State Of Washington, V Linda Kay Harper

• Court: Court of Appeals of Washington
• Decided: January 23, 2017
• Docket: 76037-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 76037-8-1 Respondent, ) ) DIVISION ONE f•-..1 (-) C= CP C) V. ) ) UNPUBLISHED OPINION-, ErHi co LINDA KAY HARPER, ) N.)

Appellant. ) FILED: January 23, 2017:„ ) r- 41.4~ •• ^ g

APPELWICK, J. — The trial court terminated Harper from drug court. HarperP

argues that she did not receive adequate notice and opportunity to be heard prior

to termination. She also argues that the trial court violated the appearance of

fairness doctrine, improperly ordered her to pay her remaining $30 drug court

balance, and that counsel was ineffective. We affirm.

FACTS

Linda Harper was charged with five counts of identity theft and five counts

of forgery. She entered the Thurston County Drug Court program. Drug court

participants must sign a contract that requires them to abide by program

requirements. If a participant does not abide by the requirements, the contract

gives the trial court the discretion to terminate the participant from the program. No. 76037-8-1/2

Harper signed the drug court contract on November 3, 2015. Following a

hearing on November 10, the trial court imposed a 16 hour community service

sanction against Harper, because she missed a drug education program, failed to

appear at an orientation, and missed a 12-step meeting. After another hearing on

November 17, the trial court imposed a second sanction of 7 days in jail for more

missed meetings and 2 failed urinary analyses. At the November 17 hearing, the

State also noted aloud that it was prepared to seek Harper's termination from the

program. At both hearings, Harper had an opportunity to address the allegations.

At a December 1 hearing, with Harper and her attorney present, the State

presented a petition alleging non-compliance with conditions of drug court contract

and motion for termination. The prosecutor's supporting declaration cited Harper's

"failure to follow all terms and conditions of drug court." At a December 8 hearing,

Harper's attorney acknowledged that he had received the petition and that he had

discussed the petition with Harper. The trial court granted the petition to terminate

Harper from the program at the December 8 hearing. Harper moved for

reconsideration, but the trial court reaffirmed Harper's termination. The court found

Harper guilty on all five counts of forgery and all five counts of identity theft. Harper

appeals.

DISCUSSION

First, Harper asserts that she did not receive adequate notice and

opportunity to be heard prior to her termination from drug court. Second, she

argues that the trial judge violated the appearance of fairness doctrine. Third, she

argues that the trial court lacked sufficient legal basis to order her to pay

2 No. 76037-8-1/3

outstanding drug court costs. Fourth, she argues ineffective assistance of counsel

in a statement of additional grounds for review. Finally, Harper argues that we

should not award the State costs on appeal.

I. Notice and Opportunity To Be Heard

Harper argues that she did not receive sufficient notice and opportunity to

be heard prior to her termination from drug court. She notes that the prosecutor's

declaration supporting the petition for termination was deficient because it listed

the grounds for termination as only: "failure to follow all terms and conditions of

drug court."

Before terminating a participant from drug court, due process requires the

court to provide notice and a hearing. State v. Cassill-Skilton, 122 Wn. App. 652,

658, 94 P.3d 407 (2004). The State must give the defendant an opportunity to

contest the basis of termination and create a record of the evidence relied on to

terminate participation. State v. Varnell, 137 Wn. App. 925, 930, 155 P.3d 971

(2007). Under the drug court contract that Harper signed, any violations of the

drug court contract are sufficient grounds for termination. The contract gives the

trial court discretion to terminate a participant.

The reasons for Harper's termination were no mystery. The trial court's

November 10 order imposing sanctions listed Harper's missed education classes,

a missed orientation, and a missed 12-step meeting as reasons for initial

sanctions. At a November 10 hearing, the State, with Harper and her counsel

present, orally notified the judge of these allegations. The trial court asked Harper

and her attorney to address the accusations, and Harper accepted responsibility

3 No. 76037-8-1/4

for these missed appointments. A November 17 order imposing sanctions listed

missed education classes, a missed orientation, and failed urinalysis tests as the

reasons for a second round of sanctions. At a November 17 hearing, the court

read the additional allegations aloud: missed education classes, a missed meeting,

a missed orientation, and two positive urinalysis tests. Again, the court gave

Harper an opportunity to address the accusations, and Harper admitted she had

not made drug court a priority. At the close of the November 17 hearing, the State

suggested it would soon be filing a petition to terminate Harper from drug court. At

a December 8 hearing to address the State's petition to terminate, the court again

asked both Harper and her attorney to address the accusations that she had not

complied with the drug court requirements.

In Cassill-Skilton, a case where an appellant did not receive due process,

there was "no record to show the basis of termination, any opportunity for a hearing

on the alleged violations, nor any findings to show what evidence the court relied

on in finding an agreement violation." 122 Wn. App. at 658. Here, the termination

petition did not notify Harper of the specific conduct constituting grounds to

conclude she had breached the drug court contract and should be terminated.

However, the basis for termination was the numerous violations for which she had

notice and had an opportunity to be heard. She does not claim these violations

were an insufficient basis for termination or that some unstated violation was the

basis for termination. She received adequate notice and opportunity to be heard.

4 No. 76037-8-1/5

II. Appearance of Fairness

Harper next argues that the trial court violated the appearance of fairness

doctrine. On December 15, Harper made an oral motion requesting that the court

reconsider its decision to terminate Harper from the program. She cites the court's

statement in response to that motion that it had "'a pretty good idea of what's going

to happen' " regarding the outcome of that motion as evidence that the court had

prejudged facts. And, Harper notes that during that same December 15 hearing,

the trial judge tore up a letter Harper wrote to the judge.

We presume that a trial court performed its functions regularly and properly

without bias or prejudice. Hickok-Knight v. Wal-Mart Stores, Inc., 170 Wn. App.

279, 318, 284 P.3d 749 (2012). The party claiming bias or prejudice must support

the claim with evidence of the trial court's actual or potential bias. Id. Pursuant to

RAP 2.5(a), we generally decline to address appearance of fairness arguments for

the first time on appeal. Club Envy of Spokane, LLC v. Ridpath Tower Condo.

Ass'n, 184 Wn. App. 593, 605, 337 P.3d 1131 (2014).

Harper never objected to the trial judge presiding over her case after it tore

up the letter and commented on the likelihood of reconsideration. Despite Harper's

failure to preserve the issue, we choose to briefly address the merits of her

appearance of fairness argument.

The trial court's comment that it had "a pretty good idea" about the motion

for reconsideration was not improper. In coming to this conclusion, the trial court

noted that Harper may have set a drug court record for the number of violations,

and she had been in the program for only five weeks. It was clear that this was

5 No. 76037-8-1/6

sufficient to justify termination. There was no indication of what basis could

possibly be offered that would allow the trial court to overlook those violations. By

stating it had "a pretty good idea" of the result of the motion for reconsideration,

the court was not prejudging later facts, but instead acknowledging the already

adjudicated violations working against Harper.

Tearing up Harper's personal letter did not constitute bias or violate the

appearance of fairness. The letter appears to have been an attempt at an

inappropriate ex parte contact with the judge. In re Marriage of Davison, 112 Wn.

App. 251, 257, 48 P.3d 358 (2002) (reasoning that to maintain impartiality a judge

is expected to "shield himself or herself from improper communications" such as

letters). The judge did not read the letter, but tore it up at the December 15 hearing

in front of the parties. He instructed Harper not to send him more letters because

she had lost credibility with the judge. Tearing up the letter instead of merely

returning it may have demonstrated frustration or disappointment with Harper. But,

the court then granted Harper's motion for a continuance to set a motion for

reconsideration. Granting the relief Harper requested is inconsistent with the claim

that the court tearing up the letter was evidence of bias against Harper.

At the December 29 reconsideration hearing, the judge apologized to

Harper for tearing up the letter and attributed his actions to frustration that Harper

did not take advantage of the positive aspects of the drug court program. But,

nothing related to the reconsideration motion demonstrated that the original order

was the product of bias or that it was not supported by proof that the contract was

violated. No new evidence or theory was offered that supported reversal of the

6 No. 76037-8-1/7

original decision to terminate. Harper has not carried her burden to show that the

trial court violated the appearance of fairness doctrine in its handling of the

reconsideration of the termination decision.

III. $30 Judgment

Harper argues that the trial court had no legal basis to require Harper to pay

her outstanding drug court balance. She contends that this is a legal financial

obligation (LFO) not specifically authorized by any portion of RCW 10.01.160, and

therefore invalid. But, in this case, Harper signed a contract that stipulated to a

$30 per week payment towards the cost of drug court treatment. Harper's

argument that the $30 balance is an LFO and is invalid because it is not

enumerated in RCW 10.01.160 fails. The drug court contract to which Harper

stipulated provides an independent contractual basis for the $30 judgment.

IV. Statement of Additional Grounds

Harper argues she received ineffective assistance of counsel in a statement

of additional grounds for review.1 She notes that that she spoke only briefly with

her attorney and had difficulty reaching him to discuss her case, and, therefore,

was unfamiliar with the process and implications of her case. To show ineffective

assistance of counsel, the appellant has the burden to show that counsel's

performance was deficient and that the appellant was prejudiced by the deficient

performance. In re the Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d

1102 (2012). Scrutiny of counsel's performance is highly deferential and courts

1 In the statement of additional grounds for review, she also argues that the trial court publicly humiliated her and treated her unfairly. We treat this as an appearance of fairness claim, which we addressed above.

7 No. 76037-8-1/8

will indulge in a strong presumption of reasonableness. In re Dependency of

S.M.H., 128 Wn. App. 45, 61, 115 P.3d 990 (2005). Here, the record shows that

Harper's counsel met with her multiple times and discussed the nature and

implications of the proceedings with her. Harper has not met her burden to

overcome the presumption of reasonableness. We reject her ineffective

assistance of counsel argument.

V. Costs on Appeal

In her opening brief, Harper argues that she should not be liable for

appellate costs and attorney fees should the State request them. In State V.

Sinclair, 192 Wn. App. 380, 393, 367 P.3d 612 (2016), we determined that RAP

15.2(f) created a presumption of continued indigency throughout review. We follow

Sinclair here. The trial court found that Harper lacked sufficient funds to pursue

an appeal and determined that she was entitled to appellate counsel at public

expense. The State has not overcome the continuing presumption of indigency.

Therefore, we conclude that the State is not entitled to appellate costs.

We affirm.

WE CONCUR:

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