State of Washington v. David Wayne Halls

FILED
SEPTEMBER 25, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31260-7-111
Respondent, ) (consolidated with
) No. 31443-0-III)
v. )
)
DAVID WAYNE HALLS, )
)
Appellant. )
-------------------------------------------------- )
In the Matter of the Personal Restraint )
Petition of: )
)
DAVID WAYNE HALLS, ) UNPUBLISHED OPINION
)
Petitioner. )
SIDDOWAY, C,]. - David Wayne Halls was convicted of witness tampering with a
domestic violence allegation, following a plea of guilty. He appeals, arguing that the trial
court erred in (1) finding that the domestic violence component was proved and, on that
basis, imposing a $100 domestic violence penalty and no-contact order, and (2) imposing
legal financial obligations (LFOs) without sufficient inquiry into his present or future
ability to pay them.
In a CrR 7.8 motion that Mr. Halls filed in superior court and that was transferred to
this court for resolution as a personal restraint petition (PRP), Mr. Halls sought to withdraw
his guilty plea. Mr. Halls now appears to wish to withdraw the PRP.
Nos. 31260-7-III; 31443-0-111
State v. Halls
The State concedes that the record does not support the domestic violence
allegation, a concession we accept. We refuse to entertain a challenge to the LFOs for
the first time on appeal. We grant that part of Mr. Halls's recent pro se submission that
we construe to be a request to withdraw his CrR 7.8 motion.
We remand with directions to amend the judgment and sentence to remove the
domestic violence allegation, strike the $100 domestic violence penalty assessment, and
vacate the domestic violence no-contact order. We otherwise affirm.
FACTS AND PROCEDURAL BACKGROUND
In a separate case, David Wayne Halls was convicted of second degree assault for
throwing a candle holder at his girl friend. State v. Halls, noted at Wn.App._,
2014 WL 3697253,petitionjor review filed, No. 90711-1 (Sept. 8,2014). Before his trial
in that case, Mr. Halls sent a letter to the victim, asking her to make herself unavailable as
a witness in his trial. As a result, Mr. Halls was charged with and pleaded guilty to
witness tampering. At the plea hearing, the trial court reviewed with Mr. Halls the rights
he was giving up by entering a guilty plea, and confirmed that his lawyer had reviewed
the gUilty plea statement with him. The court then accepted the guilty plea, finding that it
was knowingly, voluntarily, and intelligently made.
Mr. Halls's sentencing was handled by a different judge than had accepted his
guilty plea. At the sentencing hearing, Mr. Halls told the court that he wanted to
"revoke" his guilty plea, apparently on the basis that he had not, in fact, understood what
2
Nos. 31260-7-111; 31443-0-111
State v. Halls
he was doing. Report of Proceedings (Oct. 9, 2012) at 4. He appeared to attach
importance to the fact that a no-contact order had not been in place at the time he sent the
letter asking that his victim stay away from trial. The sentencing court explained to Mr.
Halls that the purpose of that day's hearing was to sentence Mr. Halls based on his plea
and proceeded with the sentencing.
The judgment and sentence entered by the court stated that Mr. Halls was guilty of
witness tampering based upon a plea, and also that for the witness tampering charge,
"domestic violence was pled and proved." Clerk's Papers at 48. In fact, Mr. Halls's
statement on plea of guilty did not include language demonstrating that the offense was
committed against a family or household member, nor was other evidence offered from
which the court could make such a finding. On the basis of the domestic violence
finding, the court imposed a $100 domestic violence fee and entered a domestic violence
no-contact order.
A couple of months following the sentencing hearing, Mr. Halls filed a pro se
motion to withdraw his guilty plea under CrR 7.8. The motion reiterated his belief
expressed at sentencing that it somehow made a difference for purposes of the witness
tampering charge that a no-contact order with the victim had not been in place at the time
he sent the letter. The superior court found that Mr. Halls had failed to make a
substantial showing that he was entitled to relief or that a factual hearing was required
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Nos. 31260· 7·III; 31443·0·III
State v. Halls
and transferred the motion to this court for treatment as a personal restraint petition. The
PRP was consolidated with the appeal.
Following the date on which this appeal was set for hearing without oral argument,
Mr. Halls filed a pro se submission the overall purpose of which is not clear, but which
asked, among other things, that we "reject [the case] and dismiss it matter leave it at rest.
And leave Judgment & Sentence as is face [unintelligible] with Benton County Superior
Courts as is 10-9-12." Letter from David Wayne Halls to Court of Appeals (Aug. 1,
2014), State v. Halls, No. 31260-7-III (Wash. Ct. App.).
ANALYSIS
1. Domestic Violence Allegation
Mr. Halls argues on appeal that his conviction with the domestic violence
allegation, absent proof of domestic violence, violated his right to due process.
Mr. Halls was charged with witness tampering with a domestic violence
allegation, but the State concedes that the record does not support the trial court's finding
in the judgment and sentence that the domestic violence was proved. The State concedes
that because domestic violence was not proved, the trial court lacked statutory authority
to impose the domestic violence fee and to impose a domestic violence no-contact order
that was unrelated to the crime as proved.
We accept the State's concessions.
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Nos. 31260-7-111; 31443-0-111
State v. Halls
II. Legal Financial Obligations
Mr. Halls's remaining challenge on appeal is to the trial court's imposition of
discretionary court costs, where it failed to take into account his present or future ability
to pay, as required by RCW 10.01.160.
In State v. Duncan, 180 Wash. App. 245, 253,327 P.3d 699, petition for review
filed, No. 90188-1 (Apr. 30, 2014), we observed that whether a defendant will be unable
to pay LFOs imposed at sentencing is not an issue that defendants overlook, it is one that
they reasonably waive, and concluded that we would henceforth decline to address a
challenge to a court's failure to consider that issue if raised for the first time on appeal.
RAP 2.5(a). Our position is consistent with that of the other divisions of our court. See
State v. Blazina, 174 Wash. App. 906, 911, 301 P.3d 492, review granted, 178 Wash. 2d 1010
(2013) and State v. Calvin, 176 Wn. App. 1,316 P.3d 496, 507-08, petition for review
filed, No. 89518-0 (Nov. 12,2013).
Mr. Halls did not object to the trial court's imposition of discretionary costs in the
trial court on the basis of the court's failure to consider his ability to pay. He thereby
waived any challenge.
III. Personal Restraint Petition
Mr. Halls's pro se submission filed with this court on August 6,2014 is
ambiguous, to say the least. If and to the extent it can be construed as a request that we
dismiss review ofMr. Halls's appeal, we deny it as untimely, since it was filed after the
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Nos. 31260-7-III; 31443-0-II1
State v. Halls
date set for hearing of the appeal without oral argument. See RAP 18.2.
We construe it, in part, to be a request for leave to withdraw Mr. Halls's untimely
CrR 7.8 motion that was transferred to this court for treatment as a PRP. Recognizing
that Mr. Halls may be concerned about future collateral consequences of our resolution of
the motion as a PRP, we grant his request to withdraw the PRP. Cf State v. Smith, 144
Wash. App. 860, 863-64, 184 P.3d 666 (2008) (citing RCW 10.73.140; In re Pers.
Restraint oj Vazquez, 108 Wash. App. 307, 313-14, 31 P.3d 16 (2001) as establishing that a
CrR 7.8 motion resolved as a PRP following transfer will bar subsequent petitions).
We grant Mr. Halls leave to withdraw the PRP. We remand with directions to
amend the judgment and sentence to remove the domestic violence allegation, strike the
$100 domestic violence penalty assessment, and vacate the domestic violence no-contact
order. We otherwise affirm.
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
Sidd~1 u
WE CONCUR:
~)&
Brown, 1.
~(J
Lawrence-Berrey, J.
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