State Of Washington v. P.e.t., D.o.b. 03/29/93

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
to
2S
STATE OF WASHINGTON, No. 68068-4-1
Respondent, DIVISION ONE
«x>
Hi;
v. He £j>c
C~j CO
P.E.T. (DOB: 03/29/93), PUBLISHED
ro
Appellant. FILED: April 29. 2013
Cox, J. — Parish Tate appeals the juvenile court's adjudication and
disposition on the charge of second degree robbery. At issue is whether the
court improperly placed on him the burden of proving his incompetence at a
competency hearing under former RCW 10.77.060 (2004). This statute is silent
as to who bears the burden of proof at an initial competency hearing. But there
is a common law presumption that one found incompetent remains so until
adjudicated otherwise.1 That presumption is applicable here.
In this case, Tate was found incompetent in a prior proceeding and the
criminal charges there, which were unrelated to the charge in this case, were
dismissed. Accordingly, the presumption of incompetence remained until the
1 State v. Colev. 171 Wn. App. 177, 187, 286 P.3d 712, petition for review
filed, No. 88111-1 (Wash. Nov. 26, 2012).
No. 68068-4-1/2
State rebutted that presumption in this case. Under the circumstances of this
case, the trial court erroneously placed the burden of proving incompetence on
Tate at his competency hearing. We reverse and remand with instructions.
The relevant facts are undisputed. In 2009, Tate was found incompetent
and several charges against him were dismissed based on that finding. That
proceeding and those charges were unrelated to this case.
On December 15, 2010, slightly over one year after the prior dismissal, the
State charged Tate with second degree robbery after an incident on a bus.
Because the juvenile court had reason to doubt Tate's competency, the
court, pursuant to former RCW 10.77.060 (2004), ordered that Tate be admitted
for evaluation at Western State Hospital to determine whether he was competent
to stand trial.3 Two qualified professionals examined him 4 One of these
professionals, Western State Hospital Staff Psychologist Dr. Ray Hendrickson,
authored a Forensic Mental Health Evaluation for Tate on April 7, 2011.5
Tate contested the findings in the report, and the court held a competency
hearing.
At the hearing, the State presented testimony from Dr. Hendrickson, who
testified that Tate (1) "[did] not currently suffer from a mental illness," (2)
2Findings of Fact and Conclusions of Law Regarding Defendant's
Competency, Clerk's Papers at 16.
3id, 16.
4kL
5 Id.No. 68068-4-1/3
"possesse[d] the ability to have a factual and rational understanding of the
charges and court proceedings he faces," and (3) "possesse[d] the capacity to
communicate with his attorney to assist in his defense."6 Tate's counsel cross-
examined the doctor regarding his report and findings.
During that hearing, the issue of which party bore the burden of proof
arose. The court considered case authority and arguments of the parties on this
question. Thereafter, the court concluded that Tate had to prove by a
preponderance of the evidence that he was incompetent to stand trial. Based on
this conclusion and the evidence at the hearing, the court found that Tate had
"not proven by a preponderance of the evidence that he remains incompetent."7
The court proceeded to the fact-finding hearing and found Tate guilty of
the crime charged. Findings, conclusions, and an order consistentwith this
determination followed.
Tate appeals.
COMPETENCY
Tate argues that the trial courtdenied him due process by placing on him
the burden of proving his incompetence.8 We hold that the trial court improperly
placed on him the burden of proving his incompetence under the circumstances
of this case.
6 Id, at 16.
7 Order on Motion Re Competency Hearing, Clerk's Papers at 13.
8 Brief of Appellant at 3-8.
No. 68068-4-1/4
"[T]he Due Process Clause of the Fourteenth Amendment prohibits the
criminal prosecution of a defendant who is not competent to stand trial."9 Due
process also requires that the State's procedures be adequate to protect this
right.10 But the United States Supreme Court has also held that once a State
provides a defendant access to procedures for making a competency evaluation,
due process does not require the State to assume the burden of proving that a
defendant is competent to stand trial.11
In Washington, there is additional statutory protection.12 RCW 10.77.050
provides that "[n]o incompetent person shall be tried, convicted, or sentenced for
the commission of an offense so long as such incapacity continues."
A person is defined as incompetent under the statute if he or she "lacks
the capacity to understand the nature ofthe proceedings against him or her or to
assist in his or her own defense as a result of mental disease or defect."
9 Medina v. California. 505 U.S. 437, 439, 112 S. Ct. 2572, 120 L Ed. 2d
353 (1992) (citing Drooe v. Missouri. 420 U.S. 162, 95 S. Ct. 896, 43 L Ed. 2d
103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815(1966)).
10 Pate. 383 U.S. at 378.
11 Medina. 505 U.S. at 449.
12 In re Fleming. 142 Wn.2d 853, 862, 16 P.3d 610 (2001) (citing RCW
10.77.050).
13 Compare former RCW 10.77.010(15) (2010), with RCW 10.77.010(15)
(using identical language to define "incompetency").
No. 68068-4-1/5
We review a trial court's determination of competency for abuse of
discretion.14 Whether the State or a defendant bears the burden of proof at a
competency hearing is a question of law that we review de novo.1
Burden of Proof
The parties argue that Washington law either places the burden of proof
entirely on the State or on the defendant alleging incompetence. But neither
argument is persuasive.
Chapter 10.77 RCW sets out "the procedures for the evaluation and
treatment of those alleged to be incompetent to stand trial."16 And this chapter is
"generally applicable to juvenile competency determinations."17 Former RCW
10.77.060 (2004) provides when and how a criminal defendant's competency
should be evaluated. Former RCW 10.77.084 (2007) provides the procedures
for staying the proceedings and restoring competency. But neither of these
statutes assigns to either party the burden of proof at a defendant's competency
hearing.18
Division Three of this court recently stated with respect to these statutes
that "[i]t is a bit murky as to who bears the burden of proof at a defendant's
14 State v.Benn. 120 Wn.2d 631, 662, 845 P.2d 289 (1993).
15 See Colev. 171 Wn. App. at 186.
16 State v. E.C.. 83 Wn. App. 523, 529, 922 P.2d 152 (1996).
17 Id, at 530.
18 See former 10.77.060 (2004); former RCW 10.77.084 (2007); see also
former RCW 10.77.086 (2007) (providing the commitment procedures for a
felony charge).
No. 68068-4-1/6
competency hearing.19 Notwithstanding this uncertainty under the statutes, in
State v. Colev. Division Three addressed the burden of proof issue based on the
common law presumption ofincompetence.20 There, the trial court decided to
place the burden of proving Coley's incompetence on him at his competency
hearing.21 This decision was based on the trial court's erroneous belief that the
most recent previous court order found Coley competent.22
On review, a majority of a divided court concluded that this decision was
incorrect.23 The majority explained that "[tjhere is a presumption that an
incompetent person remains incompetent until adjudicated otherwise."24 Since
the most recent previous court order found that Coley was incompetent, the
presumption of incompetence should have been in effect, and the burden of
proof should have "shifted to the State to prove that [Coley] was competent."25
We agree with Division Three's rationale in Coley. In the absence ofany
statement in the statutes of who bears the burden of proof at a competency
hearing, it is logical to apply the common law presumption to the statutes to fill
19 Colev. 171 Wn. App. at 187.
20 171 Wn. App. 177, 187, 286 P.3d 712 (2012).
21 id, at 184.
22 ii
23 Id. at 188.
24 Id. at 187 fciting State v. Piatt. 143 Wn.2d 242, 251 n.4, 19 P.3d 412(2001); In re Estate of Miller. 10 Wn.2d 258, 268, 116 P.2d 526 (1941); Chez v.
Sunset Motor Co., 123 Wash. 604, 606, 213 P. 7 (1923)).
25 Id. at 188.
No. 68068-4-1/7
this gap. Doing so here, we conclude that the prior finding that Tate was
incompetent, leading to the dismissal of the charges against him, raised the
common law presumption that he remained incompetent. Thus, it was the
burden of the State at the initial competency hearing in this case to rebut that
presumption. But the trial court determined, as its order reflects, that Tate failed
to prove "by a preponderance of the evidence that he remains incompetent."
This was error.
This approach makes sense, as The Washington Practice treatise
explains. The treatise discusses the general process when a criminal
defendant's competency is at issue:
When the issue of the defendant's competency to stand trial
is raised, the issue is determined by the court, and if neither the
prosecutor nor defense counsel contests the findings contained in
the report, the judge may make his determination on the basis of
the report. However, if the report of the court-appointed experts is
contested, the court must hold a hearing.
An accused has the burden of showing that he or she is
incompetent to stand trial by a preponderance of the evidence.
This proof requirement is based upon the presumption of sanity.[27]
But the treatise also explains that a defendant may not bear the burden of
proof when a court has previously adjudicated that the defendant was
incompetent:
Commitments on previous occasions to an institution for
mental illness are not determinative of present competency to stand
trial for a criminal offense. A person who has been previously
26 Order on Motion Re Competency Hearing, Clerk's Papers at 13.
2712 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice
& Procedure § 907 (3d ed. 2012).
7
No. 68068-4-1/8
adjudicated to be incompetent, however, is presumed to remain in
that condition until a proper hearing is held and he is declared
mentally competent. The presumption is rebuttable.[28]
Thus, a common law presumption of incompetence arises when a court
has previously determined that the accused was incompetent and there is no
intervening court determination otherwise.29 The party who wants to overcome
this presumption has the burden of proof at the competency hearing.30
This latter situation was the case here. A court previously determined that
Tate was incompetent in 2009. That determination created a common law
rebuttable presumption that he remained so at the time ofthe initial competency
hearing in this case in 2011. The trial court incorrectly placed the burden of proof
on Tate to prove that he remained incompetent. The burden should have been
placed on the State to rebut the presumption of incompetency that arose from the
prior adjudication of incompetency.
At the initial competency hearing in this case, the juvenile court relied on
State v. Harris when it erroneously ruled that the burden of proof was on Tate.31
But Harris does not control this case.
28 Id, at § 904.
2914
30 Id.
31 Report of Proceedings (June 21, 2011) at 103-04 (citing State v. Harris,
114 Wn.2d 419, 789 P.2d 60 (1990)).
No. 68068-4-1/9
There, Harris was convicted of aggravated murder and sentenced to
death.32 Our supreme court addressed several issues in that capital case,
including who bears the burden of showing whether the petitioner is competent to
be executed.33 The supreme court adopted a rule that "places the burden on the
petitioners to make a substantial showing that they are presently insane for
purposes of execution."34
Harris is distinguishable from this case because it did not involve
circumstances where a presumption of incompetence arose. Instead, the Harris
court's holding was based on the presumption of competence, which is not
applicable in this case.35 Thus, Harris does not control this case.
The State argues thatthe juvenile court correctly assigned the burden of
proof to Tate because of the presumption of competence. The State explains
that "[i]t is well settled that the law will presume sanity rather than insanity,
competency rather than incompetency; it will presume that every man is sane
and fully competent until satisfactory proof to the contrary is presented."36
32 Harris. 114 Wn.2d at 422, 425.
3314 at 426, 433,442.
34 Id at 435.
3514 at 432.
36 Brief ofRespondent at 7 (quoting Grannum v. Berard, 70 Wn.2d 304,
307, 422 P.2d 812 (1967)).
No. 68068-4-1/10
While this is a correct statement of law, there is also a presumption of
incompetence when a court has previously determined that the accused was
incompetent.37 It is this latter presumption that controls this case, not the former.
The State cites State v. Eldridge.38 State v. Blakelv.39 and State v.
Anene40 to support its assertion that the trial court did not err when it presumed
Tate's competence and placed the burden on him to prove his incompetence.
But the State's reliance on the presumption of competence is misplaced for the
reasons we have already explained. In any event, the cases do not support the
State's argument.
Two of the cases the State cites, Eldridge and Anene, did not involve
circumstances where the presumption of incompetence would arise because
there was no prior adjudication in either case.41 And while Blakelv discussed the
presumption of incompetence, Blakelv is distinguishable from this case.
In Blakelv. Division Three recognized that "[a] rebuttable presumption of
mental incompetency is raised by proof of a mental illness adjudication." But
37 See Colev. 171 Wn. App. at 187 (citing Pjatt, 143 Wn.2d at 251 n.4; In
re Estate of Miller. 10 Wn.2d at 268; Criez, 123 Wash, at 606).
38
17 Wn. App. 270, 562 P.2d 276 (1977).
39111 Wn. App. 851, 47 P.3d 149 (2002), rev'd on other grounds, 542
U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
40 149 Wn. App. 944, 205 P.3d 992 (2009).
41 See Eldridge. 17 Wn. App. at 273; Anene, 149 Wn. App. at 948.
42 111 Wn. App. at 861.
10
No. 68068-4-1/11
the court concluded that the presumption of incompetence did not arise.43 There,
Blakely challenged the jury instructions given at his competency hearing that
preceded his criminal trial.44 Before these criminal proceedings, a court
determined that Blakely was "not competent to understand the nature and
complexity of the trust issues" in a separate civil proceeding.45 But Division
Three explained that the civil court's order "did not constitute an actual
adjudication of mental illness."46 Thus, it concluded that the order was "relevant
evidence of Mr. Blakely's ability to understand the criminal proceedings and to
assist in his defense, but it did not give rise to a presumption" of incompetence.47
Here, there was an actual adjudication that Tate was incompetent to stand
trial in 2009. Thus, unlike Blaklev. this prior adjudication gave rise to a
presumption of incompetence. The State's reliance on these cases to
demonstrate a presumption of competence in this case is not persuasive.
While we conclude that the State's arguments as to a presumption of
competence are incorrect, we also do not agree with Tate's arguments. Tate
argues that the State always has the burden of proving that a defendant is
competent to stand trial. This argument is overly broad.
4314 at 862.
4414 at 861.
4514 at 862.
4614
47 Id.
11
No. 68068-4-1/12
Tate acknowledges that chapter 10.77 RCW "does not explicitly ascribe
the burden of proof." But he argues that State v. Wicklund.48 State v. Hurst.49
and Born v. Thompson50 make it clear that the State has the burden to prove that
a defendant is competent. As the dissent in Colev explains, these cases do not
contain controlling precedent, and they are distinguishable from this case.51
First, the supreme court in Wicklund only took note that the trial court
placed the burden of proving Wicklund's competence on the State. The court
did not expressly hold that the burden of proof must be on the State.53
Second, Hurst and Born did not specifically address the issue raised in
this case. Those cases focused on the commitment of criminal defendants for
competency restoration, not whether the defendant was competent to stand
trial.54 Further, the issues were focused on the standard of proof, not the burden
of the proof.55
48 96 Wn.2d 798, 638 P.2d 1241 (1982).
49 158Wn. App. 803, 244 P.3d 954 (2010), affd, 173Wn.2d 597, 269
P.3d 1023 (2012).
50154Wn.2d749, 117P.3d 1098(2005).
51 See 171 Wn. App. at 194-95 (Brown, J., dissenting).
52 96 Wn.2d at 799-800, 805.
53 See id.54 Born, 154 Wn.2d at 751-54; Hurst, 158Wn.App. at 805, 811.
5514
12
No. 68068-4-1/13
In sum, in contrast to the arguments made by both parties, which party
has the burden of proof to demonstrate incompetence depends on the
circumstances of each case. Here, the presumption of incompetence controls
which party should have borne the burden of proof at Tate's competency hearing.
It was the State's burden to rebut this presumption of incompetence.
"Structural" Error
Tate next argues that imposing the burden of proof of incompetency on
him violates due process and is a structural errorthat requires reversal of his
adjudication and disposition. We choose not to decide this question based on
the briefing that is currently before us.
"Structural error is a special category of constitutional error that 'affect[s]
the framework within which the trial proceeds, rather than simply an error in the
trial process itself.'"56 If a structural error occurs in a criminal trial, the trial
'"cannot reliably serve its function as a vehicle for determination ofguilt or
innocence, and no criminal punishment may be regarded as fundamentally
fair.'"57 A structural error "resists" a harmless error analysis because "it taints the
entire proceeding."58
56 State v. Wise. 176 Wn.2d 1, 13-14, 288 P.3d 1113 (2012) (alternation in
nriginah (quoting Arizona v. Fulminante. 499 U.S. 279, 310, 111 S. Ct. 1246, 113
L.Ed. 2d 302 (1991)).
5714 at 14 (quoting Fulminante, 499 U.S. at 310).
58 State v. Lew. 156 Wn.2d 709, 725, 132 P.3d 1076 (2006).
13
No. 68068-4-1/14
In Colev. Division Three addressed whether the error in the allocation of
the burden of proof was harmless after deciding that the trial court had erred.59
The court then stated that the "State bears the burden of showing that any error
is harmless beyond a reasonable doubt."60 This is the constitutional harmless
error standard. The court then stated that a "structural error is never harmless."61
Thereafter, the court discussed, at length, whether the error was
structural.62 Answering that question, the court concluded:
[T]he trial court allocated the burden of proof to Mr. Coley,
who, by RCW 10.77.084, was already legally incompetent. The
court agreed that who carried the burden of proof might be different
if Mr. Coley was incompetent. This was structural error and
therefore not harmless.1633
We agree, based on the majority's rationale in Colev. that there was an
error in this case. But we are not persuaded that the error was structural, as that
court decided. We say this for two reasons.
First, in Medina v. California, the United States Supreme Court held that
states may place the burden to prove incompetence on a criminal defendant.
Specifically, the Court held that once a State provides a defendant access to
procedures for making a competency evaluation, due process does not require
59171 Wn. App. at 190-92.
6014 at 190.
6114
6214 at 190-92.
6314 at 192.
64 505 U.S. 437, 449, 112 S. Ct. 2572, 120 L Ed. 2d 353 (1992).
14
No. 68068-4-1/15
the State to assume the burden of proving that a defendant is competent to stand
trial.65 In our view, this holding undercuts the argument that misallocation of the
burden of proof at an initial hearing on competency under the statute, by itself, is
a violation of due process. This observation is subject to the condition that, as
Medina states, the "State [has provided] a defendant access to procedures for
making a competency evaluation."66 Thus, if there is no constitutional error, it is
difficult to see how such error is "structural."
Second, federal and state appellate courts that have considered what
remedy is properwhere competency has not been properly determined at the
trial court level have remanded cases for "retrospective competency
determinations" in appropriate circumstances.67 If errors in properly assigning
the burden of proof in an initial competency hearing are "structural errors," it
follows that retrospective determinations ofcompetency should never be allowed.
The parties to this case have not addressed the impact of Medina on the
conclusion in Colev that the burden of prooferror is structural. Likewise, they
have not addressed why federal and state courts have permitted retrospective
determinations of competency under these circumstances. Based on these
unanswered questions and the briefing that is currently before us, we are not
prepared to conclude that the error here was structural.
6514
66 Id.67 See, e.g.. People v. Lightsev. 54 Cal.4th 668, 706-07, 279 P.3d 1072(2012); United States v. Renfroe. 825 F.2d 763, 767-68 (3d Cir. 1987); United
States v. Johns. 728 F.2d 953, 957-58 (7th Cir. 1984)).
15
No. 68068-4-1/16
Moreover, the parties have not briefed whether the burden of proof error
here is harmless, and, if so, which harmless error standard governs. In the
absence of such briefing, we will not address whether the error is harmless under
any of the potentially applicable standards.
Since we do not decide either whether the error here is structural or
whether it is harmless, we proceed to the proper remedy on remand.
Remedy
The State argues that the proper remedy for the error is reversal of the
competency determination and remand for a "retrospective competency
determination." In the alternative to reversal for a structural error, Tate argues
that we should remand and allow the juvenile court to first determine whether it
can decide the issue retrospectively. We agree with Tate's alternative argument.
In Nissen v. Obde. our supreme court held that the proper remedy when a
trial court placed the burden of proof on the wrong party was to remand the case
back to the trial court.68 There, the supreme court explained that it was
"confronted with the question of whether to review the record to determine
whether these findings are sustainable under a correct application ofthe burden
of proof rule, or to remand the case to the trial court for reconsideration ofthe
findings."69 The court reasoned that remanding the case to the trial court was the
proper remedy because "it is the function ofthe trial court and not of [the
6855Wn.2d 527, 529-30, 348 P.2d 421 (1960V see also Colev. 171 Wn.
App. at 191 (citing Nissen v. Obde in its harmless error analysis).
69 Nissen. 55 Wn.2d at 529.
16
No. 68068-4-1/17
supreme] court to consider the credibility of witnesses and to weigh the evidence
in order to determine whether it preponderates in favor of the party having the
burden of proof."70
Washington courts have also explained that remand was the proper
remedy when a trial court should have had a competency hearing but did not.71
In State v. Wright, the court recognized that "a belated determination of the
defendant's sanity at the time he pleaded [could] be fruitless."72 But the court
concluded that a "belated" competency determination would be fruitful in that
case because there was a "substantial body of psychiatric data obtained at the
time Mr. Wright was sentenced."73
As the State points out, federal courts have remanded for a similar
"retrospective competency determination" when district courts failed to hold a
competency hearing when it was required.74 But the Third and Seventh Circuit
articulated an additional preliminary step in making this determination.75 These
courts explained that before a trial court engages in a "retrospective competency
70 14 at 529-30.
71 See State v. Wright, 19 Wn. App. 381, 391, 575 P.2d 740 (1978); Young
v. Smith, 8 Wn. App. 276, 278, 505 P.2d 824 (1973).
72 19 Wn. App. 381, 390, 575 P.2d 740 (1978) (citing Drope. 420 U.S. at
183; Pate, 383 U.S. 375; Evans v. State. 261 Ind. 148, 300 N.E.2d 882 (1973)).
7314 at 391.
74 Brief of Respondent at 14 (citing Renfroe. 825 F.2d at 767; Johns. 728
F.2d at 957-58).
75 Renfroe. 825 F.2d at 767; Johns. 728 F.2d at 958.
17
No. 68068-4-1/18
determination,"76 it must first decide "whether a meaningful hearing on the
defendant's competency at the prior proceedings is still possible."77 As the Third
Circuit explained, the trial court "is in the best position to determine whether it
can make a retrospective determination."78
The California Supreme Court came to a similarconclusion. In People v.
Lightsev, the supreme court held that allowing a defendant to represent himself
at mental competency proceedings was improper.79 The court concluded that
the proper remedy in that case was "ordering a limited reversal and remand for
the trial court to determine whether a retrospective competency hearing is
feasible and, if so, to conduct such a hearing is both appropriate and
permissible."80
'"Feasibility in this context means the availability of sufficient evidence to
reliably determine the defendant's mental competence when tried earlier.'" The
supreme court explained that a trial court should consider the following factors
when determining whether a retrospective competency determination is feasible:
"(1) [t]he passage oftime, (2) the availability of contemporaneous
medical evidence, including medical records and prior competency
76 Renfroe, 825 F.2d at 767.
77 Johns. 728 F.2d at 958.
78 Renfroe, 825 F.2d at 767.
79 54 Cal.4th 668, 698, 279 P.3d 1072 (2012).
8014 at 706.
8114 at 710 (quoting People v. Arv. 51 Cal.4th 510, 520, 246 P.3d 322(2011)).
18
No. 68068-4-1/19
determinations, (3) any statements by the defendant in the trial
record, and (4) the availability of individuals and trial witnesses,
both experts and non-experts, who were in a position to interact
with [the] defendant before and during trial."18]
The court further held that "[b]ecause of the inherent difficulties in attempting to
look back to the defendant's past mental state, the burden of persuasion will be
on the People to convince the trial court by a preponderance of the evidence that
a retrospective competency hearing is feasible in this case."
We hold that the proper remedy in this case is to remand this case with
directions that the juvenile court first determine whether a retrospective
competency determination is feasible.
If the juvenile court concludes that a retrospective competency
determination is not feasible, Tate's conviction must be vacated and a new trial
may be granted when he is competent to stand trial.84
But if the juvenile court concludes that this determination is feasible, the
court must then determine whether the State rebutted the presumption of Tate's
incompetency to stand trial.
If the juvenile court determines that the State has rebutted the
presumption that Tate is incompetent to stand trial, the adjudication and
82 14 (alterations in original) (quoting Ary, 51 Cal.4th at 520 n.3).
8314 at 710-11 (citation omitted).
84 See Renfroe. 825 F.2d at 767-68; Johns. 728 F.2d at 958.
19
No. 68068-4-1/20
disposition are affirmed.85 But if the court determines that the State did not rebut
this presumption, the adjudication and disposition are reversed.86
STATEMENT OF ADDITIONAL GROUNDS
Tate argues in his statement of additional grounds that he was not
competent to stand trial. We need not discuss this claim further in view of our
remand to the trial court with instructions.
We reverse and remand with instructions.
^DX.JT
WE CONCUR:
85 See Johns, 728 F.2d at 958.
86 See Wright. 19 Wn. App. at 391.
20