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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                     213 I! i   O41 P5
                                                     DIVISION II
                                                                                                                         Sig!;+;:6TON
STATE OF WASHINGTON,                                                              No. 44826 -2 -II


                                         Respondent,


         v.



BRYAN WINDMEYER,                                                            UNPUBLISHED OPINION


                                         Defendant,




DEPARTMENT OF SOCIAL AND HEALTH
SERVICES,


                                        Appellant.



         MELNICK, J. —          The Department of Social and Health Services ( DSHS) 1 appeals from the

trial court' s order requiring DSHS to bear the cost for Bryan Windmeyer' s competency

evaluation      in   a   criminal     case.   The court granted Windmeyer' s motion for a competency

evaluation,     but the State         objected   to the     evaluator    DSHS designated.     The trial court then


appointed, with          the State'   s approval, an evaluator     Windmeyer     requested.   After the evaluation,


the trial   court ordered      DSHS to pay the       evaluation costs.      DSHS argues that its obligation to pay

for competency evaluations extends only to DSHS- designated evaluators and that it should not

be   required   to pay      for Windmeyer' s      evaluation.     We disagree with DSHS and affirm the trial


court.



                                                            FACTS


            The State charged Windmeyer with first degree assault, first degree unlawful possession


of a firearm, felony harassment, unlawful possession of a stolen vehicle, and second degree

1 To avoid confusion we refer to the Department of Social and Health Services as DSHS or the
Department       and     the prosecuting authority     as   the State.
44826 -2 -II



vehicle   prowling.     The trial court granted Windmeyer' s motion for a competency evaluation to

be done    at   Western State Hospital. The trial court further ordered that Windmeyer' s evaluation


be conducted by a competency evaluator specially trained in evaluating defendants with
developmental        disabilities.         The     prosecutor      refused     to   approve   the   only   designated


developmental disability evaluator on Western State Hospital' s staff to perform Windmeyer' s

evaluation. DSHS did not offer any alternative evaluators.

          At Windmeyer' s request, the trial court appointed Dr. Brent O' Neal to perform his


competency        evaluation. "      Dr.   O' Neal meets the statutory definition of a Developmental

Disabilities Professional."          Clerk'   s   Papers ( CP)    at   26.   The trial court relied on Dr. O' Neal' s


evaluation and ruled Windmeyer competent to stand trial.


          Because Windmeyer had been declared indigent, the trial court forwarded Dr. O' Neal' s

request   for   reimbursement     to DSHS.          DSHS refused to pay Dr. O' Neal' s expenses and argued

the trial court could not require DSHS to pay for the cost of an evaluator which DSHS did not

designate. The trial court ordered DSHS to pay Dr. O' Neal for the " fair and reasonable value" of

his   services pursuant     to RCW 10. 77. 020        and   WAC 388 -875 -0040. CP at 27.


          DSHS appeals the trial court' s ruling.

                                                       ANALYSIS


          On appeal, DSHS argues the trial court improperly interpreted RCW 10. 77.060 and RCW

10. 77.020 to place the burden of reimbursing the cost of Windmeyer' s competency hearing on

DSHS rather than the State. DSHS argues that once the State rejected DSHS' s expert, any expert

costs become prosecution costs borne by the State and DSHS has no obligation to pay because

no    statute   obligates   DSHS to pay.           The State argues that both RCW 10. 77. 020( 2) and RCW


10. 77.250 impose all costs associated with competency evaluations for criminal defendants to



                                                              2
44826 -2 -II



DSHS. We agree with the State and hold that DSHS must comply with the court' s order to pay


for the fair and reasonable evaluation costs performed by Dr. O' Neal.

I.        DSHS IS AN AGGRIEVED PARTY UNDER RAP 3. 2


          While DSHS was not a named party in the trial court, DSHS seeks appellate review as an

aggrieved      party   under    RAP 3. 2. "    An ` aggrieved party' is one whose proprietary, pecuniary, or

personal rights are       substantially      affected."   State v. G.A.H., 133 Wn. App. 567, 575, 137 P. 3d 66

 2006).    An aggrieved party not named as a formal party in the trial court has the right to appeal.

G.A.H, 133 Wn. App. at 574.

          Because the trial court order substantially affected DSHS' s pecuniary interests by

requiring it to pay the cost for Windmeyer' s evaluation, DSHS is an aggrieved party and can

appeal the order.


II.       STANDARD OF REVIEW


          This    matter requires us         to interpret RCW 10. 77. 060       and       RCW 10. 77. 020.       We review


questions of statutory interpretation de novo.2 State v. Kintz, 169 Wn.2d 537, 545, 238 P. 3d 470
 2010).


           We employ statutory interpretation "` to determine and give effect to the intent of the


legislature. '      State   v.    Evans, 177 Wn.2d 186, 192, 298 P. 3d 724 ( 2013) (                        quoting State v.

Sweany,      174 Wn.2d 909, 914, 281 P. 3d 305 ( 2012)).               To determine legislative intent, we look


first to the statute' s plain language considering the text of the provision in question, the context

of    the statute, and the statutory      scheme as a whole.       Evans, 177 Wn.2d             at   192.   We will resort to



2 The State, while providing no authority, asserts " the trial court did not abuse its discretion" and
suggests    the   abuse of      discretion    standard applies.   Resp' t' s   Br.   at   4.   We review the decision to
order a competency hearing, as well as the adequacy of a competency hearing, for abuse of
discretion.       State    v.    Sisouvanh,     175   Wn.2d 607,     620,      290 P. 3d 942 ( 2012).             But these

determinations are distinct from this issue of who bears the statutory obligation to pay for a
competency evaluation. Accordingly, de novo review is proper.

                                                              3
44826 -2 -II



other indicia of legislative intent, including legislative history and the principles of statutory

construction,       only if     a statute       is    ambiguous.        State v. Ervin, 169 Wn.2d 815, 820, 239 P. 3d 354


 2010).     A statute is ambiguous if it is susceptible to more than one reasonable interpretation.

Christensen       v.   Ellsworth, 162 Wn.2d 365, 373, 173 P. 3d 228 ( 2007). We hold that the statutes in


question are not ambiguous. Therefore, we rely on their plain meanings.

          In determining the plain meaning of a provision, we look to the text of the statutory
provision    in    question, as         well         as "   the context of the statute in which that provision is found,


related provisions,            and    the statutory           scheme    as   a whole."   Ellsworth, 162 Wn.2d    at   373.   An


undefined      term     is "   given its plain and ordinary meaning unless a contrary legislative intent is

indicated."       Ravenscroft           v.     Wash. Water Power Co.,               136 Wn.2d 911, 920 -21,     969 P. 2d 75


 1998).


III.      Chapter 10. 77 RCW

          Chapter 10. 77 RCW establishes procedures for competency evaluations in criminal cases.

Specifically,       RCW 10. 77. 060( 1)(                a)    entitles the trial court to appoint, or request DSHS to


designate,     an      evaluator       in any         case    where "   a defendant has pleaded not guilty by reason of

insanity,   or   there   is    reason    to doubt his          or   her competency."     In turn, RCW 10. 77. 020( 2) controls


how that    evaluator          is   paid: "[   aJn expert or professional person obtained by an indigent person

pursuant to the provisions of this chapter shall be compensated for his or her services out of

funds of the department, in an amount determined by the secretary to be fair and reasonable."

 Emphasis        added.).           The plain and unambiguous language of the statute requires DSHS to pay

Dr. O' Neal if he is an " expert or professional person obtained by an indigent person pursuant to

the provisions of this              chapter."        RCW 10. 77. 020( 2).
44826 -2 -II




           Dr. O' Neal is exactly such a person. He was " appointed by the Court at the Defendant' s

request after      the Pierce    County      Prosecutor      rejected      the state designated expert."        CP   at   26.   This


court order makes Dr. O' Neal an " expert or professional person obtained by an indigent person"

as   described      by   RCW 10. 77. 020( 2),             and    DSHS         must     compensate     Dr. O' Neal a fair and


reasonable amount.



           DSHS argues that RCW 10. 77. 060 contemplates a different type of evaluator from RCW

10. 77. 020( 2).      DSHS      relies on    State   v.    Griffith, 91 Wn.2d 572, 589 P. 2d 799 ( 1979).                   In that


case, our Supreme Court noted that RCW 10. 77. 020( 2) and RCW 10. 77. 060, are not intended to

 provide       assistance       in   preparing       for     examination              of   a   defendant   by   court- appointed



psychiatrists,"       but   rather    to "   provide       expert psychiatric assistance for defendants                     in the


preparation      of   their defenses."          Griffith, 91 Wn.2d                at   579.     But Griffith did not address


circumstances         similar   to the facts before          us.       In Griffith, the trial court refused to appoint a


defense expert to consult with the defendant, not one to evaluate the defendant for competency.

Griffith, 91 Wn. 2d at 578 -79.              In contrast, the trial court here gave Windmeyer his examiner of


choice to perform an initial competency evaluation.

           Because the trial court appointed Dr. O' Neal at Windmeyer' s request to perform a


competency evaluation, we hold that DSHS must pay Dr. O' Neal a " fair and reasonable amount"

for evaluating Windmeyer, an indigent criminal defendant.3




3 The State also points to RCW 10. 77. 250, which requires DSHS to pay " all costs relating to the
evaluation and treatment of persons committed to it pursuant to any provisions of this chapter."
 Emphasis       added.).     The State does          not argue         that "   all costs" means something different from
 fair   and reasonable"         costs.   Even if it did, the State has requested only that we affirm the trial
court' s    order,     which     requires      payment          of "   fair     and    reasonable"    costs.    Because         RCW
10. 77. 020( 2) mandates payment of these costs, we do not reach the State' s RCW 10. 77.250
arguments.




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44826 -241



IV.      DR. O' NEAL' S EXPENSE AS A PROSECUTION COST


         DSHS argues Windmeyer' s competency evaluation was a " cost of prosecution" borne by

the State because Dr. O' Neal evaluated Windmeyer in the course of prosecuting Windmeyer.

Appellant'   s   Br.   at   11.   We disagree.   DSHS argues that RCW 10. 01. 160( 5) defines the cost of a


competency       evaluation as a cost of prosecution.       But RCW 10. 01. 160 is   a recoupment statute.   It


does not purport to relieve any party, including DSHS, from the initial cost of a competency

evaluation; rather, it merely addresses who may recoup the cost from the defendant after the fact.

DSHS' s reliance on RCW 10. 01. 160 is misplaced. 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


2. 06. 040, it is so ordered.




We    concur:
