State Of Washington v. Nicholas Windsor Anderson

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
No. 76672-4-I
Respondent, )
) (Consolidated with
V. ) No. 78070-1-I)
NICHOLAS WINDSOR ANDERSON, ) PUBLISHED OPINION
)
Appellant. ) FILED: August 5, 2019
_________________________________________________________________________________ )
LEACH, J. — Nicholas Anderson appeals his judgment and sentence for
multiple offenses arising from a car crash. He also appeals a restitution order
requiring that he pay almost $90,000 for a passenger’s medical expenses. He
challenges the constitutionality of a warrantless blood draw, raises two
sentencing issues, clams ineffective assistance of counsel based on his
counsel’s failure to object to the restitution order, and challenges the imposition
of a $100 DNA (deoxyribonucleic acid) fee.
Anderson establishes two errors. A jury must decide whether his prior
reckless driving conviction qualifies as a “prior offense” under RCW 46.61 .5055.
That did not happen here. And State v. Ramirez1 requires striking Anderson’s
1191 Wash. 2d 732, 746-50, 426 P.3d 714 (2018).
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$100 DNA fee. So we remand for the superior court to empanel a jury to decide
the prior offense issue and to strike the DNA fee.
FACTS
In October 2014, Anderson was living with his high school friend, Michael
Powers. Powers would occasionally let Anderson drive his car. The evening of
October 24, 2014, Anderson drank at home and then went to a bar to watch a
hockey game. About 12:30 am., Powers heard Anderson’s voice and then
heard his car start. Anderson took Powers’s car without his permission.
Around 2:00 a.m., Sergeant Jamie Douglas responded to a multivictim car
crash in Auburn. At the scene, Douglas saw an “obliterated” car off the roadway,
a path of debris, an uprooted tree with an 18-inch base, uprooted utility boxes,
and guy wires that had been supporting a telephone pole torn out of the ground.
The speed limit on the road was 35 m.p.h. but, based on the scene, Douglas
estimated the car was traveling close to 100 mph. Deputy Jace Hoch had
observed the car earlier traveling at about 90 mph. but could not catch it. He
asked dispatch to let the Auburn Police Department know that the car was
heading toward Auburn.
Four of the five passengers in the car, Andrew Tedford, Caleb Graham,
Rehlein Stone, and Suzanne McCay, died. They suffered extensive injuries,
including, amputations and dissected and evulsed organs. Multiple occupants
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were ejected from the vehicle. The fifth passenger, James Vaccaro, also
suffered serious injuries, including traumatic brain injury, that have had lasting
effects. Anderson’s injuries included lacerations to his face, liver, and kidney, a
collapsed lung, four rib fractures, a wrist fracture, and bleeding around his
adrenal gland. Officer Derek Anderson, a collision investigation officer,
responded to the scene and testified, “The scale and the amount of damage and
unfortunate loss of life in this case has been unparalleled in my. . . eight years of
[investigating collision] scenes.”
At the scene, Officer Josh Gustafson asked Anderson who had been
driving the car. Anderson said that he had. Anderson told Sergeant Douglas
that he did not “make the turn.” Saliva found on the driver’s side airbag matched
Anderson’s DNA.
Multiple individuals who responded to the scene smelled alcohol on
Anderson. Anderson told paramedic Paul Nordenger that he had had “a few
drinks.” Nordenger drew Anderson’s blood at the scene without a warrant. Test
results showed that his blood alcohol content (BAC) was 0.19 grams of alcohol
per 100 milliliters of blood and that he had 2.0 nanograms of THC
(tetrahydrocannabinol) per milliliter. Anderson was taken to Harborview Medical
Center. Toxicologist Asa Louis testified that a second blood draw taken there
showed a BAC of 0.18.
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The State charged Anderson with four counts of vehicular homicide, one
count of vehicular assault, one count of reckless driving, and an aggravator for
injury to the victim “substantially exceeding the level of bodily harm necessary to
satisfy the elements of [vehicular assault].” A jury convicted Anderson as
charged.
The sentencing court imposed concurrent sentences of 280 months for
each of the four vehicular homicide convictions. It also imposed two 24-month
enhancements to run consecutively to each of the vehicular homicide convictions
and to each other (192 months total) because Anderson had two prior
convictions for driving under the influence (DUI) and reckless driving. And it
imposed 120 months for the vehicular assault conviction and 364 days for the
reckless driving conviction to run consecutively to the vehicular homicide
convictions and the enhancements. The court sentenced Anderson to a total of
592 months in prison and 364 days in jail. It waived all nonmandatory legal
financial obligations (LFO5) and imposed a $100 DNA fee. The court also
ordered Anderson to pay $97,996.48 in restitution for Tedford’s and Stone’s
funeral expenses and for Vaccaro’s medical expenses. Anderson appeals.
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ANALYSIS
I. The Constitutionality of the First Warrantless Blood Draw
Anderson challenges the constitutionality of the warrantless blood draw at
the scene, claiming that exigent circumstances did not exist. He does not
challenge the second blood draw at Harborview. We reject his claim.
“As a general rule, warrantless searches and seizures are per se
unreasonable, in violation of the Fourth Amendment and article I, section 7 of the
Washington State Constitution.”2 A blood test is a search and seizure.3 A
recognized exception to the warrant requirement allows a warrantless search or
seizure when exigent circumstances exist.4 A court examines the totality of the
circumstances to determine whether they exist.5 They exist where “the delay
necessary to obtain a warrant is not practical because the delay would permit the
destruction of evidence.”6 The natural dissipation of alcohol in the blood may
support a finding of exigency in a specific case, for example, when delay results
from the warrant application process.7 The State has the burden of showing
2 State v. Duncan, 146 Wash. 2d 166, 171,43 P.3d 513 (2002).
~ State v. Curran, 116 Wash. 2d 174, 184, 804 P.2d 558 (1991).
~ Missouri v. McNeely, 569 U.S. 141, 148-49, 133 S. Ct. 1552, 185 L. Ed.
2d 696 (2013).
~ McNeely, 569 U.S. at 149.
6 State v. Baird, 187 Wash. 2d 210, 218, 386 P.3d 239 (2016).
~ McNeely, 569 U.S. at 156.
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exigent circumstances by clear and convincing evidence.8 Whether exigent
circumstances exist is a legal question this court reviews de novo.9
Anderson cites City of Seattle v. Pearson1° to support that here, no
exigent circumstances existed. There, police arrested Pearson for DUI and
vehicular assault after she struck a pedestrian with her car, performed poorly on
field sobriety tests, and admitted that she had smoked marijuana earlier in the
day.11 Police transported her to the hospital two hours after the incident.12 About
thirty minutes after Pearson’s arrival, a nurse drew her blood without a warrant.13
This blood draw showed her THC concentration was approximately 20
nanograms.14 Pearson asked the court to suppress this evidence.15 The trial
court admitted it, finding that exigent circumstances existed to justify the
warrantless blood draw.16
This court reversed, holding, “Because the City failed to show by clear and
convincing evidence that obtaining a warrant would have significantly delayed
collecting a blood sample, the natural dissipation of THC in Pearson’s
8State v. Inman, 2 Wash. App. 2d 281, 290, 409 P.3d 1138, review denied,
190 Wash. 2d 1022 (2018).
~ Inman, 2 Wash. App. 2d at 290.
10 192 Wash. App. 802, 369 P.3d 194 (2016).
11 Pearson, 192 Wash. App. at 807-08.
12 Pearson, 192 Wash. App. at 808.
13 Pearson, 192 Wash. App. at 808-09.
14 Pearson, 192 Wash. App. at 809.
15 Pearson, 192 Wash. App. at 809.
16 Pearson, 192 Wash. App. at 809.
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bloodstream alone did not constitute an exigency sufficient to bypass the warrant
requirement.”17 In its analysis of the totality of the circumstances, this court
noted an officer’s testimony that a warrant usually takes between 60 and 90
minutes, municipal, district, and superior court judges are available to sign
warrants, and police can secure warrants by telephone.18 A toxicologist testified
that unless a person is a chronic marijuana user, THC generally dissipates from
a person’s blood stream within 3 to 5 hours after smoking.19 And this court
observed that in Missouri v. McNeely,2° the Supreme Court of the United States
explained that the presence of other officers weighs against the conclusion that
exigent circumstances existed.21 This court reasoned that because there were
nine officers at the scene, one officer could have transported Pearson to the
hospital to collect a blood sample while another officer obtained a warrant, so
“[t}he delay—if any—would have been minimal.”22
The State relies on State v. lnman23 to show that exigent circumstances
existed. In Inman, Inman crashed his motorcycle on a rural road, injuring him
17 Pearson, 192 Wash. App. at 816.
18 Pearson, 192 Wash. App. at 814.
19 Pearson, 192 Wash. App. at 814-15.
20569 U.S. 141, 153-54, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
21 Pearson, 192 Wash. App. at 816.
22 Pearson, 192 Wash. App. at 816.
23 2 Wash. App. 2d 281, 409 P.3d 1138, review denied, 190 Wash. 2d 1022
(2018).
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and his passenger.24 “Inman had facial trauma, including bleeding and abrasions
on the face, and a deformed helmet.”25 A bystander told police that Inman had
been unconscious for five minutes before regaining consciousness.26 A
paramedic administered emergency treatment.27 A responding officer spoke with
lnman and smelled intoxicants on him.28 Inman admitted that he had been
drinking before driving his motorcycle. Responders at the scene conducted a
warrantless blood draw.29 The State charged Inman with vehicular assault.3°
Inman asked the trial court to suppress evidence of the blood draw,31 which the
court declined to do, finding exigent circumstances existed.32
Division Two of this court affirmed the trial court’s decision and held that
the totality of the circumstances supported that exigent circumstances existed.33
The court considered that Inman received emergency medical services and
treatment for possible spine injuries, helicopters were coming to medevac him to
the nearest trauma center at the time of the blood draw, it would have taken at
least 45 minutes to prepare and obtain a warrant, and obtaining a warrant by
24 Inman, 2 Wn. App. 2d at 284.
25 Inman, 2 Wn. App. 2d at 284.
26 lnman, 2 Wn. App. 2d at 284.
27 Inman, 2 Wn. App. 2d at 284.
28 Inman, 2 Wn. App. 2d at 284.
29 Inman, 2 Wn. App. 2d at 285.
~° lnman, 2 Wn. App. 2d at 285.
31 lnman, 2 Wn. App. 2d at 285.
32 Inman, 2 Wn. App. 2d at 286.
~ Inman, 2Wn. App. 2d at 291.
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telephone was questionable because the responding officer lacked reliable cell
phone coverage in the rural area.34 The court stated that “[ujnder the
circumstances, obtaining a warrant was not practical” because of delay and
because Inman’s continued medical treatment could have impacted the integrity
of the blood sample.35 The court distinguished these circumstances from those
in Pearson based on the severity of injuries involved, the necessity for the
administration of medication and transportation, the time available to obtain a
warrant before transport, and the accessibility of a telephonic warrant.36
The circumstances here are more like those in Inman. In the trial court’s
order denying Anderson’s request to suppress the blood draw results, the court
made a number of undisputed findings that are relevant here.37 Similar to Inman,
the trial court found that Anderson was in a high-impact collision resulting in
serious injuries. Although Anderson was able to respond to Douglas’s questions
at the scene, make eye contact, and walk to the medic station with a firefighter
supporting him on either side, he also had serious injuries that required
treatment. These included lacerations to his face and organs, fractures, a
collapsed lung, and bleeding around his adrenal gland.
~ Inman, 2 Wash. App. 2d at 291-92.
35lnman,2Wn.App.2dat292.
36 Inman, 2 Wash. App. 2d at 292-93.
~ This court accepts unchallenged findings as true on appeal. State v.
O’Neill, 148 Wn.2d 564,571,62 P.3d 489 (2003).
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In addition, multiple responders smelled alcohol on Anderson, Anderson
told Gustafson that he had been driving, and he told Gustafson that he had been
drinking before driving. And paramedic Nordenger told first responding officer
Douglas that the medics would be giving Anderson medication and intubating
him. Douglas knew from his experience in law enforcement and as a paramedic
that this emergency medical treatment could impair the integrity of the blood
sample. He estimated that it would take 40 to 90 minutes to obtain a warrant for
blood. At 2:10 a.m., 10 minutes after arriving to the scene, Douglas ordered a
warrantless blood draw, which medics conducted at 2:14 a.m. Gustafson
followed the medic vehicle to the hospital.
Anderson contends that similar to Pearson, there were multiple officers at
the scene and it was possible to obtain a telephonic warrant, so no exigent
circumstances existed. Although a warrant was more readily available here than
it was in In man because the location of the crash was not remote, the carnage at
the scene and Anderson’s injuries were more severe. And, unlike in Pearson,
officers did not wait an extended period to transfer Anderson to the hospital.
Officers were also unable to interact significantly with Anderson before or during
transportation to the hospital as a result of his immediate need for medical
attention. Similar to Inman, the trial court’s uncontested finding states that
medical treatment could have impacted the reliability of the blood draw results. A
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warrant was not practical because the delay caused by obtaining a warrant would
result in the destruction of evidence or postpone Anderson’s receipt of necessary
medical care. The totality of the circumstances establish that exigent
circumstances existed to justify a warrantless blood draw.
II. Anderson’s Prior Reckless Driving Conviction
Next, Anderson challenges the trial court judge’s, decision that his 2005
reckless driving conviction was a “prior offense” under RCW 46.615055. He
contends that whether his reckless driving conviction qualifies as a “prior offense”
presents a fact question that a jury must resolve, while the State asserts that it is
a threshold question of law for the judge. We agree with Anderson.
Whether an issue presents a question of law or fact is a question of law
that this court reviews de novo.38
Two United States Supreme Court decisions control this issue. In
Apprendi v. New Jersey,39 the Supreme Court held that the constitutional rights
to due process and a jury entitle a defendant to have any fact (other than the fact
of a prior conviction) that increases the penalty for a crime beyond the prescribed
statutory maximum be submitted to a jury and proved beyond a reasonable
doubt. In Blakely v. Washington,4° the Supreme Court held that the statutory
38State v. Mullen, 186 Wash. App. 321, 328, 345 P.3d 26(2015).
~ 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
40542 U.S. 296, 303-05, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
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maximum sentence described in Apprendi is the maximum sentence the judge
may impose without any finding of additional facts beyond those reflected in the
jury’s verdict. So we must decide whether the trial court relied on any fact not
reflected in the jury’s verdict to determine that Anderson’s earlier reckless driving
conviction qualified as a prior conviction that required a sentencing
enhancement.
ROW 9.94A.533(7) states, “An additional two years shall be added to the
standard sentence range for vehicular homicide committed while under the
influence of intoxicating liquor or any drug . . . for each prior offense as defined in
ROW 46.61.5055.” ROW 46.61.5055 defines prior offense” as “[a] conviction for
a violation of ROW. . . 46.61.500 [reckless driving] . . . if the conviction is the
result of a charge that was originally filed as a violation of ROW 46.61.502
[DUI].”41 This statute thus defines what earlier convictions are prior offenses that
increase mandatory minimum sentences for certain driving convictions. Here,
Anderson pleaded guilty to reckless driving in 2005. The State claims Anderson
was originally charged with DUI. The sentencing court agreed and considered
the 2005 reckless driving conviction to be a prior offense and imposed a 24-
month enhancement for it to run consecutively to each of the four vehicular
homicide convictions and to another prior offense enhancement.
41 ROW 46.61.5055(1 4)(a)(xii).
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The parties agree that the jury was not asked to decide if the challenged
reckless driving conviction involved alcohol or drugs or whether it was originally
charged as a DUI.
Anderson relies on State v. Mullen42 to support that a jury must make a
factual finding to determine whether a reckless driving conviction is a qualifying
prior offense. In Mullen, the State charged Mullen with felony DUI based, in part,
on its claim that a prior reckless driving conviction was a “prior offense” under
RCW 46.61.5055.`` Division Two of this court held that the trial court violated
due process when it declined to give Mullen’s proposed jury instruction requiring
that the State prove beyond a reasonable doubt that alcohol or drugs were
involved in his prior reckless driving conviction.44 The court reasoned that
because the involvement of alcohol or drugs in the prior conviction is an essential
element of felony DUI but not reckless driving, the State must prove to a jury
whether the reckless driving conviction involved alcohol or drugs.45
A panel of this court disagreed with Mullen in State v. Bird46 and in State v.
Wu.47 In Bird, Bird’s DUI charge was elevated to a felony under a different
42186 Wash. App. 321, 324, 345 P.3d 26(2015).
~ Mullen, 186 Wash. App. at 324.
~ Mullen, 186 Wash. App. at 329.
Mullen, 186 Wash. App. at 329.
‘~
46 187 Wash. App. 942, 352 P.3d 215 (2015).
~ 6 Wash. App. 2d 679, 431 P.3d 1070 (2018), review granted, 193 Wash. 2d
1002 (2019).
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subsection of the prior offense statute based on a prior vehicular assault
conviction.48 This court relied on its opinion in State v. Chambers49 to support
the proposition that “[w]hether a prior conviction qualifies as a predicate offense
is a threshold question of law for the court, and not an essential element of the
crime of felony DUI.”5° In doing so, it stated,
We disagree with Division Two’s recent opinion, State v. Mullen,
186Wn. App. 321, 345 P.3d 26(2015), holding otherwise.
In Mullen, a divided court held that the trial court erred in not
instructing a jury that the State was required to prove beyond a
reasonable doubt that alcohol or drugs were involved in the prior
conviction for reckless driving. But the issue of whether that
conviction qualifies is a question of law, not fact.t51~
This court held that because Bird’s statement on his guilty plea and the
incorporated police reports proved that the vehicular assault conviction involved
alcohol, sufficient information existed to allow the trial court to determine that the
guilty plea was based on the DUI prong of vehicular assault and that it served as
a predicate offense, elevating the DUI to a felony.52
Similarly, in Wu, this court held that it was a threshold question of law for
the trial court to determine if Wu’s prior convictions for reckless driving involved
intoxicating alcohol or drugs and were thus qualifying prior offenses elevating his
48 Bird, 187 Wn. App. at 943.
~ 157 Wash. App. 465, 479, 237 P.3d 352 (2010).
50Bird, 187 Wn. App. at 945.
51 Bird, 187 Wn. App. at 945.
52 Bird, 187 Wn. App. at 946-47.
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DUI to a felony.53 But in Judge Mary Kay Becker’s dissenting opinion, she noted
the critical distinction between a ‘prior conviction” and a “prior offense.”54 She
stated that ~ was correct in stating that whether a prior conviction qualifies as
a predicate offense is a threshold question of law for the court; she asserts,
however, that ~JJç~ inaccurately criticized Mullen because involved
a prior conviction for enhancement without any other facts. [And
w]hat Mullen holds is that a prior conviction for reckless driving
qualifies as a “prior offense” for enhancement purposes only when
it is accompanied by the additional aggravating fact that it was for a
violation initially filed as a DUIJ55~
We hold, consistent with Ap~rendi, Mullen, and Judge Becker’s dissent in
Wu, whether Anderson’s reckless driving conviction qualifies as a prior offense
requires a factual finding that a jury must make because the enhancement
cannot apply based only on the fact of the reckless driving conviction. Due
process thus requires remand so the court may empanel a jury to make this
determination.
III. Fact Question for the Jury on Remand56
Anderson contends that the State must prove to a jury whether drugs or
alcohol were involved whNe the State asserts it must prove that the reckless
~3Wu, 6Wn.App. 2d at 681, 688.
~ Wu, 6 Wash. App. 2d at 695 (Becker, J. dissenting).
~ Wu, 6 Wash. App. 2d at 697 (Becker, J. dissenting).
56 This section of the opinion reflects the conclusion of only one member
of the panel. For the majority opinion on the issue of the fact question for the jury
on remand, please see the concurrence.
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driving offense was originally charged as a DUI. Both parties rely on City of
Walla Walla v. Greene.57 The State’s interpretation is consistent with our
Supreme Court’s holding in Greene. There, our Supreme Court reviewed a
constitutional challenge to the prior offense statute based on a prior conviction for
negligent driving. It expressly overruled this court’s holding in State v. Shaffer.58
In Shaffer, this court held that the mandatory sentencing enhancement for
vehicular homicide based on a prior reckless driving conviction was
unconstitutional because it was based on an unproved allegation of DUI that
resulted in the reckless driving conviction.59
Our Supreme Court in Greene quoted this court’s citation of the statutory
definition under former RCW 9.94A.310(7) (2000) in Shaffer as follows: “‘An
additional two years shall be added to the standard sentence range for vehicular
homicide committed while under the influence of intoxicating liquor or any
drug . . . for each prior offense [of driving under the influence].”60 Our Supreme
Court explained that this court erred by adding the emphasized language
because the statutory list of prior offenses contains more than a DUI conviction; it
lists other specific convictions that constitute a prior offense but limits the
``154 Wash. 2d 722, 116 P.3d 1008 (2005).
58113 Wn. App. 812,55 P.3d 668 (2002); Greene, 154 Wash. 2d at 724, 728.
~ Shaffer, 113 Wash. App. at 819, 822.
60 Greene, 154 Wash. 2d at 727 (alterations in original) (internal quotation
marks omitted) (quoting Shaffer, 113 Wash. App. at 816).
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application of the statute to those convictions originally charged as a DUI.61 The
court reasoned, “[T]he fact that [Greene] was convicted of first degree negligent
driving is sufficient to satisfy her due process protections because all elements of
that offense are established by virtue of the conviction itself.”62 It also stated,
“[D]ue process is satisfied for the purposes of this mandatory enhancement if the
prior conviction exists and the prosecution can establish that intoxicating liquor or
drugs were involved in that prior offense.”63 But this dicta is neither consistent
with Greene’s overruling of Shaffer nor with the prior offense statute. A
requirement that the State prove the involvement of alcohol or drugs instead of
the fact that the conviction was first charged as a DUI adds language to the
statute in the way that our Supreme Court found unacceptable in overruling
Shaffer. And the prior offense statute defines “reckless driving” as a “prior
offense” if the conviction is the result of a charge originally filed as a DUI.
Consistent with this language, the State need prove only that the prior reckless
driving conviction was originally charged as a DUI.
61 Greene, 154 Wn.2d at727.
62 Greene, 154 Wash. 2d at 728.
63 Greene, 154 Wash. 2d at 728.
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IV. Consecutive Sentencing Enhancements
Anderson contends that the trial court exceeded its statutory authority by
running consecutively to each other his two 24-month sentencing enhancements
on each of the base sentences for vehicular homicide. We disagree.
This court reviews questions of statutory interpretation de novo.64 In
construing a statute, a reviewing court seeks to determine and carry out the
legislature’s intent.65 This court determines legislative intent from the statute’s
plain language, “‘considering the text of the provision in question, the context of
the statute in which the provision is found, related provisions, amendments to the
provision, and the statutory scheme as a whole.”66 A statute is ambiguous if it is
susceptible to more than one reasonable interpretation; only then does this court
use statutory construction, legislative history, and relevant case law to help
discern legislative intent.67 The rule of lenity requires that a court interpret an
ambiguous statute in the defendant’s favor absent legislative intent to the
contrary.68
64 State v. Conover, 183 Wash. 2d 706, 711, 355 P.3d 1093 (2015).
65 Conover, 183 Wash. 2d at 711.
66 Conover, 183 Wash. 2d at 711 (quoting Ass’n of Wash. Siirits & Wine
Distribs. v. Wash. State Liquor Control Bd., 182 Wash. 2d 342, 350, 340 P.3d 849
(2015)).
67 State v. Ervin, 169 Wash. 2d 815, 820, 239 P.3d 354 (2010).
68 Conover, 183 Wash. 2d at 712.
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The vehicular homicide statute provides, “Vehicular homicide is a class A
felony punishable under chapter 9A.20 RCW, except that, for a conviction under
subsection (1)(a) of this section [the DUI prong], an additional two years shall be
added to the sentence for each prior offense as defined in ROW 46.61.5055.”69
ROW 9.94A.533(7) describes how a court must apply a prior offense
enhancement to a sentence for vehicular homicide. When a court imposes a
sentence under Washington’s Sentencing Reform Act of 1981,70 it must do so in
accordance with the statutes in effect at the time the defendant committed the
offense.71 At the time of Anderson’s offense, former ROW 9.94A.533(7) (2013)
stated,
An additional two years shall be added to the standard
sentence range for vehicular, homicide committed while under the
influence of intoxicating liquor or any drug as defined by ROW
46.61 .502 for each prior offense as defined in ROW 46.61.5055.
All enhancements under this subsection shall be mandatory, shall
be served in total confinement, and shall run consecutively to all
other sentencing provisions.
(Emphasis added.)
In 2016, the legislature amended subsection (7) to read, in relevant
part,
An additional two years shall be added to the standard sentence
range for vehicular homicide committed while under the influence of
69 RCW 46.61 .520(2).
70 Oh. 9.94A ROW.
71 RCW 9.94A.345.
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intoxicating liquor or any drug as defined by RCW 46.61 .502 for
each prior offense as defined in RCW 46.61.5055.
Notwithstanding any other provision of law, all impaired
driving enhancements under this subsection are mandatory, shall
be served in total confinement, and shall run consecutively to all
other sentencing provisions, including other impaired driving
enhancements, for all offenses sentenced under this chapter.~721
(Emphasis added.)
Anderson asserts that the statute in effect at the time that he committed
vehicular homicide was ambiguous. He cites State v. Conover73 to support this
assertion. In Conover, the court considered whether RCW 9.94A.533(6) required
a court to run school bus route stop sentence enhancements on multiple counts
consecutively to, or concurrently with, one another.74 This subsection used
language similar to that in the version of subsection (7) in effect at the time of
Anderson’s offenses. It stated, “All enhancements under this subsection shall
run consecutively to all other sentencing provisions, for all offenses sentenced
under this chapter.”75 Our Supreme Court determined that this language is
ambiguous and, after viewing the statute in context and applying rules of
statutory interpretation, held that this language does not require that the
enhancements run consecutively to one another.76
72 LAWS OF 2016, ch. 203, § 7.
``183 Wash. 2d 706, 355 P.3d 1093 (2015).
74Conover, 183 Wash. 2d at 711.
~ Conover, 183 Wash. 2d at 71 1.; RCW 9.94A.533(6).
76 Conover, 183 Wash. 2d at 707-08.
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In examining subsection (6), the court compared it to subsections (3)(e)
and (4)(e).77 These subsections provide for consecutive firearm and deadly
weapon enhancements, respectively, and state that the enhancements “shall run
consecutively to all other sentencing provisions, including other firearm or deadly
weapon enhancements.”78 The court reasoned that because subsections (3)(e)
and (4)(e) explicitly require their respective enhancements to run consecutively to
other enhancements and subsection (6) does not, the legislature did not intend
the enhancements in subsection (6) to run consecutively to one another.79 It
stated that a contrary interpretation would make the additional language in
subsections (3)(e) and (4)(e) superfluous.8°
Anderson maintains that because the version of subsection (7) in effect at
the time he committed vehicular homicide used language identical to that in
subsection (6), our Supreme Court’s reasoning in Conover controls. The State
responds that the current statute should apply because the 2016 amendment
was a clarifying amendment that did not create new law. Our Supreme has
stated, “Although we generally presume that a new legislative enactment is an
amendment that changes a law, the presumption may be rebutted by clear
~ Conover, 183 Wash. 2d at 712.
78 Conover, 183 Wash. 2d at 712; RCW 9.94A.533(3)(e), (4)(e).
~ Conover, 183 Wash. 2d at 712-1 3.
80 Conover, 183 Wash. 2d at 718.
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evidence that the legislature intended an interpretive clarification.”81 “A statutory
amendment will be applied retroactively, if constitutionally permissible under the
circumstances, when it is . . . curative in that it clarifies or technically corrects
ambiguous statutory language.”82
Two circumstances present here indicate that the amendment is a
clarification: the original statute was ambiguous and the amendment followed
uncertainty about the meaning of the original statute.83 First, based on the
Washington Supreme Court’s reasoning in Conover, subsection (7) is
ambiguous. Second, in the legislative session following Conover, the legislature
did not amend subsection (6) but, instead, amended subsection (7) to its current
form quoted above. The final bill report for this amendment states, under the
heading “Washington v. Conover,” “It is clarified that Vehicular Homicide-DUI
sentence enhancements are mandatory, must be served in confinement, and
they must be served consecutively to the person’s standard sentence and any
other impaired driving enhancements.”84 This is clear evidence that the
legislature intended an interpretative clarification.
81 Gravy. Suttell &Assocs., 181 Wash. 2d 329, 342, 334 P.3d 14 (2014).
82 Barstad v. Stewart Title Guar. Co., 145 Wash. 2d 528, 536-37, 39 P.3d 984
(2002).
83Gray, 181 Wash. 2d at 342-43.
84 FINAL B. REP. ON ENGROSSED SUBSTITUTE H.B. 2700, at4, 64th Leg. Reg.
Sess. (Wash. 2016).
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Anderson contends that it is not a clarifying amendment because the
legislature had ample opportunity to amend subsection (7) after Washington
Supreme Court cases earlier than Conover holding that similar language was
ambiguous and did not require that enhancements run consecutively to one
another. But because the legislature had opportunity to clarify subsection (7) in
the past and did not does not mean that the 2016 amendment was not a
clarification. The 2016 amendment to RCW 9.94A.533(7) was a clarifying
amendment that applies retroactively to Anderson. Thus, the trial court did not
exceed its statutory authority in running his sentencing enhancements for each of
his two prior offenses consecutively to one another.
V. Restitution Order
Anderson next claims that the trial court also exceeded its statutory
authority by imposing $87,437.15 in restitution for Vaccaro’s medical expenses
because the record does not establish a sufficient causal connection between
these expenses and his injuries caused by the crash. As a preliminary issue, the
State contends that Anderson cannot assert this issue on appeal because he did
not object below. We agree.
Generally, a party may raise on appeal only those issues raised at the trial
court.85 But RAP 2.5(a)(1) permits a party to raise lack of trial court jurisdiction
85 In re Det. of Brown, 154Wn. App. 116, 121, 225 P.3d 1028 (2010); RAP
2.5(a).
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for the first time on appeal. Anderson does not contest that his trial attorney did
not objebt to the restitution order. He claims that because the trial court
improperly ordered restitution, it acted outside of its statutory authority, which he
can challenge for the first time on appeal under RAP 2.5(a)(1). He cites a
footnote in State v. Fleming86 to support this argument. On appeal to this court,
Fleming claimed that the trial court erred in awarding $300 in restitution for goods
associated with an uncharged crime.87 Although this court noted that Fleming did
not challenge the restitution order based on a lack of jurisdiction, this court
stated, “[I]f the trial court improperly ordered restitution for the $300, it was
outside of its statutory authority, a challenge which can be made for the first time
on appeal.”88
The State responds that Fleming does not control because, here, it is not
at issue whether the trial court exceeded its statutory authority by awarding
restitution, for example, for an uncharged crime or for damages clearly not
related to the crime. We agree that because Anderson is asserting that only
some of Vaccaro’s claimed medical expenses did not result from the collision, he
has not challenged the trial court’s jurisdiction. Instead, at issue is whether the
8675 Wash. App. 270, 276 n.3, 877 P.2d 243 (1994).
87 Fleming, 75 Wash. App. at 276.
88 Fleming, 75 Wash. App. at 276 n.3.
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trial court abused its discretion89 by awarding Vaccaro almost $90,000 in
restitution. Anderson did not preserve this issue on appeal, and we decline to
review it.
VI. Ineffective Assistance of Counsel
Anderson also claims ineffective assistance of counsel because his trial
counsel did not object to Vaccaro’s restitution award. We disagree.
The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington Constitution guarantee the right to effective
assistance of counsel.9° To prove ineffective assistance, an appellant must show
that (I) counsel provided representation so deficient that it fell below an objective
standard of reasonableness and (2) the deficient performance prejudiced him.91
This court gives counsel’s performance great deference and employs a strong
presumption of reasonableness.92 The reasonableness inquiry requires that the
defendant show the absence of legitimate strategic or tactical reasons for the
challenged conduct.93 A defendant shows prejudice when there is a reasonable
89 State v. Enstone, 137 Wash. 2d 675, 679-80, 974 P.2d 828 (1999) (stating
a court abuses its discretion when its restitution order is manifestly unreasonable
or based on untenable grounds or reasons).
90 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
91 Strickland, 466 U.S. at 687; State v. Thomas, 109 Wash. 2d 222, 226, 743
P.2d 816 (1987).
92Statev. Grier, 171 Wash. 2d 17, 33, 246 P.3d 1260 (2011).
~ State v. McFarland, 127 Wash. 2d 322, 336, 899 P.2d 1251 (1995).
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probability that but for counsel’s errors, the result of the trial would have been
different.94 Claims of ineffective assistance present mixed questions of law and
fact that this court reviews de novo.95
A statute provides the trial court’s authority to order restitution to crime
victims.96 A court’s restitution award
shall be based on .actual expenses incurred for treatment for
. .
injury to persons, and lost wages resulting from injury. Restitution
shall not include reimbursement for damages for mental anguish,
pain and suffering, or other intangible losses, but may include the
costs of counseling reasonably related to the offense.~971
“Restitution shall be ordered whenever the offender is convicted of an offense
which results in injury to any person . . . unless extraordinary circumstances exist
which make restitution inappropriate.”98 A restitution award “must be based on a
causal relationship between the offense charged and proved and the victim’s
losses or damages.”99 Proof of expenditures or a summary of medical treatment
do not necessarily establish a causal connection because “it is often not possible
to determine from such documentation whether all the costs incurred were
related to the offender’s crime.”100 The Washington Supreme Court has stated,
~ State v. Hendrickson, 129 Wash. 2d 61, 78, 917 P.2d 563 (1996).
~ In re Pers. Restraint of Fleming, 142 Wash. 2d 853, 865, 16 P.3d 610
(2001).
96 State v. Tobin, 161 Wash. 2d 517, 523, 166 P.3d 1167 (2007).
~ RCW 9.94A.753(3).
98 RCW 9.94A.753(5).
~ State v. Johnson, 69 Wash. App. 189, 191, 847 P.2d 960 (1993).
100 State v. Dennis, 101 Wash. App. 223, 227, 6 P.3d 1173 (2000).
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“The legislature intended ‘to grant broad powers of restitution’ to the trial
court.”101
Anderson relies on State v. Hassan102 to support that his counsel provided
ineffective assistance by not objecting to Vaccaro’s restitution award. There,
Hassan told his friend, Tiffany Gilpin, that he would loan her $1 000 to help repair
her car.103 Hassan gave her a $2,400 check, asked her to deposit it, and then
withdraw. $1,400 to give him because it was an easier method of getting cash
than going to his bank.104 Gilpin followed these instructions, after which
Hassan’s check did not clear.105 A jury convicted Hassan of unlawful issuance of
a bank check.106 At sentencing, Hassan’s counsel objected to the State’s
request for $2,400 in restitution to Gilpin, claiming only that Hassan had repaid
$400 to her.107 The trial court ordered Hassan to pay the full $2,400, and Hassan
appealed, claiming ineffective assistance.108 Division Two of this court held that
Hassan’s trial attorney provided ineffective assistance, reasoning that the record
did not support Gilpin suffered a loss resulting from the $1,000 loan she thought
101 Tobin, 161 Wash. 2d at 524 (quoting State v. Davison, 116 Wash. 2d 917,
920, 809. P.2d 1374 (1991)).
102 184 Wash. App. 140, 336 P.3d 99 (2014).
103 Hassan, 184 Wash. App. at 144.
104 Hassan, 184 Wash. App. at 144.
105 Hassan, 184 Wash. App. at 144.
106 Hassan, 184 Wash. App. at 143-44.
107 Hassan, 184 Wash. App. at 144.
108 Hassan, 184 Wash. App. at 145, 150-51.
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she was receiving, so the evidence did not show that she sustained more than a
$1,400 loss.109 And there was no conceivable tactical reason for Hassan’s
counsel not to object.11°
Anderson also cites State v. Dennis111 and State v. Bunner112 to support
that the causal relationship between Vaccaro’s medical expenses and the
collision is insufficient. In Dennis, Dennis pleaded guilty to assaulting several
police officers, and the State asked for restitution for two officers’ medical
expenses.113 This court held that the State established the required causal
connection between Officer Zsolt Dornay’s injuries and the assault but failed to
do so for Officer Aaron Libby.114 This court reasoned that a letter from the
State’s victim assistance unit and probable cause certification stating that the
officers were treated at Northwest Hospital “for their injuries” and the workers’
compensation letter describing Dornay’s injuries sufficiently established a causal
connection.H5 But it held that evidence showing Northwest Hospital treated
Libby for injuries on an unknown date was not sufficient.H6
~ Hassan, 184 Wash. App. at 152.
110 Hassan, 184 Wash. App. at 152.
111 101 Wash. App. 223, 6 P.3d 1173 (2000).
112 86 Wash. App. 158, 936 P.2d 419 (1997).
113 Dennis, 101 Wash. App. at 224-25.
114 Dennis, 101 Wash. App. at 225.
~ Dennis, 101 Wash. App. at 227-28.
~ Dennis, 101 Wash. App. at 228.
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In Bunner, Bunner pleaded guilty to rape of a child in the second degree,
and the State asked that he pay restitution.117 The State offered a Department of
Social and Health Services medical report listing medical services charged and
the amount the State had paid.118 In accepting the State’s concession that this
report did not establish a sufficient causal connection, this court reasoned, “[T]his
summary, which does not indicate why medical services were provided, fails to
establish the required causal connection between the victim’s medical expenses
and the crime committed.”~9
Here, Jacob Vaccaro,12° Vaccaro’s brother, testified that Vaccaro was in a
coma at Harborview Medical Center for a month after the October 25, 2014,
crash. He also testified that Vaccaro did cognitive and physical therapy for
months. Dr. Lisa Cooper, who treated Vaccaro in the emergency room on the
day of the collision, described his injuries and treatments, including a diagnosis
of traumatic brain injury. Dr. Aaron Bunnell, a rehabilitation medicine doctor at
Harborview Medical Center, testified that Vaccaro was his patient in inpatient
rehabilitation at the hospital starting in December 2014. Bunnell described
Bunner, 86 Wash. App. at 159.
117
Bunner, 86 Wash. App. at 159.
118
119 Bunner, 86 Wash. App. at 159-60.
120 For purposes of clarity, we refer to Jacob Vaccaro as Jacob and James
Vaccaro as Vaccaro.
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Vaccaro’s injuries and their effects on Vaccaro’s functionality, including “a
number of features of a severe traumatic brain injury.”
At the restitution hearing, the State asked for $87,437.15 in restitution for
medical services provided to Vaccaro. In support of this claim, the State
provided a claim summary prepared by the insurance company that detailed the
service dates, provider names, diagnosis codes, and amounts billed and paid.
The State also attached a sheet detailing the diagnosis related to each code.
The claim summary shows that medical services began on October 25, 2014, the
date of the incident, and concluded on June 13, 2016, with the majority of the
services provided before January 2015. The diagnoses associated with these
services relate to injuries that Cooper and Bunnell specifically attributed to
Vaccaro in their testimony or are reasonably associated with the injuries Cooper
and Bunnell described. These include head and brain injuries, lung injuries,
extremity injuries, abnormal gait, and coma, among others. The majority of
treatment after January 31, 2015, was for “late effect of intracranial injury without
mention of skull fracture.”
Anderson contends that similar to Hassan, Dennis, and Bunner, any
causal connection is insufficient. He claims that the testimony at trial fails to
establish the required causal connection because none of the witnesses offered
specific dates associated with medical treatment, how much the treatment cost,
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whether it was paid, and, if so, by whom. Anderson also maintains that neither
the testimony at trial nor the documentation the State presented at the restitution
hearing supports that the treatment Vaccaro received after January 2015 was
related to the incident.
The testimony at trial describing most of Vaccaro’s injuries and treatments
and stating critical dates, together with the detailed claim summary and
diagnoses sheet, establish a sufficient causal connection between Vaccaro’s
medical expenses and his injuries resulting from the collision. This evidence,
unlike that presented in Dennis and Bunner, shows why medical services were
provided and includes the service dates. And, unlike Hassan, the State
requested restitution only for unpaid costs Vaccaro actually incurred.
Because the State provided evidence to establish a sufficient causal
connection between Vaccaro’s medical treatment and the incident, the trial court
did not abuse its discretion by awarding Vaccaro almost $90,000 in restitution.
Counsel’s performance did not fall below an objective standard of
reasonableness because he did not object to a restitution award that was within
the trial court’s discretion. Anderson does not show his trial attorney provided
ineffective assistance.
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VII. DNA Fee
Anderson asserts that State v. Ramirez121 requires that this court strike
the $100 DNA collection fee imposed as part of his sentence. We agree.
In Ramirez, our Supreme Court discussed and applied House Bill (HB)
1783, which became effective June 7, 2018, and applies prospectively to all
cases on direct appeal.122 Our Supreme Court explained that HB 1783
categorically prohibits the imposition of discretionary LFOs on indigent
defendants.123 HB 1783 also amends the DNA fee statute124 to establish that
‘the DNA database fee is no longer mandatory if the offender’s DNA has been
collected because of a prior conviction.”125
Here, the sentencing court imposed a $100 DNA fee. After entry of
judgment and sentence, the trial court found Anderson indigent. RCW
43.43.754(1)(a) requires collection of a biological sample for purposes of DNA
identification analysis from every adult or juvenile convicted of a felony or certain
other crimes. Anderson claims that because he has previous felony convictions,
he would necessarily have had his DNA sample collected. He asserts that
121 191 Wash. 2d 732, 746-50, 426 P.3d 714 (2018).
122 Ramirez, 191 Wash. 2d at 738, 747; LAWS OF 2018, ch. 269.
123 Ramirez, 191 Wash. 2d at 739.
124 RCW 43.43.7541.
125 Ramirez, 191 Wash. 2d at 747.
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because he has previously had his sample collected and the trial court found him
indigent, Ramirez requires that this court strike his DNA fee.
The State contends Anderson’s factual assertion that he has previously
submitted a DNA sample to the State fails on direct appeal if the record does not
show that he actually submitted a DNA sample for a qualifying conviction. The
State relies on State v. Lewis126 and State v. Thornton127 to support this
argument. In both cases, this court and Division Three, respectively, denied the
defendant’s request that it strike the DNA fee because the judgment and
sentence listing criminal history was not sufficient to show that the defendant had
submitted a DNA sample to the Washington State Patrol Crime Laboratory.
But both Lewis and Thornton were decided before Ramirez. Before
Ramirez, RCW 43.43.754(2) provided an exemption from the DNA fee only “[i]f
the Washington state patrol crime laboratory already has a DNA sample from an
individual for a qualifying offense.”128 HB 1783 makes the DNA fee discretionary
if the defendant’s DNA has been collected because of a prior conviction; it does
not require that the defendant provide proof that the laboratory has his DNA
sample. Post-Ramirez, in State v. Malinq,129 Division Three of this court struck
126 194 Wash. App. 709, 720-21, 379 P.3d 129 (2016).
127 188 Wash. App. 371, 373-74, 353 P.3d 642 (2015).
128 Lewis, 194 Wash. App. at 720.
129 6 Wash. App. 2d 838, 844, 431 P.3d 499 (2018), review denied, 193
Wash. 2d 1006 (2019).
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Maling’s DNA fee because he was indigent at the time of sentencing and his
“lengthy felony record indicates a DNA fee has previously been collected.”
Similarly, because Anderson has been convicted of prior felonies, for which RCW
43.43.754(1)(a) required collection of a DNA sample, the DNA fee is
discretionary. And because the trial court found him indigent and Ramirez
prohibits the imposition of discretionary LFO5 on indigent defendants, we remand
for the court to strike the DNA fee from Anderson’s judgment and sentence.
VIII. Statement of Additional Grounds for Review
Anderson raises a number of issues in his statement of additional grounds
for review (SAG). These relate to probable cause, ineffective assistance of
counsel, prosecutorial misconduct, judicial misconduct, and sufficiency of the
evidence. Although a defendant is not required to cite to the record or authority
in his SAG, he must still “inform the court of the nature and occurrence of [the]
alleged errors.”13° This court is not required to search the record to find support
for the defendant’s claims.131 Anderson appears to claim (1) the fruit of the
poisonous tree doctrine barred admission of the statements he made at the
scene of the incident because he was under duress; (2) the prosecutor
committed misconduct because she admitted to not having probable cause, used
improper phrasing, and tampered with a witness; (3) his trial counsel provided
130 RAP 10.10(c).
131 RAP 10.10(c).
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No. 76672-4-I (consol. with
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ineffective assistance by failing to object in a number of instances; and (4) the
trial judge committed judicial misconduct because she was prejudiced against
him. Because Anderson’s claimed errors lack specificity and would require this
court to search the record for any support, we decline to review them.
CONCLUSION
Whether Anderson’s prior reckless driving conviction qualifies as a “prior
offense” for purposes of enhancing his term of imprisonment for vehicular
homicide involves a question of fact that a jury must decide. We remand for the
superior court to empanel a jury to decide this question and for the court to strike
the DNA fee.
L~J
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State of Washington v. Nicholas Windsor Anderson, No, 76672-4-I (consolidated
with No. 78070-1-I)
CHUN, J. (dissenting in part) — We concur with all aspects of the lead
opinion except section III., which regards the “Fact Question for the Jury On
Remand.” This opinion constitutes the majority view on this discrete issue.
In City of Walla Walla v. Greene, our Supreme Court stated that former
RCW46.61.5505(12)(a)(v) (2003) requires “the State to establish that a prior
driving conviction involved use of intoxicating liquor or drugs.” 154 Wash. 2d 722,
727-28, 116 P.3d 1008 (2005). According to the court, this proof of involvement
of intoxicating liquor or drugs satisfies due process and preserves the
constitutionality of the statute. 154 Wash. 2d at 728. Rather than dicta, this
language serves to save a statute that would otherwise unconstitutionally allow
for a sentencing enhancement based on a charge not proven beyond a
reasonable doubt. Requiring a jury to find only that a reckless driving offense
was originally charged as a DUI leads back to the issues of constitutionality
supposedly cured by Greene. In keeping with the reasoning of Greene, we
conclude the State must prove to a jury that drugs or alcohol were involved in the
prior offense in order to satisfy due process.
I CONCUR:
~tQi~4-~.