FILED
AUGUST 18, 2026
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. 39904-4-III
Respondent, )
)
v. )
)
JESUS AVALOS CHAVEZ, ) UNPUBLISHED OPINION )
Appellant. )
STAAB, C.J. — Jesus Avalos Chavez appeals his conviction and sentence for vehicular homicide, advancing three primary arguments. First, he contends the court erred by finding he waived his right to counsel by misconduct. Second, he argues his due process rights were violated when he appeared in jail clothing during trial and was shackled at a pretrial hearing and sentencing. Third, he contends the sentencing court violated his right to a jury trial by finding two prior offenses that increased the standard sentencing range.
We hold that the trial court did not abuse its discretion in finding that Avalos Chavez had waived his right to counsel by his misconduct. With respect to his appearance in jail clothing, Avalos Chavez fails to demonstrate a manifest constitutional error and we decline to decide the issue accordingly. However, we conclude that despite
State v. Avalos Chavez
Avalos Chavez’s lack of objection, the trial court erred by failing to conduct an individualized inquiry before allowing Avalos Chavez to remain shackled during a pretrial hearing and again at sentencing. While the error was harmless with respect to the pretrial hearing, the State fails to show the error was harmless at sentencing. Consequently, we remand for a full de novo resentencing. At resentencing, Avalos Chavez may raise the challenge to his sentence under State v. Erlinger, 602 U.S. 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024).
BACKGROUND
Defense counsel Avalos Chavez was charged with vehicular homicide while under the influence of intoxicating liquor or any drug. Leading up to trial, Avalos Chavez was represented by five different attorneys, four of whom withdrew after citing an inability to work with Avalos Chavez.
Avalos Chavez’s original public defender withdrew when Avalos Chavez retained counsel. Retained counsel later withdrew citing, in part, a breakdown in communication with Avalos Chavez, noncooperation, and his refusal to work with counsel. The court reappointed Avalos Chavez’s original public defender.
Avalos Chavez then requested new counsel, stating he did not trust his current attorney, who Avalos Chavez believed was unhappy and angry with him. At the hearing on this request, counsel stated there was not a legal conflict. The court concluded, “it is
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State v. Avalos Chavez
just strained communication. That is not a reason to reappoint counsel.” Rep. of Proc. (RP) (Sep. 24, 2021) at 11.
Two weeks later, the attorney moved to withdraw on the bases of “(1) breakdown in communication; (2) non-cooperation of Mr. Avalos Chavez; [and] (3) refusal to work with attorney.” Clerk’s Papers (CP) at 8. Avalos Chavez asked for a different attorney. The court noted Avalos Chavez’s history of noncooperation with his attorneys and warned Avalos Chavez that he would get one more attorney and, if he refused to cooperate, he would risk representing himself. Avalos Chavez indicated his understanding.
At a competency hearing several months later, counsel expressed concerns about Avalos Chavez’s competency and ability to communicate. At a later hearing, counsel moved to withdraw because of noncooperation and a breakdown in communication. The trial court found that Avalos Chavez was willfully refusing to cooperate with his attorney, had a history of similar conduct, would continue to behave in such a manner, and had been warned of the consequences of such behavior. The trial court concluded that Avalos Chavez had waived his right to counsel by refusing to cooperate with his attorney. The trial court granted the attorney’s request to withdraw but refused Avalos Chavez’s request for a new attorney.
One month later, the State asked the court to appoint Avalos Chavez new counsel, indicating there was a problem with the record and expressing concern that sufficient
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State v. Avalos Chavez
warnings had not been given. The court agreed and granted the request to appoint new counsel for Avalos Chavez.
At a subsequent hearing on October 6, 2022, the court told Avalos Chavez that his newly appointed counsel was his last chance with appointed counsel and his failure to cooperate or communicate with her could result in the loss of his right to counsel due to his conduct. The court spoke at length about the risks of proceeding pro se and confirmed Avalos Chavez’s understanding. During this colloquy, the court advised Avalos Chavez that he was charged with a “Class A felony” and the “maximum penalty . . . [was] life in prison and/or a $50,000 fine.” RP (Oct. 6, 2022) at 23. After current counsel indicated that Avalos Chavez had been compliant with representation, the State supplemented the record by adding that the standard range for Avalos Chavez’s crime was 126 to 150 months.
One month later, Avalos Chavez’s attorney resigned and a new attorney was appointed. Shortly thereafter, this attorney moved to withdraw, citing a “(1) breakdown in communication; (2) non-cooperation of Mr. Avalos Chavez; [and] (3) refusal to work with attorney.” CP at 22. Specifically, counsel noted that Avalos Chavez refused to provide direction on whether he wished to plead or go to trial and continued to argue with counsel.
At a hearing on the motion to withdraw, Avalos Chavez stated that he was not having arguments with counsel nor did he treat his attorney disrespectfully. He said he
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State v. Avalos Chavez
instructed counsel to stay the course set by the attorney who had resigned and that he did not want the case to be continued.
The court found that Avalos Chavez had been warned about the consequences of his conduct by multiple courts and that multiple attorneys had withdrawn. The court found that Avalos Chavez lost his right to an attorney by his conduct. The court granted counsel’s motion to withdraw and appointed standby counsel.
Avalos Chavez appears in jail clothing and restraints On May 26, 2023, the court held a pretrial management hearing. As a preliminary matter, the court stated that Avalos Chavez was appearing in shackles and Avalos Chavez responded that he did not object:
THE COURT: My understanding, as we begin, is that we only have one corrections officer available who is also present in the courtroom, and for that reason, Mr. Avalos-Chavez is shackled today.
Is that correct, Mr. Avalos-Chavez, that you’re shackled today?
THE DEFENDANT: Yes.
THE COURT: Okay. Do you have any objection to remaining shackled for this hearing?
THE DEFENDANT: No.
THE COURT: Okay.
RP (May 26, 2023) at 38.
Toward the end of the hearing, the court told Avalos Chavez he needed “to be appropriately dressed for trial” and asked whether clothing had been made available to him. RP (May 26, 2023) at 51. Avalos Chavez answered that he did not have any
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clothes. The court informed him that the jail had lots of options for clothing so he could “find something that’s clean, that fits you and looks good.” RP (May 26, 2023) at 51. Standby counsel noted that she was willing to bring Avalos Chavez clothing from his family if needed.
On May 30, the court heard motions in limine. Avalos Chavez attended the hearing unshackled and dressed in civilian clothing. The court noted that Avalos Chavez was not wearing a necktie and inquired as to his planned clothing for trial. Avalos Chavez indicated that he did not want to wear a tie for the first day of trial.
After ruling on the motions in limine, the court took a brief recess. When the proceeding reconvened, Avalos Chavez returned dressed in jail clothing. The court inquired as to his change in clothing and Avalos Chavez confirmed it was his choice to appear in jail clothing.
On the second day of trial, Avalos Chavez again appeared in jail clothing. The court conducted a lengthy colloquy to determine why Avalos Chavez was wearing jail clothing and to caution him as to the potential prejudice such clothing may cause. After warning him of the risk of appearing in jail clothing and asking if he would like to change into civilian clothes, Avalos Chavez answered, “I will not do that. Why should I hide the fact that I’m in jail? It doesn’t bother me. If there are consequences, so be it.” RP (June 1, 2023) at 184.
The jury found Avalos Chavez guilty as charged.
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State v. Avalos Chavez
At the sentencing hearing, Avalos Chavez appeared in shackles. The court asked whether Avalos Chavez had any objection to the shackles or wanted to be unshackled for the hearing:
[THE COURT:] Mr. Avalos-Chavez, do you have any objection to the fact that you are shackled or would you like to be unshackled for this hearing?
MR. AVALOS-CHAVEZ: Well, it’s of no interest to me. Like I said before in the previous hearings, what I say doesn’t have any value.
THE COURT: So, you’re not objecting to remaining shackled?
MR. AVALOS-CHAVEZ: No.
RP (July 17, 2023) at 98.
The State recommended 150 months’ prison and 18 months’ community custody.
The State then stated the initial standard range for the crime, given an offender score of zero, was 78-102 months. The State explained that RCW 46.61.520(2) required “ʻan additional two years . . . for each prior offense as defined in RCW 46.61.5055.’” CP at 72. The State presented certified records of two prior offenses. The State concluded the final standard range, including two 24-month enhancements, was 126-150 months.
The court found the State proved the prior offenses by a preponderance of the evidence and ultimately agreed with the State’s sentencing recommendation.
Avalos Chavez appealed.
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State v. Avalos Chavez
ANALYSIS
1. RIGHT TO COUNSEL Avalos Chavez contends the court committed structural error by depriving him of his right to counsel. He argues that he did not engage in misconduct warranting waiver or forfeiture of the right and, additionally, the court failed to properly warn him regarding the risks and consequences of proceeding pro se. The State maintains that the court did not err and the record supports the conclusion that Avalos Chavez forfeited or waived his right to counsel. We agree with the State.
A. Legal Principles A criminal defendant has a constitutional right to counsel under both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. Although fundamental, the right to counsel is not absolute. A defendant may lose the right to counsel in three distinct ways: waiver, waiver by conduct, or forfeiture. State v. Stutzke, 2 Wn. App. 2d 927, 937, 413 P.3d 1037 (2018). Courts “indulge every reasonable presumption against a defendant’s waiver of their right to counsel.” State v. Sochirca, 33 Wn. App. 2d 838, 844, 565 P.3d 155 (2025).
The first type of waiver occurs when a defendant voluntarily elects to proceed without counsel. State v. Palmer, 24 Wn. App. 2d 1, 14, 518 P.3d 252 (2022). To be valid, the record must unequivocally demonstrate that the waiver was knowing, intelligent, and voluntary. Id.
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State v. Avalos Chavez
Waiver by conduct occupies a middle ground between express waiver and forfeiture. City of Tacoma v. Bishop, 82 Wn. App. 850, 859, 920 P.2d 214 (1996) (describing “‘waiver by conduct’ as a ‘hybrid situation,’ which combines elements of waiver and forfeiture”). Before finding waiver by conduct, the trial court must provide two categories of warnings: (1) advisement of the consequences of proceeding without counsel, and (2) notice that continued dilatory or obstructive behavior will result in the loss of the right to counsel. Stutzke, 2 Wn. App. 2d at 937. Although a formal colloquy is preferred—addressing the nature of the charges, potential penalties, and the technical demands of self-representation—the absence of such a colloquy is not dispositive if the record otherwise reflects that the defendant understood the risks. Bishop, 82 Wn. App. at 856. The warnings need not follow a prescribed script nor immediately precede the misconduct. Stutzke, 2 Wn. App. 2d at 938. Once adequately warned, a defendant’s continued misconduct may be treated as an implied request to proceed pro se and therefore a waiver of the right to counsel. Bishop, 82 Wn. App. at 859.
Forfeiture, by contrast, results in the loss of the right to counsel regardless of the defendant’s intent or knowledge of the risks. Id. at 858-59. Forfeiture is a “harsh result” and “applies only in very limited circumstances, when the party engages in extremely severe and dilatory conduct.” State ex rel. Schmitz v. Knight, 142 Wn. App. 291, 295, 174 P.3d 1198 (2007). Such conduct may include abusive or threatening actions toward
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counsel or behavior that prevents counsel from preparing a defense. Palmer, 24 Wn. App. 2d at 12, 13.
B. Standard of Review Neither Avalos Chavez nor the State identifies the standard of review relevant to this issue. Our prior case law recognizes that the “question of what standard of review should be applied to a decision on waiver of counsel is unsettled.” State v. Nordstrom, 89 Wn. App. 737, 741, 950 P.2d 946 (1997). Nonetheless, Washington courts appear to review forfeiture determinations de novo, while reviewing whether a defendant effectively waived the right to counsel for abuse of discretion. See Palmer, 24 Wn. App. 2d at 11 (applying de novo review to forfeiture and waiver); In re Pers. Restraint of Rhome, 172 Wn.2d 654, 667, 260 P.3d 874 (2011) (reviewing decision on waiver for abuse of discretion). “A waiver determination is an ad hoc determination that rests on a judge’s evaluation of a defendant’s conduct, background, and experience.” Id. at 667-68. A court abuses its discretion when its decision is manifestly unreasonable or made for untenable reasons or on untenable grounds. Id. at 668.
C. Application As an initial matter, the record supports the parties’ apparent agreement that Avalos Chavez did not voluntarily waive his right to counsel. Indeed, Avalos Chavez consistently maintained that he did not wish to proceed without counsel. See, e.g., RP (Aug. 11, 2022) at 22 (“I am not going to respond until you appoint an attorney. I am not
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giving up or waiving my right to have an attorney.”). Accordingly, we turn to whether Avalos Chavez forfeited his right to counsel or waived the right impliedly by his misconduct.
Notwithstanding the nonlinear nature of the court’s warnings and its inconsistent language regarding forfeiture and waiver by misconduct, we conclude the court did not err by finding Avalos Chavez waived his right to counsel by his misconduct. The court issued Avalos Chavez the requisite warnings and properly treated Avalos Chavez’s continued misconduct as an implied request to proceed pro se.
First, the court sufficiently warned Avalos Chavez of the consequences of proceeding without counsel. At the hearing on October 6, 2022, the court conducted a detailed colloquy, advising Avalos Chavez of the nature of the charge, the maximum penalty, and the technical and procedural burdens of self-representation, including adherence to the rules of evidence and criminal procedure.
Second, the court provided sufficient notice to Avalos Chavez that his continued behavior would result in his loss of the right to counsel. At the hearing, the court expressly warned Avalos Chavez that failure to cooperate or communicate with counsel could result in loss of the right to counsel. And the written order stated that “continued behavior such as non-cooperation with his counsel; lack of communication with his counsel; and/or hostility towards his counsel, could result in the loss of the Defendant’s right to counsel pursuant to the 6th Amendment.” CP at 19.
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State v. Avalos Chavez
Following these warnings, the record demonstrates Avalos Chavez’s continued noncooperation. The final attorney moved to withdraw, citing similar issues to the previously withdrawn attorneys: breakdown in communication, noncooperation, and refusal to work with counsel. Avalos Chavez expressed distrust and dissatisfaction but also engaged in conduct that impeded representation. He stated he would refuse to meet with counsel, declined meetings and written correspondence, and failed to provide direction on whether he wished to plead or go to trial. When defense counsel attempted to proceed, Avalos Chavez’s responses were described as noncommittal or argumentative, thus preventing meaningful progress.
This pattern supports the finding of waiver by conduct. “It is well settled that a defendant is not entitled to demand a reassignment of counsel on the basis of a breakdown in communications where he simply refuses to cooperate with his attorneys.” State v. Schaller, 143 Wn. App. 258, 271, 177 P.3d 1139 (2007). Once a defendant is adequately warned, “ʻany misconduct thereafter may be treated as an implied request to proceed pro se.’” Bishop, 82 Wn. App. at 859 (quoting United States v. Goldberg, 67 F.3d 1092 (3d Cir. 1995)). Here, Avalos Chavez’s persistent refusal to engage in productive communication—even after explicit warnings and a comprehensive colloquy—reasonably supports the trial court’s conclusion that his conduct functioned as an implied waiver.
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State v. Avalos Chavez
Avalos Chavez argues the court’s warnings were insufficient because it did not fully advise him of the maximum penalty, relying on the State to supplement the record. This argument fails because, as discussed, the warnings were thorough and the court is not required to follow a prescribed script. See Stutzke, 2 Wn. App. 2d at 938.
Avalos Chavez also contends he did not waive his right to counsel because he was not required to agree with counsel’s strategy and counsel stormed out of their meeting; he emphasizes that prior to her resignation, former defense counsel vouched for how cooperative he was. While we agree Avalos Chavez was not required to endorse counsel’s strategy, disagreement is distinct from noncooperation and noncommunication. Here, the record shows some disagreement, but ultimately, counsel stated he could not continue the representation because Avalos Chavez refused to communicate whether he wished to agree to a plea or go to trial. This was evidence of the same type of behavior the court previously warned would result in waiver. Additionally, although it appears Avalos Chavez successfully cooperated and communicated with the attorney who resigned, such intermittent or temporary compliance did not negate or alter the efficacy of the court’s previous warnings. See id. (the warnings need not immediately precede the misconduct).
The court did not err by finding Avalos Chavez waived his right to counsel by his conduct.
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State v. Avalos Chavez
2. RESTRAINTS AND JAIL CLOTHING Avalos Chavez argues that appearing at proceedings shackled or in prison clothing was presumptively prejudicial and entitles him to a new trial.1 The State responds that the issues are not preserved and urges the court to decline review, arguing that Avalos Chavez fails to show manifest error.
A. Jail Clothing While acknowledging that the clothing issue is unpreserved, Avalos Chavez contends it is reviewable as a manifest error affecting a constitutional right. We disagree and decline to address this issue as unpreserved. RAP 2.5(a).
Generally, this court will not review a claim of error raised for the first time on appeal unless it is a “manifest error affecting a constitutional right.” RAP 2.5(a)(3). “To meet RAP 2.5(a)[(3),] . . . an appellant must demonstrate (1) the error is manifest, and (2) the error is truly of constitutional dimension.” State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).
“The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.” Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). A court violates this right by “compelling a defendant, against his will, to be
1 Although Avalos Chavez presents his argument as a single issue, the rules governing the use of restraints are distinct from those pertaining to jail clothing. As such, we address the issues separately.
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tried in jail attire.” Id. at 507. “The reason for this judicial focus upon compulsion is simple; instances frequently arise where a defendant prefers to stand trial before his peers in prison garments.” Id. at 507-08. “Courts have therefore required an accused to object to being tried in jail garments, just as he must invoke or abandon other rights.” Id. at 508. “Accordingly, although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” Id. at 512-13.
Here, Avalos Chavez fails to demonstrate that he was compelled to wear jail clothing to his hearing and trial. Instead, Avalos Chavez specifically chose to wear such clothing after repeated warnings from the court. Without evidence of compulsion, there is no constitutional error, much less manifest error.2 B. Shackling Avalos Chavez also challenges the trial court’s failure to conduct an individualized inquiry regarding restraining Avalos Chavez at a pretrial hearing and sentencing. The State contends that we should deny review because the issue was
2 The State moved to modify the commissioner’s ruling denying the State’s motion to strike Avalos Chavez’ reply brief as raising new issues. Because we decline review, we deny the State’s motion to modify.
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State v. Avalos Chavez
unpreserved and Avalos Chavez fails to show actual prejudice sufficient to justify review under RAP 2.5(a)(3). We hold that Avalos Chavez has demonstrated manifest error. With respect to the pretrial status hearing, the error was harmless, but the State fails to meet its burden of showing that the error at the sentencing hearing was harmless.
Similar to the jail clothing issue, Avalos Chavez did not object to being shackled at a pretrial hearing and again at sentencing. However, unlike the jail clothing issue, Avalos Chavez did not choose to be shackled or consent to shackling; he merely noted that he had no objection. Cf. State v. Elmore, 139 Wn.2d 250, 272, 985 P.2d 289 (1999) (defense counsel agreed to leave security issues to jail personnel). On appeal, he contends that the issue is reviewable as a manifest error affecting a constitutional right.
The standard for manifest error is set forth above. There is no serious dispute that the shackling issue is one of constitutional dimensions. Washington courts have long recognized that requiring a criminal defendant to appear in court while restrained may violate the right to a fair trial guaranteed by the federal and state constitutions. In re Pers. Restraint of Davis, 152 Wn.2d 647, 693-94, 101 P.3d 1 (2004). This right extends beyond jury trials and applies to every court appearance, including nonjury pretrial proceedings and sentencing hearings. State v. Jackson, 195 Wn.2d 841, 852, 467 P.3d 97 (2020); State v. Jarvis, 27 Wn. App. 2d 87, 98, 530 P.3d 1058 (2023).
The second part of the inquiry under RAP 2.5(a)(3) is to determine if the alleged error is manifest. To demonstrate manifest error, the appellant must show actual
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State v. Avalos Chavez
prejudice. O’Hara, 167 Wn.2d at 99. This requires the appellant to make a plausible showing that the claimed error had practical and identifiable consequences at trial. Id. If Avalos Chavez can demonstrate manifest error, we then apply a constitutional harmless error analysis. Id. While these two steps sound similar, we are careful to distinguish them lest they collapse into each other. As former Justice Fairhurst articulated:
In order to ensure the actual prejudice and harmless error analyses are separate, the focus of the actual prejudice must be on whether the error is so obvious on the record that the error warrants appellate review. It is not the role of an appellate court on direct appeal to address claims where the trial court could not have foreseen the potential error or where the prosecutor or trial counsel could have been justified in their actions or failure to object.
Thus, to determine whether an error is practical and identifiable, the appellate court must place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the error.
Id. at 99-100 (footnote and citation omitted).
Here, Avalos Chavez demonstrates manifest error. Regardless of his lack of objection, the trial court had an independent duty to conduct an inquiry before allowing Avalos Chavez to remain shackled during these hearings. See Jackson, 195 Wn.2d at 854. The inquiry must be individualized and focused on several factors that generally consider whether the defendant presents a security risk. Id. A generalized shackling policy is not an individualized inquiry. Id. at 854-55. The court’s failure to conduct this inquiry is an abuse of discretion and constitutes constitutional error. Id. at 854. Because the duty to conduct this inquiry lies with the court itself, the failure to do so is an obvious
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error that affects a constitutional right and is therefore manifest error for purposes of RAP 2.5(a)(3).
Having concluded that Avalos Chavez raises a manifest constitutional error, we now turn to whether the error was harmless. See O’Hara, 167 Wn.2d at 99. Under this standard, the burden shifts to the State to prove the error was harmless beyond a reasonable doubt. Jackson, 195 Wn.2d at 856.
In Jackson, the court clarified that the State bore this burden because placing the burden on the defendant had resulted in “no meaningful remedy” for numerous shackling violations. 195 Wn.2d at 856. In addition, while recognizing that implicit bias can affect judicial decision-making, the court acknowledged that it is practically impossible for a defendant to demonstrate whether restraints caused a judge to harbor unconscious prejudice. Id.
Applying this standard to the two hearings in this case, we are convinced beyond a reasonable doubt that the shackling error was harmless with respect to the pretrial status hearing. The judge spent the majority of this hearing explaining to Avalos Chavez the logistics of the trial, including Avalos Chavez’s self-representation, standby counsel, and the interpreters. Nothing critical or substantive was decided at this hearing.
On the other hand, we find the State failed to meet its burden of showing harmless error for the unconstitutional shackling error during sentencing. The court sentenced Avalos Chavez to a high-end standard range sentence of 150 months. It is impossible to
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know if the judge’s decision was influenced or affected by Avalos Chavez appearing in shackles. See Jackson, 195 Wn.2d at 856.
CONCLUSION
We affirm Avalos Chavez’s conviction and remand for de novo resentencing.
A majority of the panel has determined 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.
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Staab, C.J.
WE CONCUR:
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Lawrence-Berrey, J.
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Cooney, J.