IN THE COURTOFAPPEALS FORTHE STATE OFWASHINGTON

STATE OFWASHINGTON, No. 77707-6-I

Respondent, v. DIVISION ONE BRIA BEATRICE WALKER, UNPUBLISHED OPINION

Appellant. FILED: July29, 2019
LEAcH, J.

— Bria Walker was convicted of second degree possession of stolen property, theft of a motor vehicle, and two counts of second degree identitytheftafterbeing terminated from Adult Drug TreatmentCourt (drug court). She appeals the superior court’s denial of her request for a drug offender sentencing alternative (DOSA) and the imposition of four legal financial obligations (LFOs). She also challenges the adequacy ofthe court’s findings of fact and conclusions of law entered upon her convictions but not the sufficiency ofthe evidence to supportthe convictions. First, the court reasonably exercised its discretion when it denied her DOSA, appropriatelyconsidering the record before it. And Walkerdoes notshow
a lackofimpartiality. We affirm the denial ofthe DOSA.No. 77707-6-1 /2
Second, in light ofState v. Ramirez1 and the recent amendments to RCW 36.18.020(2)(h), RCW 2.30.030(5), and RCW 10.01.160(3), we remand for the superior court to strike the filing fee, deoxyribonucleic acid (DNA) fee, and drug court fee. But because RCW 7.68.035(1)(a) requires that the sentencing judge impose a victim penalty assessment on a defendant convicted of a crime, we affirm thisfee. Last, Walkercannot challenge the adequacyofthe court’s written findings and conclusions under CrR 6.1(d) forthe first time on appeal where she makes
no challengetothe sufficiencyofthe evidenceto support herconvictions. We affirm in part and remand forthe superior court to strike the relevant fees. BACKGROUND In December 2016, the State charged Walker with second degree possession ofstolen property, theft ofa motorvehicle, and two counts ofsecond degree identitytheft. On February 8, 2017, the superiorcourt approved Walker’s entry into drug court. While shewas in drug court, two ofher urinalyses (UA5) tested positivefor methamphetamine, she missed two group sessions and a doctor’s appointment, she failed to appearforone UA, and she failed to appear in court on August 11, 2017. The drug court issued a bench warrant.

1191 Wn.2d 732, 747, 426 P.3d 714 (2018).
-2-No. 77707-6-1 I 3

In early September, police arrested her on new charges for possession of drug paraphernalia and retail theft in the third degree. Later that month, the superiorcourtterminated herfrom drug court“[g]iven [her] newcriminal charges, [her] being on warrantstatus, basicallya completefailure ofdrug court.” The superior court conducted a stipulated bench trial and found Walker guilty as charged and entered findings offacts and conclusions of law. Walker requested a DOSA. The Department of Corrections (DCC) conducted a screening and recommended against her receiving a DOSA. At the sentencing hearing, the prosecution opposed a DOSA and recommended the courtsentenceWalkertothe upperend ofthe standard range. Walker’s counsel said that a DOSA by itselfwould “be the longest prison time she’s everdone, bya greatdeal.” Counsel asserted thatthe ongoing supervision under DOSAwould makeWalker less ofa riskto the communitythan she would be if given the standard range sentence with less monitoring. Walker said she
was sorry for giving up on herself and told the court that she was “not done fighting” her addiction. Walker’s mothertold the court that a DOSA would help Walker battle herserious addiction. The courtdenied Walker’s DOSA requestand sentenced herto 57 months in prison and 12 months of community custody. It also ordered a chemical dependency evaluation and required herto follow any recommended treatment. It imposed a $500 victim penalty assessment, a $200 filing fee, a $100 DNAfee,

-3-No. 77707-6-1 /4

and a $900 drug court fee. It waived all other fines, fees, costs, and assessments. Walkerappeals. ANALYSIS

Denial ofWalker’s DOSA Request Walkerassertsthatthe superiorcourtdid notexercise unbiased discretion when itdenied her DOSA request. We disagree. First, she contends that the trial court categorically denied her DOSA request. RCW 9.94A.660 authorizes a judge to order a reduced sentence, treatment, and supervision to an eligible nonviolentdrug offender.2 We generally do not review a decision whether to grant a DOSA.3 But we may review the procedure the court used to reach its decision.4 If a trial court categorically refuses to consider a statutorily authorized sentencing alternative, it abuses its discretion and commits reversible error.5 For example, in State v. Grayson,6 the Washington Supreme Court reversed Grayson’s sentence because the trial court denied him a DOSA

2 Statev. Grayson, 154Wn.2d 333, 337, 111 P.3d 1183 (2005).

~ Grayson, 154 Wn.2d at 338 (citing State v. Bramme, 115 Wn. App. 844, 850, 64 P.3d 60 (2003)); State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003).

~Williams, 149Wn.2d at 147.

~ Grayson, 154 Wn.2d at 342 (quoting State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)). 6154Wn.2d 333, 342, 111 P.3d 1183 (2005).
-4-No. 77707-6-1 /5

“‘mainly’ because [the court] believed there was inadequate funding to support the program” and “did notarticulate anyotherreasonsfordenying the DOSA.” Here, thetrial court considered all ofthe evidence and arguments before it and addressed them on the record. These included DOC’s recommendation against a DOSA, the prosecution’s argument against a DOSA, Walker’s counsel’s argument for a DOSA, Walker’s argument for a DOSA, and Walker’s mother’s e-mail and herstatements to the court in support ofa DOSA. The trial court, addressing Walker, described its reasonsfordenying her DOSA request: You’ve been using for a long time. We’ve got more than a dozen inpatient treatment programs foryou, three here in this drug court, different modalities.

. You’ve been on methadone. You’ve been on Suboxone. You’ve

. . . attempted Vivitrol. The Vivitrol didn’t work because— well, it actually did work because you used meth instead. You got around the Vivitrol, because Vivitrol is a heroin blocker, [an] oploid blocker, so you used meth.

. . . I don’t knowwhat [you mean when you say], “I’m notgoing to stopfighting”; you stopped fighting a long time ago. Youjust have. You’refighting foryouraddiction. I don’t see where a therapeutic setting will do you any good, because the therapeuticsetting thatwe’ve had in these different modalities does notchangeyourbehavior. And so in the classic talk of recovery, clearly, bottom line is you haven’t reached bottom. The consequences are not severe enough for you to make any changes.

. . . There’s no doubt in my mind that attimes you truly do wantto be clean and sober. I don’t think there’s any doubt in my mind about that, but you haven’t, in any respect, given yourself any permission to be clean and sober.

. . And so my thought here is just [to] sentence you to the maximum amountthat I can do, 57 months, and maybe during that period of time, the gravity of your addiction will maybe impress upon you that you need to change your behavior. Because you

-5-No. 77707-6-1 /6
have every tool at your disposal, you’ve been immersed in the recoveryfield.

. [Your mother] thinks there’s anotherwayto workwith you. I don’t know any other way to work with you, because when somebody won’t work with themselves, there’s no way for us to work with them. So until you’re ready to forgive yourself, until you’re readyto acceptyourself, there’s nothing leftforyou out here. I wish itwas different, but it isn’t. So I’m going to deny the motion for a prison-based DOSA and sentenceyou totheterms [that] you contracted in for. Contrary to Walker’s claim, the superior court considered far more than simplyWalker’s termination from drug court. It did not categorically deny herthe DOSA.Second, Walker contends that the judge exhibited unfairness and bias toward herduring the hearing accepting her into drug courtand atthe sentencing hearing. For this reason, she asks this court to reverse and remand for resentencing before a different judge. The State contends that Walker cannot raise this issue on appeal because she did not raise it in the trial court. It also contends that the trial judge did show or appear to show unfairness or bias toward Walker. Generally, a party may raise on appeal onlythose issues raised atthetrial court.7 But an appellant may raise an issue for the first time on appeal if it involves a manifest error affecting a constitutional right.8 This test, however, requires a trial court error. This court must preview the merits of the claimed

~ RAP 2.5(a). 8 RAP 2.5(a).
-6-No. 77707-6-1 I 7

constitutional violation to determine whether the argument is likely to succeed.9 Only ifan errordid occurdoesthis courtaddresswhetherthe errorcaused actual prejudice and wastherefore manifest.1° The federal and state constitutions each guarantee a criminal defendant the right to an impartial courtfortrial and sentencing proceedings.11 Under “the appearance of fairness doctrine, a judicial proceeding is valid if a reasonably prudent, disinterested observer would conclude that the parties received a fair, impartial, and neutral hearing.”12 Drug court is therapeutic court, where a judge has statutory authority to work “in ways that depart from traditional judicial processes to allow defendants
or respondentsthe opportunity to obtain treatment services to address particular issuesthat may have contributed tothe conductthat led totheirarrest.”13 Walker relies on comments the trial judge made in February 2017 in an exchangewith Walker before accepting her into drug courtand atthe sentencing hearing. At the February 2017 hearing, thejudge spoke stronglyto Walker and tothe otherparticipants. Early in the proceeding, he askedWalkerwhyshe used drugs everyday.

~ In re Det. ofBrown, 154Wn. App. 116, 121-22, 225 P.3d 1028 (2010). 10 Statev. Kirkman, 159Wn.2d 918, 935, 155 P.3d 125 (2007). 11 U.S. C0NsT. amends. VI, XIV; WAsH. C0NsT. art. I 

### § 22; State v. Solis Diaz, 187Wn.2d 535, 539-40, 387 P.3d 703 (2017). 12 Solis-Diaz, 187 Wn.2d at 540 (citing State v. Gamble, 168 Wn.2d 161, 187, 225 P.3d 973 (2010)). 13 RCW2.30.030(1).
-7-No. 77707-6-1 I 8
MS. WALKER: I believe I’m an addict. I know I can’t use. I still use. THE COURT: Why? Because I’m an addict? It’s a circular argument. It’s a cop-out. Uncomfortable now? MS. WALKER: No, I’m not uncomfortable. THE COURT: I haven’teven begun yet. MS. WALKER: Ijust don’t have the answers yet. Hopefully I’ll figure itout. THE COURT: Would it blowyourmind ifI told you you did? MS. WALKER: I mean. THE COURT: You all do already. Later, the judge asked Walker again why she used, and they had the following exchange:

MS. WALKER: To hide myfeelings.

. ., I guess. THE COURT: So you agree that you want to feel different. That’s why you use, because you don’t like the way you feel when you’re not using. Right? MS. WALKER: Myfeelings. THE COURT: Everybodywith me? Notwith me? MS. WALKER: No, I mean, I am to a certain extent, but. THE COURT: Whatextent? MS. WALKER: Well, I mean, I don’t really useto like—well, I mean, I’m sure I do. But I mean, I do it more because the lifestyle and using is— THE COURT: Bullshit. MS. WALKER: —all I know. THE COURT: Bullshit.
-8-No. 77707-6-1 I 9

MS. WALKER: It’s uncomfortableformeto be clean. THE COURT: Right. It has nothing to do with the lifestyle. These are all little excuses you’re making yourself so you don’t really deal with the real issue. Lifestyle. Your lifestyle’s good. Your lifestyle landed you talking in frontofme in a court oflawon a Wednesdayafternoon on Februarythe 8, 2017. What [is it] aboutthat lifestylethat’s so appealing? MS. WALKER: I didn’tsayanythingwas appealing about it. THE COURT: Lifestyle. MS. WALKER: I said it’s all I know. I don’t have like any silver memories ofmyself. Soto be sober— THE COURT: That’s cool. MS. WALKER: —isvery uncomfortable. THE COURT: Why? MS. WALKER: Because I don’t know howto. THE COURT: Just quit using. I gotyou kind ofsidetracked on that one. So I started with the proposition that we use. Now you’re telling me you’re closing me off now. That’sthe international body language sign. Sowe startwith the proposition thatwe useto make ourselvesfeel betterordifferent, to change ourperception, to have a different reality becausewe don’t like what itwas before we used. We don’t like our reality when we’re not using or we don’t like our—ourselves when we’re not using. I know this, because nobody in their right mind would continue to use ifit madethem feel worse. Thatjust doesn’t happen. It’s like hitting yourself overthe head with a hammer. So you must like something of it, and if you’re honest about it, you like notthinking. So logically, it follows, we don’t like where we’re at when we’re not using. We don’t like who we are. We don’t like our reality. We don’t like the feelings we have when we’re not using. And there’s the answer. What is it here that we don’t like about ourselves?
-9-No. 77707-6-1 /10

What’s the malfunction? What’s the hurt? What’s the injury? What’s the anger? What’s the upset? What is it here that keeps thatvoice going, the little voice thatwe hearthat says we’re no good and if people really knew who we were, they’d want nothing to do with us, a voice that says we don’t deserve to be happy, we don’tdeserve success. That voice here that says we don’t deserve to be clean and sober. We’re pieces of shit, and if anybody really knew who we were, they’d hate us aswe hate ourselves. Where is that voice coming from, that’s the question. Why do you use? To shut the voice up. Am I right? Or am I right? You[’ve] got to answer the question. Where is the voice coming from? Answer the question, you’ll be free. You don’t answerthe question, we’rejust playing games. You have to drill down here. It’s not about not using. Hell. About 10 years from now your brains are going to explode and you’re going to say it had nothing to do with drugs. My addiction has nothing to dowith drugs. This has everything to dowith in here and this malfunction. Itdoesn’t make anysense anyotherway. You gotto askthe question. You gotto havethe courage to do it. Is it hard? Hardestthing you’ll everdo in your lives. Hardest thing you’ll everdo in yourlives isto havethatconversation and get right by yourselves. There’s no other way, though. There’s no otherpath. I don’t believe in relapses. I just believe that you haven’t answered the question sufficiently, thatyou hadn’t given itafull and honest examination, that you haven’t drilled down to find out who you are. When did you start using? MS. WALKER: When Iwas 13. THE COURT: Thirteen. You have no idea who you are, which is kind ofsad. But it’s kind ofcool in the sensethat nowyou can define who you wantto be. They saythat until your brains are fully developed atthe age of25, ifyou dump a bunch of mood into the mind-altering substances on top ofit, itstopsthe natural growth and progression.

-10-No. 77707-6-1 I 11
So I got a 20—13-year-old in a 27-year-old body over here, who’strying to search and find outwho she is, butthe beautyofit is you can write your own damn story ifyou have the courage to do so. That’s what I do here, that’s my function, is to make sure you’re engaging in that type of discovery. Anybody can sit here and be like a probation officer, but I don’t want to do that. I don’t care about that. I don’t care about your UA5. I don’t care about your—I don’t care. What I care about is are you doing the work necessary insideto make a goddamn difference. That’swhat I care about. At the final sentencing hearing, the judge responded to Walker’s statement that she “was not done fighting” with the statement quoted earlier in this opinion. Later, when he sentenced her, he said, ‘[U]ntil you’re ready to forgive yourself, until you’re ready to accept yourself, there’s nothing left for you out here. I wish itwas different, but it isn’t.” Walker pulls phrases from the exchanges, such as, “I don’t believe in relapses,” “Uncomfortable now?,” and “you stopped fighting long ago.” Butwhen considered in the context of the entire February 2017 exchange and the complete sentencing hearing, these phrases do not establish bias. Forexample, Walker contends thejudge called her a liar. At the initial hearing, thejudge did question her honesty when he commented, “Bullshit,” after she said the lifestyle
was all she really knew. But then she revealed that it was “uncomfortable” for her“to be clean,” and thejudge responded, “Right.” Although ajudge should not
use profanity, this exchange does not establish bias. Rather, it shows the judge’s intent to engage Walker in the therapeutic process of addressing her

—11—No. 77707-6-1 /12

addiction. During that same proceeding, he also welcomed her to drug court, spoke of her inherent capacity to do the needed work, and displayed no indication that he anticipated shewould fail inthe program. An exchange between Walker and the trial judge at a May 2017 hearing illustratesthejudge’s attitude toward Walker. Walkerappeared because she had not attended a UA test. She was also late to the hearing. After the judge imposed sanctionsforthis misconduct, thefollowing exchange occurred:

THE COURT: Anything you need from me? MS. WALKER: No. Just keep pushing me. THE COURT: Okay. I can dothat. MS. WALKER: (Unintelligible) I’ll get in trouble. THE COURT: Areyou sure? MS. WALKER: Yeah. The COURT: All right. Thanks forcoming back. Thanks for allowing me to talkwith you. I’ll see you nextweek. You stay until the end ofthe calendar. The court then asked those present to applaud Walker, presumably becauseshe had been clean and soberfor55 days. Walkercites State v. Lemke,14 in which the same superior courtjudge did not appear reasonably impartial toward a participant in drug court. During those proceedings, the judge called Lemke a “fucking addict” and “just a criminal.”15

14 7Wn. App. 2d 23, 27-28, 434 P.3d 551 (2018). 15 Lemke, 7Wn. App. 2d at25, 27.
-12-No. 77707-6-1 /13

He told Lemke, “You can’t even give me a clean date you’re sofucked up”16 and said, “So not only is he an addict, he’s also a liar and thief.”17 After Lemke’s attorney requested a DOSA, the judge said, “I’m not giving him a residential DOSA.”18 The judge’s treatment of Walker does not compare to his treatment of Lemke. He did not call Walker a thief or a criminal. Instead, he pushed herto explore the cause of her drug use and told her she had the capacityto address her addiction. He considered the results of the DOC’s screening and the statements bythe parties and theirwitnesses. We conclude thatWalkerfails to establish that a reasonable person might question the impartiality ofthe superior courtjudge. So she does not establish manifest constitutional error entitling her to raisethis issueforthefirsttime on appeal. Legal Financial Obligations Next, Walker asserts that the trial court erred in imposing four LFOs becausethe 2018 amendmentsto LFO-related statutes enacted under House Bill 1783 retroactively apply to her. We agree that three of the four fees she challenges must be stricken. A. Mandato,yVictim PenaltyAssessment Walker challenges the court’s imposition of the $500 victim penalty assessment. RCW 7.68.035(1)(a) requires that a trial court impose a penalty

16 Lemke, 7Wn. App. 2d at26. 17 Lemke, 7Wn. App. 2d at26. 18 Lemke, 7Wn. App. 2d at26.
-13-No. 77707-6-1 / 14

assessment on “any person

. . . found guilty in any superior court of having committed a crime,” except for crimes identified in RCW 7.68.035(2). These assessments fund programs for victims and witnesses.19 The statutory amendments passed in 2018 retain thefee as mandatory.2° The courtdid noterr in imposing thevictim penaltyassessment. B. DiscretionaryFees Walker challenges the $200 filing fee, the $100 DNA fee, and the $900 drug court fee on the grounds that the legislature’s 2018 modifications to LFO statutes applyto hersentence. In 2015, the Washington Supreme Court held that under RCW 10.01.160(3), sentencing judges must “make an individualized inquiry into the defendant’s current and future ability to pay before the court imposes LFOs.”21 Subsequently, in 2018, the legislature passed House Bill 1783 which amended statutes governing the imposition of discretionary LFOs. House Bill 1783, effective June 7, 2018, amended former RCW 36.18.020(2)(h) (2015) to prohibit trial courts from imposing the $200 court filing fee on indigent defendants.22 It also eliminated the mandatory $100 DNA collection fee where “the state has previously collected the offender’s DNA as a result ofa priorconviction.”23 It did

19 RCW7.68.035(4). 20 LAws OF 2018, ch. 269 

### § 19; State v. Catling, 193 Wn.2d 252, 259-60, 438 P.3d 1174 (2019) (noting that House Bill 1783 “specifically and repeatedly” identifiesthe assessmentfee as mandatory). 21 Statev. Blazina, 182Wn.2d 827, 839, 344 P.3d 680 (2015). 22 LAWS OF2018, ch. 269, 

### § 6(3). 23 RCW43.43.7541.
-14-No. 77707-6-1 /15

not directly affect RCW 2.30.030(5) which confers on the superior court the discretion to reduce or waive fees for therapeutic courts “[u]pon a showing of indigence under RCW 10.101.010.” But it amended RCW 10.01.160(3) to prohibit sentencing courts from imposing discretionary costs on indigent defendants.24 Under Ramirez, these amendments apply prospectivelyto Walker because her direct appeal was pending at the time of the amendment’s enactment.25 The superior court did not make an inquiry into Walker’s ability to pay before it imposed the LFO5 at issue. And Walkerdemonstrated herindigencyfor this appeal.26 Walker was convicted of several felonies in 2014, and the prosecution’s record of her criminal history stated that the State had previously collected her DNA. And thejudgment and sentence in this case states that DNA testing was not required because the Washington State Patrol Crime Laboratory already had a sample.27

24 LAws OF 2018, ch. 269, 

## § 17(2)(h). 25 Ramirez, 191 Wn.2d at 747. The State’s response focuses largely on the cost of drug court and declares that “[i]ffees could not be imposed against indigent participants, they could rarely be imposed at all [in drug court].” This argument ignores Ramirez and Blazina. As the court in Blazina noted, ‘[T]he State cannot collect money from defendants who cannot pay.” Blazina, 182 Wn.2d at837.

26 Ramirez similarly demonstrated his indigence at the appeal stage. Ramirez, 191 Wn.2d at747. 27 The State asserts, “In the present case, the record does not show whetheror notthe defendant previously submitted a DNA sample.” But itfails to address the documents in the record asserting that she did previously submit a sample. And, ifthese are insufficient, itfails to identifywhat, exactly, is sufficient to show DNAwas previouslycollected.-15-No. 77707-6-1 / 16

The State concedes thatthe $200filing fee should be stricken. We agree and remand for that purpose. Because the record shows that the State has already collected Walker’s DNA, we also remand forthe superior court to strike the $100 DNA collection fee.28 Finally, because the drug court fee is discretionary and the 2018 amendment to RCW 10.01.160(3) prohibits sentencing courts from imposing discretionary costs on indigent defendants, we remand forthe superiorcourtto strikethe $900 drug courtfee.

Findings of Fact and Conclusionsof Law Last, Walker challenges, under CrR 6.1(d), the adequacy of the trial court’s findings offact and conclusions of law entered with herconvictions. She claimstheywere insufficient because ‘they reiterated the charging documentand added no information about the factual basis for each crime.” Walker does not challenge the sufficiency ofthe evidence to support her convictions. She does not claim that the findings fail to address any element of a crime for which the court convicted her. Nor does she claim that the trial court failed to find any elementofanycrime proved beyond a reasonable doubt. In response, the State contends that Walker cannot raise this issue because she did notobjecttothe adequacyofthefindings and conclusions in the trial court. We agree.

28 The State cites to State v. Thibodeaux, 6 Wn. App. 2d 223, 230, 430 P.3d 700 (2018), review denied, 192 Wn.2d 1029 (2019). It states that here, as in Thibodeaux, the record is silent as to whether Walker’s DNA was collected. Butthe record here is notsilent. -16-No. 77707-6-1 / 17

As we have noted, a party generally may not raise an issue for the first time on appeal. Unlike Walker’s claim ofjudicial bias, this claim does not raise any constitutional issue. Nor does she assert that any other exception to the general rule applies. Indeed, Walker does not respond in her reply briefto the State’s argument. We exercise our discretion under RAP 2.5 and decline to considerthe issue. CONCLUSION We affirm in part and remand forthe superior court to strike the criminal filing fee, the DNA collection fee, and the drug courtfee from thejudgment and sentence.

WE CONCUR: 

# (jkkWh,(~.

-17-