                                                                                                  FILED
                                                                                         TOUR °O    A
                                                                                                                  PEALS
                                                                                       2013 M:        19 A1k1 8 41
      IN THE COURT OF APPEALS OF THE STATE OF                              WASHINi                    urn
                                                                                                            SHE     T N
                                           DIVISION II                                 BY
                                                                                                 OE         Y\
STATE OF WASHINGTON,                                                 No. 42208 5 II
                                                                               - -


                                 Respondent,                  UNPUBLISHED OPINION


         V.




BRUCE E. BRATTON,




         WORGEN, J. —Bruce       Bratton appeals his conviction of unlawful possession of a

controlled substance, methamphetamine. He contends that the evidence supporting this

conviction resulted from his arrest on an invalid warrant and the trial court erred in not

suppressing it. Because the trial court issued the arrest warrant based on a well -founded

suspicion that Bratton had violated his sentencing conditions and because all required notice was

given, we hold that the arrest warrant was valid. We therefore affirm.
                                                FACTS


         On January 30, 2009, Bratton pleaded guilty to unlawful possession of
                                                                 *

methamphetamine. The sentencing court ordered Bratton to pay his $ ,50 legal financial
                                                                 15
obligations (LFOs)through Jefferson County's Pay or Appear program ( OA).
                                                                   P    This order

provided:

          Defendant will be required to make a minimum monthly payment of 50. 0 each
                                                                          $ 0
          month, commencing April 1. Review scheduled for May 8, 09 at 8:0 a. . If
                                                                   '    3   m
          payment is made, you do not need to appear for review....




1
    Bratton does not assign error to the trial court's findings of fact from the CrR 3. hearing and,
                                                                                      6
as we review only that proceeding in this appeal, these findings of fact are verities for purposes
of our review. State   v.   Hill, 123 Wn. d 641, 647, 870 P. d
                                        2                  2     313 (1994).
No. 42208 5 II
          - -



       If a Defendant has not made the minimum payments in the preceding calendar
       month and does not appear on the second Friday of the following month at the
       Pay or Appear calendar, a warrant will be issued for Defendant's arrest.

Clerk's Papers (CP)at 46 47. Between April 2009 and June 2010, Bratton paid $ 00 to the
                         -                                                  6

court. During that period, Bratton missed his July 2009 payment and, when he did not appear at

the August 2009 hearing, the court issued a bench warrant. Bratton was arrested and released the

next day. He made sporadic payments in 2010 and, after he missed his June 2010 payment and

failed to appear for the July hearing, the trial court issued a bench warrant for his arrest. Deputy

Brian Anderson arrested Bratton the next day and, when the deputy searched Bratton's pockets

incident to that arrest, he found a sandwich bag containing over eight grams of

methamphetamine.

        The State then charged Bratton with unlawful possession of a controlled substance,
methamphetamine. Bratton moved to suppress the methamphetamine under CrR 3. ,claiming
                                                                          6
that the arrest warrant was invalid because (1) was a cash only warrant and ( ) violated due
                                               it                           2 it

process because he had inadequate notice of his obligation to appear. The trial court agreed with
the first argument but concluded that the invalid bail provision did not invalidate the warrant: - -

The trial court disagreed with Bratton's second claim and denied his motion to suppress. The


2The trial court entered the following conclusions of law regarding the motion to suppress:
        1. Due process requires that all parties to an action be given notice and an
        opportunity to be heard by a neutral magistrate. See State v. Walker, 93 Wn. App.
        382, 967 P. d 1289 (1998).
                  2
        2.  Notice is flexible and calls for such procedural protection as a particular
        situation demands. State v. Hotrum, 120 Wn. App. 681, 87 P. d 766 (2004).
                                                                    3
        3. Notice does not require "actual notice"of a pending action; notice is proper,
                                                                       "
        for purposes of due process, if, under the circumstances, it is reasonably
        calculated to apprise interested parties of the pendency of the action and afford
        them   an   opportunity   to   present their objections." Washam v. Pierce County
        Democratic Cent. Committee, 69 Wn.App. 453, 459 60,849 P. d 1229 (1993).
                                                        -       2
                                                    2
No. 42208 5 II
          - -



trial court found Bratton guilty at a later held bench trial and imposed a standard range sentence.
                                            -

Bratton appeals.

                                           ANALYSIS


1.     ASSIGNMENTS OF ERROR


       Bratton assigns error only to conclusions of law 4 6,which we review de novo. State v.
                                                          -

Mendez, 137 Wn. 2d 208, 214, 970 P. d 722 (1999).However, he does not raise the same claim
                                  2

on appeal that he raised below,that the lack of adequate notice denied him due process

protections. Rather, the issue he presents to this court is whether the arrest warrant was invalid

because (1) court found the POA program unconstitutional, 2) trial court lacked a well
           this                                           ( the

founded suspicion that he had violated his sentencing conditions, and (3)under the

circumstances, the only reasonable course of action was for the trial court to have issued a

summons rather than an arrest warrant. In this posture, we need not review the trial court's

conclusions as we deem the assignments of error abandoned. See State v. Motherwell, 114

Wn. d 353, 788 P. d 1066 (1990)assignment of error without argument is abandoned.)
  2             2               (

       Instead, we review the validity of the arrest warrant in the context of these other

arguments because if the arrest warrant was invalid, it follows that Bratton's arrest and the
ensuing search and seizure of evidence were unlawful and the trial court erred in not suppressing



        4. When Mr. Bratton was ordered to pay his legal financial obligations through
        the POA program he was given notice that he was to either make a payment or
        appear in court the following month to explain why he.
                                                             failed to make a payment.
        5.   The Pay or Appear order gave Mr. Bratton notice that he was to make a
        payment or appear at 8:0 AM on the second Friday of the following month.
                              3
        6.   The Pay or Appear order gave Mr. Bratton notice reasonably calculated to
        apprise him of the pendency of the action and afford him an opportunity to
        explain why he failed to make a payment.
CP at 48 49.
         -
                                                  3
No. 42208 5 II
          - -



the drug evidence. See Mapp v. Ohio, 367 U. . 643, 655, 81 S. Ct. 1684, 6 L.Ed. 2d 1081
                                          S

1961)evidence obtained from illegal search or seizure is subject to exclusionary rule).We
      (

review de novo the warrant's legal sufficiency but we review any discretionary decisions for an

abuse of discretion. State v. Erickson, 168 Wn. d 41, 45, 225 P. d 948 (2010).
                                              2                3

2.     CONSTITUTIONALITY OF POA PROGRAM


       Bratton first contends that the arrest warrant was invalid because we declared the same


POA program unconstitutional in State v. Stone, 165 Wn. App. 796, 800, 268 P. d 226 (2012).
                                                                            3

Stone had failed to pay his LFOs and to appear in court the following month, so the trial court

issued a bench warrant for his arrest. Stone, 165 Wn. App. at 801. We held that Stone was

entitled under the Sixth and Fourteenth Amendments to be represented by counsel at the ensuing

show cause hearing, because of the possibility that the trial court would impose jail time as a

consequence of Stone's failure to pay his LFOs. Stone, 165 Wn. App. at 814 15. We also held
                                                                           -
that the trial court violated due process by failing to inquire into whether Stone's nonpayment

was willful. Stone, 165 Wn. App. at 816 18.
                                        -

       Stone,though,did not declare the POA unconstitutional. Rather,we held that Stone was
                     -

entitled to have an attorney represent him,because he faced the possibility ofjail time if the trial

court that his failure to pay his LFOs was willful. Here, Bratton did not appear at court

when required to do so,. we do not know if the trial court would have informed him of his
                       and

right to appointed counsel or would have made an adequate inquiry into his ability and

willingness to pay. Stone did not hold,because that question was not before it,that the bench

warrant was constitutionally infirm. All that is under review here is issuance of a bench warrant.
Bratton's claim fails.



                                                  M
No. 42208 5 II
          - -



3.     WELL -FOUNDED SUSPICION


       Bratton next argues that the trial court lacked a well-
                                                             founded suspicion that he had

violated his sentencing conditions to justify issuing an arrest warrant. He argues that the State

had to show ( ) he missed an LFO payment, 2) his nonpayment was willful, and (3)
            1 that                        ( that

that he had not called the program coordinator as the POA program allowed him to do. Bratton

also argues that because the trial court did not make findings on ( ) (3), must presume
                                                                  2 and we

that the State failed in its burden of proof. State v. Armenta, 134 Wn. d 1, 14, 948 P. d 1280
                                                                      2               2

1997).

       RCW 9.
           a)
           6333( 4A.authorizes a trial court to issue a summons or arrest warrant for
               2)(
               9

an offender who fails to comply with any sentencing condition or requirement. To do so, the

trial court must have a "well-
                             founded suspicion"that the offender has violated his sentencing

terms. State v. Erickson, 168 Wn. d 41, 49 50,225 P. d 948 (2010).
                                2          -       3

       Here, the trial court had a well -founded suspicion justifying issuance of an arrest warrant.

It knew that Bratton had signed the order placing him in the POA program..The program

coordinator placed the matter on the July 9,2010 calendar,because Bratton's last payment was

on May 11, 2010, and he had missed the June payment. Bratton was not in court when his case

was called. This is sufficient evidence from which the trial court could conclude with a.well-

founded suspicion that Bratton had failed to comply with his LFO obligations. That Bratton may

have called the program coordinator before July 9 or that he may not have willfully refused to

pay were matters for the show cause hearing. That he did not make his June payment and did not

appear on July 9 were sufficient facts to justify issuing an arrest warrant. Bratton's claim on this
issue fails.



                                                  5
No. 42208 5 II
          - -



4.     REASONABLENESS


       Bratton next argues, under Erickson, that issuance of an arrest warrant under the

circumstances was not reasonable. He argues that he was never given adequate notice that he

was required to appear in court, claiming instead that his appearance was conditional, that he was

never given a specific date and time to appear, and that the trial court did not issue a warrant

every time he failed to pay his LFOs or appear. Under these circumstances, he argues, the

reasonable thing to do was to issue a summons as allowed under RCW 9.
                                                                   a),
                                                                   6333( 4A.
                                                                       2)(
                                                                       9    rather

than having him arrested.
       In Erickson, 168 Wn. d at 48 49,our Supreme Court discussed what is a reasonable
                          2         -

government interest to justify curtailing an offender's liberty when that offender has been

convicted and is under court supervision. Bratton misapplies this reasonableness standard.

Under Erickson, reasonableness means that,before issuing a bench warrant, the court has a well -

founded suspicion based on specific and articulable facts that the offender has violated his

release conditions. Erickson, 168 Wn. d at 49. In other words, the reasonableness test is the
                                    2

same test we applied in section 3 above,and found that the State met. In any case, the statute
                                         -

provides the trial court with discretion to issue either a summons or an arrest warrant and Bratton
has not shown an abuse of discretion here. See State v. Neth, 165 Wn. d 177, 182, 196 P. d 658
                                                                    2                  3

2008)generally, we review the issuance of a warrant for an abuse of discretion).For these
      (
reasons, Bratton's claim fails.




3 Bratton argues lack of notice in the context of his reasonableness claim but he does not argue
on appeal that it violated due process protections as he did below. Nonetheless, the record
sustains the trial court's conclusion that the State gave Bratton adequate notice under due process
standards.
No. 42208 5 II
          - -


       We affirm.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




                                                      BJ   GE .

We concur:




                                                  7
