FILED OCTOBER 28, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 37590-1-III ) Respondent, ) ) v. ) ) OPINION PUBLISHED IN PART DESHAWN ISAIAH ANDERSON, aka ) DESHAWEN ISAIAH ANDERSON, ) ) Appellant. )
PENNELL, C.J. — Videoconferencing has been a common feature of court
proceedings during the COVID-19 pandemic. The use of videoconferencing is often
necessary and it has many advantages; however, there can be overriding constitutional
concerns. When videoconferencing is used, courts must take care to ensure criminally
accused persons are able to confidentially confer with counsel throughout the
proceedings. Failure to provide a confidential means to communicate may be grounds
for reversal on appeal.
Deshawn Anderson argues he was not afforded the ability to confidentially consult
with his attorney during a video resentencing hearing. We find his claim persuasive. No. 37590-1-III State v. Anderson
However, the parties agree Mr. Anderson’s claim is subject to a harmless error analysis.
We note Mr. Anderson prevailed on all issues raised at his resentencing hearing. There
is no plausible basis for additional relief. Any denial of confidential attorney-client
communications during resentencing was therefore harmless beyond a reasonable doubt.
Although Mr. Anderson has established constitutional error, he is not entitled to relief.
FACTS
In 2016, a Franklin County jury convicted Deshawn Anderson of multiple felonies
including murder, assault, and unlawful possession of a firearm. Mr. Anderson received
a sentence of 1,126 months’ imprisonment with 36 months’ community custody, and was
assessed $75,430.49 in restitution. A portion of the restitution was imposed jointly and
severally with two codefendants.
Mr. Anderson’s convictions were affirmed in a prior appeal to this court, but
we remanded for resentencing. State v. Anderson, No. 34655-2-III (Wash. Ct. App.
Nov. 1, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/346552_unp.pdf.
Three specific issues were identified for resentencing: a vague community custody
condition, two scrivener’s errors, and imposition of discretionary legal financial
obligations in light of Mr. Anderson’s indigence.
2 No. 37590-1-III State v. Anderson
Mr. Anderson’s resentencing was initially scheduled for March 31, 2020, roughly
one year after our mandate was issued. However, to accommodate Mr. Anderson’s
“desire to be present,” Clerk’s Papers (CP) at 75, the hearing was moved. On March 26,
2020, the trial court signed an order directing Mr. Anderson’s transport from the
Washington State Penitentiary in Walla Walla to Franklin County. The order specified
Mr. Anderson was to be brought before the court on May 12, 2020, at 8:30 a.m., for
“entry of an Amended Judgment and Sentence.” Id. at 76.
Mr. Anderson’s resentencing took place in the early days of the COVID-19
pandemic. Washington’s governor declared a state of emergency on February 29, 2020.
Shortly thereafter, our Supreme Court began issuing a series of emergency orders
addressing court operations during the pandemic. On April 29, 2020, the Supreme Court
issued an order that specified as follows:
Courts must allow telephonic or video appearances for all scheduled criminal and juvenile offender hearings whenever possible. For all hearings that involve a critical stage of the proceedings, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.
Second Revised and Extended Order Regarding Court Operations, No. 25700-B-618,
at 9 (Wash. Apr. 29, 2020), http://www.courts.wa.gov/content/publicUpload/Supreme
3 No. 37590-1-III State v. Anderson
%20Court%20Orders/Extended%20and%20Revised%20Supreme%20Court%20Order%2
0042920.pdf.
Mr. Anderson attended the May 12 resentencing hearing via video. His attorney
appeared telephonically. The hearing was very brief, generating only seven substantive
pages of a report of proceeding. During the hearing, there was no discussion regarding
whether Mr. Anderson had consented to appear via video. Nor was there any clarification
about whether Mr. Anderson and his attorney were able to communicate throughout the
hearing. The parties agreed to modify the judgment and sentence according to the three
issues identified in our prior decision. When addressed by the court, Mr. Anderson
confirmed he agreed with the modifications.
At the hearing’s close, the court asked Mr. Anderson if he had been able to hear
and understand the proceedings. Mr. Anderson responded affirmatively, but also asked
how he was supposed to pay the outstanding restitution. The court instructed Mr.
Anderson to confer with his attorney. Mr. Anderson subsequently asked the court how
long he had to appeal the decision. The court told him that he had 30 days to make a
direct appeal, and that he should speak to his attorney regarding the process. The hearing
then adjourned.
4 No. 37590-1-III State v. Anderson
A first amended judgment and sentence, entered May 12, 2020, reflected the
changes agreed to at the hearing. The judgment included $75,430.49 in restitution, but
made no reference to joint and several liability. In addition, although the trial court struck
most of the discretionary financial obligations, the judgment and sentence form included
prewritten language mandating that Mr. Anderson pay supervision fees as part of his
community custody.
Mr. Anderson filed a timely notice of appeal of the amended judgment and
sentence.
ANALYSIS 1
Right to be present
For the first time on appeal, Mr. Anderson argues the superior court’s
videoconference resentencing hearing deprived him of his right to be present and to
confer with counsel. Unpreserved errors are generally not subject to appeal as a matter
of right. RAP 2.5(a). An exception can apply for manifest errors affecting the litigant’s
constitutional rights. RAP 2.5(a)(3). But not all constitutional rights are subject to the
1 In the published portion of this opinion, we address Mr. Anderson’s constitutional claims regarding the right to be present and the right to confer with counsel. We address the claims regarding errors in the amended judgment and sentence in the unpublished portion of the opinion.
5 No. 37590-1-III State v. Anderson
manifest error standard. For example, violation of the constitutional right to confront
witnesses must be preserved for appellate review regardless of provisions of
RAP 2.5(a)(3). See State v. Burns, 193 Wn.2d 190, 210-11, 438 P.3d 1183 (2019).
Mr. Anderson’s request for relief turns on the initial issue of whether he can meet the
manifest error standard.
Criminally accused persons have a constitutional right to be present at all critical
stages of court proceedings; however, this right is one that can be waived by failure to
object. See State v. Jones, 185 Wn.2d 412, 426, 372 P.3d 755 (2016); State v. Sublett,
176 Wn.2d 58, 124-25, 292 P.3d 715 (2012) (Madsen, C.J., concurring). As was likely
Free access — add to your briefcase to read the full text and ask questions with AI
FILED OCTOBER 28, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 37590-1-III ) Respondent, ) ) v. ) ) OPINION PUBLISHED IN PART DESHAWN ISAIAH ANDERSON, aka ) DESHAWEN ISAIAH ANDERSON, ) ) Appellant. )
PENNELL, C.J. — Videoconferencing has been a common feature of court
proceedings during the COVID-19 pandemic. The use of videoconferencing is often
necessary and it has many advantages; however, there can be overriding constitutional
concerns. When videoconferencing is used, courts must take care to ensure criminally
accused persons are able to confidentially confer with counsel throughout the
proceedings. Failure to provide a confidential means to communicate may be grounds
for reversal on appeal.
Deshawn Anderson argues he was not afforded the ability to confidentially consult
with his attorney during a video resentencing hearing. We find his claim persuasive. No. 37590-1-III State v. Anderson
However, the parties agree Mr. Anderson’s claim is subject to a harmless error analysis.
We note Mr. Anderson prevailed on all issues raised at his resentencing hearing. There
is no plausible basis for additional relief. Any denial of confidential attorney-client
communications during resentencing was therefore harmless beyond a reasonable doubt.
Although Mr. Anderson has established constitutional error, he is not entitled to relief.
FACTS
In 2016, a Franklin County jury convicted Deshawn Anderson of multiple felonies
including murder, assault, and unlawful possession of a firearm. Mr. Anderson received
a sentence of 1,126 months’ imprisonment with 36 months’ community custody, and was
assessed $75,430.49 in restitution. A portion of the restitution was imposed jointly and
severally with two codefendants.
Mr. Anderson’s convictions were affirmed in a prior appeal to this court, but
we remanded for resentencing. State v. Anderson, No. 34655-2-III (Wash. Ct. App.
Nov. 1, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/346552_unp.pdf.
Three specific issues were identified for resentencing: a vague community custody
condition, two scrivener’s errors, and imposition of discretionary legal financial
obligations in light of Mr. Anderson’s indigence.
2 No. 37590-1-III State v. Anderson
Mr. Anderson’s resentencing was initially scheduled for March 31, 2020, roughly
one year after our mandate was issued. However, to accommodate Mr. Anderson’s
“desire to be present,” Clerk’s Papers (CP) at 75, the hearing was moved. On March 26,
2020, the trial court signed an order directing Mr. Anderson’s transport from the
Washington State Penitentiary in Walla Walla to Franklin County. The order specified
Mr. Anderson was to be brought before the court on May 12, 2020, at 8:30 a.m., for
“entry of an Amended Judgment and Sentence.” Id. at 76.
Mr. Anderson’s resentencing took place in the early days of the COVID-19
pandemic. Washington’s governor declared a state of emergency on February 29, 2020.
Shortly thereafter, our Supreme Court began issuing a series of emergency orders
addressing court operations during the pandemic. On April 29, 2020, the Supreme Court
issued an order that specified as follows:
Courts must allow telephonic or video appearances for all scheduled criminal and juvenile offender hearings whenever possible. For all hearings that involve a critical stage of the proceedings, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.
Second Revised and Extended Order Regarding Court Operations, No. 25700-B-618,
at 9 (Wash. Apr. 29, 2020), http://www.courts.wa.gov/content/publicUpload/Supreme
3 No. 37590-1-III State v. Anderson
%20Court%20Orders/Extended%20and%20Revised%20Supreme%20Court%20Order%2
0042920.pdf.
Mr. Anderson attended the May 12 resentencing hearing via video. His attorney
appeared telephonically. The hearing was very brief, generating only seven substantive
pages of a report of proceeding. During the hearing, there was no discussion regarding
whether Mr. Anderson had consented to appear via video. Nor was there any clarification
about whether Mr. Anderson and his attorney were able to communicate throughout the
hearing. The parties agreed to modify the judgment and sentence according to the three
issues identified in our prior decision. When addressed by the court, Mr. Anderson
confirmed he agreed with the modifications.
At the hearing’s close, the court asked Mr. Anderson if he had been able to hear
and understand the proceedings. Mr. Anderson responded affirmatively, but also asked
how he was supposed to pay the outstanding restitution. The court instructed Mr.
Anderson to confer with his attorney. Mr. Anderson subsequently asked the court how
long he had to appeal the decision. The court told him that he had 30 days to make a
direct appeal, and that he should speak to his attorney regarding the process. The hearing
then adjourned.
4 No. 37590-1-III State v. Anderson
A first amended judgment and sentence, entered May 12, 2020, reflected the
changes agreed to at the hearing. The judgment included $75,430.49 in restitution, but
made no reference to joint and several liability. In addition, although the trial court struck
most of the discretionary financial obligations, the judgment and sentence form included
prewritten language mandating that Mr. Anderson pay supervision fees as part of his
community custody.
Mr. Anderson filed a timely notice of appeal of the amended judgment and
sentence.
ANALYSIS 1
Right to be present
For the first time on appeal, Mr. Anderson argues the superior court’s
videoconference resentencing hearing deprived him of his right to be present and to
confer with counsel. Unpreserved errors are generally not subject to appeal as a matter
of right. RAP 2.5(a). An exception can apply for manifest errors affecting the litigant’s
constitutional rights. RAP 2.5(a)(3). But not all constitutional rights are subject to the
1 In the published portion of this opinion, we address Mr. Anderson’s constitutional claims regarding the right to be present and the right to confer with counsel. We address the claims regarding errors in the amended judgment and sentence in the unpublished portion of the opinion.
5 No. 37590-1-III State v. Anderson
manifest error standard. For example, violation of the constitutional right to confront
witnesses must be preserved for appellate review regardless of provisions of
RAP 2.5(a)(3). See State v. Burns, 193 Wn.2d 190, 210-11, 438 P.3d 1183 (2019).
Mr. Anderson’s request for relief turns on the initial issue of whether he can meet the
manifest error standard.
Criminally accused persons have a constitutional right to be present at all critical
stages of court proceedings; however, this right is one that can be waived by failure to
object. See State v. Jones, 185 Wn.2d 412, 426, 372 P.3d 755 (2016); State v. Sublett,
176 Wn.2d 58, 124-25, 292 P.3d 715 (2012) (Madsen, C.J., concurring). As was likely
true here, a defendant may waive an in-person court appearance for strategic reasons,
such as health concerns. A trial court is not required to probe into the issue of whether
the defendant is voluntarily waiving the right to presence if no objection is made. To the
extent the virtual hearing process implicated Mr. Anderson’s right to be present, this issue
has been waived.
Right to counsel
The constitutional right to counsel is different than the right to presence. The right
to counsel applies to all critical stages of criminal proceedings, including resentencing,
and cannot be lost without a specific waiver. State v. Rupe, 108 Wn.2d 734, 741, 743 P.2d
6 No. 37590-1-III State v. Anderson
210 (1987); City of Bellevue v. Acrey, 103 Wn.2d 203, 208-12, 691 P.2d 957 (1984). Our
cases recognize that deprivation of the right to counsel is a fundamental constitutional
claim that can be raised for the first time on appeal, so long as the claim is manifest, as
required by RAP 2.5(a)(3). See, e.g., State v. Brown, 159 Wn. App. 1, 17, 248 P.3d 518
(2010); State v. Holley, 75 Wn. App. 191, 196-97, 876 P.2d 973 (1994), abrogated on
other grounds by In re Pers. Restraint of Yung-Chen Tsai, 183 Wn.2d 91, 105-06, 351
P.3d 138 (2015).
The constitutional right to counsel demands more than just access to a warm body
with a bar card. Among other things, it requires individuals charged with crimes to be
able to confer privately with their attorneys at all critical stages of the proceedings. See
State v. Hartzog, 96 Wn.2d 383, 402, 635 P.2d 694 (1981). The ability for attorneys and
clients to consult privately need not be seamless, but it must be meaningful. As reflected
in the Supreme Court’s April 29, 2020, court operations order, it is the role of the judge to
make sure that attorneys and clients have the opportunity to engage in private
consultation.
The Supreme Court’s decision in State v. Gonzales-Morales, 138 Wn.2d 374,
979 P.2d 826 (1999), expounds on the court’s role in ensuring private attorney-client
consultation. Mr. Gonzales-Morales primarily spoke Spanish and required an interpreter
7 No. 37590-1-III State v. Anderson
to communicate with counsel and understand court proceedings. Id. at 376. During trial,
the State called a Spanish-speaking witness, but was unable to secure its own interpreter.
Id. The State asked to borrow Mr. Gonzales-Morales’s interpreter during the witness’s
testimony. Id. The trial court approved this request, subject to certain ground rules. Id.
at 377. The court determined the interpreter would remain seated at defense counsel table
during the trial. Id. The court also clarified that if Mr. Gonzales-Morales wished to
consult with his attorney during the testimony, he was entitled to alert the court and pause
the proceedings. Id.
The Supreme Court upheld the process used by the trial court over Mr. Gonzales-
Morales’s constitutional objection. Id. at 386. The court reviewed similar cases from
other jurisdictions. Id. at 382-85. Those cases all noted that the use of a borrowed
interpreter does not violate the constitutional right to attorney consultation when the trial
court offers the defendant the option of interrupting testimony for a consultation. Id.
Mr. Anderson argues his case fails to meet the constitutional standard recognized
in Gonzales-Morales. We agree. Unlike what happened in Gonzales-Morales, the trial
court here never set any ground rules for how Mr. Anderson and his attorney could
confidentially communicate during the hearing. Nor were Mr. Anderson and his attorney
physically located in the same room, where they might have been able to at least engage
8 No. 37590-1-III State v. Anderson
in nonverbal communication. Given Mr. Anderson participated by video from the jail and
his attorney was appearing by telephone from a separate location, it is not apparent how
private attorney-client communication could have taken place during the remote hearing.
It is unrealistic to expect Mr. Anderson to assume he had permission to interrupt the judge
and court proceedings if he wished to speak with his attorney.
Mr. Anderson has met his burden of showing the existence of a constitutional
error that is manifest, or obvious from the record. See State v. O’Hara, 167 Wn.2d 91,
98, 217 P.3d 756 (2009). Thus, the lack of error preservation is not a hurdle to relief
under RAP 2.5(a)(3). Nevertheless, our analysis does not end here. We must also assess
the issue of prejudice. Id. at 99. The parties agree the test for prejudice applicable in this
case is the constitutional harmless error analysis. 2 Under this test, prejudice is presumed
and the State bears the burden of proving harmlessness beyond a reasonable doubt. State
v. Irby, 170 Wn.2d 874, 885-86, 246 P.3d 796 (2011).
2 Mr. Anderson cites State v. Peña-Fuentes, 179 Wn.2d 808, 812, 318 P.3d 257 (2014), which held unlawful interception of attorney-client communications is subject to a constitutional harmless error analysis. However, State v. Ulestad, 127 Wn. App. 209, 215, 111 P.3d 276 (2005), held structural error applied to deprivation of confidential attorney-client conversations during trial. We need not resolve the tension between Peña- Fuentes and Ulestad, as this matter has not been raised.
9 No. 37590-1-III State v. Anderson
Our review of the record shows the State has met its burden of proving harmless
error. Mr. Anderson received all the forms of relief that were requested at his
resentencing hearing. Although Mr. Anderson complains his written amended judgment
and sentence contains technical errors, 3 those issues did exist at the time of the in-person
hearing. Attorney-client consultation would not have made a difference. Mr. Anderson
also asserts that had he and his attorney been able to confidentially confer, he might have
asked his attorney to expand the scope of the hearing beyond the issues identified on
remand. We are unconvinced. Mr. Anderson and his attorney were able to confer prior to
the hearing. Nevertheless, they did not object to the hearing being noted merely for “entry
of an Amended Judgment and Sentence.” CP at 76. In addition, there are no plausible
topics that the court may have been willing to reconsider, beyond those already addressed.
Even if Mr. Anderson 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. The State
has met its burden of showing constitutionally harmless error.
Although Mr. Anderson is not entitled to relief, this case is a cautionary tale for
trial judges administering remote criminal proceedings. The COVID-19 pandemic has
complicated the administration of justice in innumerable ways. Videoconferencing has
3 The errors have been resolved in the unpublished portion of this opinion.
10 No. 37590-1-III State v. Anderson
been an essential component of continued court operations. But courts must ensure
videoconferencing occurs in a way that allows for private attorney-client consultation.
The best method is to arrange for attorneys and clients to be located in a shared physical
space, with access to additional communication technologies (such as text messaging
devices) if necessary to maintain physical distancing. See REMOTE JURY TRIALS WORK
GROUP, BEST PRACTICES IN RESPONSE TO FREQUENTLY ASKED QUESTIONS (FAQ),
at 7-8 (2021), https://www.courts.wa.gov/newsinfo/content/Best%20Practices%20in
%20Response%20to%20FAQ.PDF. In addition to these steps, trial courts should make
a record of what has been done to ensure confidential communication. An explicit record
will ensure the court’s measures are understood and will also allow for meaningful
appellate review.
Mr. Anderson has established constitutional error with regard to his claim
regarding the right to counsel. As the State has met its burden of showing constitutionally
harmless error, Mr. Anderson cannot establish prejudice and is not entitled to relief.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports, and that the remainder shall
be filed for public record in accordance with RCW 2.06.040, it is so ordered.
11 No. 37590-1-III State v. Anderson
Legal financial obligations
Mr. Anderson makes two objections to the legal financial obligations (LFOs) set
forth in his amended judgment and sentence. First, he complains the trial court imposed
community custody supervision fees, despite stating an intent to strike discretionary LFOs
based on indigence. Second, he claims the amended judgment and sentence failed to
accurately calculate his restitution or recognize that a portion of his restitution obligation
is joint and several with his codefendants. We address each of Mr. Anderson’s concerns
in turn.
Supervision fees
A trial court’s authority to impose community custody supervision fees is set by
RCW 9.94A.703(2)(d), which provides that “[u]nless waived by the court, as part of a
term of community custody, the court shall order an offender to . . . [p]ay supervision fees
as determined by the [Department of Corrections].” Given that supervision fees are
waivable, they are discretionary. However, they are not a “‘cost’” under
RCW 10.01.160(3) that “‘shall not’” be imposed against an indigent defendant. See State
v. Spaulding, 15 Wn. App. 2d 526, 536, 476 P.3d 205 (2020).
Here, the trial court stated its intent was to waive all discretionary LFOs based
on Mr. Anderson’s indigence. The requirement that Mr. Anderson pay supervision fees
12 No. 37590-1-III State v. Anderson
is buried in a lengthy paragraph, part of the prewritten judgment and sentence form.
The record makes abundantly clear that the court’s imposition of supervision fees was
inadvertent. The fees should therefore be struck from the judgment and sentence.
Restitution
At resentencing, the trial court did not revisit the issue of restitution. The court
indicated it would strike all LFOs except for restitution “and the non-waivable victim
assessment.” Report of Proceedings (May 12, 2020) at 6. Consistent with the court’s oral
ruling and prior judgment, the amended judgment listed $75,430.49 in restitution and a
$500 crime victim penalty assessment, for a total of $75,930.49. These amounts are
accurate. While the amended judgment and sentence does not make any notations
regarding joint and several liability, this provision is specified in the court’s prior order
setting restitution and payments. It is unclear whether any changes are necessary to the
amended judgment and sentence regarding joint and several liability. Nevertheless,
because the judgment and sentence must be amended to strike supervision fees, we order
that the document also be amended to specify joint and several liability, as set forth in the
trial court’s January 24, 2017, order setting restitution and payments. See CP at 73-74.
13 No. 37590-1-III State v. Anderson
CONCLUSION
Mr. Anderson has established constitutional error with regard to his claim
regarding the right to counsel. As the State has met its burden of showing constitutionally
harmless error, Mr. Anderson cannot establish prejudice and is not entitled to relief on
this claim. This matter is remanded, however, with instructions to strike Mr. Anderson’s
community custody supervision fees and to note joint and several liability, consistent with
the terms of the prior superior court order.
_________________________________ Pennell, C.J.
WE CONCUR:
____________________________ Siddoway, J. Lawrence-Berrey, J.