a school bus route stop designated by a school district. You will be furnished with a special verdict form for this purpose.

If you find the defendant not guilty of Delivery of a Controlled Substance, do not use the special verdict form. If you find the defendant guilty, you will complete the special verdict. Since this is a criminal case, all twelve of you must agree on the answer to the special verdict.

If you find from the evidence that the state has proved beyond a reasonable doubt that the defendant delivered the controlled substance to a person within one thousand feet of a school bus route stop designated by a school district, it will be your duty to answer the special verdict “yes”.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt that the defendant delivered the controlled substance to a person within one thousand feet of a school bus route stop designated by a school district, it will be your duty to answer the special verdict “no”.

Clerk’s Papers (CP) at 33 (Instruction 13) (emphasis added). Bertrand neither objected nor proposed changes to this instruction.⁴

¶6 The jury found Bertrand guilty of delivering a controlled substance and answered, “Yes,” on the special verdict form, finding that Bertrand had made this delivery within 1,000 feet of a designated school bus stop, in violation of RCW 69.50.435. CP at 35. Both the State and Bertrand declined the trial court’s offer to poll the jury about its unanimous verdicts.

¶7 On February 9, 2010, the trial court sentenced Bertrand to 36 months and 1 day of confinement, which included 24 months for the school-bus-stop sentencing enhancement and 12 months of community custody. The trial court also (1) found that Bertrand had the ability, or likely would have the ability in the future, to pay LFOs; (2) imposed a total of $4,304 in LFOs; (3) set Bertrand’s minimum monthly payment at $25; and (4) scheduled payment obligations to begin 60 days from the date of the judgment and sentence. Bertrand did not object to the imposition of LFOs at sentencing; nor did she assert that, as a disabled person, she lacked the financial ability to pay.

¶8 Bertrand appeals the imposition of LFOs and the jury’s special verdict finding that the drug delivery occurred within 1,000 feet of a school bus stop.⁵

ANALYSIS

I. Special Verdict Unanimity Instruction

¶9 For the first time on appeal, Bertrand challenges the trial court’s special verdict jury unanimity instruction. Citing Bashaw and State v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003), Bertrand argues that the trial court misstated the law by instructing the jury that it had to be unanimous to enter a “no” finding on the special verdict form asking whether she delivered the controlled substance within 1,000 feet of a school bus stop. Br. of Appellant at 4. The State responds that (1) Bertrand did not preserve this error for review,⁶ (2) the instructional error implicates no constitutional right, and (3) Bertrand cannot identify a “manifest” practical and identifiable consequence resulting from this instructional error. Br. of Resp’t at 5.

¶10 Agreeing with the State, we hold that Bertrand cannot raise her jury instruction challenge for the first time on appeal because the alleged error is neither constitutional nor “manifest.” In the alternative, because Bertrand never disputed the location of the delivery, and the uncontroverted evidence in the record indicates that the delivery occurred within 1,000 feet of a school bus stop, we further hold that any error in the school-bus-stop enhancement special verdict jury instruction was harmless beyond a reasonable doubt.

A. Failure To Preserve Error for Appeal

¶11 At the outset, we note that Bertrand did not comply with CrR 6.15(c) when she failed to object to the trial court’s special verdict unanimity jury instruction. CrR 6.15(c) requires timely and well-stated objections to jury instructions “ ‘in order that the trial court may have the opportunity to correct any error.’ ” State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988) (quoting City of Seattle v. Rainwater, 86 Wn.2d 567, 571, 546 P.2d 450 (1976)). In failing to object below, Bertrand did not give the trial court an opportunity to correct this instructional error; thus, she has not preserved this error for appeal.

B. Failure To Meet RAP 2.5(a)(3) Manifest Constitutional Error Exception Test

¶12 Notwithstanding Bertrand’s failure to preserve this issue below, she contends that she can challenge this instructional error for the first time on appeal. We disagree. Bertrand does not show that the instructional error falls within the following RAP 2.5(a)(3) exception to the general error-preservation rule for appeals:

The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: . . . manifest error affecting a constitutional right.

As we recently held in State v. Grimes,⁷ for this RAP 2.5(a)(3) exception to apply, an appellant must show both that (1) the error implicates a specifically identified constitutional right, and (2) the error is “manifest” in that it had “practical and identifiable consequences” in the trial below.⁸ See Grimes, 165 Wn. App. at 185-87 (quoting State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)).

¶13 If an appellant successfully shows that the error is both constitutional in magnitude and “manifest,” in that it had practical and identifiable consequences below, the burden then shifts to the State “to prove that the error was harmless . . . under the Chapman standard”⁹ beyond a reasonable doubt. Grimes, 165 Wn. App. at 186 (footnote omitted) (citing State v. Gordon, 172 Wn.2d 671, 676 n.2, 260 P.3d 884 (2011)). We follow and incorporate here this three-part test that we recently laid out in greater detail in Grimes.

¶14 As we held in Grimes, the instructional error Bertrand attempts to raise here is not a constitutional error.¹⁰ Grimes, 165 Wn. App. at 188-89 (citing State v. Morgan, 163 Wn. App. 341, 351-52, 261 P.3d 167 (2011); State v. Guzman Nunez, 160 Wn. App. 150, 159, 248 P.3d 103, review granted, 172 Wn.2d 1004 (2011)). Bertrand having failed to identify how the challenged instruction implicates a constitutional right, she fails to meet the first part of the test to qualify for the RAP 2.5(a)(3) exception. She also fails to meet the second part of the test because she neither argues nor shows that the instructional error was “manifest”: she fails to identify a “practical and identifiable consequence” at trial. Grimes, 165 Wn. App. at 189-90 (citing O’Hara, 167 Wn.2d at 99-100).

¶15 Because Bertrand carries neither of her two burdens necessary to trigger our limited discretion under RAP 2.5(a)(3) to entertain her nonpreserved claim of error,* ¹¹ we need not address the merits of her instructional challenge for the first time on appeal.¹² See Scott, 110 Wn.2d at 687.

II. Legal Financial Obligations

¶16 Bertrand next challenges the trial court’s imposing LFOs as part of her sentence. More specifically, she argues that (1) the record does not support the trial court’s finding that she either has or in the future will have the ability to pay LFOs; and (2) this finding violates her equal protection rights because she is disabled and unable to pay. The State counters that (1) Bertrand’s challenge is not ripe because it has not yet sought enforcement of LFO payments; and (2) in the alternative, the trial court imposed LFOs within its statutory authority. We agree with Bertrand that the record does not support the trial court’s finding that she has or will have the ability to pay these LFOs when and if the State attempts to collect them.

A. Finding of Ability To Pay LFOs

fl7 Bertrand assigns error to the trial court’s judgment and sentence “finding” that she has the current or future ability to pay LFOs. Br. of Appellant at 7. Citing State v. Baldwin, she contends that the ripeness test does not apply to her challenge to the trial court’s factual findings and that we should review this challenge under the clearly erroneous standard.¹³ See Reply Br. of Appellant at 4-5 (citing State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116, 837 P.2d 646 (1991)). We agree with Bertrand that the trial court’s finding that she had the ability to pay these LFOs was clearly erroneous because it lacks support in the record.

¶18 Bertrand assigns error to the trial court’s judgment and sentence finding number 2.5:

“The court has considered the total amount owing, the defendant’s past, present, and future ability to pay financial legal obligations, including the defendant’s financial resources and the likelihood that the defendant’s status will change. The court finds:

“That the defendant has the ability or likely future ability to pay the legal financial obligations imposed herein. RCW 9.94A.753.”

Br. of Appellant at 9 (emphasis added) (quoting CP at 37).

¶19 Although Baldwin does not require formal findings of fact about a defendant’s present or future ability to pay LFOs,¹⁴ the record must be sufficient for us to review whether “the trial court judge took into account the financial resources of the defendant and the nature of the burden” imposed by LFOs under the clearly erroneous standard. Baldwin, 63 Wn. App. at 312. The record here does not show that the trial court took into account Bertrand’s financial resources and the nature of the burden of imposing LFOs on her. In fact, the record before us on appeal contains no evidence to support the trial court’s finding number 2.5 that Bertrand has the present or future ability to pay LFOs.¹⁵ Therefore, we hold that the trial court’s judgment and sentence finding number 2.5 was clearly erroneous.

B. Ripeness

¶20 We next address whether Bertrand’s challenge to the imposition of LFOs is ripe for our review. Baldwin holds that “the meaningful time to examine the defendant’s ability to pay is when the government seeks to collect the obligation’’ Baldwin, 63 Wn. App. at 310 (emphasis added) (citing State v. Curry, 62 Wn. App. 676, 680, 814 P.2d 1252 (1991)). The Baldwin court further noted:

The defendant may petition the court at any time for remission or modification of the payments on [the basis of manifest hardship]. Through this procedure the defendant is entitled to judicial scrutiny of his obligation and his present ability to pay at the relevant time.

Baldwin, 63 Wn. App. at 310-11 (emphasis added) (footnote omitted).

¶21 Although the trial court ordered Bertrand to begin paying her LFOs within 60 days of the judgment and sentence, our reversal of the trial court’s judgment and sentence finding 2.5 forecloses the ability of the Department of Corrections to begin collecting LFOs from Bertrand until after a future determination of her ability to pay. Thus, because Bertrand can apply for remission of her LFOs when the State initiates collections, we do not further address her LFO challenge.

¶22 We affirm Bertrand’s enhanced sentence and the trial court’s imposition of LFOs. We reverse the trial court’s finding that Bertrand has the present or future ability to pay LFOs and remand to the trial court to strike finding number 2.5 from the judgment and sentence.¹⁶

Van Deren, J., concurs.

1 State v Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010). Bertrand also refers to an error in jury instruction “16” and to a “firearm” sentencing enhancement. Br. of Appellant at 4. This case did not involve a firearm and contained only 13 jury instructions. It appears that Bertrand meant to cite jury instruction Í3 and to refer to a school bus stop sentencing enhancement.

2 Generally, a “controlled buy” is a police operation where an informant and any vehicle being used is searched before a scheduled drug purchase to ensure that the informant does not have any drugs, weapons, or personal money available for use. The informant then receives prerecorded or otherwise traceable money from the police, purchases drugs while under police surveillance, and turns the drugs and any money over to the police. The informant and any vehicle used are immediately searched again after the drag purchase.

3 Because Bertrand was evicted from her home shortly after the “controlled buy,” no search warrant was issued and the police never recovered the money that the informant used to buy the oxycodone from Bertrand. VRP (Jan. 13,2010) at 38.

4 Bertrand’s trial concluded before the Washington Supreme Court issued Bashaw on July 1, 2010, holding that this type of special verdict unanimity instruction is error.

5 Bertrand does not appeal her unlawful controlled substance delivery conviction.

6 Because we hold that Bertrand does not meet the RAP 2.5(a)(3) manifest constitutional error exception to the general rule requiring appellants to preserve errors for review by objecting below, we need not address the State’s alternative argument that Bertrand waived any jury instructional errors by not proposing her own jury instructions at trial.

7 State v. Grimes, 165 Wn. App. 172, 267 P.3d 454 (2011).

8 According to our Supreme Court’s most recent pronouncement, the determination of whether an error is “manifest” requires an appellant to show “actual prejudice,” which we determine by looking at the asserted error to see if it had “ ‘practical and identifiable consequences’ ” at trial. State v. Gordon, 172 Wn.2d 671, 676,260 P.3d 884 (2011) (internal quotation marks omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)). This “actual prejudice” language has frustrated and confused lawyers, clerks, and judges for years because the term of art “actual prejudice” involves a different balance than does a harmless error analysis, which determines whether reversal is warranted. See O’Hara, 167 Wn.2d at 99; Grimes, 165 Wn. App. at 187 n.16.

We agree with our concurring colleague’s explanation of the evolution of the term “manifest error” and her comment that our state’s previous case law has sometimes involved circular reasoning when defining “manifest error” for purposes of the RAP 2.5(a)(3) exception. Some cases, for example, have conflated prejudice and harmless error determinations into what should have been a preliminary determination of whether the asserted error was “manifest.” See State v. Powell, 166 Wn.2d 73, 84-85, 206 P.3d 321 (2009) (holding that an alleged ER 404(b) error was not of constitutional magnitude but also indicating it was “dubious whether the error was manifest” where the error did not have a practical and identifiable consequence in the trial because “the jury had ample testimony ... to support its guilty verdict”); State v. Kirkpatrick, 160 Wn.2d 873, 881, 161 P.3d 990 (2007) (holding an unlawful seizure claim constitutional, but not “manifest,” because “[t]he record [was] insufficient to determine any practical consequences of the admission of [Kirkpatrick’s] statements on the outcome of [his] trial given other, unchallenged evidence of his guilt”).

We also note that the reasoning in Powell and Kirkpatrick appears to conflict with the reasoning in O’Hara, a case in which our Supreme Court admonished, “The determination of whether there is actual prejudice,” and, therefore, whether an error is “manifest,”

is a different question and involves a different analysis as compared to the determination of whether the error warrants reversal. In order to ensure the actual prejudice and harmless error analyses are separate, the focus of the actual prejudice must be on whether the error is so obvious on the record that the error warrants appellate review.

O’Hara, 167 Wn.2d at 99-100. Our state’s shift away from the long standing meaning of “manifest” has led to these different interpretations of “manifest”; and, as our concurring colleague carefully documents, this confusion has led to increased appellate review of unpreserved errors.

Despite our agreement with most of the concurrence’s logic, stare decisis prevents our adopting it. Changing the definition of “manifest error” back to its plain meaning for the limited purpose of the RAP 2.5(a)(3) exception is the exclusive province of our Supreme Court. Thus, we respectfully disagree with the concurrence’s assertion that the Bashaw error here was “manifest.” In our view, this assertion directly conflicts with our Supreme Court’s recent decision in Gordon and its earlier decisions addressing the meaning of “manifest error” in the context of allowing an appellant to raise for the first time on appeal a constitutional error that she did not raise below at trial. See, e.g., O’Hara, 167 Wn.2d at 99; State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007).

9 Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

10 As we explained in detail in Grimes, although the Supreme Court held in Bashaw that a similar instruction was error, the Court neither addressed nor held that this error was constitutional. Grimes, 165 Wn. App. at 181-82.

11 Another consequence of Bertrand’s failure to carry her two burdens is that the burden does not shift to the State to prove that the alleged error was harmless beyond a reasonable doubt. Nevertheless, we note that, even if the burden were to shift to the State, it clearly would be able to show that the special verdict unanimity instructional error was harmless beyond a reasonable doubt. Jury instruction errors are harmless if the reviewing court can conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error. Bashaw, 169 Wn.2d at 147. Here, in contrast with the disputed facts in Bashaw, the evidence establishing distance was uncontroverted; moreover, it was supported by competent physical evidence and testimonial evidence, not mere speculation, as was the case in Bashaw.

Furthermore, again, unlike Bashaw, Bertrand never challenged that the school bus stop was not within 1,000 feet of her house; nor did she present conflicting evidence. On the contrary, she argued only that the informant had planted the oxycodone in her home, not that her home was more than 1,000 feet from a school bus stop. Thus, we can say beyond a reasonable doubt that the instructional error had no effect on the jury’s special verdict.

12 Even if we were to address this issue, Bertrand’s arguments would fail. See our analysis in Grimes, 165 Wn. App. at 178-88, including our discussion of Divisions One and Three cases addressing this subject and the Supreme Court’s recent acceptance of a petition for review to consider whether this special verdict unanimity instructional error is of constitutional magnitude. As we note in Grimes, however, even if the Supreme Court ultimately holds that this instructional error is constitutional, an appellate court must still apply the next two steps of the RAP 2.5(a)(3) test before holding that the error warrants reversal. Grimes, 165 Wn. App. at 185-86. And, as we note in the preceding footnote, such a holding would not be possible here under the third, harmless error prong of the test. See also Grimes, 165 Wn. App. at 190-91.

13 The trial court’s determination “as to the defendant’s resources and ability to pay is essentially factual and should be reviewed under the clearly erroneous standard.” Baldwin, 63 Wn. App. at 312.

14 Baldwin, 63 Wn. App. at 311.

15 On the contrary, in light of Bertrand’s disability, her ability to pay LFOs now or in the near future is arguably in question.

16 We further note that, after the trial court on remand strikes its finding that Bertrand has the present or future ability to pay her LFOs, before the State can collect LFOs from Bertrand, there must be a determination that she has the ability to pay these LFOs, taking into account her resources and the nature of the financial burden on her. See Baldwin, 63 Wn. App. at 312; ROW 9.94A.753; former ROW 9.94A.760 (2008); former ROW 10.01.160 (2008); ROW 10.46.190.