IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

### ) STATE OF WASHINGTON, 

### ) No. 73532-2-I 

### ) r-~ ~ (J~c: Respondent, 

### ) DIVISION ONE ~c r J r’~. )
~ LAVONDA SUE BECK, 

### ) UNPUBLISHED 

### ) •J~ ::~~ Appellant 

### ) FILED July25 2016 ~ Ccx, J.

— Lavonda Beck appeals, arguing thatthe trial judge’s nonverbal communication constituted an unconstitutional comment on the evidence. For the firsttime on appeal, Beck contends thatthe statutes imposing the mandatory DNA collection fee and mandatory Victim PenaltyAssessment (VPA) violate substantive due process. She also argues thatthe trial court abused its discretion by imposing the DNA collection fee and that her counsel was ineffective forfailing to objectto the imposition ofthe fee. Lastly, Beck argues thatthe trial courtfailed to determine whether Beck had the abilityto paythe DNA collection fee and VPA. We assume, without deciding, thatthe nonverbal communications ofthe trial judge were comments on the evidence. Nevertheless, this record shows no prejudice to Beck could have resulted. Beck’s substantive due process challenges to the DNA collection fee and VPA statutes are neither ripe for review nor manifest constitutional errors under RAP 2.5(a)(3). Beck’s counsel’sNo. 73532-2-1/2

performance did notfall “below an objective standard of reasonableness.”1 Thus, counsel was not ineffective. Lastly, the trial courtwas not required to inquire into Beck’s abilityto paythe DNA collection fee and VPA because these legal financial obligations are mandatory. We affirm. Barbara and Paul Hanson employed Beck as a caretaker, and Beck moved into the Hansons’ home. The Hansons later noticed that some oftheir propertywas missing, which the police laterdiscovered at pawn shops. The State charged Beckwith three counts offirst degree trafficking in stolen property. Ajuryfound Beck guilty as charged, and the trial court entered itsjudgment and sentence on the verdicts. The sentence requires Beckto pay the $500 mandatoryVPA and the $100 mandatory DNA collection fee. Beck appeals. COMMENT ON THE EVIDENCE Beck argues thatthe trial judge’s nonverbal actions constituted an improper comment on the evidence. Assuming, without deciding, this is true, we hold thatthis record shows no prejudice could have resulted. Article IV, section 16 ofWashington’s constitution prohibitsjudges from conveying their “personal attitudes toward the merits ofthe case.”2 This provision prevents the court’s opinion ofsubmitted evidence from influencing the

1 Strickland v. Washinciton, 466 U.S. 668, 688, 104 5. Ct. 2052, 80 L. Ed. 2d 674 (1984).

2 State v. Higgins, 168 Wn. App. 845, 859, 278 P.3d 693 (2012) (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)).
2No. 73532-2-1/3

jury.3 Atrial judge violates this provision ifthejudge’s words or actions convey his or her personal feelings.4 We reviewthe facts and circumstances ofeach case when determining whether a trialjudge’s conduct constituted a comment on the evidence.5 Atrial judge violates article IV, section 16 by commenting on a witness’s credibility.6 Ajudge may question witnesses and ask clarifying questions, butthe judge’s attitudetoward the case’s merits must not appear reasonably inferable from the nature or manner ofthejudge’s statements.7 The trial court errs when it communicates to thejury its feelings as to the truth value ofa witness’s testimony.8 We presume thatjudicial comments are prejudicial.9 The State bears the burden ofshowing thatthe defendantwas not prejudiced, “unless the record affirmatively shows that no prejudice could have resulted.”1° Here, during the State’s cross-examination of Beck, she testified about certain property she claimed the Hansons gave her, when she received the

~ State v. Miller, 179Wn. App. 91, 107, 316 P.3d 1143 (2014).

~ Higgins, 168 Wn. App. at 859.

~ State v. Francisco, 148 Wn. App. 168, 179, 199 P.3d 478 (2009).

6 State v. Sivins, 138 Wn. App. 52, 59, 155 P.3d 982 (2007).

‘ State v. Eisner, 95 Wn.2d 458, 463, 626 P.2d 10 (1981).

8 Francisco, 148 Wn. App. at 179.

~ State v. Brush, 183 Wn.2d 550, 559, 353 P.3d 213 (2015).

10 kI. (quoting State v. Levy, 156 Wn.2d 709, 723, 132 P.3d 1076 (2006)).
3No. 73532-2-1/4

property, and when she pawned certain ofthese items. The trial judge asked for clarification as to when certain events occurred. Thejudge stated, “I’m sorry, I’m going to interrupt. Is there a yearforsome ofthese things?”11 After Beck responded, the State resumed questioning. Beck’s counsel then objected to the trialjudge’s “facial comments.”12 The trial judge noted the objection, and counsel objected again “to anyfacial comments.”13 The State resumed its questioning to clarifythe timing ofevents. During recess and outside thejury’s presence, counsel for Beck made a further record: [COUNSEL]: Your Honor, with due respect I don’tthink itwas appropriate to make facial comments when the courtwas clarifying a question of Ms. Beck. The court raised its hand and Your Honor shookyour head back and forth. And I’m concerned it sends a message to thejurythatyou as ajudge may not believe or have questions about her credibility. I’m not saying that’s what happened, but I am concerned aboutthose perceptions and that’s why I objected. And I don’t mean to insultthe court. I am just— THE COURT: No, that’s okay. You need to make that objection if you feel it’s appropriate. And I don’t recall waving my hand. But you’re an officer ofthe court and you saythat, then I’m sure thatthat’s whatyou saw. And—and I will instructthejury again that ifthey perceive that I have made a commentthatthey are notto consider any commentthat I have made.114~ Thejury did not return, and courtwas adjourned.

11 Report of Proceedings (April 14, 2015) at404.
12 Id.
13 Id.
14 kI. at 407-08.

4No. 73532-2-1/5

The next day, the trial court read thejury instructions before closing arguments. Counsel for Beckdid not requestfurther relieffrom the trial court by requesting any curative instruction orotherwise. But counsel made a further record that day byfiling a declaration regarding the incident, stating thatthe trial judge shook her head and “put her hand up” when questioning Beck. Counsel also stated thatthejudge “had an inquisitive and confused look on herface.” On this record, it is impossible forthis courtto review whetherthese nonverbal actions violated the constitutional prohibition against ajudge commenting on the evidence. Nevertheless, we assume, without deciding, that they did. Thus, the question is whetherthis record shows no prejudice to Beck could have occurred. We conclude thatthis record shows no such prejudice could have occurred. The courttwice orally instructed thejuryto disregard any expression of personal opinion ofthejudge abouttestimony orwitness “value.” The firstwas priorto opening statements. The second was when the court read itsjury instructions atthe close ofthe case. These written instructions included the general instruction that includesthe admonishmentto disregard any comments on the evidence bythejudge. We presume thatjurorsfollowthe court’s instructions.15 Notably, counsel for Beck did not request anyfurther relief byway ofa curative instruction or otherwise forthe alleged comments on the evidence.

15 State v. Allen, 182 Wn.2d 364, 380, 341 P.3d 268 (2015). 5No. 73532-2-1/6

In State v. Elmore, the supreme court approved the use of instructions to cure ajudicial comment on the evidence.16 Similar instructions were twice given in this case. Beck relies on State v. Lampshire17to argue that instructing thejuryto disregard thejudge’s commentwould not cure the resulting prejudice. That case is distinguishable. In that case, during Martha Lampshire’s direct examination, the State objected to the materiality of Lampshire’s testimony.18 The trial judge then stated “Counsel’s objection is well taken. We have been from bowel obstruction to sister Betsy, and I don’tsee the materiality, counsel.”19 On appeal, the State argued thatthe trial court’s subsequent instruction to thejuryto disregard this comment on the evidence cured any errorfrom the trial judge’s comment. The supreme court disagreed. The supreme court stated that “the trial judge allowed wide latitude” in Lampshire’s examination.20 Specifically, the record showed that Lampshire testified about her daughter’s bowel condition and aboutvisiting her mother in another state.21 The supreme courtthen determined thatthe trialjudge’s remark

16 139 Wn.2d 250, 276, 985 P.2d 289 (1999).
17 74 Wn.2d 888, 447 P.2d 727 (1968). 18 Id. at 891.
19 Id.
20 Id. at 892.
21 Id. 6No. 73532-2-1/7

“implicitly conveyed to thejury his personal opinion concerning the worth ofthe defendant’s testimony” and “undermined” the testimony’s credibility.22 According to the supreme court, the commentwas not capable of later correction by instruction. Here, the trial judge did not explicitly state an opinion on the materiality of Beck’s testimony. Beck’s claim thatthe trial judge’s nonverbal comments did so is a claim we cannot review on this record. In this case, however, the courttwice instructed thejuryto disregard any remarks that could be construed as comments on the evidence. And this admonishmentwas contained in the written instructions thatwentto thejury room. It is noteworthythat counsel for Beck did not request anyfurther relief after making a record of objections to the nonverbal actions ofthe trialjudge. Accordingly, we conclude thatthis record shows that Beck could not have been prejudiced bythe trialjudge’s nonverbal actions.

LEGAL FINANCIAL OBLIGATIONS Beck argues that, as applied to an indigent defendant, the DNA collection fee and the VPA statutes violate substantive due process. She also argues that she may raise hersubstantive due process claim forthe firsttime on appeal as a manifest constitutional error under RAP 2.5. Because we recently rejected similar arguments in State v. Shelton,23 we do so here.

22 Id.
23 No. 72848-2, slip op. at 7-13 (Wash. Ct. App. June 20, 2016).

7No. 73532-2-118

In that case, the trial court ordered Michael Shelton to paythe $500 mandatoryvictim penalty assessment and the $100 mandatory DNAfee.24 For the firsttime on appeal, Shelton argued that as applied to an indigent defendant, the DNA collection fee statute violates substantive due process.25 This court held that Shelton’s substantive due process challenge to the DNAfee statute was not ripe for review because the State did not seek “to enforce collection ofthe DNAfee or impose sanctions forfailure to paythe DNA fee.”26This court also held that Shelton’s claim was not a manifest constitutional error, stating “‘[i]fthe facts necessaryto adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.”27 The record “contain[ed] no information about [Shelton’s] future abilityto paythe mandatory $100 DNAfee.”28 Thus, Shelton could not showthat his claim was a manifest constitutional error under RAP 2.5(a)(3) “[u]ntil the State seeks to enforce collection ofthe DNAfee or impose a sanction forfailure to pay.”29

24 Id. at 1.
25 Id. at 3. 261d.at5. 27 kI. at 7 (quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)). 28 Id.
29 Id.
8No. 73532-2-1/9

Although Shelton addressed onlythe DNAfee, its reasoning also applies to the VPA. Both the VPA and DNA collection fee are mandatory legal financial obligations. And Beck does not argue thatthese mandatory legal financial obligations should be analyzed differently. Shelton controls this case. Here, as in Shelton, the record does not indicate thatthe State seeks to enforce collection ofthe DNA collection fee or VPA orto impose sanctions forfailure to pay. And Beck does not argue otherwise. Thus, Beck’s as-applied substantive due process challenge to the statutes is not ripe for review. The record does not contain sufficient information about Beck’s future abilityto paythe mandatory $100 DNA collection fee and the mandatory $500 VPA. The record on appeal shows that Beck received social security disability income, butthe record does not contain the amount ofthis income. Additionally, the record does not show Beck’s assets ordebts. Thus, “‘the facts necessaryto adjudicate the claimed error are not in the record on appeal.”3° Accordingly, Beckfails to show actual prejudice, and her claimed error is not manifest. Consequently, we decline to further address this claim raised forthe firsttime on appeal. INEFFECTIVE ASSISTANCE OF COUNSEL Beck argues that she received ineffective assistance ofcounsel when her counsel failed to inform the trial court of RCW 9.94A.777, which governs the

30 Id. (quoting McFarland, 127 Wn.2d at 333).
9No. 73532-2-1/10

imposition ofcertain legal financial obligations upon defendants suffering from mental health conditions. We disagree. Both the federal and state constitutions provide the rightto counsel.31 The rightto counsel includes the rightto effective assistance ofcounsel.32 Ineffective assistance ofcounsel “is an issue of constitutional magnitude that may be considered forthe firsttime on appeal.”33 To establish an ineffective assistance claim, the defendant mustfirst show that counsel’s performance was deficient.34 This requirement involves showing that counsel’s performance ‘fell below an objective standard of reasonableness.”35 Judicial scrutiny of counsel’s performance is “highly deferential.”36 We make every effort “to eliminate the distorting effects of hindsight, to reconstructthe circumstances ofcounsel’s challenged conduct, and to evaluate the conductfrom counsel’s perspective atthe time.”37

31 

## u~s• C0NsT. amend. VI; C0NsT. art. I, 

## § 22.
32 Strickland, 466 

## u.s. at 686; State v. Crawford, 159 Wn.2d 86, 97, 147 P.3d 1288 (2006).

~ State v. KyIlo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).

~ Strickland, 466 U.S. at 687. Id. at688. Id. at689.

~ Id.
10No. 73532-2-I/li

Second, the defendant must showthatthe deficient performance prejudiced the defense.38 Prejudice is defined as “a reasonable probability that, butfor counsel’s unprofessional errors, the result ofthe proceeding would have been different.”39 “A reasonable probability is a probability sufficientto undermine confidence in the outcome.”4° We review de novo whether a defendant received ineffective assistance of counsel.41 Here, Beck argues that her counsel’s performance was deficient because he failed to inform the trial court of RCW 9.94A.777. That statute provides: (1) Before imposing any legal financial obligations upon a defendant who suffers from a mental health condition, otherthan restitution orthe victim penalty assessment under RCW 7.68.035, a judge mustfirst determine thatthe defendant, underthe terms of this section, has the means to pay such additional sums. (2) Forthe purposes ofthis section, a defendant suffers from a mental health condition when the defendant has been diagnosed with a mental disorderthat prevents the defendantfrom participating in gainful employment, as evidenced by a determination of mental disability as the basis forthe defendant’s enrollment in a public assistance program, a record of involuntary hospitalization, or by competent expert evaluation.

Id. at687. 39kiat694. 40 Id.
41 State v. Maynard, 183 Wn.2d 253, 259, 351 P.3d 159 (2015).

11No. 73532-2-1/12

Beck’s counsel’s performance did notfall “below an objective standard of reasonableness.”42 Specifically, her counsel’s decision to not inform the trial court of RCW 9.94A.777 was not unreasonable. Counsel could have reasonably believed that RCW 9.94A.777 did not apply. Although the record shows that Beck received social security disability income, the record does not showthat Beck receives social security disability income solely due to a mental health condition. Further, Becktestified about her past and recent employment history. She also described her extensive caretaker responsibilities to the Hansons and testified that she “can workwith a disability.” Thus, although Beck received social security disability income, the record does not showthat she suffered from a mental health condition that prevented her “from participating in gainful employment.”43 Accordingly, the record does not showthat RCW 9.94A.777 applied, and counsel’s performancewas not deficient. Because Beckfails to showthe presence ofthe first prong of her claim, we need not address the second prong, prejudice. MANDATORY LEGAL FINANCIAL OBLIGATION & ABILITYTO PAY Beck argues thatthe trial courtfailed to recognize thatthe DNA collection fee was not mandatory under RCW 9.94A.777. Beck also argues thatthe trial court abused its discretion by imposing the DNA collection fee and VPAwithout inquiring into Beck’s abilityto pay.

42 Strickland, 466 U.S. at 688.

~ RCW 9.94A.777(2).

12No. 73532-2-l113

Beck raises these arguments forthe firsttime on appeal. And as stated above, the record does not showthat RCW 9.94A.777 applied. Thus, the mandatory DNA collection fee statute, RCW43.43.7541, applied. Further, trial courts must impose the DNA collection fee and VPA “irrespective ofthe defendant’s abilityto pay.”44 Accordingly, we rejectthese arguments. We affirm thejudgment and sentence.

WE CONCUR: 

# t)L~i I

‘~ State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013). 13