                                                                       FILE L)
                                                               MIRLOF APPEALS.DIV
                                                                STATE OF WASHINGTON

                                                               2010JUN I I MI 8:5k

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,                      )
                                          )       No. 76772-1-1
                     Respondent,          )
                                          )       DIVISION ONE
              v.                          )
                                          )       UNPUBLISHED OPINION
MICHAEL JOSEPH OSKER, II,                 )
                                          )
                     Appellant.           )       FILED: June 11,2018


       TRICKEY, J. — Michael Osker was found guilty of burglary in the first degree

following a bench trial. The trial court imposed $800 in legal financial obligations

(LF0s)on Osker, including a $200 criminal filing fee. Osker appeals, arguing that

the trial court failed to consider his ability to pay mandatory LFOs in light of his

mental health condition, that his trial counsel was ineffective, and that the

mandatory imposition of the criminal filing fee violates his right to equal protection.

Finding no error, we affirm.

                                       FACTS

       On April 6, 2016, Snohomish County Sheriffs Deputy Chad Matthews was

dispatched to a reported assault with a weapon in Sultan, Washington. Deputy

Matthews made contact with the victim, Thomas Plemmons. Plemmons reported

that Osker, who rented one of Plemmons's residences, had punched him in the

head multiple times, broken down the front door into Plemmons's garage/shop as

Plemmons ran away, and pursued Plemmons with a long handled bladed object.

Plemmons also reported that, during the incident, Osker was very agitated and
No. 76772-1-1 / 2

referred to conversations between Osker and Plemmons that had not happened)

Deputy Matthews and other officers later arrested Osker at his residence.

        Osker was charged with first degree burglary while armed with a deadly

weapon. Prior to trial, Dr. Mark McClung performed a psychological evaluation

and concluded that Osker had experienced a substance-induced psychotic

disorder on the day of the incident. He also noted that Osker also suffered from

mild dementia and a long-term seizure disorder.

        Osker waived his right to a jury trial and proceeded to a bench trial based

on agreed documentary evidence.           The documentary evidence included a

stipulation agreement and sentencing recommendation signed by both Osker and

the State that provided for LFOs consisting of a victim penalty assessment, DNA

(deoxyribonucleic acid) fee, restitution, and a criminal filing fee. The trial court

found Osker guilty as charged.

        At sentencing, the trial court adopted the parties' agreed upon term of

confinement of 39 months. Osker asked the trial court to waive all non-mandatory

fees.   The trial court imposed $800 in LF05, consisting of a $500 victim

assessment, a $200 criminal filing fee, and a $100 biological sample fee. The trial

court also ordered Osker to undergo an evaluation for substance use disorder and

mental health.

        Osker appeals.


1 For example, Plemmons heard Osker shouting and using profanity as he approached
Plemmons's garage/shop. Osker then approached Plemmons while "rambling that he
didn't deserve the way Plemmons talked to him" although Plemmons "had not seen or
spoken with Osker up till that point." Clerk's Papers(CP)at 82. While pursuing Plemmons
during the incident, Osker repeatedly yelled that he was "going to get [Plemmons]." CP
at 82.
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No. 76772-1-1/ 3

                                         ANALYSIS

                              Imposition of Mandatory LFOs

          Osker argues that the trial court erred when it failed to assess whether he

was able to pay mandatory LFOs in light of his mental health condition. Because

Osker failed to raise this issue before the trial court, we decline to reach the merits

of his argument.

         "The appellate court may refuse to review any claim of error which was not

raised in the trial court." RAP 2.5(a). The question of whether a trial court properly

inquired into a defendant's ability to pay due to a mental health condition is subject

to RAP 2.5(a). State v. Tedder, 194 Wn. App. 753, 756-57, 378 P.3d 246 (2016)

(exercising discretion under RAP 2.5(a)to examine whether the trial court erred in

not inquiring into defendant's ability to pay LFOs in light of mental health condition

under RCW 9.94A.777).

          Here, Osker failed to argue that the trial court should inquire into his ability

to pay the LFOs based on his mental health condition. In addition, he stipulated

to the imposition of the LFOs as part of the agreed documentary evidence in his

bench trial. Therefore, we decline to reach the merits of his argument under RAP

2.5(a).2

                             Ineffective Assistance of Counsel

          Osker argues in the alternative that his counsel at trial was ineffective

because he failed to raise the issue of Osker's mental health condition pursuant to

RCW 9.94A.777. Because Osker has not cited evidence at trial that would have



2   We also decline to reach the State's argument that Osker invited the error.
                                              3
No. 76772-1-1 /4

supported a finding that he suffered a mental health condition as defined by ROW

9.94A.777(2), we disagree.

       For the purposes of RCW 9.94A.777(2),

      a defendant suffers from a mental health condition when the
      defendant has been diagnosed with a mental disorder that prevents
      the defendantfrom participating in gainful employment, as evidenced
      by a determination of mental disability as the basis for the
      defendant's enrollment in a public assistance program, a record of
      involuntary hospitalization, or by competent expert evaluation.

       A criminal defendant has a right to effective assistance of counsel. In re

Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91,99,351 P.3d 138(2015)(citing

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984); U.S. CONST. amend VI; WASH CONST. art. I, § 22). To show ineffective

assistance of counsel, a defendant must show both that counsel's performance

was deficient and that he or she was prejudiced by the deficient performance.

Strickland, 466 U.S. at 687. If a party fails to satisfy either the deficiency or the

prejudice prong, a reviewing court need not consider the other. State v. Foster,

140 Wn. App. 266, 273, 166 P.3d 726(2007).

       Reviewing courts are highly deferential to counsel's performance, and

"'counsel is strongly presumed to have rendered adequate assistance and made

all significant decisions in the exercise of reasonable professional judgment."

State v. Carson, 184 Wn.2d 207, 216, 357 P.3d 1064 (2015)(quoting Strickland,

466 U.S. at 690).

      To show prejudice, the defendant must establish that "there is a reasonable

probability that, but for counsel's deficient performance, the outcome of the

proceedings would have been different." State v. Grier, 171 Wn.2d 17, 34, 246

                                         4
No. 76772-1-1 /5

P.3d 1260 (2011) (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177

(2009)).

       "Ineffective assistance of counsel is a fact-based determination, and [the

appellate court] review[s] the entire record in determining whether a defendant

received effective representation at trial." Carson, 184 Wn.2d at 215-16.

       Here, the record does not contain evidence supporting a finding that Osker

suffered from a mental health condition as defined by RCW 9.94A.777(2). The

parties have not cited evidence of a determination that Osker received public

assistance based on a mental disability.3 The record does not contain evidence

showing that Osker has a history of involuntary hospitalizations. Finally, although

Dr. McClung opined that Osker's mental disorders may have impacted his ability

to form criminal intent, Dr. McClung did not conclude that Osker's mental condition

prevented him from participating in gainful employment.

       Thus,the record does not contain evidence with which Osker's trial counsel

could have argued that Osker suffered a mental health condition under RCW

9.94A.777(2). Even if Osker's trial counsel had cited the statute to the trial court,

there is no reasonable probability that the outcome of the proceedings would have

been different. Therefore, Osker cannot establish prejudice. We conclude that

Osker's counsel below was not ineffective.




3 In a financial declaration attached to his motion for an order authorizing him to seek
review at public expense, Osker declared that he had previously received Social Security
disability income. But he does not describe the disability underlying his Social Security
income, and the financial declaration was filed after his trial. Therefore, Osker's financial
declaration could not have been a basis for a finding of a mental health condition under
RCW 9.94A.777(2) below.
                                             5
No. 76772-1-1/6

                          Violation of Equal Protection Clause

        Osker argues that the mandatory imposition of the $200 criminal filing fee

under RCW 36.18.020(2)(h) violates his right to equal protection because civil

litigants are permitted a waiver of fees under GR 34.4 Because there is a rational

basis for distinguishing        between criminal defendants subject to RCW

36.18.020(2)(h) and civil litigants who may request a waiver of fees pursuant to

GR 34, we disagree.

       "Equal protection requires that similarly situated individuals receive similar

treatment under the law." Harris v. Charles, 171 Wn.2d 455, 462, 256 P.3d 328

(2011)(citing U.S. CONST. amend XIV,§ 1; WASH. CONST. art. I, § 12).

       "Under[the rational basis]standard 'a legislative classification will be upheld

unless it rests on grounds wholly irrelevant to the achievement of legitimate state

objectives." In re Det. of Turay, 139 Wn.2d 379,410,986 P.2d 790(1999)(quoting

State v. Thorne, 129 Wn.2d 736, 771, 921 P.2d 514(1996)).5




4 Osker did not raise his equal protection claim below. An appellant may raise a claim of
"manifest error affecting a constitutional right" for the first time on appeal. RAP 2.5(a)(3).
"[The appellant must 'identify a constitutional error and show how the alleged error
actually affected the [appellant]'s rights at trial." State v. O'Hara, 167 Wn.2d 91, 98, 217
P.3d 756(2009)(second alteration in original)(quoting State v. Kirkman, 159 Wn.2d 918,
926-27, 155 P.3d 125 (2007)). The record must contain all the facts necessary to
adjudicate the claimed error in order to demonstrate actual prejudice. O'Hara, 167 Wn.2d
at 99.
        Here, Osker's argument implicates his constitutional right to equal protection.
Further, he is a criminal defendant who has been convicted, the criminal filing fee required
under RCW 36.18.020(2)(h) has been imposed, and he does not have a waiver option
analogous to that available to civil litigants under GR 34. Thus, Osker's argument
concerns a constitutional right and the record demonstrates that he was actually
prejudiced. We will reach the merits of Osker's equal protection novel argument on appeal
as a claim of manifest error affecting a constitutional right under RAP 2.5(a)(3).
5 Osker concedes that Injo fundamental right or suspect class is at issue here," and
therefore rational basis review is appropriate. Appellant's Opening Br. at 10.
                                             6
No. 76772-1-1/ 7

      "Upon conviction or plea of guilty. .. an adult defendant in a criminal case

shall be liable for a fee of two hundred dollars." RCW 36.18.020(2)(h). This is a

mandatory LFO that may not be waived. State v. Lundy, 176 Wn. App. 96, 102,

308 P.3d 755 (2013); State v. Gonzales, 198 Wn. App. 151, 155, 392 P.3d 1158,

review denied, 188 Wn.2d 1022, 398 P.3d 1140(2017).

       Generally, "the party filing the first or initial document in any civil action ...

shall pay, at the time the document is filed, a fee of two hundred dollars." RCW

36.18.020(2)(a). But indigent civil litigants may request that the trial court waive

filing fees or surcharges where payment is a "condition precedent to a litigant's

ability to secure access to judicial relief." GR 34; Jafar v. Webb, 177 Wn.2d 520,

526, 529, 303 P.3d 1042(2013).

      "A statute is presumed to be constitutional, and the party challenging it

bears the burden to prove beyond a reasonable doubt that it is unconstitutional."

State v. Bryan, 145 Wn. App. 353, 359, 185 P.3d 1230 (2008). "We review de

novo the constitutionality of a statute." Bryan, 145 Wn. App. at 359.

       Here, there is a rational basis for distinguishing between criminal

defendants subject to RCW 36.18.020(2)(h) and civil litigants who may request a

waiver of fees pursuant to GR 34.            Criminal defendants subject to RCW

36.18.020(2)(h) have already gone through a proceeding to determine their guilt,

and are only subject to the filing fee if they have been convicted or pleaded guilty.

Thus, RCW 36.18.020(2)(h)serves to recoup some of the costs accrued in criminal

proceedings resulting in a conviction or guilty plea.




                                           7
No. 76772-1-1 /8

       In contrast, GR 34 applies only to those fees and surcharges that serve as

a condition precedent to an indigent civil litigant's access to judicial relief. Thus,

civil litigants who may request a waiver pursuant to GR 34 have not yet gone

through a proceeding that has led the judicial system to incur associated costs.

       Further, GR 34 does not prohibit the judicial system from recouping other

fees and surcharges that accrue after proceedings have commenced. Such fees

and surcharges would not be available to the judicial system if indigent civil litigants

were barred entirely. Thus, GR 34 enables indigent civil litigants to seek judicial

relief while furthering RCW 36.18.020's purpose of collecting revenue to help fund

various causes.6

       Therefore, Osker has not carried his burden of proving beyond a reasonable

doubt that RCW 36.18.020(2)(h) is unconstitutional because there is a rational

basis for distinguishing        between criminal defendants subject to RCW

36.18.020(2)(h) and civil litigants who may request a waiver of fees under GR 34.

We conclude that the trial court did not violate Osker's right to equal protection

when it imposed the criminal filing fee under RCW 36.18.020(2)(h).

                           Statement of Additional Grounds

       Osker has filed a statement of additional grounds offering two further issues

for review.




6 We note that GR 34 has previously been upheld as constitutional for enabling indigent
civil litigants to access the justice system. See Jafar, 177 Wn.2d at 529 (relying on Griffin
v. Illinois, 351 U.S. 12, 19, 76 S. Ct. 585, 100 L. Ed. 891 (1956)). Because we conclude
that there is a rational basis for distinguishing between criminal defendants subject to
RCW 36.18.020(2)(h) and civil litigants who may request a waiver of fees pursuant to GR
34, we decline to address this issue.
                                             8
No. 76772-1-1 / 9

          First, Osker argues that his counsel was ineffective because Osker did not

understand several aspects of the trial and he was not able to "share [his] side of

the story."7 To establish ineffective assistance of counsel, a defendant must show

in part that he was prejudiced by his counsel's deficient performance. Strickland,

466 U.S. at 687. Osker has not argued that the outcome of the proceedings would

have been different had he been informed more thoroughly of the nature of the

proceedings or been able to tell his side of the story to his satisfaction. We

conclude that Osker has not established that his counsel below was ineffective.

         Second, Osker argues that he did not receive an adequate mental

evaluation or treatment while in jail. Osker does not argue that the psychological

evaluation performed by Dr. McClung was legally inadequate, or that any

inadequacy in the mental health treatment Osker has received while in jail

constitutes a legal error that this court may address in the present appeal. We

conclude that neither of Osker's arguments regarding his mental health merit

reversal.

         Affirmed.

                                                       I es, uke    j—.
                                                                 7
                                                                ..)
WE CONCUR:


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                      J'
                        x




7   Statement of Additional Grounds at 1.
                                            9
