Filed Washington State Court of Appeals Division Two
September 8, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 54396-6-II
Respondent,
v.
KYLE E. PINNEY, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — A jury convicted Kyle Pinney of one count of custodial assault. On appeal,
he argues that the trial court commented on the evidence, violated his due process right by
requiring him to appear in shackles at sentencing without determining restraints were necessary,
and erred when it imposed community custody supervision fees after determining he was indigent.
We affirm Pinney’s conviction and remand for resentencing.
FACTS
Pinney is incarcerated on a prior charge unrelated to this case. During his incarceration at
Stafford Creek Correctional Facility, Pinney punched a corrections officer in the face during a
routine search. The State charged Pinney with one count of custodial assault.
On the morning of trial, Pinney successfully argued before the trial court that he should not
be restrained for the trial. Once the jury had been selected, the court informed the jury that the
trial would last one day because there were only two witnesses in the case and the trial would start 54396-6-II
before ten in the morning. The court instructed the jurors that they were prohibited from speaking
about the trial while it was ongoing. The court also said that jurors would be able to speak about
the trial when they went home for the day because the trial would be over by then. The jury
convicted Pinney of one count of custodial assault.
During sentencing, Pinney appeared shackled before the court. The State alerted the court
that it had not conducted an inquiry regarding the necessity of shackles in the courtroom and that
the shackles should be removed. The court responded, “He’s okay. He may come forward in
restraints.” Report of Proceedings at 93. The court did not conduct any inquiry or analysis into
whether maintaining Pinney in shackles was necessary. The court sentenced Pinney to eight
months in prison, which is at the high end of the three-to-eight month standard range, and orally
ruled that no legal financial obligations (LFOs) would be imposed. Nevertheless, Pinney’s
judgment and sentence form included payment of community custody supervision fees. Pinney
appeals his conviction and sentence.
ANALYSIS
I. COMMENT ON THE EVIDENCE
Pinney argues the court commented on the evidence when it told jurors that the trial would
last only one day. We disagree.
A. Legal Principles
An allegation that a judge has commented on the evidence is a constitutional issue. State
v. Levy, 156 Wn.2d 709, 719-20, 132 P.3d 1076 (2006). We review constitutional issues de novo.
State v. Jackson, 195 Wn.2d 841, 850, 467 P.3d 97 (2020). Article IV, section 16 of the
Washington Constitution prohibits a court from conveying personal attitudes regarding the merits
of a case or instructing the jury that facts have been established as a matter of law. Levy, 156
2 54396-6-II
Wn.2d at 721. It states, “Judges shall not charge juries with respect to matters of fact, nor comment
thereon, but shall declare the law.” WASH. CONST. art. IV, § 16. “‘A statement by the court
constitutes a comment on the evidence if the court's attitude toward the merits of the case or the
court's evaluation relative to the disputed issue is inferable from the statement.’” In re Detention
of Pouncy, 144 Wn. App. 609, 621, 184 P.3d 651 (2008) (quoting State v. Lane, 125 Wn.2d 825,
838, 889 P.2d 929 (1995)).
If a reviewing court determines the trial court commented on the evidence, it must then
determine whether the error was prejudicial. Levy, 156 Wn.2d at 723. The court presumes judicial
comments are prejudicial, and the State bears the burden of showing the judicial comments did not
prejudice the defendant. Id. A reviewing court may also determine any comment was not
prejudicial if the record “affirmatively shows that no prejudice could have resulted.” Id.
B. Analysis
Pinney argues that by stating his trial would last only one day, the trial court “suggested to
jurors that the charged crime had in fact been committed.” Br. of Appellant at 8. He further argues
that the comments “strongly suggested the court’s view that the State’s evidence would produce a
quick verdict without the necessity of prolonged deliberations.” Br. of Appellant at 9.
The trial court did not comment on the evidence. The court only informed the jury on the
length of the case. The court did not once mention the State’s evidence, its veracity, or how the
jury should rule on a specific charge or element of a charge when it stated the trial would last one
day. The court’s comments do not benefit either party. The comments could have just as easily
referred to Pinney’s or the State’s case. Therefore, the trial court’s attitude toward the merits of
the case is not inferable from the court’s statements. For that reason, we conclude the trial court
did not comment on the evidence. Pinney’s argument fails.
3 54396-6-II
II. SHACKLING DURING SENTENCING
Pinney argues that the trial court abused its discretion when it forced him to appear at
sentencing while shackled without conducting an inquiry into whether it was necessary. The State
argues that the law does not require such inquiry for a sentencing hearing. We conclude that the
trial court violated Pinney’s right to due process by having him appear shackled during sentencing.
We review a trial court’s decision on whether a defendant appears shackled for an abuse
of discretion. Jackson, 195 Wn.2d at 850. A trial court abuses its discretion when its “‘decision
is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons.’” Id.
(internal quotation marks omitted) (quoting State v. Turner, 143 Wn.2d 715, 724, 23 P.3d 499
(2001))). A trial court abuses its discretion by failing to analyze issues under applicable law.
Jackson, 195 Wn.2d at 855.
The Sixth and Fourteenth Amendments to the United States Constitution and article I,
section 22 of the Washington State Constitution entitle a defendant to appear at trial without
shackles or other restraints, absent extraordinary circumstances. Id. at 852. Such protections
include the right against being shackled when brought into the presence of the court. Id.
“[D]ue process does not permit the use of visible restraints if the trial court has not taken
account of the circumstances of the particular case.” Deck v. Missouri, 544 U.S. 622, 632, 125 S.
Ct. 2007, 161 L. Ed. 2d 953 (2005). A court has discretion to require restraints in court but must
conduct an individualized inquiry into whether shackling a defendant is necessary. Jackson, 195
4 54396-6-II
Wn.2d at 852-53. “A trial court must engage in an individualized inquiry into the use of restraints
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Filed Washington State Court of Appeals Division Two
September 8, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 54396-6-II
Respondent,
v.
KYLE E. PINNEY, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — A jury convicted Kyle Pinney of one count of custodial assault. On appeal,
he argues that the trial court commented on the evidence, violated his due process right by
requiring him to appear in shackles at sentencing without determining restraints were necessary,
and erred when it imposed community custody supervision fees after determining he was indigent.
We affirm Pinney’s conviction and remand for resentencing.
FACTS
Pinney is incarcerated on a prior charge unrelated to this case. During his incarceration at
Stafford Creek Correctional Facility, Pinney punched a corrections officer in the face during a
routine search. The State charged Pinney with one count of custodial assault.
On the morning of trial, Pinney successfully argued before the trial court that he should not
be restrained for the trial. Once the jury had been selected, the court informed the jury that the
trial would last one day because there were only two witnesses in the case and the trial would start 54396-6-II
before ten in the morning. The court instructed the jurors that they were prohibited from speaking
about the trial while it was ongoing. The court also said that jurors would be able to speak about
the trial when they went home for the day because the trial would be over by then. The jury
convicted Pinney of one count of custodial assault.
During sentencing, Pinney appeared shackled before the court. The State alerted the court
that it had not conducted an inquiry regarding the necessity of shackles in the courtroom and that
the shackles should be removed. The court responded, “He’s okay. He may come forward in
restraints.” Report of Proceedings at 93. The court did not conduct any inquiry or analysis into
whether maintaining Pinney in shackles was necessary. The court sentenced Pinney to eight
months in prison, which is at the high end of the three-to-eight month standard range, and orally
ruled that no legal financial obligations (LFOs) would be imposed. Nevertheless, Pinney’s
judgment and sentence form included payment of community custody supervision fees. Pinney
appeals his conviction and sentence.
ANALYSIS
I. COMMENT ON THE EVIDENCE
Pinney argues the court commented on the evidence when it told jurors that the trial would
last only one day. We disagree.
A. Legal Principles
An allegation that a judge has commented on the evidence is a constitutional issue. State
v. Levy, 156 Wn.2d 709, 719-20, 132 P.3d 1076 (2006). We review constitutional issues de novo.
State v. Jackson, 195 Wn.2d 841, 850, 467 P.3d 97 (2020). Article IV, section 16 of the
Washington Constitution prohibits a court from conveying personal attitudes regarding the merits
of a case or instructing the jury that facts have been established as a matter of law. Levy, 156
2 54396-6-II
Wn.2d at 721. It states, “Judges shall not charge juries with respect to matters of fact, nor comment
thereon, but shall declare the law.” WASH. CONST. art. IV, § 16. “‘A statement by the court
constitutes a comment on the evidence if the court's attitude toward the merits of the case or the
court's evaluation relative to the disputed issue is inferable from the statement.’” In re Detention
of Pouncy, 144 Wn. App. 609, 621, 184 P.3d 651 (2008) (quoting State v. Lane, 125 Wn.2d 825,
838, 889 P.2d 929 (1995)).
If a reviewing court determines the trial court commented on the evidence, it must then
determine whether the error was prejudicial. Levy, 156 Wn.2d at 723. The court presumes judicial
comments are prejudicial, and the State bears the burden of showing the judicial comments did not
prejudice the defendant. Id. A reviewing court may also determine any comment was not
prejudicial if the record “affirmatively shows that no prejudice could have resulted.” Id.
B. Analysis
Pinney argues that by stating his trial would last only one day, the trial court “suggested to
jurors that the charged crime had in fact been committed.” Br. of Appellant at 8. He further argues
that the comments “strongly suggested the court’s view that the State’s evidence would produce a
quick verdict without the necessity of prolonged deliberations.” Br. of Appellant at 9.
The trial court did not comment on the evidence. The court only informed the jury on the
length of the case. The court did not once mention the State’s evidence, its veracity, or how the
jury should rule on a specific charge or element of a charge when it stated the trial would last one
day. The court’s comments do not benefit either party. The comments could have just as easily
referred to Pinney’s or the State’s case. Therefore, the trial court’s attitude toward the merits of
the case is not inferable from the court’s statements. For that reason, we conclude the trial court
did not comment on the evidence. Pinney’s argument fails.
3 54396-6-II
II. SHACKLING DURING SENTENCING
Pinney argues that the trial court abused its discretion when it forced him to appear at
sentencing while shackled without conducting an inquiry into whether it was necessary. The State
argues that the law does not require such inquiry for a sentencing hearing. We conclude that the
trial court violated Pinney’s right to due process by having him appear shackled during sentencing.
We review a trial court’s decision on whether a defendant appears shackled for an abuse
of discretion. Jackson, 195 Wn.2d at 850. A trial court abuses its discretion when its “‘decision
is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons.’” Id.
(internal quotation marks omitted) (quoting State v. Turner, 143 Wn.2d 715, 724, 23 P.3d 499
(2001))). A trial court abuses its discretion by failing to analyze issues under applicable law.
Jackson, 195 Wn.2d at 855.
The Sixth and Fourteenth Amendments to the United States Constitution and article I,
section 22 of the Washington State Constitution entitle a defendant to appear at trial without
shackles or other restraints, absent extraordinary circumstances. Id. at 852. Such protections
include the right against being shackled when brought into the presence of the court. Id.
“[D]ue process does not permit the use of visible restraints if the trial court has not taken
account of the circumstances of the particular case.” Deck v. Missouri, 544 U.S. 622, 632, 125 S.
Ct. 2007, 161 L. Ed. 2d 953 (2005). A court has discretion to require restraints in court but must
conduct an individualized inquiry into whether shackling a defendant is necessary. Jackson, 195
4 54396-6-II
Wn.2d at 852-53. “A trial court must engage in an individualized inquiry into the use of restraints
prior to every court appearance.” Id. at 854 (emphasis added). The inquiry must be “‘founded
upon a factual basis set forth in the record.’” Id. at 853 (quoting State v. Hartzog, 96 Wn.2d 383,
400, 635 P.2d 694 (1981)). A trial court abuses its discretion by failing to conduct such inquiry.
If we conclude that the trial court abused its discretion by not conducting an individualized
inquiry, we must then determine whether the error was harmless. Id. at 855-56. The State bears
the burden of proving beyond a reasonable doubt that the constitutional error was harmless. Id. at
856.
C. Analysis
We conclude that the trial court abused its discretion by failing to conduct an individualized
inquiry into whether shackling Pinney was necessary. The State’s sole argument is that Jackson
only applies to pretrial hearings. However, Jackson, without qualification, expressly held that a
trial court must conduct an inquiry “prior to every court appearance,” not just pretrial hearings.
See id. at 854 (emphasis added).
The trial court failed to conduct an individualized inquiry into whether shackling was
necessary. When the State pointed out that no such inquiry had been conducted, the court ignored
the warning and proceeded with the hearing anyway. The trial court’s failure to conduct an
individualized inquiry for Pinney’s sentencing hearing was an abuse of discretion.
5 54396-6-II
Next, we conclude that the error was not harmless. The State fails to prove the
constitutional error was harmless beyond a reasonable doubt, indeed it provided no argument on
that issue. Therefore, we remand for resentencing.
III. LEGAL FINANCIAL OBLIGATIONS
Pinney argues that the court erred when it imposed community custody supervision fees
after determining he was indigent. The State argues that community custody supervision fees are
not discretionary. We disagree with Pinney that the trial court cannot impose supervision fees on
indigent defendants, but nevertheless encourage the trial court to review the imposed fees.
Before imposing costs and fees, RCW 10.01.160(3) requires a superior court to conduct,
on the record, an individualized inquiry into a defendant’s ability to pay. State v. Ramirez, 191
Wn.2d 732, 745-46, 426 P.3d 714 (2018). RCW 10.01.160(3) states in relevant part, “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).”
The trial court may also impose discretionary community custody supervision fees under
RCW 9.94A.703(2)(d). RCW 9.94A.703 states, “When a court sentences a person to a term of
community custody, the court shall impose conditions of community custody as provided in this
section. . . . (2) Waivable conditions. Unless waived by the court, as part of any term of
community custody, the court shall order an offender to: . . . (d) Pay supervision fees as determined
by the department.”
Recently, in State v. Spaulding, this court addressed the same issue raised by Pinney here.
15 Wn. App. 2d 526, 537, 476 P.3d 205 (2020). Spaulding, an indigent defendant, challenged the
imposition of a community custody supervision fees under RCW 9.94A.703(2)(d). Id. This court
determined:
6 54396-6-II
[T]he supervision fee is not a “cost” under RCW 10.01.160(3) just because it is a discretionary financial obligation. RCW 10.01.160(2) defines “cost” as an expense specially incurred by the State to prosecute the defendant, to administer a deferred prosecution program, or to administer pretrial supervision. The supervision fee is not a “cost” under this definition. Therefore, RCW 10.01.160(3) does not prohibit the imposition of supervision costs on an indigent defendant.
However, we acknowledge that the imposition of LFOs on indigent defendants can create a significant hardship. See State v. Blazina, 182 W[n].2d 827, 835-37, 344 P.3d 680 (2015). The court in State v. Clark emphasized that there are strong policy arguments in favor of considering an indigent defendant’s ability to pay discretionary LFOs even when such consideration is not required. 191 W[n]. App. 369, 376, 362 P.3d 309 (2015). And under RCW 9.94A.703(2)(d), the trial court has discretion to waive the supervision fee.
Spalding, 15 Wn. App. 2d at 536-37.
Accordingly, this court “encourage[d] the trial court on remand to reevaluate the imposition
of the supervision fee.” Id. at 537.
We conclude that the trial court had discretion to impose the supervision fee, as it is not
prohibited by RCW 10.01.160(3). The State cites to RCW 9.94A.704(3)(d) to support its argument
that community custody supervision fees are not discretionary. However, RCW 9.94A.703(2)(d)
expressly states that community custody fees are waivable, so they are discretionary. The trial
court found Pinney was indigent, and orally ruled that it was not imposing LFO’s but imposed
community custody supervision fees via preprinted language on the judgment and sentence form.
Because we are remanding for resentencing, we encourage the trial court consider the impact of
such fees on Pinney.
CONCLUSION
7 54396-6-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.
Veljacic, J.
We concur:
Glasgow, A.C.J.
Cruser, J.