                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                            June 4, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

 STATE OF WASHINGTON,                                                No. 51006-5-II

                                Respondent,

           v.

 KEITH BYRON WOODY, JR.,                                      UNPUBLISHED OPINION

                                Appellant.

       LEE, A.C.J. — In a global plea agreement, Keith B. Woody, Jr. pled guilty to second degree

assault for an incident in June 2016, first degree robbery while armed with a firearm for an incident

in August 2016, and first degree unlawful possession of a firearm for an incident in October 2016.

Woody appeals certain legal financial obligations (LFOs), arguing a portion of the restitution

amount was not causally related to the June 2016 assault and the sentencing court wrongly imposed

a $100 deoxyribonucleic acid (DNA) collection fee. Woody also appeals a community custody

condition requiring a chemical dependency evaluation and treatment and a finding that he used a

motor vehicle in the commission of the offenses. In his statement of additional grounds for review

(SAG), Woody argues that his time for trial rights were violated and his offender score was

miscalculated. The State concedes error on the community custody condition and motor vehicle

finding.
No. 51006-5-II


       We affirm Woody’s convictions, offender score, and the restitution amount. We accept

the State’s concession regarding the community custody condition and motor vehicle finding, and

remand to the sentencing court to strike those condition from Woody’s judgment and sentence.

We also direct the sentencing court on remand to address the DNA collection fee by applying the

2018 legislative amendments to the LFO statutes consistent with State v. Ramirez, 191 Wn.2d 732,

426 P.3d 714 (2018).

                                             FACTS

       After an investigation of two pharmacy robberies where the robber was armed with a

firearm, the State charged Woody with two counts of first degree robbery while armed with a

firearm, four counts of first degree unlawful possession of a firearm, and four counts of second

degree assault involving pharmacy customers. One of the first degree robbery charges arose out

of a June 2016 robbery of Walgreens’ pharmacist, Sz-Chi Liang, and the second first degree

robbery charge arose out of an August 2016 robbery of Mill Plain Pharmacy.

       When officers arrested Woody for the pharmacy incidents, Woody was in possession of a

firearm. The State also charged Woody with first degree unlawful possession of a firearm.

       Woody and the State reached a global plea agreement regarding all of Woody’s charges.

Woody agreed to plead guilty to second degree assault of Liang for the June 2016 Walgreens

incident, first degree robbery while armed with a firearm for the August 2016 Mill Plain Pharmacy

incident, and first degree unlawful possession of a firearm for the October 2016 incident. Woody

also agreed that the State could recommend a sentence of 162 months, the high end of a standard

range sentence.




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No. 51006-5-II


       The State’s plea offer stated that in exchange for the State’s offer, Woody “agrees to pay

restitution to victims of uncharged crimes contained in the discovery and/or dismissed counts.”

Clerk’s Papers (CP) at 47. Although Woody did not sign the plea offer, Woody’s plea statement

included a checked box stating that the State’s plea offer “is incorporated by reference.” CP at 38.

Woody signed his plea agreement.

       The State provided Woody with two restitution reports prior to Woody’s plea. The first

showed Walgreens’ reported loss of $3,917.01, which included cash loss of $975.00 and

prescription medication loss of $2,942.01. The second showed Mill Plain Pharmacy’s reported

loss of $11,459.35, which included $10,459.35 for cash and prescription medication loss plus

$1,000 for its insurance deductible. The total amount of restitution requested by the pharmacies

was $15,376.36.

       At the plea and sentencing hearing, the court accepted Woody’s guilty pleas, calculated

Woody’s offender score at six, and sentenced him to 162 months plus a 60-month firearm

enhancement. Regarding the restitution, the court then had the following colloquy with the

prosecutor and defense counsel:

               THE COURT: Stipulated restitution?

               [DEFENSE COUNSEL]: I believe—I can’t remember.

               [THE PROSECUTOR]: We had provided the documentation.

               ....

                THE COURT: On the restitution . . . they have got $15,376.00 for
       restitution that you would owe. You are entitled to a hearing to set the amount
       of restitution. It would require you coming back.

               Stipulate?



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No. 51006-5-II



              [DEFENSE COUNSEL]: We want to stipulate.

Verbatim Report of Proceedings (VRP) (Sept. 25, 2017) at 45. Based on Woody’s stipulation, the

sentencing court imposed $15,376.36 in restitution.

       In addition to restitution, the sentencing court imposed a $100 DNA collection fee LFO.

Also, by way of checked boxes, the trial court required Woody to undergo an evaluation and

treatment for chemical dependency as a condition of community custody, determined that Woody

used a motor vehicle in the commission of the crime, and required the Department of Licensing be

notified of Woody’s conviction.

       Woody appeals.

                                             ANALYSIS

A.     LFOS

       1.     Restitution

              a.      Imposition of restitution for Walgreens robbery

       Woody argues that the $3,917.01 portion of the restitution order relating to the Walgreens

incident must be vacated because there was no causal connection between that amount and the

second degree assault he pleaded guilty to. Woody’s argument fails.

       We review a sentencing court’s order of restitution for abuse of discretion. State v. Griffith,

164 Wn.2d 960, 965, 195 P.3d 506 (2008). The trial court abuses its discretion if its decision is

manifestly unreasonable or exercised on untenable grounds or for untenable reasons. State v.

McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009).




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No. 51006-5-II


       The sentencing court’s authority to order restitution is purely statutory. Griffith, 164

Wn.2d at 965. RCW 9.94A.753(5) requires the sentencing court to award restitution “whenever

the offender is convicted of an offense that results in injury to any person or damage to or loss of

property.” The general rule is that “‘the award of restitution must be based on a causal relationship

between the offense charged and proved and the victim’s losses or damages.’” State v. Woods, 90

Wn. App. 904, 908, 953 P.2d 834 (quoting State v. Johnson, 69 Wn. App. 189, 191, 847 P.2d 960

(1993)), review denied, 136 Wn.2d 1021 (1998). The State carries the burden to establish by a

preponderance of the evidence a causal connection between the restitution requested and the crime

with which the defendant is charged. State v. Dedonado, 99 Wn. App. 251, 257, 991 P.2d 1216

(2000). However, the State is relieved of that burden if a defendant pleads guilty and expressly

agrees to pay restitution for crimes for which the defendant was not convicted. Woods, 90 Wn.

App. at 908.

       Here, the State initially charged Woody with first degree robbery while armed with a

firearm regarding the Liang and Walgreens robbery. The State provided Woody with a restitution

report relating to the Walgreens incident prior to the parties’ plea agreement. The report showed

Walgreens’ reported loss of $3,917.01. Woody and the State reach an agreement where Woody

agreed to plead guilty to second degree assault of Liang. As part of the plea agreement, Woody

agreed “to pay restitution to victims of uncharged crimes contained in the discovery and/or

dismissed counts.” CP at 47. During the sentencing hearing, Woody’s counsel stipulated to a

restitution amount of $15,376.36, which included Walgreens’ reported loss of $3,917.01.

       Woody agreed to pay restitution to victims of uncharged crimes or dismissed counts as part

of his plea deal, which included the first degree robbery while armed with a firearm charge arising



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No. 51006-5-II


from the Walgreens incident. And in exchange, Woody received the benefit of pleading guilty to

a lesser offense of second degree assault against Liang. Since Woody expressly agreed to pay

restitution for uncharged crimes or dismissed counts, the State need not prove a causal connection

between the Walgreens restitution amount ($3,917.01) and second degree assault. Woods, 90 Wn.

App. at 908. Accordingly, the sentencing court did not err in ordering Woody to pay restitution

for the Walgreens robbery.

               b.      Ineffective assistance of counsel

        Woody next argues he was denied effective assistance of counsel because defense counsel

did not object to the restitution amount at the sentencing hearing. We disagree.

        To prevail on an ineffective assistance of counsel claim, the defendant must show both that

(1) defense counsel’s representation was deficient and (2) the deficient representation prejudiced

the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011), cert. denied, 135 S.

Ct. 153 (2014). Representation is deficient if, after considering all the circumstances, it falls below

an objective standard of reasonableness. Id. at 33. Prejudice exists if there is a reasonable

probability that except for counsel’s errors, the result of the proceeding would have differed. Id at

34.

        As discussed above, Woody agreed to restitution as part of his plea agreement.

Accordingly, any objection by counsel was likely to be futile. For this reason, counsel performance

cannot be characterized as deficient. See State v. Denny, 173 Wn. App. 805, 811, 294 P.3d 862

(2013) (appellant does not show ineffective assistance of counsel by failing to make a motion if

the motion would have been futile). Therefore, Woody’s ineffective assistance of counsel claim

also fails.



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No. 51006-5-II


       2.       DNA Collection Fee

       Woody next requests that we strike the sentencing court’s imposition of the $100 DNA

collection fee as a LFO. He argues that the sentencing court failed to inquire into whether Woody’s

mental health impacted his ability to pay. In 2018, the legislature amended former RCW

43.43.7541 (2015), authorizing the imposition of a DNA collection fee “unless the state has

previously collected the offender’s DNA as a result of a prior conviction.” LAWS of 2018, ch.

269, § 18. Our Supreme Court has held that the 2018 amendments to the LFO statutes apply to

cases pending on direct review and not final when the amendments were enacted. Ramirez, 191

Wn.2d at 747.

       Given Woody’s prior criminal history as reflected in his offender score, it is likely his DNA

has previously been collected. Therefore, we remand to the sentencing court to address the DNA

collection fee by applying the 2018 legislative amendments and our Supreme Court’s holding in

Ramirez.

B.     SENTENCING CONDITION/USE OF MOTOR VEHICLE FINDING

       Woody next argues that the sentencing court erred by ordering Woody to undergo a

chemical dependency evaluation and treatment, and by finding that a motor vehicle was used in

the commission of the crimes. The State concedes these errors. We accept the State’s concession.

       The sentencing court may, as a condition of a sentence, order chemical dependency

treatment if the sentencing court “finds that the offender has any chemical dependency that has

contributed to his or her offense.” RCW 9.94A.607(1). Additionally, the sentencing court may

instruct the Department of Licensing to revoke a defendant’s license for one year upon conviction

of a “felony in the commission of which a motor vehicle is used.” RCW 46.20.285(4).



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No. 51006-5-II


       Here, the trial court required Woody to undergo an evaluation and treatment for chemical

dependency as a condition of community custody, determined that Woody used a motor vehicle in

the commission of the crime, and required the Department of Licensing be notified of Woody’s

conviction. However, there is no evidence that chemical dependency contributed to Woody’s

crimes. Similarly, there is no evidence that a motor vehicle was used in the commission of the

crimes. Therefore, the State properly concedes that these conditions do not apply. Accordingly,

we remand to the sentencing court to strike these conditions from Woody’s judgment and sentence.

C.     SAG ISSUES

       Woody contends that his time for trial rights were violated. He states that he “asked for a

60 day speedy trial” and that he “want[s] to know why [he] wasn’t granted [his] constitutional

right.” SAG at 1. CrR 3.3 provides that a defendant detained in jail shall be brought to trial within

60 days of his arraignment. CrR 3.3(b)(1)(i). Our record does not contain information about

Woody’s exercise of this right, continuance motions, or any orders related to continuances. Thus,

because this issue relies on matters outside our record, we cannot consider it on 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. Id.

       Woody also contends that the sentencing court miscalculated his offender score because

“one of [his] plea deal charges is an unranked felony.” SAG at 1. Woody fails to specify which

charge he is referring to. Woody pled guilty to second degree assault, first degree robbery, and

first degree unlawful possession of a firearm, which are all ranked felonies.                   RCW

9A.36.021(2)(a); RCW 9A.56.200(2); RCW 9.41.040(1)(b); see also RCW 9.94A.515

(seriousness level table). Therefore, based on our record, Woody’s claim fails.



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No. 51006-5-II


        We affirm Woody’s convictions, offender score, and the restitution to Walgreens, but we

remand to the sentencing court to strike the community custody condition and motor vehicle

finding from Woody’s judgment and sentence. We also direct the sentencing court on remand to

address the DNA collection fee by applying the 2018 legislative amendments to the LFO statutes

consistent with Ramirez.

        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.



                                                    Lee, A.C.J.
 We concur:



 Worswick, J.




 Glasgow, J.




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