IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84531-4-I Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
CURTIS JOHN WALKER,
Appellant.
DÍAZ, J. — Curtis Walker pled guilty to, among other things, a drug-related
charge in 2006. In 2023, per State v. Blake, the trial court vacated that conviction
without holding a hearing, which Walker believes violated his rights. We disagree
and affirm the trial court.
I. BACKGROUND
In 2006, Walker pled guilty to, inter alia, possession of cocaine. On
February 25, 2021, our Supreme Court decided State v. Blake, which mandated
vacatur of convictions for simple drug possession. 197 Wn.2d 170, 195, 481 P.3d
521 (2021). In March 2021, Walker moved the court, pro se, per CrR 7.8 to “correct
[his] judgment and sentence” by “dismiss[ing]” his conviction for cocaine
possession (First Motion). Walker re-filed the same motion in April 2021. Both
motions indicated he did not desire oral argument. No. 84531-4-I/2
In May 2022, the State moved the court to vacate and dismiss with prejudice
the conviction for cocaine possession from Walker’s judgment and sentence. A
trial court signed the order granting the State’s motion (Order) the same day
without holding a hearing. Then, on June 9, 2022, Walker filed a motion to
withdraw his First Motion. On July 14, 2022, the trial court granted Walker’s motion
to withdraw. Walker appeals.
II. ANALYSIS
Walker primarily argues that the trial court violated his Sixth Amendment
right to be present for his re-sentencing, when it signed the Order without holding
a hearing.
“A defendant has a constitutional right to be present at sentencing, including
resentencing.” State v. Ramos, 171 Wn.2d 46, 48, 246 P.3d 811 (2011).
“However, when a hearing on remand involves only a ministerial correction and no
exercise of discretion, the defendant has no constitutional right to be present.” Id.
In other words, “because the relationship between the defendant’s presence and
his ‘opportunity to defend’ must be ‘reasonably substantial,’ a defendant does not
have a right to be present when his or her ‘presence would be useless, or the
benefit but a shadow.’” State v. Irby, 170 Wn.2d 874, 881, 246 P.3d 796 (2011)
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed.
674 (1934), overruled in part on other grounds by Duncan v. State of La., 391 U.S.
145, 155, 88 S. Ct. 1444, 1450-51, 20 L. Ed. 2d 491 (1968)).
Further, a violation of the right to be present may be determined to be
constitutionally harmless. State v. Anderson, 19 Wn. App. 2d 556, 564, 497 P.3d
2 No. 84531-4-I/3
880 (2021). “Under this test, prejudice is presumed and the State bears the burden
of proving harmlessness beyond a reasonable doubt.” Id.
Here, Walker at no point objected to the State’s motion or the court’s Order
on any grounds, let alone on the basis of his right to be present, at any time prior
to appeal, even though the court issued the Order nearly two months after his First
Motion. Nonetheless, RAP 2.5(a)(3) allows an appellant to raise an issue for the
first time on appeal “for a ‘manifest error affecting a constitutional right.’” State v.
Nguyen, 165 Wn.2d 428, 433, 197 P.3d 673 (2008) (quoting RAP 2.5(a)(3)). “A
‘manifest’ error is an error that is ‘unmistakable, evident or indisputable.’” Id.
(quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)). “An error is
manifest if it results in actual prejudice to the defendant or the defendant makes a
‘plausible showing’ ‘that the asserted error had practical and identifiable
consequences in the trial of the case.’” Id. (quoting State v. WWJ Corp., 138
Wn.2d 595, 602-03, 980 P.2d 1257 (1999)). 1
To resolve this matter, we assume arguendo and without deciding that
Walker was entitled to be present at the resentencing, even though it may be a
“ministerial correction” under Ramos. 171 Wn.2d at 48. However, we hold, even
if an error thereby occurred, it was constitutionally harmless because the court
gave him the precise relief he requested, not once but twice; namely, dismissing
1 For the reasons provided below, we hold there were no practical or identifiable
consequences of vacating the conviction without Walker present. Therefore, any error by the trial court would not be manifest or compliant with RAP 2.5(a)(3). Nguyen, 165 Wn.2d at 433 (quoting WWJ Corp., 138 Wn.2d at 602-03). Nonetheless, in our discretion, we choose to review the assignment of error as presented. 3 No. 84531-4-I/4
the conviction at issue. Anderson, 19 Wn. App. 2d at 564 (finding any error of said
right harmless because Anderson received the relief requested).
Our decision in State v. Frohs, 22 Wn. App. 2d 88, 91, 511 P.3d 1288
(2022), is instructive. Frohs pled guilty to several charges, and approximately eight
years later filed a motion to amend his judgment and sentence because, inter alia,
one of his convictions exceeded the statutory maximum for that type of felony. Id.
The State conceded error and provided Frohs notice of a CrR 7.8 hearing “without
oral argument.” Id. The court entered an order granting his motion as to that error
without holding a hearing. Id. Despite the fact that Frohs did request a hearing
prior to the court deciding his motion, id. at 91, we held that “the plain terms of CrR
7.8(c) do not require oral argument for a show cause hearing, only that the court
consider the motion after hearing from both parties.” Id. at 93. As in this case, the
“State contended oral argument was not required to consider the motion’s merits,
and Frohs neither disagreed nor requested oral argument.” Id. at 94. Thus, we
concluded “under the circumstances, the superior court’s decision to decide the
motion on the pleadings was reasonable.” Id.
Further, as to his conviction for simple drug possession, Frohs “request[ed]
very limited relief, asking only that his . . . conviction be vacated” under Blake. Id.
at 97. As here, Frohs did not at that time “request resentencing due to this
correction.” Id. For these reasons, and because “the change to his offender scores
[would] not affect the standard ranges for his convictions,” we concluded “the trial
court ha[d] the discretion to determine whether a hearing or further proceedings
[were] required after correcting Frohs’ judgment and sentence.” Id. at 97-98.
4 No. 84531-4-I/5
Here, Walker requested and received nothing more or less than what he
specifically requested; namely, that his “conviction under RCW 69.50.4013(1) [sic.]
. . . be dismissed and/or removed from the defendant’s record.” And there is
nothing in the record suggesting his offender score or standard range would have
changed. Thus, as in Frohs, it was reasonable and within the court’s discretion to
decide the motions on the pleadings.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84531-4-I Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
CURTIS JOHN WALKER,
Appellant.
DÍAZ, J. — Curtis Walker pled guilty to, among other things, a drug-related
charge in 2006. In 2023, per State v. Blake, the trial court vacated that conviction
without holding a hearing, which Walker believes violated his rights. We disagree
and affirm the trial court.
I. BACKGROUND
In 2006, Walker pled guilty to, inter alia, possession of cocaine. On
February 25, 2021, our Supreme Court decided State v. Blake, which mandated
vacatur of convictions for simple drug possession. 197 Wn.2d 170, 195, 481 P.3d
521 (2021). In March 2021, Walker moved the court, pro se, per CrR 7.8 to “correct
[his] judgment and sentence” by “dismiss[ing]” his conviction for cocaine
possession (First Motion). Walker re-filed the same motion in April 2021. Both
motions indicated he did not desire oral argument. No. 84531-4-I/2
In May 2022, the State moved the court to vacate and dismiss with prejudice
the conviction for cocaine possession from Walker’s judgment and sentence. A
trial court signed the order granting the State’s motion (Order) the same day
without holding a hearing. Then, on June 9, 2022, Walker filed a motion to
withdraw his First Motion. On July 14, 2022, the trial court granted Walker’s motion
to withdraw. Walker appeals.
II. ANALYSIS
Walker primarily argues that the trial court violated his Sixth Amendment
right to be present for his re-sentencing, when it signed the Order without holding
a hearing.
“A defendant has a constitutional right to be present at sentencing, including
resentencing.” State v. Ramos, 171 Wn.2d 46, 48, 246 P.3d 811 (2011).
“However, when a hearing on remand involves only a ministerial correction and no
exercise of discretion, the defendant has no constitutional right to be present.” Id.
In other words, “because the relationship between the defendant’s presence and
his ‘opportunity to defend’ must be ‘reasonably substantial,’ a defendant does not
have a right to be present when his or her ‘presence would be useless, or the
benefit but a shadow.’” State v. Irby, 170 Wn.2d 874, 881, 246 P.3d 796 (2011)
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed.
674 (1934), overruled in part on other grounds by Duncan v. State of La., 391 U.S.
145, 155, 88 S. Ct. 1444, 1450-51, 20 L. Ed. 2d 491 (1968)).
Further, a violation of the right to be present may be determined to be
constitutionally harmless. State v. Anderson, 19 Wn. App. 2d 556, 564, 497 P.3d
2 No. 84531-4-I/3
880 (2021). “Under this test, prejudice is presumed and the State bears the burden
of proving harmlessness beyond a reasonable doubt.” Id.
Here, Walker at no point objected to the State’s motion or the court’s Order
on any grounds, let alone on the basis of his right to be present, at any time prior
to appeal, even though the court issued the Order nearly two months after his First
Motion. Nonetheless, RAP 2.5(a)(3) allows an appellant to raise an issue for the
first time on appeal “for a ‘manifest error affecting a constitutional right.’” State v.
Nguyen, 165 Wn.2d 428, 433, 197 P.3d 673 (2008) (quoting RAP 2.5(a)(3)). “A
‘manifest’ error is an error that is ‘unmistakable, evident or indisputable.’” Id.
(quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)). “An error is
manifest if it results in actual prejudice to the defendant or the defendant makes a
‘plausible showing’ ‘that the asserted error had practical and identifiable
consequences in the trial of the case.’” Id. (quoting State v. WWJ Corp., 138
Wn.2d 595, 602-03, 980 P.2d 1257 (1999)). 1
To resolve this matter, we assume arguendo and without deciding that
Walker was entitled to be present at the resentencing, even though it may be a
“ministerial correction” under Ramos. 171 Wn.2d at 48. However, we hold, even
if an error thereby occurred, it was constitutionally harmless because the court
gave him the precise relief he requested, not once but twice; namely, dismissing
1 For the reasons provided below, we hold there were no practical or identifiable
consequences of vacating the conviction without Walker present. Therefore, any error by the trial court would not be manifest or compliant with RAP 2.5(a)(3). Nguyen, 165 Wn.2d at 433 (quoting WWJ Corp., 138 Wn.2d at 602-03). Nonetheless, in our discretion, we choose to review the assignment of error as presented. 3 No. 84531-4-I/4
the conviction at issue. Anderson, 19 Wn. App. 2d at 564 (finding any error of said
right harmless because Anderson received the relief requested).
Our decision in State v. Frohs, 22 Wn. App. 2d 88, 91, 511 P.3d 1288
(2022), is instructive. Frohs pled guilty to several charges, and approximately eight
years later filed a motion to amend his judgment and sentence because, inter alia,
one of his convictions exceeded the statutory maximum for that type of felony. Id.
The State conceded error and provided Frohs notice of a CrR 7.8 hearing “without
oral argument.” Id. The court entered an order granting his motion as to that error
without holding a hearing. Id. Despite the fact that Frohs did request a hearing
prior to the court deciding his motion, id. at 91, we held that “the plain terms of CrR
7.8(c) do not require oral argument for a show cause hearing, only that the court
consider the motion after hearing from both parties.” Id. at 93. As in this case, the
“State contended oral argument was not required to consider the motion’s merits,
and Frohs neither disagreed nor requested oral argument.” Id. at 94. Thus, we
concluded “under the circumstances, the superior court’s decision to decide the
motion on the pleadings was reasonable.” Id.
Further, as to his conviction for simple drug possession, Frohs “request[ed]
very limited relief, asking only that his . . . conviction be vacated” under Blake. Id.
at 97. As here, Frohs did not at that time “request resentencing due to this
correction.” Id. For these reasons, and because “the change to his offender scores
[would] not affect the standard ranges for his convictions,” we concluded “the trial
court ha[d] the discretion to determine whether a hearing or further proceedings
[were] required after correcting Frohs’ judgment and sentence.” Id. at 97-98.
4 No. 84531-4-I/5
Here, Walker requested and received nothing more or less than what he
specifically requested; namely, that his “conviction under RCW 69.50.4013(1) [sic.]
. . . be dismissed and/or removed from the defendant’s record.” And there is
nothing in the record suggesting his offender score or standard range would have
changed. Thus, as in Frohs, it was reasonable and within the court’s discretion to
decide the motions on the pleadings. Walker does not explain how a court’s
procedural decision can be reasonable, within its discretion, and yet
constitutionally harmful.
Instead, in reply, Walker argues he in fact did not receive his desired relief.
But nowhere does he identify in the record before this court what that additional
unrequited relief was, and when or where he requested that relief, prior to the
Order. The court is not required to search the record to locate the portions relevant
to a litigant’s arguments. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d
801, 819, 828 P.2d 549 (1992). More substantively, as in Anderson, “[e]ven if
[Walker] had asked his attorney to try to expand the scope of the hearing, there is
no reasonable basis for believing the result could have been different.” 19 Wn.
App. 2d at 564.
That is, on this record, where the court had two of Walker’s motions (each
expressly waiving oral argument) and the State’s motion all requesting the same
relief, we have no reason to believe that the court would have granted relief greater
or less than simply vacating Walker’s cocaine possession conviction had Walker
been present. Therefore, we conclude any constitutional error which may have
occurred was harmless beyond a reasonable doubt. Irby, 170 Wn.2d at 887.
5 No. 84531-4-I/6
Based on the above analysis, we need not reach whether Walker would
have had a right to counsel had his presence at the hearing been required or any
other remaining assignment of error. 2
III. CONCLUSION
We affirm.
WE CONCUR:
2 Walker also argues that his plea agreement was “indivisible” and “should be set
aside upon request.” This argument is persuasive only if you ignore the fact that he made no such request prior to the court’s ruling. That is, even if he had such a right, there was no “request” triggering any further process. See State v. King, 162 Wn. App. 234, 241, 253 P.3d 120 (2011) (citing State v. Turley, 149 Wn.2d 395, 400-01, 69 P.3d 338 (2003)). 6