State of Washington v. Nathaniel Lewis Vickers

Opinion

FI ED

AUGUS 23, 2016

In the Office of he Clerk of Court WA State Court o Appeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGT N DIVISION THREE

STATE OF WASHINGTON, )

) No. 33095-8-111 Respondent, )

)

V. )

)

NATHANIEL LEWIS VICKERS, ) UNPUBLISHED OPI ION )

Appellant. )

SIDDOWAY, J. - A jury found Nathaniel Vickers guilty of delivery of dihydrocodeinone. For the first time on appeal, he challenges (1) the trial co rt's failure to engage in an individualized inquiry into his ability to pay legal financial o ligations imposed and (2) a mandatory $100 DNA 1 collection fee that he contends viol tes substantive due process. In a prose statement of additional grounds (SAG) h raises several other arguments. We find no merit to any of his contentions other th n his challenge to the trial court's failure to engage in an individualized inquiry as o his ability

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No. 33095-8-111 State v. Vickers

to pay discretionary legal financial obligations. We reverse and remand for a n w sentencing hearing. We grant late-filed motions to not award appeal costs and o enlarge the time to file that motion and its supporting report on continued indigency.

FACTS AND PROCEDURAL BACKGROUND A jury found Nathaniel Vickers guilty of delivery of dihydrocodeinone ·n a public park. At sentencing, the State requested $3,256.70 in legal financial obligatio s (LFOs). A total of $1,556.70 were discretionary ($200.00 in court costs; $81.70 in sher'ff fees; $775.00 for a court appointed attorney; and $500.00 for a drug enforcement fu d), and the other $1,700.00 were mandatory ($1,000.00 fine for violation of the Unifo Controlled Substances Act, chapter 69.50 RCW; $500.00 victim assessment;$ crime laboratory fee; $100.00 DNA biological sample fee).

Having determined the total costs requested by the State, the court enga ed in the following inquiry of Mr. Vickers:

THE COURT: Your financial obligations between court costs, fees an fines, totals $3,256.70. And that will be made payable at not less than 50 per month.

When you are employed, what do you do?

THE DEFENDANT: Disability.

THE COURT: Okay. Those payments will begin 90 days after release

Report of Proceedings (RP) at 308. Mr. Vickers did not object.

The judgment and sentence that the court then signed contains the follo mg language:

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2.5 ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS. (R W 9.94A.760) The court has considered the defendant's past, present and future ability to pay legal financial obligations, including the defendant s financial resources and the likelihood that the defendant's status will change. The court specifically finds that the defendant has the ability o likely future ability to pay the legal financial obligations ordered herein

Clerk's Papers (CP) at 72. Again, Mr. Vickers did not object.

He appeals.

ANALYSIS

LFOs

Mr. Vickers argues the trial court erred when it imposed discretionary FOs without conducting an individualized inquiry into his ability to pay.

As a preliminary matter, we must consider whether to accept review of he issue since Mr. Vickers did not object to the finding of ability to pay in the trial cou , thereby failing to preserve the issue. RAP 2.5( a); State v. Blazina, 182 Wn.2d 827, 83 , 344 P .3d 680 (2015) ("[ u ]npreserved LFO errors do not command review as a matter o right"). A

majority of the panel favors exercising our discretion under RAP 2.5(a) to revi wthe issue.

Under RCW 10.01.160(3), courts may not order a defendant to pay dis retionary "costs unless the defendant is or will be able to pay them," taking into account "the financial resources of the defendant and the nature of the burden that payment of costs will impose."

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Practically speaking, this imperative under RCW 10.01.160(3)

means that the court must do more than sign a judgment and sentence boilerplate language stating that it engaged in the required inquiry. Th record must reflect that the trial court made an individualized inquiry i o the defendant's current and future ability to pay. Within this inquiry, t e court must also consider important factors ... such as incarceration an a defendant's other debts, including restitution, when determining a defendant's ability to pay.

Blazina, 182 Wn.2d at 838.

Beyond the brief inquiry reproduced above, the court was aware Mr. v· ckers was 52 years old, had at some point worked in a mail room, and had no prior felon

convictions. The court also knew Mr. Vickers had requested a drug offenders ntencing alternative, under which offenders may be required to pay $30 per month too set the cost of monitoring for controlled substances. RCW 9.94A.660(6)(a). The rec rd does not show that the trial judge considered these factors or inquired about others efore imposing the discretionary LFOs. Because the trial court failed to make the re uired individualized inquiry into Mr. Vickers's ability to pay, remand is required.

DNA collection fee

Mr. Vickers next argues that imposing the DNA collection fee on an in igent defendant violates substantive due process. But he can point to no facts in the record suggesting that he cannot pay a $100 fee. He directs us to his statutory indige ce for purposes of court appointment of appellate counsel, but evidence of his statut ry indigence is unhelpful because the cost of appellate representation in a crimin 1 matter

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"exponentially exceeds $100." State v. Stoddard, 192 Wn. App. 222,228,366 P.3d 474 (2016). The alleged error therefore is not manifest and we decline to review i . RAP 2.5(a); Stoddard, 192 Wn. App. at 228-29.

STATEMENT OF ADDITIONAL GROUNDS In a pro se statement of additional grounds for review (SAG), Mr. Vick rs raises four.

Right to testify. Mr. Vickers asserts he was not given the right to testify on his own behalf, in violation of the Fifth, Sixth, and Fourteenth Amendments to th United States Constitution. But the record reveals he was questioned by the trial cou and explicitly acknowledged that the choice not to testify was his:

THE COURT: Mr. Vickers, you are choosing not to testify, correct?

THE DEFENDANT: Yes.

RP at 234.

Ineffective assistance of counsel. Mr. Vickers contends his attorney pr vided ineffective assistance of counsel in the following respects: (a) he failed to call itnesses in Mr. Vickers's defense; (b) he did not sufficiently question the all-white jury for bias and prejudice; and (c) knowing that Mr. Vickers suffered from a mental health condition, he did not ensure that Mr. Vickers understood a plea bargain.

To demonstrate ineffective assistance of counsel, a defendant m st make two showings: (1) defense counsel's representation was deficient i.e., it fell below an objective standard of reasonableness based on consider tion of all the circumstances; and (2) defense counsel's deficient representat on

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prejudiced the defendant, i.e., there is a reasonable probability that, exc pt for counsel's unprofessional errors, the result of the proceeding would ave been different.

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing Sta e v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). The claim fails if the defendant fails to satisfy either prong. Thomas, 109 Wn.2d at 226. There is a strong pre umption that counsel performed effectively. Strickland v. Washington, 466 U.S. 668, 6 9, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Some of Mr. Vickers's complaints depend on facts outside the record ( .g., an asserted offer of a plea bargain) and are not reviewable in a direct appeal. Mc 127 Wn.2d at 335. Others are insufficiently explained to inform us of the nat alleged error. RAP 10.lO(c). We address this ground for review to the extent e are able.

After the State rested and Mr. Vickers's lawyer informed the court that he defense would not be presenting a case, the prosecutor asked the trial court to confirm hat it was Mr. Vickers's decision not to testify, which the court did, as previously discus ed. In addition, the prosecutor began to ask the court to confirm Mr. Vickers's agree ent with the decision not to call another person who had been identified as a possible d fense witness, but then corrected himself, recognizing that it was not a client prerog tive:

[PROSECUTOR]: ... we would ask the Court to make the same inqui y of the Defendant of himself that he chose not to put on this witness-Or, ell,

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I could be wrong because now that I'm thinking about it, that also woul be considered a defense attorney's decision too, so--

THE COURT: Correct.

[PROSECUTOR]: So I will defer that to counsel and the Court. I just [DEFENSE COUNSEL]: Right, your Honor. I had made that decision on my own not to present Ms. Clouse or any other witness, regardless ofw at Mr. Vickers may or may not have said to me or agreed to. I would-I would object to an inquiry in that regard because it's my decision and t e conversations I had with Mr. Vickers in that regard are confidential. M sense is that is not a proper inquiry by the Court.

THE COURT: I am not going to inquire.

RP at 234-35. Because it appears from counsel's statement that he made an in ormed, tactical decision not to call the witnesses, Mr. Vickers's claim of ineffective a sistance fails. State v. Robinson, 79 Wn. App. 386,396,902 P.2d 652 (1995) ("[A] co plaint that an attorney erred in failing to call a certain witness is ordinarily rejected as tac ical.").

Mr. Vickers next argues that he "was given an all-white jury with no sc eening for bias and prejudice." SAG at 2. "To establish ineffective assistance of counsel based on trial counsel's performance during voir dire, a defendant generally must demo strate the absence of a legitimate strategic or tactical reason for counsel's performance." State v. Johnston, 143 Wn. App. 1, 17, 177 P.3d 1127 (2007) (citing In re Pers. Restr int of Davis, 152 Wn.2d 647, 709, 101 P.3d 1 (2004)).

After the trial court introduced the parties to the venire and briefly expl ined the case, and before turning voir dire over to the lawyers, the trial court asked the embers of the venire whether there was anything about the case "that might cause you to begin this trial with any feelings or concerns regarding your participation" or wheth r anyone

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knew of "any reason why you might not be able to try this case impartially an be fair to both the State and the Defendant." RP at 22-23. The three members of the ve ire who responded "yes" were questioned by the prosecutor and two who expressed bi s toward the defendant personally (not mentioning his race) were excused. RP at 24-30 Mr. Vickers fails to demonstrate that his lawyer did not make a tactical decision n t to offend prospective jurors who might view additional, more pointed questioning as im licitly accusing them of racism. He also fails to demonstrate any probability that the ·urors seated (who acquitted him on one count) were biased against him.

Examination of confidential informant. Mr. Vickers suggests he wasp vented from challenging the credibility of the confidential informant. The confidenti 1 informant's identity was revealed, she testified, and the jury heard that she wa working for the police to resolve theft charges, had been addicted to prescription pain edication, and the money she received as a confidential informant was her only source o mcome. Mr. Vickers does not demonstrate any error or ineffectiveness of his lawyer in this connection.

Right to medical care. Finally, Mr. Vickers claims he did not receive n eded treatment and medication for his bipolar disorder "[b]efore arrest," and was al o denied a right to treatment under the Eighth Amendment to the United States Constituti n. SAG at 3. Such a claim must be addressed by a personal restraint petition, not in th direct appeal of a criminal conviction.

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We reverse and remand for a new sentencing hearing. We exercise our iscretion under RAP 14.1 to deny the State costs on appeal.

A majority of the panel has determined this opinion will not be printed i the Washington Appellate Reports, but it will be filed for public record pursuant t RCW 2.06.040.

Siddoway, J.

WE CONCUR:

Pennell, J.