Filed Washington State Court of Appeals Division Two
July 29, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 58969-9-II
Respondent,
v. UNPUBLISHED OPINION
HENRY F. WARD, JR,
Appellant.
CHE, J. ⎯ Henry Ward appeals the denial of his motion for reimbursement of his drug
court participant fee.
In 2019, the State charged Ward with one count of possession of a controlled substance
under former RCW 69.50.4013(1). The parties entered a drug court contract, which stated that
Ward’s charge would be dismissed upon his successful completion of a drug treatment program.
The contract required Ward to pay a $500 participant fee, and allowed the court to set the fee at a
different amount (fee-setting provision). Before Ward’s completion of the program, the Supreme
Court issued State v. Blake, which invalidated former RCW 69.50.4013(1). 197 Wn.2d 170, 195,
481 P.3d 521 (2021). The State subsequently dismissed the pending charge against Ward, and
Ward moved for a refund of the amount that he had paid toward the drug court participant fee.
The trial court denied Ward’s motion for reimbursement.
Ward argues that (1) the trial court erred in setting the drug court fee above $250 for
deferred prosecutions and failing to inquire into Ward’s ability to pay, (2) the trial court erred by No. 58969-9-II
failing to consider or apply the fee-setting provision, (3) the trial court violated Ward’s due
process rights by denying Ward a refund, (4) the drug court fee violated the Eighth Amendment
prohibition against excessive fines, (5) Ward is due a refund under the contract principles of
frustration, unjust enrichment, and mutual mistake, (6) Ward received ineffective assistance of
counsel when his attorneys failed to object to the imposition of the participant fee and invoke the
fee-setting provision at the motion, and (7) the State exacted the drug court fee from Ward
through extortion.
We hold that (1) we decline to consider Ward’s claims that the trial court erred in setting
the drug court fee above $250 and failed to inquire into Ward’s ability to pay because they were
not properly preserved below, (2) the trial court did not err by failing to consider or apply the
fee-setting provision, (3) the trial court did not violate due process by denying Ward a refund, (4)
the drug court fee did not violate the Eighth Amendment prohibition against excessive fines, (5)
Ward is not due a refund under the contract principles of frustration, unjust enrichment, and
mutual mistake, (6) Ward did not receive ineffective assistance of counsel when his attorneys did
not raise the trial court’s “errors,” and (7) the State did not exact the drug court fee from Ward
We affirm the trial court’s decision to deny Ward’s motion for reimbursement.
FACTS
BACKGROUND
In June 2019, the State charged Ward with one count of possession of a controlled
substance under former RCW 69.50.4013(1) (2013). The next month, the parties entered into a
drug court contract. The contract stated that the trial court would dismiss Ward’s pending charge
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upon completion of certain requirements, including satisfactory completion of treatment. A
provision required Ward to pay a $500 participant fee, and in “extraordinary circumstances,” the
court maintained the ability to set the fee at a different amount based upon ability to pay and/or
other factors. Clerk’s Papers (CP) at 44. Ward acknowledged reading and understanding the
contract, and giving up significant trial rights by entering into the drug court contract.
More than a year into Ward’s drug court participation, the Supreme Court issued Blake,
which held former RCW 69.50.4013(1) unconstitutional as it violated the due process clauses of
both the state and federal constitutions. 197 Wn.2d at 195. Shortly thereafter, the State moved
to dismiss the charge against Ward.
In September 2023, Ward moved for a refund of the $370 he had paid toward the $500
participant fee. 1 In his motion, Ward asserted violations of due process under Nelson v.
Colorado, 581 U.S. 128, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017). He claimed under Nelson,
where the court held that the State was obliged to refund fees exacted from defendants as a
consequence of invalidated convictions, he was entitled to a refund under due process.
Additionally, Ward raised the invalidity of the drug court contract under the principles of duress
and mutual mistake, and he mentioned that the fee was extracted from him by threat of
prosecution.
The State responded that Ward’s due process argument failed because Nelson pertained
only to vacated convictions, whereas Ward never pleaded guilty and lost his presumption of
innocence under the drug court contract. The State also argued that Ward had received
substantial benefits through the contract, including the delay of his prosecution, the obtainment
1 Ward requested a refund of $320 in his motion, but the record shows that he paid $370.
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of drug court services, and the later dismissal of his charge. The State claimed that Ward failed
to demonstrate how Blake invalidated the lawfulness of his previous agreement.
At the motion hearing, the trial court stated that though Ward would have been entitled to
a refund had he been convicted, there was no guiding caselaw on a “pre-adjudication imposition
of a cost to participate in a special diversion type program.” 1 Rep. of Proc. (1 RP) at 14.
Regarding Ward’s contract arguments, the court found that he received “a sufficient return” from
the fee he paid in the form of participation in the program and that there was “no basis to award
him with a return of that portion of his drug court fee that he paid.” 1 RP at 15-16. The court
denied Ward’s motion for reimbursement.
Ward appeals.
ANALYSIS
I. RAP 2.5
Ward contends that the trial court erred in imposing the drug court fee. First, Ward
claims the trial court erred by imposing a $500 fee when former RCW 10.01.160(2) limited costs
to $250 for a deferred prosecution program. Second, Ward claims the trial court erred by failing
to inquire into Ward’s ability to pay before imposing the fee, which it was required under former
RCW 10.01.160(3) and State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015). The State
contends that Ward did not raise any of these arguments below and this court should decline to
consider the arguments under RAP 2.5. We agree with the State and decline to hear these issues
under RAP 2.5 because they were not preserved below.
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A. Legal Principles
Under RAP 2.5(a), we may decline to review unpreserved errors. “A party must inform
the court of the rules of law it wishes the court to apply and afford the trial court an opportunity
to correct any error.” State v. Lazcano, 188 Wn. App. 338, 355, 354 P.3d 233 (2015). To
adequately preserve the issue for appellate review, the argument should be more than fleeting.
Id. “We may decline to consider an issue that was inadequately argued below.” Id.
However, an appellant may bring an unpreserved error if it is a “manifest error affecting a
constitutional right.” RAP 2.5(a)(3). To claim an error was “manifest,” the appellant must show
that there was actual prejudice. State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007).
Actual prejudice requires a “plausible showing by the defendant that the asserted error had
practical and identifiable consequences in the trial of the case.” Id. Courts “do not assume the
alleged error is of constitutional magnitude;” instead, “[w]e look to the asserted claim and assess
whether, if correct, it implicates a constitutional interest as compared to another form of trial
error.” State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).
B. Ward’s Fails to Preserve the Claims He Makes on Appeal
Ward claims that the trial court erred in setting the fee above $250 for deferred
prosecutions and without making an inquiry into his ability to pay under former RCW
10.01.160(3) and Blazina. Ward did not raise these arguments at the motion hearing or in his
motion below. He does not address RAP 2.5 on appeal. Thus, Ward’s claims are unpreserved,
and we decline to consider them under RAP 2.5. Kirkman, 159 Wn.2d at 926 (“The general rule
is that appellate courts will not consider issues raised for the first time on appeal”).
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II. FEE-SETTING PROVISION
Ward claims that the trial court erred by failing to sua sponte consider or apply the fee-
setting provision as a basis for Ward’s refund. Ward claims that the invalidation of former RCW
69.50.4013 by Blake was an “extraordinary circumstance” that called for such consideration and
application of the provision. Br. of Appellant at 73-74. We disagree.
The legal effect of a contract is a question of law subject to de novo review. Keystone
Masonry, Inc. v. Garco Constr., Inc., 135 Wn. App. 927, 932, 147 P.3d 610 (2006). Questions
of law are reviewed de novo. Ang v. Martin, 154 Wn.2d 477, 481, 114 P.3d 637 (2005).
The fee setting provision states, “In extraordinary circumstances the court maintains the
ability to set the [participant] fee at a different level based upon ability to pay and/or other
factors.” CP at 20 (emphasis added). Ward submits that the Blake decision was an extraordinary
circumstance that triggered this provision and required the trial court to lower the fee. But the
provision’s language specifically refers to the setting of the participant fee and contains no
language indicating that the court may re-set or alter the fee over a year and a half after a
participant had entered into the contract. Furthermore, even if the court had the authority to
retroactively set a lower fee, the contract is void of language that mandates the court to consider
or do so. Rather, the provision only states that the court maintains the ability to set the fee.2
2 Ward briefly mentions that being able to request the court to set his fee at a different level was a part of his “bargain” in the contract. Br. of Appellant at 74. Ward does not cite to authority to support this, nor does he explain how being able to request the setting of the fee would have required the trial court to take any action, particularly when not raised below. The court will not review an issue raised in passing or unsupported by authority or persuasive argument. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992); see RAP 2.5.
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Therefore, the trial court did not err by failing to consider or apply the fee-setting provision post-
Blake.
III. DUE PROCESS
Ward argues that he is entitled to a refund because the State is obliged to refund fees and
restitution exacted from the defendant upon, and as a consequence of, an invalidated conviction.
Analogously, those not convicted of a crime, like Ward, cannot fare worse than those with an
invalidated conviction.
Ward also contends that the drug court participant fee violates the Eighth Amendment’s
prohibition on excessive fines. We disagree that Ward’s due process arguments entitle Ward to a
refund.
The United States Constitution and Washington Constitution protect against the
deprivation of “life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV,
§ 1; WASH. CONST. art. I, § 3. Federal and state due process claims are subject to the same
standards. State v. Nelson, 32 Wn. App. 2d 679, 685-86, 558 P.3d 197 (2024).
In comporting with due process, when a criminal conviction is invalidated, the State is
required to refund fees exacted from the defendant as a consequence of that conviction. Nelson,
581 U.S. at 130.
We review questions of law, including constitutional due process guarantees, de novo.
State v. Derenoff, 182 Wn. App. 458, 465, 332 P.3d 1001 (2014).
7 No. 58969-9-II
B. The Trial Court Did Not Deprive Ward of His Property Without Due Process
Ward’s first argument begins with reliance on Nelson v. Colorado for the proposition that
his partial payment must be refunded under due process principles, but his reliance is misplaced.
581 U.S. 128. The court in Nelson held that when a criminal conviction is invalidated by a
reviewing court and no retrial will occur, the State is obligated to refund fees exacted from the
defendant upon, and as a consequence of the conviction. Id. at 130. Not doing so violates due
process. Id.
Ward claims his case is similar to Nelson because “no further criminal process is
implicated, and the issue involves the continuing deprivation of property with no possibility of
further prosecution.” Br. of Appellant at 26-27. But Nelson is inapplicable under these facts.
The full citation from Nelson specifically states “the continuing deprivation of property after a
conviction has been reversed or vacated, with no prospect of reprosecution.” Nelson, 581 U.S. at
135 (emphasis added). And Ward acknowledges, unlike the defendants in Nelson, Ward was
never convicted.
Under the drug court contract, Ward’s charges would have been dismissed upon
successful completion of the drug treatment program and satisfaction of other graduation
requirements. But if Ward did not complete the contract requirements, he would have been
prosecuted further, at least prior to Blake. Furthermore, Ward made payments toward a
contractual participation fee, he voluntarily entered into the drug court contract, and he received
the benefits of drug court participation for more than a year. Before entering into the contract,
Ward acknowledged reading and understanding the contract, and that he was giving up
significant trial rights. Because the State did not exact the participant fee from Ward upon, and
8 No. 58969-9-II
as a consequence of any conviction, and because Ward would have been subject to further
prosecution pre-Blake, Nelson does not apply.
Ward contends that Blake left courts and prosecutors without authority to charge and
prosecute Ward for the simple possession crime and thus, the contract was invalid from its
inception. And because the statute was invalidated, the State and court were acting without
authority over Ward. But at the time of the parties’ entry into the contract, simple drug
possession was a recognized crime and its later invalidation did not make the statute a nullity.
State v. Olsen, 3 Wn.3d 689, 701, 555 P.3d 868 (2024). (“[We] disagree with Olsen that an
unconstitutional statute is a nullity, void ab initio, that renders his plea unknowing and
involuntary. When he pleaded guilty, simple drug possession was a valid crime.”). Therefore,
Ward’s contract also was not a nullity.
Because Ward’s reliance on Nelson is misplaced and Blake does not render RCW
69.50.4013 a nullity, we hold that the trial court did not deprive Ward of his property without
due process.
C. The Drug Court Participant Fee Did Not Qualify as an Excessive Fine under the Eighth
Amendment
Ward contends that the drug court participant fee is an unlawful forfeiture that violates
the Eighth Amendment’s prohibition on excessive fines. He argues that the fee was at least
partially punitive because of the deterrent purpose of the fee and because he would have been
found guilty of his criminal charge had he refused to pay the fee. Ward contends that the fee was
“essentially a pay-or-play fee to enter drug court and become subject to its various punitive
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conditions,” and if he did not pay the fee he would be found guilty and sentenced. Br. of
Appellant at 57-58. We disagree.
Both the federal and state constitutions deny the State the power to issue excessive fines.
U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.”); WASH. CONST. art. 1 § 14 (“Excessive bail shall not
be required, excessive fines imposed, nor cruel punishment inflicted.”). To trigger the excessive
fines clause, a sanction must be a “fine,” and it must be “excessive.” City of Seattle v. Long, 198
Wn.2d 136, 162-63, 493 P.3d 94 (2021). The first requirement is met when the state action is
punitive. Id. at 163. The second requirement is met when the state action is “grossly
disproportional to the offense.” State v. Ramos, 24 Wn. App. 2d 204, 215, 520 P.3d 65 (2022).
Ward claims that similar to the statutes examined in State v. Villela, 194 Wn.2d 451, 462,
450 P.3d 170 (2019) and Long, the participant fee is partially punitive because it is a deterrent in
that if he did not pay it, he would be found guilty. The court in Villela examined a statute
requiring the temporary deprivation of a car following a DUI (driving under the influence) arrest
and found it unconstitutional because it waived the constitutional requirements to seize a car.
See 194 Wn.2d at 462.
In Long, the Supreme Court discussed Villela and concluded that the statute in Villela
was “plainly a punishment” because the legislature’s intent was to deter those arrested for DUI,
and “[d]eterrence has traditionally been viewed as a goal of punishment.” 198 Wn.2d at 165-66.
But Ward fails to show what deterrent purpose the participant fee serves, if any, where drug
court does not punish a defendant for unlawful possession of a controlled substance but rather
provides a voluntary treatment program that is an alternative to traditional prosecution.
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Moreover, payment of a contractual fee does not deter potential future illegal conduct and
potential future illegal conduct does not leave an individual with no constitutional protections.
Because Ward fails to show how the drug court participant fee is punitive, it is not a fine and the
excessive fines clause does not apply. Thus, we hold that the drug court participant fee was not
an excessive fine under the Eighth Amendment.
IV. CONTRACT PRINCIPLES
Ward argues that he is entitled to a refund under contract principles of frustration, unjust
enrichment, and mutual mistake. We disagree that Ward is entitled to a refund under these
contract principles.
A. Ward Is Not Due a Refund under Contract Principle of Frustration
Ward argues that he is due a refund under the doctrine of frustration, but his argument is
without merit.
Application of the doctrine of frustration is a question of law. Felt v. McCarthy, 130
Wn.2d 203, 207, 922 P.2d 90 (1996). We review questions of law de novo. Tobin v. Dep’t of
Lab. & Indus., 145 Wn. App. 607, 615, 187 P.3d 780 (2008), aff’d, 169 Wn.2d 396 (2010). The
doctrine states,
Where, after a contract is made, a party’s principal purpose is substantially frustrated without [their] fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, [their] remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.
Restatement (Second) of Contracts § 265 (A.L.I. 1981).
Under general contract principles, the remedy for a frustrated contract is restitution. See,
e.g., Id. § 377 (“A party whose duty of performance does not arise or is discharged as a result of
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impracticability of performance, frustration of purpose, nonoccurrence of a condition or
disclaimer by a beneficiary is entitled to restitution for any benefit that [they] ha[ve] conferred
on the other party by way of part performance or reliance”); Wash. State Hop Producers, Inc.,
Liquidation Tr. v. Goschie Farms, Inc., 112 Wn.2d 694, 697, 773 P.2d 70 (1989) (affirming
summary judgment ordering restitution due to supervening frustration).
When there is partial performance by both parties to a frustrated contract, each party is
due their restitution. See Restatement (Second) of Contracts § 272 (“In any case governed by the
rules stated in this Chapter, either party may have a claim for relief including restitution under
the rules stated in §§ 240 and 377”) (emphasis added); Id. § 377 cmt. a (“Furthermore, in cases
of impracticability or frustration the other party is also ordinarily relieved of any obligation of
rendering the return performance that he has promised on the ground of failure of performance (§
267). Under the rule stated in this Section that party is also entitled to restitution.”).
Here, the Blake decision frustrated the contract, and subsequent dismissal of Ward’s
charge discharged Ward’s duty to continue performing. See Id. § 265. Because the contract was
frustrated, Ward alone would be entitled to restitution under general contract principles. See Id.
§ 377.
However, when there is partial performance by both parties to a contract, like here, both
parties are due restitution. See Id. § 272, § 377 cmt. a. The State partially performed the
conditions of the contract by deferring Ward’s prosecution before Blake and providing Ward
drug treatment. Therefore, the State is also due restitution for the benefits it conferred to Ward
under the frustrated contract. It follows that Ward is due restitution to the extent that his $370
payment exceeded the benefits the State conferred to him. The trial court found that Ward
12 No. 58969-9-II
received a sufficient return on the amount that he paid through the benefits of his participation in
the drug court. Ward fails to show that he did not receive a sufficient return for his $370
participant fee payment such that he is due restitution. Therefore, we hold that Ward is not due a
refund under the doctrine of frustration.
B. Ward Is Not Due a Refund under Contract Principle of Unjust Enrichment
Ward also argues that he is due a refund under the doctrine of unjust enrichment. We are
unpersuaded by this argument.
The doctrine of unjust enrichment provides “that [a] person shall not be allowed to profit
or enrich [them]self inequitably at another’s expense.” Lloyd v. Ridgefield Lumber Ass’n, 38
Wn.2d 723, 735-36, 231 P.2d 613 (1951). “Unjust enrichment is a basis for recovering the value
of a benefit conferred on another party in the absence of a contractual relationship.”
Bircumshaw v. State, 194 Wn. App. 176, 205, 380 P.3d 524 (2016) (emphasis added). In a
relationship “governed by contract, unjust enrichment would not be an appropriate theory of
liability.” Id. at 205-06.
Here, the parties entered into a contract. Therefore, unjust enrichment is not an
appropriate theory of liability in the context of a contractual relationship. Id. Because Ward
paid the $370 pursuant to a contract, we hold that Ward is not due a refund under the doctrine of
unjust enrichment.
C. Ward Is Not Due a Refund Under Contract Principle of Mutual Mistake
Finally, Ward claims that he is due a refund under the doctrine of mutual mistake, but his
claim is without merit. The doctrine states,
Where a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed
13 No. 58969-9-II
exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake under the rule stated in § 154.
Restatement (Second) of Contracts § 152 (A.L.I. 1981).3 “Equity may allow avoidance of a
contract when both parties independently make a clear bona fide mutual mistake.” Pub. Util.
Dist. No. 1 of Lewis County. v. Wash. Pub. Power Supply Sys., 104 Wn.2d 353, 362, 705 P.2d
1195 (1985). “A court sitting in equity has broad discretion to shape relief.” Hough v.
Stockbridge, 150 Wn.2d 234, 236, 77 P.3d 216 (2003).
Ward claims that the contract was made on the mistaken assumption that the government
had valid police power to prosecute. Ward claims that the government never had valid police
power because Blake rendered RCW 69.50.4013 void ab initio. We disagree.
In 2024, the Supreme Court issued two opinions, State v. Olsen, 3 Wn.3d 689, 555 P.3d
868 (2024) and State v. Willyard, 3 Wn.3d 703, 555 P.3d 876 (2024), that addressed the
retroactive effect of Blake on guilty pleas entered pursuant to former RCW 69.50.4013. The
court held in both cases that Blake does not render RCW 69.50.4013 void ab initio. Olsen, 3
Wn.3d at 701; Willyard, 3 Wn.3d at 716.
In Olsen, the Supreme Court concluded that the unconstitutional simple drug possession
statute did not retroactively render Olsen’s guilty plea unknowing and involuntary allowing
vacation of Olsen’s plea, instead, it concluded that Olsen was entitled to have his conviction
vacated. Olsen, 3 Wn.3d at 701. Analogously, Blake does not retroactively render Ward’s drug
3 Section 154 states, “A party bears the risk of a mistake when (a) the risk is allocated to him by agreement of the parties, or (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or (c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.”
14 No. 58969-9-II
court contract a nullity or unknowing and involuntary. Therefore, we hold that Ward is not due a
refund under the doctrine of mutual mistake.
Because the doctrines of frustration, unjust enrichment, and mutual mistake do not
apply, we hold that Ward is not due a refund under these contract principles.
V. INEFFECTIVE ASSISTANCE OF COUNSEL (IAC)
Ward contends that he received IAC when he entered the drug court contract and his first
attorney failed to object to the imposition of the participant fee under former RCW 10.01.160(2),
which limited the deferred prosecutions costs to $250, and require the trial court to inquire into
Ward’s ability to pay under former RCW 10.01.160(3) and Blazina. Relatedly, Ward claims he
received IAC when his second attorney failed to alert the trial court of these errors when he
moved for the refund. Finally, Ward claims he received IAC when his second attorney failed to
alert the trial court of the fee-setting provision and request the trial court reduce the fee under the
provision post-Blake. We disagree that Ward received IAC.
A criminal defendant has a right to effective assistance of counsel at every critical stage
of the proceeding. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. To show IAC, a
defendant must show both deficient performance and that the deficient performance resulted in
prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Performance is deficient if it falls below an objective standard of reasonableness. State
v. Bertrand, 3 Wn.3d 116, 128, 546 P.3d 1020 (2024). We strongly presume that counsel’s
performance was effective. Bertrand, 3 Wn.3d at 130.
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To demonstrate prejudice, a defendant must show a reasonable probability that, absent
the deficient performance, the outcome of the trial would have differed. Bertrand, 3 Wn.3d at
129. If a claim of IAC fails to support a finding of either deficiency or prejudice, it fails, and we
need not address both components of the inquiry. Strickland, 466 U.S. at 697.
If a defendant centers their claim of IAC on their attorney’s failure to object, then they
must show that the objection would likely have succeeded. State v. Crow, 8 Wn. App. 2d 480,
508, 438 P.3d 541 (2019).
B. Ward Did Not Receive IAC
First, Ward claims that he received IAC when his attorney failed to object to the
imposition of the participant fee. Ward claims his attorney performed deficiently by failing to
alert the trial court of former RCW 10.01.160(2), which he argues required the court to limit the
fee to $250 for deferred prosecutions. Relatedly, Ward also claims his attorney performed
deficiently by failing to require the court to inquire into his ability to pay, which he argues the
court was required to do under former RCW 10.01.160(3) and Blazina. We disagree.
Former RCW 10.01.160(2), effective at the time Ward entered the drug court contract,
states, “[c]osts shall be limited to expenses specially incurred by the state in prosecuting the
defendant or in administering the deferred prosecution program under chapter 10.05 RCW or
pretrial supervision. . . . Costs for administering a deferred prosecution may not exceed [$250].”
(Emphasis added.)
Ward contends that drug court fees are “costs for administering a deferred prosecution”
under former RCW 10.01.160(2). Br. of Appellant at 14. In support of his position, Ward points
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to an unpublished opinion, State v. Fitzgerald,4 where the appellate court mentioned that when
the trial court required Fitzgerald to pay drug court fees, it was requiring Fitzgerald to pay costs
under RCW 10.01.160.
However, former RCW 10.01.160(2) limited costs to expenses incurred in administering
the deferred prosecution program, which are governed by RCW 10.05. Drug courts and other
therapeutic courts are governed under a separate statutory scheme in RCW 2.30.010-130.
Moreover, the language cited in Fitzgerald is dicta. We decline to follow dicta from the
unpublished Fitzgerald case in light of the clear statutory schemes that differentiate between
deferred prosecutions and therapeutic courts.
Importantly, RCW 10.05.010(1) states that a person “charged with a misdemeanor or
gross misdemeanor may petition the court to be considered for a deferred prosecution.” Because
Ward was charged with a felony, simple possession of a controlled substance, he would not have
been eligible for a deferred prosecution program under RCW 10.05.010(1), and thus RCW
10.01.160(2) is inapplicable.
Second, Ward claims that counsel performed deficiently in not requiring the trial court to
inquire into his ability to pay under former RCW 10.01.160(3) and Blazina. Former RCW
10.01.160(1) states, “Except as provided in subsection (3) of this section, the court may require a
defendant to pay costs. Costs may be imposed only upon a convicted defendant, except for costs
imposed upon a defendant’s entry into a deferred prosecution program, costs imposed upon a
4 No. 56225-1-II, slip op. at 7 (Wash. Ct. App. Jan. 24, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2056225-1-II%20Unpublished%20Opinion.pdf.
17 No. 58969-9-II
defendant for pretrial supervision, or costs imposed upon a defendant preparing and serving a
warrant for failure to appear.”
“The court shall not order a defendant to pay costs if the defendant at the time of
sentencing is indigent as defined in RCW 10.101.010(3) (a) through (c). In determining the
amount and method of payment of costs for defendants who are not indigent as defined in RCW
10.101.010(3) (a) through (c), the court shall take account of the financial resources of the
defendant and the nature of the burden that payment of costs will impose.” Former RCW
10.01.160(3) (emphasis added).
In Blazina the defendant argued that prior to imposing discretionary legal financial
obligations (LFOs), the sentencing judge must consider a defendant’s individual financial
circumstances and make an individualized inquiry in the defendant’s future and current ability to
pay, in addition to making the inquiry on the record. Blazina, 182 Wn.2d at 837-38. The
Supreme Court held that former “RCW 10.01.160(3) required the record to reflect that the
sentencing judge make an individualized inquiry into the defendant’s current and future ability to
pay before the court imposes LFOs. This inquiry also requires the court to consider important
factors, such as incarceration and a defendant’s other debts, including restitution, when
determining a defendant’s ability to pay.” Id. at 839.
Here, Ward entered a contract for drug court without any finding of guilt. Former RCW
10.01.160(3) and Blazina, apply at the time of sentencing. Thus, former RCW 10.01.160(3) and
Blazina do not apply as the trial court did not sentence Ward. Because the trial court was not
required to limit the drug court participation fee to $250 or inquire into Ward’s ability to pay,
counsel’s performance did not fall “below an objective standard of reasonableness” when Ward’s
18 No. 58969-9-II
first attorney did not object to the fee on these grounds. For the same reasons, counsel’s
performance did not fall “below an objective standard of reasonableness” when Ward’s second
attorney did not alert the trial court of these non-errors.
Next, Ward claims that he received IAC when his second attorney failed to alert and
request the trial court to reduce the fee under the fee-setting provision, on the basis that Blake
was an “extraordinary circumstance.” Br. of Appellant at 73-75. But, as discussed above, the
provision’s language specifically refers to the setting of the participant fee and contains no
language indicating that the court may re-set or alter the fee over a year after a participant had
entered into the contract. Also, the trial court weighed the partial contract performance by Ward
and the State to find that Ward received a sufficient return on the amount he paid such that there
was no basis to award a refund.
We hold that Ward’s attorneys did not perform deficiently and Ward fails to show he
received IAC.
VI. EXTORTION
Ward contends that the State obtained the participant fee from him through threats it
knows are wrongful, completing the crime of extortion. Specifically, Ward argues that the State
threatened to charge him with the simple drug possession crime, to take wrongful action as an
official,5 and to waive his constitutional rights when he entered into the drug court contract. We
disagree that the State committed extortion.
5 Ward claims that the State threatened to take wrongful action because, referring to Blake, the charge “was based on a statute the government lacked the police power to enact and therefore the police power to enforce and prosecute.” Br. of Appellant at 70. This argument is without merit because Blake does not render RCW 69.50.4013 void ab initio. See Olsen, 3 Wn.3d at 701; Willyard, 3 Wn.3d at 716.
19 No. 58969-9-II
A person commits “extortion” if they knowingly “obtain or attempt to obtain by threat
property or services of the owner.” RCW 9A.56.110. A threat includes communicating the
intent to accuse a person of a crime or bring criminal charges against any person. RCW
9A.04.110(28)(d). A threat also includes communicating the intent “to withhold testimony with
respect to another’s legal claim or defense” or “to take wrongful action as an official against
anyone.” RCW 9A.04.110(28)(g)-(h).
Under RCW 9A.56.130(2), in a prosecution based on a threat to institute criminal charges
against a person, the actor may raise the defense that they “reasonably believed the threatened
criminal charge to be true and that [their] sole purpose was to compel or induce the person
threatened to take reasonable action to make good the wrong which was the subject of such
criminal charge.”
B. The State Did Not Commit Extortion
Wards points to no authority for the proposition that a drug court contract and
particularly, the participant fee, is a form of unlawful extortion. DeHeer v. Seattle Post-
Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are cited in
support of a proposition, the court is not required to search out authorities, but may assume that
counsel, after diligent search, has found none”); see also RAP 10.3(a)(6) (“The brief of the
appellant or petitioner should contain . . . the argument in support of the issues presented for
review, together with citations to legal authority and references to relevant parts of the record”).
Even assuming without deciding that the State committed extortion through signing the drug
20 No. 58969-9-II
court contract, RCW 9A.56.130(2) yields the defense that the State reasonably believed that drug
possession was a crime at the time of the contract signing.6
Ward also contends that aside from the threat to prosecute, the State committed extortion
by threatening to withhold his testimony. Ward points to the contract provision that states,
“Defendant acknowledges an understanding of, and agrees to waive the following rights,”
including the rights to “hear and question any witness testifying against the defendant,” “have
witnesses testify for the defense,” and “testify at trial.” CP at 21-22. But Ward mischaracterizes
this provision. Under the conditions of the drug court contract, Ward agreed to waive his trial
rights in exchange for the State delaying his prosecution while he participated in a therapeutic
court’s treatment program and the court dismissing his charge with prejudice upon successful
completion of the program. See RCW 2.30.010 and .030. The provision that Ward points to did
not provide that the State would withhold his testimony, but rather was an acknowledgement that
Ward would be foregoing his trial rights, including his right to testify, by signing the contract.
Because the State did not unlawfully threaten Ward, we hold that the State did not commit
extortion.
CONCLUSION
We affirm the trial court’s decision to deny Ward’s motion for reimbursement of the
drug court participant fee.
6 Ward concedes that “this defense would have shielded the State’s actions from criminal liability until Blake issued.” Br. of Appellant at 72. But he claims that after Blake was decided, “this defense [was] no longer available.” Br. of Appellant at 72. Ward points to no authority supporting his further contention. DeHeer, 60 Wn.2d at 126; see also RAP 10.3(a)(6).
21 No. 58969-9-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Che, J. We concur:
Glasgow, J.
Veljacic, A.C.J.