                                                                         FILED 

                                                                    SEPTEMBER 25, 2014 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 



             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                DIVISION THREE 


STATE OF WASHINGTON,                                 )
                                                     )    No. 31260-7-111
                        Respondent,                  )    (consolidated with
                                                     )     No. 31443-0-III)
        v.                                           )
                                                     )
DAVID WAYNE HALLS,                                   )
                                                     )
                        Appellant.                   )
--------------------------------------------------   )
In the Matter of the Personal Restraint              )
Petition of:                                         )
                                                     )
DAVID WAYNE HALLS,                                   )    UNPUBLISHED OPINION
                                                     )
                        Petitioner.                  )

        SIDDOWAY, C,]. -        David Wayne Halls was convicted of witness tampering with a

domestic violence allegation, following a plea of guilty. He appeals, arguing that the trial

court erred in (1) finding that the domestic violence component was proved and, on that

basis, imposing a $100 domestic violence penalty and no-contact order, and (2) imposing

legal financial obligations (LFOs) without sufficient inquiry into his present or future

ability to pay them.

        In a CrR 7.8 motion that Mr. Halls filed in superior court and that was transferred to

this court for resolution as a personal restraint petition (PRP), Mr. Halls sought to withdraw

his guilty plea. Mr. Halls now appears to wish to withdraw the PRP.
Nos. 31260-7-III; 31443-0-111
State v. Halls

       The State concedes that the record does not support the domestic violence

allegation, a concession we accept. We refuse to entertain a challenge to the LFOs for

the first time on appeal. We grant that part of Mr. Halls's recent pro se submission that

we construe to be a request to withdraw his CrR 7.8 motion.

       We remand with directions to amend the judgment and sentence to remove the

domestic violence allegation, strike the $100 domestic violence penalty assessment, and

vacate the domestic violence no-contact order. We otherwise affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       In a separate case, David Wayne Halls was convicted of second degree assault for

throwing a candle holder at his girl friend. State v. Halls, noted at     Wn.App._,

2014 WL 3697253,petitionjor review filed, No. 90711-1 (Sept. 8,2014). Before his trial

in that case, Mr. Halls sent a letter to the victim, asking her to make herself unavailable as

a witness in his trial. As a result, Mr. Halls was charged with and pleaded guilty to

witness tampering. At the plea hearing, the trial court reviewed with Mr. Halls the rights

he was giving up by entering a guilty plea, and confirmed that his lawyer had reviewed

the gUilty plea statement with him. The court then accepted the guilty plea, finding that it

was knowingly, voluntarily, and intelligently made.

       Mr. Halls's sentencing was handled by a different judge than had accepted his

guilty plea. At the sentencing hearing, Mr. Halls told the court that he wanted to

"revoke" his guilty plea, apparently on the basis that he had not, in fact, understood what


                                              2

Nos. 31260-7-111; 31443-0-111
State v. Halls

he was doing. Report of Proceedings (Oct. 9, 2012) at 4. He appeared to attach

importance to the fact that a no-contact order had not been in place at the time he sent the

letter asking that his victim stay away from trial. The sentencing court explained to Mr.

Halls that the purpose of that day's hearing was to sentence Mr. Halls based on his plea

and proceeded with the sentencing.

       The judgment and sentence entered by the court stated that Mr. Halls was guilty of

witness tampering based upon a plea, and also that for the witness tampering charge,

"domestic violence was pled and proved." Clerk's Papers at 48. In fact, Mr. Halls's

statement on plea of guilty did not include language demonstrating that the offense was

committed against a family or household member, nor was other evidence offered from

which the court could make such a finding. On the basis of the domestic violence

finding, the court imposed a $100 domestic violence fee and entered a domestic violence

no-contact order.

       A couple of months following the sentencing hearing, Mr. Halls filed a pro se

motion to withdraw his guilty plea under CrR 7.8. The motion reiterated his belief

expressed at sentencing that it somehow made a difference for purposes of the witness

tampering charge that a no-contact order with the victim had not been in place at the time

he sent the letter. The superior court found that Mr. Halls had failed to make a

substantial showing that he was entitled to relief or that a factual hearing was required




                                             3

Nos. 31260· 7·III; 31443·0·III
State v. Halls

and transferred the motion to this court for treatment as a personal restraint petition. The

PRP was consolidated with the appeal.

       Following the date on which this appeal was set for hearing without oral argument,

Mr. Halls filed a pro se submission the overall purpose of which is not clear, but which

asked, among other things, that we "reject [the case] and dismiss it matter leave it at rest.

And leave Judgment & Sentence as is face [unintelligible] with Benton County Superior

Courts as is 10-9-12." Letter from David Wayne Halls to Court of Appeals (Aug. 1,

2014), State v. Halls, No. 31260-7-III (Wash. Ct. App.).

                                        ANALYSIS

                               1. Domestic Violence Allegation

       Mr. Halls argues on appeal that his conviction with the domestic violence

allegation, absent proof of domestic violence, violated his right to due process.

       Mr. Halls was charged with witness tampering with a domestic violence

allegation, but the State concedes that the record does not support the trial court's finding

in the judgment and sentence that the domestic violence was proved. The State concedes

that because domestic violence was not proved, the trial court lacked statutory authority

to impose the domestic violence fee and to impose a domestic violence no-contact order

that was unrelated to the crime as proved.

       We accept the State's concessions.




                                              4

Nos. 31260-7-111; 31443-0-111
State v. Halls

                                II. Legal Financial Obligations

       Mr. Halls's remaining challenge on appeal is to the trial court's imposition of

discretionary court costs, where it failed to take into account his present or future ability

to pay, as required by RCW 10.01.160.

       In State v. Duncan, 180 Wn. App. 245, 253,327 P.3d 699, petition for review

filed, No. 90188-1 (Apr. 30, 2014), we observed that whether a defendant will be unable

to pay LFOs imposed at sentencing is not an issue that defendants overlook, it is one that

they reasonably waive, and concluded that we would henceforth decline to address a

challenge to a court's failure to consider that issue if raised for the first time on appeal.

RAP 2.5(a). Our position is consistent with that of the other divisions of our court. See

State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492, review granted, 178 Wn.2d 1010

(2013) and State v. Calvin, 176 Wn. App. 1,316 P.3d 496, 507-08, petition for review

filed, No. 89518-0 (Nov. 12,2013).

       Mr. Halls did not object to the trial court's imposition of discretionary costs in the

trial court on the basis of the court's failure to consider his ability to pay. He thereby

waived any challenge.

                               III. Personal Restraint Petition

       Mr. Halls's pro se submission filed with this court on August 6,2014 is

ambiguous, to say the least. If and to the extent it can be construed as a request that we

dismiss review ofMr. Halls's appeal, we deny it as untimely, since it was filed after the


                                               5

Nos. 31260-7-III; 31443-0-II1 

State v. Halls 


date set for hearing of the appeal without oral argument. See RAP 18.2. 


      We construe it, in part, to be a request for leave to withdraw Mr. Halls's untimely

CrR 7.8 motion that was transferred to this court for treatment as a PRP. Recognizing

that Mr. Halls may be concerned about future collateral consequences of our resolution of

the motion as a PRP, we grant his request to withdraw the PRP. Cf State v. Smith, 144

Wn. App. 860, 863-64, 184 P.3d 666 (2008) (citing RCW 10.73.140; In re Pers.

Restraint oj Vazquez, 108 Wn. App. 307, 313-14, 31 P.3d 16 (2001) as establishing that a

CrR 7.8 motion resolved as a PRP following transfer will bar subsequent petitions).

      We grant Mr. Halls leave to withdraw the PRP. We remand with directions to

amend the judgment and sentence to remove the domestic violence allegation, strike the

$100 domestic violence penalty assessment, and vacate the domestic violence no-contact

order. We otherwise affirm.

      A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.


                                             Sidd~1 u
WE CONCUR:

 ~)&
Brown, 1.
  ~(J

Lawrence-Berrey, J.

                                            6
