### FILED MARCH 15, 2016 In the Office ofthe ClerkofCourt WA StateCourt ofAppeals, Division III
INTHE COURT OF APPEALS OF THE STATE OF WASHING TON DIVISION THREE STATE OF WASHINGTON, Respondent,
v. JUANMANUAL REYES, Appellant. ) ) ) ) ) ) ) ) ) No. 32799-0-111

UNPUBLISHED OPINION
SIDDOWAY, C.J.
- After ajury found Juan Reyes guilty offirst degree robbery, he was sentencedto 40 months in prison and 36 months ofcommunity custody. The sentencing court imposed, as costs, $489.18 in defense investigator fees advanced bythe State. Mr. Reyes did not object. He now appeals theterm ofcommunity custody and the legal financial obligation (LFO). The State concedes that only "serious violent offense[s]" as defined by the SentencingReform Act of 1981, chapter9.94A RCW, subject an offenderto a three year sentence to community custody, and first degree robbery is not a "serious violent offense." RCW 9.94A.030(45); RCW 9.94A.701(1). First degree robbery, a class A· felony, is a "violent offense," and is subjectto an 18-month sentence to community custody. RCW 9.94A.030(54)(a)(i); RCW 9A.56.200(2); RCW 9.94A.701(2). WeNo. 32799-0-111 

### State v. 

### Reyes accept the State's concession and remand with directions to correct the term of community custody. The only remaining issue is whether imposing the cost ofthe defense investigator
as part ofMr. Reyes'sjudgmentand sentence violates Washington statutes orthe United States or Washington Constitutions. Forreasons set forth below, we conclude that it does not, and we affirm that legal financial obligation. ANALYSIS "Whenever a person is convicted in superior court, the court may order the payment ofa legal financial obligation as part ofthe sentence." RCW 9.94A.760(1). Among costs that fall withinthe statutory definition of"legal financial obligation" are "court-appointed attorneys' fees, and costs ofdefense ... assessed to the offender as a result ofa felony conviction." RCW 9.94A.030(30). RCW 10.01.160(2) describes the scope and limitations onthe type ofcosts that canbe imposed on an offender, and provides that they "shall be limitedto expenses specially incurred by the state in prosecutingthe defendant" and "cannot include expenses inherent inproviding a constitutionally guaranteedjurytrial." Mr. Reyes represents thathis trial lawyer obtained court authorization to hire the investigatorwhose services accounted for the $489.18 under "CrR 3.1(f)(1) [which] provides: 'A lawyer for a defendant who is financially unable to obtain investigative, expert, or other services 

### necessary to an adequate defense in the case mayrequestthem 2

### No. 32799-0-111 State v. Reyes 

### by a motion to the court.'" Br. ofAppellant at 6. From that, he argues that his investigator's services were "inherent in providing a constitutionally guaranteedjury trial" within the meaning ofRCW 10.01.160(2) and therefore not chargeable as costs. He also suggests that State payment ofnecessary investigative services performed for an indigent defendant is required by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. We examinedthe meaning ofthe phrase "expenses inherent in providing a constitutionally guaranteedjurytrial" in RCW 10.01.160(2) in State v. Diaz-Farias, 

### observing that no reported Washington decision had construed the prohibition on imposing such expenses "or attemptedto reconcile itwith the legislature's provision elsewhere that some constitutionally required expenditures by the State can 

### be imposed
on criminal defendants."
_ Wn. App._, 362 P.3d 322, 326 (2015). Following case law in Michigan and Oregon, from whose cost-reimbursement statutes RCW 10.01.160
was copied, we concludedthat in using the phrase "expenses inherent in providing a constitutionally guaranteedjurytrial," the legislature "intendedto encompass only expenses relating to a defendant'sjurytrial itself, not expenses associated with other constitutional rights that apply at the time oftrial." Diaz-Farias, 

### 362 P.3d at 327. Accordingly, RCW 10.01.160(2) does not exclude the cost ofa defense investigator from costs ofdefense that canbe imposed on an offender.

3

### No. 32799-0-111 State v. Reyes Diaz-Farias also observedthat it was determined long ago that Washington's cost reimbursement statutes "satisfy the requirements ofa constitutional cost and fee recovery regime." Id. at 325 (citing State v. Curry, 118 Wn.2d 911, 915-16, 829 P.2d 166 (1992)). Washington statutes include requirements that "[t]he court shall not order a defendantto pay costs unless the defendant is or will be able to pay them," RCW 10.01.160(3), and provide for remission ofcosts or modification ofthe method ofpayment ifthe court determines after the sentence is imposed that the costs "will impose a manifest hardship
on the defendant or his family." RCW 10.01.160(4); andsee Curry, 118 Wn.2d at 915-16 (identifying constitutional requirements that are met by Washington statutes). Because defense investigation costs imposed by the court fall within the statutory definition of"legal financial obligations," are not excluded from recovery by RCW 10.01.160(2), and Washington has adopted a constitutional costrecovery regime, the trial court did not err in imposing the cost. STATEMENT OF ADDITIONAL GROUNDS In apro se statement ofadditional grounds (SAG), 

### Mr. Reyes raises two: that (1) he was not given proper clothing for trial, and (2) he was required to wear a wrist band that identified him as an inmate. Trial clothing. Mr. Reyes contends that he was given only his own street clothing to wear during trial, which he contends was dirty, inappropriate, and prejudicedthejury against him. 4No. 32799-0-111 State v. Reyes
We note first that this challenge depends on matters outside ourrecord. We have
no information whether Mr. Reyes requested some reasonable accommodation as to his attire that was denied, 1orjusthow dirty and inappropriate his clothing was. As a result,
we cannot consider any alleged error, abuse andprejudice in this direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The issue is more properly raised in a Personal Restraint Petition. We also observe that Mr. Reyes has not cited any authority supporting a right to wear clothing ofhis choice to trial. Street clothes, even ifdirty, do not imply or suggest guilt. Johnson 

### v. State, 838 S.W.2d 906, 909 (Tex. App. 1992). Wrist band. Likewise, there is nothing in ourrecord that suggests thatMr. Reyes brought his concern about hisjail identification wristbandto the attention ofthe court, or thatjurors could even see the wristband andrecognize what it was. Here again, the record is insufficient for review on direct appeal. We also point outthat otherjurisdictions have rejected due process challenges to an inmate's having worn a wristband during trial absent evidence that the wristband affected the outcome ofthe trial, often noting that institutions otherthanjails use wristbands for identification. E.g., Morris v. State, 696 S.W.2d 616, 621 (Tex. App.

1Even objectionto beingtried in identifiable prison clothes can be waived. Estelle 

### v. Williams, 425 U.S. 501, 512-13, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). 

### 5No. 32799-0-111 State v. Reyes 1985); State v. Johnson, 128 N.C. App. 361, 365, 496 S.E.2d 805 (1998); People v. Williams, 33 Cal. App. 4th 467, 475-76, 39 Cal. Rptr. 2d 358 (1995). We affirm the LFO and remand the case for the limited purpose ofcorrectingthe term ofcommunity custody. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Lawrence-Berrey, J.

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