State Of Washington, V. Samuel Whitfield

• Court: Court of Appeals of Washington
• Decided: November 25, 2024
• Docket: 85526-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 85526-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION SAMUEL WHITFIELD,

Appellant.

BIRK, J. — Samuel Whitfield appeals his conviction, arguing the charging

document was constitutionally deficient and the trial court erred in failing to

exercise its discretion to meaningfully consider a drug offender sentencing

alternative (DOSA), RCW 9.94A.660. Whitfield also argues, and the State

concedes, the trial court erred in ordering community custody conditions and

imposing the victim penalty assessment (VPA) fee. We affirm Whitfield’s

conviction and remand for the trial court to strike the community custody conditions

and the VPA fee.

I

Whitfield and Shannon Traxler met in 2016 and dated for approximately five

years. On March 15, 2022, the Tukwila Municipal Court issued a domestic

violence no-contact order prohibiting Whitfield from, among other things,

contacting Traxler “directly, indirectly, in person, or through others.” The order was

valid for five years. No. 85526-3-I/2

On June 8, 2022, Traxler went to the Tukwila Municipal Court to attend a

hearing. Traxler, accompanied by her friend, met her victim advocate, Lana

Umbinetti, and all three entered the courtroom. Whitfield was already in the

courtroom when they arrived. After a few minutes, Whitfield walked over to

Traxler’s friend and handed her a green folder. Traxler testified she heard Whitfield

say that “ ‘it was for Shannon.’ ” The friend showed the folder to Umbinetti, who

reviewed it and testified it contained a letter, which was addressed to Traxler. A

few minutes later, Whitfield walked back over and tried unsuccessfully to grab the

folder from Traxler’s friend, stating, “ ‘That’s not for you.’ ” Umbinetti left the

courtroom with Traxler and called the records department to connect to the

nonemergency dispatch to report the violation of a no-contact order. An officer

responded to the courthouse and arrested Whitfield for violating the domestic

violence no-contact order.

The State charged Whitfield with one count of domestic violence felony

violation of a court order. The information alleged

[t]hat the defendant [Whitfield] in King County, Washington, on or about June 8, 2022, did know of and willfully violate the terms of a court order issued on 3/15/2022 by the Tukwila Municipal Court pursuant to RCW chapter 10.99, for the protection of [Traxler], and at the time of the violation having at least two prior convictions for violating provisions of an order issued under RCW chapter 10.99, 26.50, 26.09, 26.10, 26.26, or 74.34, or under a valid foreign protection order as defined in RCW 26.52.020.

Contrary to RCW 26.50.110(1),(5), and against the peace and dignity of the State of Washington.

And further do accuse [Whitfield], at said time of committing the above crime against an intimate partner as defined in RCW

2 No. 85526-3-I/3

26.50.010(7), which is a crime of domestic violence as defined in RCW 10.99.020.

Whitfield never challenged the information as insufficient, asked for a bill of

particulars, or objected that he had not been adequately informed of the charges

against him. Whitfield was convicted following a jury trial.

Upon Whitfield’s request, the trial court ordered a DOSA screening and

presentence examination. Whitfield filed a presentence report in which he

requested the trial court impose a DOSA as an alternative to a determinate

sentence. The Department of Corrections completed a residential DOSA

examination report. The report found that Whitfield was “assessed and diagnosed

per RCW 9.94A.660,” without treatment there was a probability of future criminal

behavior, and Whitfield would benefit from treatment. The defense supported its

filing with medical records and statements from Whitfield’s primary care doctor,

LEAD1 program case manager, and a social worker.

At sentencing, Whitfield argued a DOSA was appropriate because he had

turned back to drugs when his relationship with Traxler ended, and he was “using

substances” when he wrote the letter. The State agreed Whitfield was eligible for

a DOSA, but argued it was not appropriate because there was no evidence

presented that Whitfield’s actions in the case resulted from the influence of drugs.

Traxler described injuries she had received from Whitfield in the past and

expressed continued fear. The trial court stated it had “carefully considered the

parties’ written submissions, also the arguments and statements that were made

1 “LEAD” stands for “Law Enforcement Assisted Diversion.” https://leadkingcounty.org/ - what-we-do.

3 No. 85526-3-I/4

at our last sentencing hearing[2] . . . and . . . considered the arguments made

today.” The trial court both denied Whitfield’s request for an exceptional downward

sentence based on the purposes of the Sentencing Reform Act of 1981, chapter

9.94A RCW, and concluded “this is not an appropriate case for a DOSA

disposition.” The trial court sentenced Whitfield to the standard range term of 60

months, also the statutory maximum, imposed the $500 VPA fee, and waived all

nonmandatory fees and costs. The judgment and sentence also checked

“Appendix H for Community Custody conditions,” which listed, but did not check,

conditions specific to domestic violence offenses. Whitfield appeals.

II

Whitfield argues for the first time on appeal that the information was

constitutionally deficient for failing to allege particular facts supporting a domestic

violence felony violation of a court order.

We review challenges to the sufficiency of the information de novo. State

v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013). When a challenge to the

constitutional sufficiency of a charging document is raised for the first time on

appeal, we construe the charging document liberally. State v. McCarty, 140 Wn.2d

420, 425, 998 P.2d 296 (2000). Reviewing courts apply a two step inquiry: (1) do

the necessary facts appear in any form, or by fair construction can they be found

in the charging document, and if so, (2) can the defendant show that they were

nonetheless actually prejudiced by the inartful language, which caused a lack of

2 Whitfield’s first sentencing hearing was continued to allow for additional

briefing regarding Whitfield’s proper offender score.

4 No. 85526-3-I/5

notice. State v. Kjorsvik, 117 Wn.2d 93, 105-06, 812 P.2d 86 (1991). If the

necessary elements are not found or fairly implied, we presume prejudice and

reverse without reaching the second prong and the question of prejudice. Zillyette,

178 Wn.2d at 163. Whitfield does not attempt to show prejudice, and argues

instead that the information lacks all of the essential elements.

Under the Sixth Amendment and article I, section 22 of the Washington

Constitution, charging documents must contain all of the essential elements of the

charged crime. State v. Pry, 194 Wn.2d 745, 751, 452 P.3d 536 (2019). “The

information is constitutionally adequate only if it sets forth all essential elements of

the crime, statutory or otherwise, and the particular facts supporting them.” State

v. Hugdahl, 195 Wn.2d 319, 324, 458 P.3d 760 (2020). An “essential element is

one whose specification is necessary to establish the very illegality of the behavior”

charged. State v. Johnson, 119 Wn.2d 143, 147, 829 P.2d 1078 (1992). We

distinguish between charging documents that are constitutionally deficient and

those that are merely “vague.” State v. Leach, 113 Wn.2d 679, 686, 782 P.2d 552

(1989). An information that states each statutory element of a crime, but is vague

as to some other significant matter, may be corrected under a bill of particulars.

Id. at 687. A defendant may not challenge an information for vagueness on appeal

if they did not request a bill of particulars at trial. Id.

Felony violation of a court order has five essential elements: (1) the

existence of a no-contact order applicable to the defendant, (2) the defendant knew

of the existence of the no-contact order, (3) the defendant knowingly violated a

provision of the no-contact order, (4) that at the time of the violation, the defendant

5 No. 85526-3-I/6

had twice been previously convicted for violating the provisions of a court order,

and (5) the defendant’s act occurred in Washington. Former RCW

26.50.110(1),(5) (2019), repealed by LAWS OF 2021, ch. 215, § 170 (repeal

effective July 1, 2022).3

Whitfield argues the information was insufficient because it failed to allege

in what manner he violated the terms of the court order and where the alleged

violation took place. Relying on City of Seattle v. Termain, 124 Wn. App. 798, 103

P.3d 209 (2004), Whitfield argues a charging document is constitutionally deficient

when it does not allege what violative conduct was being charged. Whitfield’s

reliance on Termain is misplaced. In Termain, we held that a complaint alleging a

misdemeanor violation of a domestic violence order must identify the order alleged

to have been violated, or must include other sufficient facts to apprise the

defendant of the actions supporting the charges to satisfy the essential elements

rule. 124 Wn. App. at 805. There, the charging document recited apparently

statutory language listing various statutes authorizing no-contact orders, but did

not identify the specific statute under which the order alleged to have been violated

was issued. Id. at 803. Nor did it identify the underlying domestic violence order,

the date of issuance, the name of the protected person, or any other facts about

the order. Id. at 805. Even applying the liberal construction standard, id. at 802,

we concluded that absent this information, the defendant could not fairly imply what

3 Although the legislature has repealed this statutory provision since the

date of Whitfield’s crimes, this change does not affect our analysis.

6 No. 85526-3-I/7

actual conduct was being charged and had to guess at the crime he was alleged

to have committed, id. at 806.

Construed liberally, and in favor of validity, Whitfield’s information

sufficiently informed him about the essential elements of his charges. The

information alleges that on or about June 8, 2022, Whitfield (1) knew of the terms

of the March 15, 2022 court order issued by the Tukwila Municipal Court for the

protection of Traxler, (2) willfully violated that court order, (3) at the time of the

violation, had at least two prior convictions for violating the provisions of a court

order, and (4) this occurred in King County, Washington. Unlike Termain, the

information specifies the underlying order, its date of issuance, and the name of

the protected person. While the information does not explicitly define in what

manner Whitfield violated the March 15, 2022 court order, “the culpable act

necessary to establish the violation of a no-contact order is determined by the

scope of the predicate order.” Id. at 804. By identifying the predicate order, the

State placed Whitfield on notice of his violative conduct. If Whitfield had believed

the charge against him was vague, his recourse was to request a bill of particulars.

Leach, 113 Wn.2d at 687.

Whitfield makes a passing claim that he is entitled to reversal of his

conviction because the lack of detail in the information exposes him to being

recharged with the same offense in violation of his right to be free from double

jeopardy. Whitfield’s double jeopardy argument is insufficiently developed to

satisfy the requirements of RAP 10.3(a)(6). It therefore does not warrant review

on the merits. Brownfield v. City of Yakima, 178 Wn. App. 850, 876, 316 P.3d 520

7 No. 85526-3-I/8

(2013) (“Passing treatment of an issue or lack of reasoned argument is insufficient

to merit judicial consideration.”).

III

Whitfield argues the trial court erred by failing to exercise its discretion to

meaningfully consider a DOSA. We disagree.

Trial courts have “considerable discretion” when determining whether an

alternative sentence is appropriate. State v. Hender, 180 Wn. App. 895, 900-01,

324 P.3d 780 (2014). While a trial judge’s decision whether to grant a DOSA is

not generally reviewable, an offender may always challenge the procedure by

which a sentence was imposed. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d

1183 (2005). “While no defendant is entitled to an exceptional sentence below the

standard range, every defendant is entitled to ask the trial court to consider such

a sentence and to have the alternative actually considered.” Id. at 342. A court

that fails to consider a requested alternative abuses its discretion. Id.

In Grayson, the trial court’s stated reason for denying a DOSA request was

because it thought the program was underfunded. Id. Our Supreme Court held

that a court’s “categorical refusal to consider [a DOSA] sentence, or the refusal to

consider it for a class of offenders, is effectively a failure to exercise discretion and

is subject to reversal.” Id. The court held that the trial court did not meaningfully

consider a DOSA sentence because the trial court did not articulate any other

reasons for denying the DOSA except its belief that the program was underfunded.

Id. The court remanded for the trial court to consider whether Grayson was an

appropriate candidate for a DOSA. Id. at 343.

8 No. 85526-3-I/9

Here, unlike Grayson, the trial court did not categorically refuse

consideration of Whitfield’s DOSA sentence request. The trial court meaningfully

considered the sentencing alternative by requesting a DOSA report from the

Department of Corrections and hearing argument from the parties, including the

State’s argument there was a lack of evidence that Whitfield’s actions were a result

of drug abuse. The trial court subsequently decided a DOSA sentence was not

appropriate. The trial court did not abuse its discretion in denying Whitfield’s

DOSA request.

IV

Whitfield argues the trial court erred in ordering community custody

conditions in excess of the statutory maximum for the offense and the trial court

further erred in imposing the VPA fee. The State concedes remand is appropriate

to strike both the community custody conditions and the imposition of the VPA.

We accept the State’s concessions and remand for both the fee and the community

custody conditions to be stricken as a ministerial matter.

We affirm Whitfield’s conviction and remand to allow the trial court to strike

the community custody conditions and imposition of the VPA as a ministerial

matter.

WE CONCUR: