State Of Washington, V Linda Kay Harper

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 76037-8-1
Respondent, )
) DIVISION ONE f•-..1 (-)
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V. )
) UNPUBLISHED OPINION-, ErHi
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LINDA KAY HARPER, )
N.)
Appellant. ) FILED: January 23, 2017:„
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APPELWICK, J. — The trial court terminated Harper from drug court. HarperP
argues that she did not receive adequate notice and opportunity to be heard prior
to termination. She also argues that the trial court violated the appearance of
fairness doctrine, improperly ordered her to pay her remaining $30 drug court
balance, and that counsel was ineffective. We affirm.
FACTS
Linda Harper was charged with five counts of identity theft and five counts
of forgery. She entered the Thurston County Drug Court program. Drug court
participants must sign a contract that requires them to abide by program
requirements. If a participant does not abide by the requirements, the contract
gives the trial court the discretion to terminate the participant from the program.
No. 76037-8-1/2
Harper signed the drug court contract on November 3, 2015. Following a
hearing on November 10, the trial court imposed a 16 hour community service
sanction against Harper, because she missed a drug education program, failed to
appear at an orientation, and missed a 12-step meeting. After another hearing on
November 17, the trial court imposed a second sanction of 7 days in jail for more
missed meetings and 2 failed urinary analyses. At the November 17 hearing, the
State also noted aloud that it was prepared to seek Harper's termination from the
program. At both hearings, Harper had an opportunity to address the allegations.
At a December 1 hearing, with Harper and her attorney present, the State
presented a petition alleging non-compliance with conditions of drug court contract
and motion for termination. The prosecutor's supporting declaration cited Harper's
"failure to follow all terms and conditions of drug court." At a December 8 hearing,
Harper's attorney acknowledged that he had received the petition and that he had
discussed the petition with Harper. The trial court granted the petition to terminate
Harper from the program at the December 8 hearing. Harper moved for
reconsideration, but the trial court reaffirmed Harper's termination. The court found
Harper guilty on all five counts of forgery and all five counts of identity theft. Harper
appeals.
DISCUSSION
First, Harper asserts that she did not receive adequate notice and
opportunity to be heard prior to her termination from drug court. Second, she
argues that the trial judge violated the appearance of fairness doctrine. Third, she
argues that the trial court lacked sufficient legal basis to order her to pay
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No. 76037-8-1/3
outstanding drug court costs. Fourth, she argues ineffective assistance of counsel
in a statement of additional grounds for review. Finally, Harper argues that we
should not award the State costs on appeal.
I. Notice and Opportunity To Be Heard
Harper argues that she did not receive sufficient notice and opportunity to
be heard prior to her termination from drug court. She notes that the prosecutor's
declaration supporting the petition for termination was deficient because it listed
the grounds for termination as only: "failure to follow all terms and conditions of
drug court."
Before terminating a participant from drug court, due process requires the
court to provide notice and a hearing. State v. Cassill-Skilton, 122 Wash. App. 652,
658, 94 P.3d 407 (2004). The State must give the defendant an opportunity to
contest the basis of termination and create a record of the evidence relied on to
terminate participation. State v. Varnell, 137 Wash. App. 925, 930, 155 P.3d 971
(2007). Under the drug court contract that Harper signed, any violations of the
drug court contract are sufficient grounds for termination. The contract gives the
trial court discretion to terminate a participant.
The reasons for Harper's termination were no mystery. The trial court's
November 10 order imposing sanctions listed Harper's missed education classes,
a missed orientation, and a missed 12-step meeting as reasons for initial
sanctions. At a November 10 hearing, the State, with Harper and her counsel
present, orally notified the judge of these allegations. The trial court asked Harper
and her attorney to address the accusations, and Harper accepted responsibility
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No. 76037-8-1/4
for these missed appointments. A November 17 order imposing sanctions listed
missed education classes, a missed orientation, and failed urinalysis tests as the
reasons for a second round of sanctions. At a November 17 hearing, the court
read the additional allegations aloud: missed education classes, a missed meeting,
a missed orientation, and two positive urinalysis tests. Again, the court gave
Harper an opportunity to address the accusations, and Harper admitted she had
not made drug court a priority. At the close of the November 17 hearing, the State
suggested it would soon be filing a petition to terminate Harper from drug court. At
a December 8 hearing to address the State's petition to terminate, the court again
asked both Harper and her attorney to address the accusations that she had not
complied with the drug court requirements.
In Cassill-Skilton, a case where an appellant did not receive due process,
there was "no record to show the basis of termination, any opportunity for a hearing
on the alleged violations, nor any findings to show what evidence the court relied
on in finding an agreement violation." 122 Wash. App. at 658. Here, the termination
petition did not notify Harper of the specific conduct constituting grounds to
conclude she had breached the drug court contract and should be terminated.
However, the basis for termination was the numerous violations for which she had
notice and had an opportunity to be heard. She does not claim these violations
were an insufficient basis for termination or that some unstated violation was the
basis for termination. She received adequate notice and opportunity to be heard.
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No. 76037-8-1/5
II. Appearance of Fairness
Harper next argues that the trial court violated the appearance of fairness
doctrine. On December 15, Harper made an oral motion requesting that the court
reconsider its decision to terminate Harper from the program. She cites the court's
statement in response to that motion that it had "'a pretty good idea of what's going
to happen' " regarding the outcome of that motion as evidence that the court had
prejudged facts. And, Harper notes that during that same December 15 hearing,
the trial judge tore up a letter Harper wrote to the judge.
We presume that a trial court performed its functions regularly and properly
without bias or prejudice. Hickok-Knight v. Wal-Mart Stores, Inc., 170 Wash. App.
279, 318, 284 P.3d 749 (2012). The party claiming bias or prejudice must support
the claim with evidence of the trial court's actual or potential bias. Id. Pursuant to
RAP 2.5(a), we generally decline to address appearance of fairness arguments for
the first time on appeal. Club Envy of Spokane, LLC v. Ridpath Tower Condo.
Ass'n, 184 Wash. App. 593, 605, 337 P.3d 1131 (2014).
Harper never objected to the trial judge presiding over her case after it tore
up the letter and commented on the likelihood of reconsideration. Despite Harper's
failure to preserve the issue, we choose to briefly address the merits of her
appearance of fairness argument.
The trial court's comment that it had "a pretty good idea" about the motion
for reconsideration was not improper. In coming to this conclusion, the trial court
noted that Harper may have set a drug court record for the number of violations,
and she had been in the program for only five weeks. It was clear that this was
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No. 76037-8-1/6
sufficient to justify termination. There was no indication of what basis could
possibly be offered that would allow the trial court to overlook those violations. By
stating it had "a pretty good idea" of the result of the motion for reconsideration,
the court was not prejudging later facts, but instead acknowledging the already
adjudicated violations working against Harper.
Tearing up Harper's personal letter did not constitute bias or violate the
appearance of fairness. The letter appears to have been an attempt at an
inappropriate ex parte contact with the judge. In re Marriage of Davison, 112 Wn.
App. 251, 257, 48 P.3d 358 (2002) (reasoning that to maintain impartiality a judge
is expected to "shield himself or herself from improper communications" such as
letters). The judge did not read the letter, but tore it up at the December 15 hearing
in front of the parties. He instructed Harper not to send him more letters because
she had lost credibility with the judge. Tearing up the letter instead of merely
returning it may have demonstrated frustration or disappointment with Harper. But,
the court then granted Harper's motion for a continuance to set a motion for
reconsideration. Granting the relief Harper requested is inconsistent with the claim
that the court tearing up the letter was evidence of bias against Harper.
At the December 29 reconsideration hearing, the judge apologized to
Harper for tearing up the letter and attributed his actions to frustration that Harper
did not take advantage of the positive aspects of the drug court program. But,
nothing related to the reconsideration motion demonstrated that the original order
was the product of bias or that it was not supported by proof that the contract was
violated. No new evidence or theory was offered that supported reversal of the
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No. 76037-8-1/7
original decision to terminate. Harper has not carried her burden to show that the
trial court violated the appearance of fairness doctrine in its handling of the
reconsideration of the termination decision.
III. $30 Judgment
Harper argues that the trial court had no legal basis to require Harper to pay
her outstanding drug court balance. She contends that this is a legal financial
obligation (LFO) not specifically authorized by any portion of RCW 10.01.160, and
therefore invalid. But, in this case, Harper signed a contract that stipulated to a
$30 per week payment towards the cost of drug court treatment. Harper's
argument that the $30 balance is an LFO and is invalid because it is not
enumerated in RCW 10.01.160 fails. The drug court contract to which Harper
stipulated provides an independent contractual basis for the $30 judgment.
IV. Statement of Additional Grounds
Harper argues she received ineffective assistance of counsel in a statement
of additional grounds for review.1 She notes that that she spoke only briefly with
her attorney and had difficulty reaching him to discuss her case, and, therefore,
was unfamiliar with the process and implications of her case. To show ineffective
assistance of counsel, the appellant has the burden to show that counsel's
performance was deficient and that the appellant was prejudiced by the deficient
performance. In re the Pers. Restraint of Crace, 174 Wash. 2d 835, 840, 280 P.3d
1102 (2012). Scrutiny of counsel's performance is highly deferential and courts
1 In the statement of additional grounds for review, she also argues that the
trial court publicly humiliated her and treated her unfairly. We treat this as an
appearance of fairness claim, which we addressed above.
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No. 76037-8-1/8
will indulge in a strong presumption of reasonableness. In re Dependency of
S.M.H., 128 Wash. App. 45, 61, 115 P.3d 990 (2005). Here, the record shows that
Harper's counsel met with her multiple times and discussed the nature and
implications of the proceedings with her. Harper has not met her burden to
overcome the presumption of reasonableness. We reject her ineffective
assistance of counsel argument.
V. Costs on Appeal
In her opening brief, Harper argues that she should not be liable for
appellate costs and attorney fees should the State request them. In State V.
Sinclair, 192 Wash. App. 380, 393, 367 P.3d 612 (2016), we determined that RAP
15.2(f) created a presumption of continued indigency throughout review. We follow
Sinclair here. The trial court found that Harper lacked sufficient funds to pursue
an appeal and determined that she was entitled to appellate counsel at public
expense. The State has not overcome the continuing presumption of indigency.
Therefore, we conclude that the State is not entitled to appellate costs.
We affirm.
WE CONCUR:
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