### FILED SEPT 15, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, Respondent,

v. DERRICKD. JONES, Appellant. ) ) ) 

### ) ) ) ) ) ) No. 

### 33829-1-111

UNPUBLISHED OPINION

KORSMO, J. -DerrickD. Jones appeals his convictionfor residentialburglary. Hecontends (

### 1) the trial court exceededits statutory authority whenit imposed discretionary legal financial obligations (LFOs) withoutmaking an individualizedinquiry intohis currentand future abilitytopay, and (2) his counsel was ineffective for failing to objecttothe imposition ofdiscretionary LFOs. Mr. Jones also raises issues in a statement ofadditional grounds (SAG). We affirm.

### No. 33829-1-III State 

### v. Jones


### FACTS AND PROCEDURAL HISTORY The State charged Mr. Jones with residential burglary stemming from aMarch 31, 2015 incident in the dwelling at 416 West Shoshone in Pasco-avacanthome that owner Nelson Gomezwas in the process ofremodeling. The case proceededto ajurytrial. 1 

### The evidence showed Mr. Jones was homeless and staying nights atthe Union Gospel Mission (UGM), while looking for work during the day. On nights when he had consumed alcohol, he was not allowed at UGM and would seek shelter elsewhere. This led to his removal from certain premises for trespassing in February and March 2015, including 416 West Shoshone on March 22. On that date, police arrested four individuals found in the basement, which had a separate entrance and couldbe accessed from aback door at the bottom ofsome stairs. The door was broken and individuals leftpersonal belongings behind. Laterthat day, Nelson Gomez calledpolice when he saw Mr. Jones enterhis back yard and then the basement. Officers arrested Jones for trespass. On his way tojail, he expressed concern thathis personal belongings were still inside the house. By March 31, 2015, Mr. Jones had been released fromjail. That evening, he returned to 416 West Shoshone in hopes ofretrieving his belongings. A neighbor-Jose Rosales-Mosqueda-sawhim enter the backyard, walk down the steps, and enter the house through the basement door. Mr. Rosales-Mosquedatelephoned Nelson Gomez,

1

### Although the trial facts bear little relevance to the LFO challenges raised by counsel, we set forth the facts in light ofcontentions Mr. Jones makes in his SAG. 2No. 33829-1-III State v. Jones
who arrived within minutes. Gomez armed himselfwith a bat and confronted Jones, who
was sitting at a table in the basement. Hetold Jones to stay where he was, butJones stood up and came towards him with a large walking stick in hand. Gomezbacked out of the doorway and started up the stairs as Jones aggressivelyjabbedthe walking stick in his direction, although not making contact. As Gomez backed up the stairs, he noticed a knife among the tools he had left in the basement and grabbed it. Eventually, both men
were up the stairs into the yard and Jones assumed a fighting posture. He asked Gomez if he was "ready,"which Gomez interpreted as "readyto fight." Gomeztestified he had not given Jones oranyone else permission to use the house. Mr. Rosales-Mosqueda's stepson Jorge Sanchez-Torres testified similarlythathe
saw Mr. Jones with clenched fists and refusing Mr. Gomez's demands thathe leave. Mr. Sanchez-Torres called 911. Police quickly arrived and arrested Jones. Afterreceiving Miranda2warnings and waiving those rights, Jones told OfficerJeffrey Cobb thathe knew he was notpermittedto be at 416 West Shoshone butwentbackto retrieve his personal property left there on March 22. Officer Cobb saidJones claimedthat a man named "Jose" gave him permissionto enterthe house, butthe officerwas unable to locate that individual.

2Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3No. 33829-1-III State v. Jones
Mr. Jones testified to a differentversion ofthe events. He saidthat onMarch 31,
an acquaintance, "LittleMario", confirmed his property was still at 416 West Shoshone and the two men walkedthere. Jones said only Mario went inside while he waited outside at the bottom ofthe steps. Mario emergedwith the walking stick and Jones leaned it against a wall. Mario re-entered the basementto look for additional property. Nelson Gomezthen arrived and was screaming at Jones in Spanish. Jones tried to explain over a language barrier that Mario was inside trying to retrieve his belongings. Gomezwas armed with the bat and knife and knocked the walking stickto the ground as Jones reached for it. Jones walked up the stairs while Gomezbacked up. He said Gomez pokedhim with the bat. Police arrived. Jones denied any assaultive behavior directed at Gomez. Jones said ifhe appeared ready to fight, it was out ofnecessity to defend himself. Defense counsel conceded in closing argumentthat Mr. Jones committedtrespass, but maintained he had no intent to commit a crime. He only wantedtoretrieve his property and did not assault Mr. Gomez. Thejury found Mr. Jones guilty ofresidential burglary. The court imposed a highend 84-month standard range sentence. The court also imposedLFOs totaling $1,391. Ofthat sum, $591 were discretionary costs including a $305 sheriffservice fee, a $143 jury demand fee, and $143 for court appointed defense expert and otherdefense costs. The remaining $800 were mandatory costs including a $500 victim assessment, a $200
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### No. 33829-1-III State v. Jones


### criminal filing fee, a $100 deoxyribonucleic (DNA) collection fee. Thejudgment and sentence contains the following boilerplate LFO language: "The court has considered the total amount owing, the defendant'spresent and future ability to pay legal financial obligations, including the likelihood thatthe defendant's status will change." Clerk's Papers at 52. The court also made the following boilerplate finding: "Thatthe defendant is an adult and is not disabled and therefore has the ability or likely future ability to pay the legal financial obligations imposed herein. RCW 9.94A.753." Id. 

### Duringthe sentencing hearing, the court did not conduct an individualized inquiry into Mr. Jones's current or future ability to pay LFOs on the record, except to state: "I'mgoingto waive the [$500] fine and the [$600] attorney's fees. Withthat criminal history and yourwork history, you can't-I'm sure they are substantial. You have substantial legal financial obligations at this time." Report ofProceedings (Oct. 13, 2015) at 108. Defense counsel did not object to the LFOs imposed. Duringthe sentencing hearing, the trial court also granted Jones's order ofindigency for purposes ofappeal. There was no discussion of his income, expenses, or assets. His certification states only that he was previously found indigent by order ofthe court on April 7, 2015, that there was no change in his financial status since that time, and he continued to lack sufficient funds to seekreview in the case. Mr. Jones timely appealed.



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### No. 33829-1-III State v. Jones


### ANALYSIS 1. UnpreservedLFOError 

### Forthe first time on appeal, Mr. Jones contends the trial court exceeded its statutory authority by failing to considerhis current or future ability to pay as required under RCW 10.01.160(3) before imposing the discretionary LFOs. He requests that we vacate the discretionary LFOs and remand for resentencing. In Blazina, 

### the Washington Supreme Court clarified that RCW 10.01.160(3) requires the trial court "do more than sign ajudgment and sentence with boilerplate language stating that it engaged in the required inquiry." State v. Blazina, 

### 182 Wn.2d 827, 838,344 P.3d 680 (2015). Rather, the record must reflectthat the trial court conducted an individualized inquiry into the defendant's current and future ability to pay. This inquiry includes evaluating a defendant's financial resources, incarceration, and other debts, including restitution. Id. 

### Further, the court should considerwhether a defendant qualifies
as indigent under GR 34, which takes into account whether aperson receives assistance from a needs-based program such as social security or food stamps, orwhethertheir household income falls below federal poverty guidelines. Id. 

### at 838-39 ("ifsomeone does not meet the GR 34 standard for indigency, courts should seriously question that person's ability to pay LFOs"). In view ofthese principles, Mr. Jones emphasizes that he is indigent, homeless, and there is no indication he has any steady or significant income source. Yet, contrary to RCW 10.01.160(3) and the holding in Blazina, 

### the trial court failed to make inquiry 6

### No. 33829-1-III State 

### v. Jones


### into his ability to pay the discretionary LFOs imposed and insteadrelied on boilerplate language in thejudgment indicating that any able-bodied adult has the current or future ability to pay LFOs. The State concedes the trial court failed to make the required inquiry, but contends Mr. Jones is not entitled to a review ofthe LFO issue because he failed to object at sentencing, and in any event, the record establishes his physical ability to work and make payments in the future. Subject to three exceptions that do not apply here, RAP 2.5(a) provides, in relevant part, that an appellate court "mayrefuse to review any claim oferrorwhich was not raised in the trial court." With respect to unpreserved challenges to LFOs, the court in Blazina 

### clarified that "[a] defendant who makes no objectionto the imposition of discretionary [LFOs] at sentencing is not automatically entitled to review." Blazina, 

### 182 Wn.2d at 832. "Each appellate court must make its own decision to accept discretionary review." Id. 

### at 835. Mr. Jones asks this court to exercise its discretion to review the LFO issue. The trial court imposed both mandatory and discretionary LFOs. The mandatory LFOs included the $500 victim assessment, the $100 DNA collection fee, and the $200 criminal filing fee. See 

### RCW 7.68.035(l)(a); RCW43.43.7541; RCW 36.18.020(2)(h). These mandatory LFOs are required irrespective ofMr. Jones's ability to pay. State 

### v. Lundy, 

### 176 Wn. App. 96, 103, 308 P.3d 755 (2013). Thus, the discretionary costs that


### 7No. 33829-1-III State v. Jones required the trial court to inquire into his ability to pay were the $600 attorney fee, the $500 fine, the $305 sheriffservice fee, the $143jury demand fee, and $143 for court appointed defense expert and other defense costs. In alluding onthe record to Mr. Jones's criminal history, work history and substantial LFOs, the court waived_the attorney fee and fine before imposing the remaining $591 in discretionary costs. The members ofthe court are split as to the basis for declining to review Jones'sBlazina claim. The small amount involved, the fact that sentencing occurredpost-Blazina, and the fact thatthe trial court clearlyrecognized its discretion to waive discretionary LFOs
are each circumstances that, individually or in combination, lead the courtto the unanimous conclusionthat Jones'sBlazina claims should not be reviewed. 2. IneffectiveAssistance of Counsel Mr. Jones next contends his trial counsel gave him ineffective assistance by not challenging the imposition ofdiscretionary LFOs at sentencing. To establish ineffective assistance ofcounsel, he must showthathis attorney's performance was deficient and that he was prejudicedbythe deficiency. Stricklandv. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The first element ofStricklandis metby showing that counsel'sperformance was not reasonably effective underprevailing professional norms. The secondtest is met by showing a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Id. To prevail
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on an ineffective assistance ofcounsel claim, a defendant must overcome a strong presumptionthat counsel'sperformance was reasonable. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). Ifthe attorney's conduct "canbe characterized as legitimate trial strategy or tactics," the conduct cannotbe the basis ofan ineffective assistance claim. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Tomeet the prejudice prong, a defendant must show, "based onthe record developed in the trial court, thatthe result ofthe proceeding would have been different but for counsel's deficient representation." McFarland, 127 Wn.2d at 337. Here, defense counsel did not object at the sentencing hearing whenthe trial court imposed the relatively small amount ofdiscretionary LFOs without conducting an individualized inquiry into Mr. Jones's ability to pay. The courthadjustwaived nearly two-thirds ofthe discretionary LFOs and counsel had focused the strategy at sentencing
on putting Mr. Jones in a positive light while advocating, albeit unsuccessfully, for a lowend sentence. In any event, ourrecord is insufficientto determine whetherMr. Jonesnow age 35 and apparently able-bodied andphysically capable ofworking-wouldbe unable to repay the $591 in discretionary LFOs. Because Mr. Jones cannot show prejudice, we conclude he has not established his claim ofineffective assistance of counsel.

9No. 33829-1-III 

### State v. Jones
3. 

### SAGIssues In SAG 1, Mr. Jones contends his counsel was ineffective underthe 

### Strickland standards for deliberately leaving out evidence and investigative reports that wouldhave helped prove he committed only a trespass and not residential burglary. In particular, he faults counsel for failing to (1) take properphotos ofthe complete area around the dwelling to show that witnesses, including Mr. Sanchez-Torres, could not have seen anything from angles and distances at nightwhen the incident occurred, (2) locate and call defense witnesses such as Little Mario, and (3) present evidence that OfficerCobb failed to read him

### Miranda warnings before taking his alleged statement. Mr. Jones also extensively reargues his version ofthe trial evidence in an attempt to showthe outcome would have differed but for counsel's alleged faulty performance. The decision whetherto investigate, call a particularwitness, orpresent certain evidence is generally a matter oflegitimate trial strategy ortactics thatwill not support an ineffective assistance claim. 

### In re Pers. Restraintof Davis, 152 Wn.2d 647, 742, 101 P.3d 1(2004). Again, we presume counsel'sperformance was reasonable. 

### State v. Grier, 171 Wn.2d at 33. Mr. Jones does not overcome that presumption. His complaints about absence ofphotographs orwitnesses relate to matters outside the trial court record and cannotbe reviewed. His appropriate course ofaction is to present evidence in support ofhis claims in a personal restraintpetition, not an appeal. 

### State v. McFarland, 127 Wn.2d at 335.
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### No. 33829-1-III State v. Jones
With regard to Mr. Jones's complaint about lack ofMiranda warnings, the record shows the trial court held a CrR 3.5 hearing and entered written findings offact and conclusions oflaw to the effect that Officer Cobb read him the Miranda warnings, which Mr. Jones indicated he understood before making a knowing and voluntary waiver of rights and giving statements to the officerthat were ruled admissible in the State's casein-chief. Mr. Jones makes no showing that his counsel performed deficiently with respect to the CrR 3.5 proceedings that resulted in proper admission ofhis Mirandized statements through Officer Cobb's trial testimony. Finally, to the extent Mr. Jones is requesting this courtto reweigh the trial evidence and credibility ofwitnesses in favor ofconvictinghim only oftrespass, it is not
ourrole to do so. See State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992) (appellate court defers to the trier offact on issues ofconflictingtestimony, witness credibility, and persuasiveness ofthe evidence). In SAG 2, Mr. Jones contends thejurywas inflamed and contaminatedbecause jurorno. 34, whom he identifies as an African American male working at Hanford Petroleum, expressedbeliefthat anyone sitting in his (Jones's) chair and facing atrial
was guilty and there was no reason for him to be there otherwise. We are unable to review this claim because our record contains no indication whether thejurormade such statements or whether he was ultimately seated on thejurypanel. Again, Mr. Jones's

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### State v. Jones remedy is to bring his claim in apersonal restraintpetition. 

### State v. McFarland, 127 Wn.2d at 335. 4. 

### Appellate Costs Finally, Mr. Jones requests that we exercise our discretion and decline to award appellate costs to the State ifhe does notprevail on appeal. He reasons thatthe trial court found him indigent and entitled to appointed counsel on appeal, his prisonterm is seven years, and his prospects for paying appellate costs are dismal. The State has not respondedto Mr. Jones's request. RAP 14.2 states, "Acommissioner or clerk ofthe appellate courtwill award costs to the party that substantiallyprevails on review, unless the appellate court directs otherwise in its decision terminating review." UnderRCW 10.73.160(1), wehave broad discretion to grant or deny appellate costs to the prevailingparty. 

### See State v. Nolan, 141 Wn.2d 620, 626, 8 PJd 300 (2000); 

### State v. Sinclair, 192 Wn. App. 380, 388, 367 P.3d 612 (2016). Although Mr. Jones has made his request in his opening briefas suggested by 

### Sinclair, he has not submitted the proofofhis continued indigencythat this court requires under its June 10, 2016 general court order governingrequests to deny an appellate cost award. Since ourrecord lacks the necessary informationto resolve Mr. Jones's request, we deny it withoutprejudice to the filing ofa motion consistent with our general order. Affirmed.
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A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR:
( Pi wr\.l"'\C..C. - ~VV-.\., Lawrence-Berrey, 

## .L.J. 

# <2~·~· Pennell, J.

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