                                                                          FI ED
                                                                       AUGUS 23, 2016
                                                                 In the Office of he Clerk of Court
                                                                WA State Court o Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGT N
                               DIVISION THREE

STATE OF WASHINGTON,                           )
                                               )         No. 33095-8-111
                      Respondent,              )
                                               )
       V.                                      )
                                               )
NATHANIEL LEWIS VICKERS,                       )         UNPUBLISHED OPI ION
                                               )
                      Appellant.               )

       SIDDOWAY, J. - A jury found Nathaniel Vickers guilty of delivery of

dihydrocodeinone. For the first time on appeal, he challenges (1) the trial co rt's failure

to engage in an individualized inquiry into his ability to pay legal financial o ligations

imposed and (2) a mandatory $100 DNA 1 collection fee that he contends viol tes

substantive due process. In a prose statement of additional grounds (SAG) h raises

several other arguments. We find no merit to any of his contentions other th n his

challenge to the trial court's failure to engage in an individualized inquiry as o his ability



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           Deoxyribonucleic acid.
No. 33095-8-111
State v. Vickers


to pay discretionary legal financial obligations. We reverse and remand for a n w

sentencing hearing. We grant late-filed motions to not award appeal costs and o enlarge

the time to file that motion and its supporting report on continued indigency.

                    FACTS AND PROCEDURAL BACKGROUND

       A jury found Nathaniel Vickers guilty of delivery of dihydrocodeinone ·n a public

park. At sentencing, the State requested $3,256.70 in legal financial obligatio s (LFOs).

A total of $1,556.70 were discretionary ($200.00 in court costs; $81.70 in sher'ff fees;

$775.00 for a court appointed attorney; and $500.00 for a drug enforcement fu d), and

the other $1,700.00 were mandatory ($1,000.00 fine for violation of the Unifo

Controlled Substances Act, chapter 69.50 RCW; $500.00 victim assessment;$

crime laboratory fee; $100.00 DNA biological sample fee).

       Having determined the total costs requested by the State, the court enga ed in the

following inquiry of Mr. Vickers:

      THE COURT: Your financial obligations between court costs, fees an
      fines, totals $3,256.70. And that will be made payable at not less than 50
      per month.
              When you are employed, what do you do?
      THE DEFENDANT: Disability.
      THE COURT: Okay. Those payments will begin 90 days after release

Report of Proceedings (RP) at 308. Mr. Vickers did not object.

       The judgment and sentence that the court then signed contains the follo mg

language:



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No. 33095-8-111
State v. Vickers


         2.5     ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS. (R W
         9.94A.760) The court has considered the defendant's past, present and
         future ability to pay legal financial obligations, including the defendant s
         financial resources and the likelihood that the defendant's status will
         change. The court specifically finds that the defendant has the ability o
         likely future ability to pay the legal financial obligations ordered herein

Clerk's Papers (CP) at 72. Again, Mr. Vickers did not object.

         He appeals.

                                         ANALYSIS

                                            LFOs

         Mr. Vickers argues the trial court erred when it imposed discretionary FOs

without conducting an individualized inquiry into his ability to pay.

         As a preliminary matter, we must consider whether to accept review of he issue

since Mr. Vickers did not object to the finding of ability to pay in the trial cou , thereby

failing to preserve the issue. RAP 2.5( a); State v. Blazina, 182 Wn.2d 827, 83 , 344 P .3d

680 (2015) ("[ u ]npreserved LFO errors do not command review as a matter o right"). A

majority of the panel favors exercising our discretion under RAP 2.5(a) to revi    wthe
issue.

         Under RCW 10.01.160(3), courts may not order a defendant to pay dis retionary

"costs unless the defendant is or will be able to pay them," taking into account "the

financial resources of the defendant and the nature of the burden that payment of costs

will impose."



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No. 33095-8-111
State v. Vickers


              Practically speaking, this imperative under RCW 10.01.160(3)
       means that the court must do more than sign a judgment and sentence
       boilerplate language stating that it engaged in the required inquiry. Th
       record must reflect that the trial court made an individualized inquiry i o
       the defendant's current and future ability to pay. Within this inquiry, t e
       court must also consider important factors ... such as incarceration an a
       defendant's other debts, including restitution, when determining a
       defendant's ability to pay.

Blazina, 182 Wn.2d at 838.

      Beyond the brief inquiry reproduced above, the court was aware Mr.        v· ckers was
52 years old, had at some point worked in a mail room, and had no prior felon

convictions. The court also knew Mr. Vickers had requested a drug offenders ntencing

alternative, under which offenders may be required to pay $30 per month too set the

cost of monitoring for controlled substances. RCW 9.94A.660(6)(a). The rec rd does

not show that the trial judge considered these factors or inquired about others efore

imposing the discretionary LFOs. Because the trial court failed to make the re uired

individualized inquiry into Mr. Vickers's ability to pay, remand is required.

                                    DNA collection fee

      Mr. Vickers next argues that imposing the DNA collection fee on an in igent

defendant violates substantive due process. But he can point to no facts in the record

suggesting that he cannot pay a $100 fee. He directs us to his statutory indige ce for

purposes of court appointment of appellate counsel, but evidence of his statut ry

indigence is unhelpful because the cost of appellate representation in a crimin 1 matter


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No. 33095-8-111
State v. Vickers


"exponentially exceeds $100." State v. Stoddard, 192 Wn. App. 222,228,366 P.3d 474

(2016). The alleged error therefore is not manifest and we decline to review i . RAP

2.5(a); Stoddard, 192 Wn. App. at 228-29.

                       STATEMENT OF ADDITIONAL GROUNDS

        In a pro se statement of additional grounds for review (SAG), Mr. Vick rs raises

four.

        Right to testify. Mr. Vickers asserts he was not given the right to testify on his

own behalf, in violation of the Fifth, Sixth, and Fourteenth Amendments to th United

States Constitution. But the record reveals he was questioned by the trial cou and

explicitly acknowledged that the choice not to testify was his:

        THE COURT: Mr. Vickers, you are choosing not to testify, correct?
        THE DEFENDANT: Yes.

RP at 234.

        Ineffective assistance of counsel. Mr. Vickers contends his attorney pr vided

ineffective assistance of counsel in the following respects: (a) he failed to call   itnesses

in Mr. Vickers's defense; (b) he did not sufficiently question the all-white jury for bias

and prejudice; and (c) knowing that Mr. Vickers suffered from a mental health condition,

he did not ensure that Mr. Vickers understood a plea bargain.

                 To demonstrate ineffective assistance of counsel, a defendant m st
        make two showings: (1) defense counsel's representation was deficient i.e.,
        it fell below an objective standard of reasonableness based on consider tion
        of all the circumstances; and (2) defense counsel's deficient representat on

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No. 33095-8-III
State v. Vickers


        prejudiced the defendant, i.e., there is a reasonable probability that, exc pt
        for counsel's unprofessional errors, the result of the proceeding would ave
        been different.

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing Sta e v.

Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). The claim fails if the defendant

fails to satisfy either prong. Thomas, 109 Wn.2d at 226. There is a strong pre umption

that counsel performed effectively. Strickland v. Washington, 466 U.S. 668, 6 9, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984).

        Some of Mr. Vickers's complaints depend on facts outside the record ( .g., an

asserted offer of a plea bargain) and are not reviewable in a direct appeal. Mc

127 Wn.2d at 335. Others are insufficiently explained to inform us of the nat

alleged error. RAP 10.lO(c). We address this ground for review to the extent       e are

able.

        After the State rested and Mr. Vickers's lawyer informed the court that he defense

would not be presenting a case, the prosecutor asked the trial court to confirm hat it was

Mr. Vickers's decision not to testify, which the court did, as previously discus ed. In

addition, the prosecutor began to ask the court to confirm Mr. Vickers's agree ent with

the decision not to call another person who had been identified as a possible d fense

witness, but then corrected himself, recognizing that it was not a client prerog tive:

        [PROSECUTOR]: ... we would ask the Court to make the same inqui y of
        the Defendant of himself that he chose not to put on this witness-Or, ell,



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State v. Vickers


       I could be wrong because now that I'm thinking about it, that also woul be
       considered a defense attorney's decision too, so--
       THE COURT: Correct.
       [PROSECUTOR]: So I will defer that to counsel and the Court. I just
       [DEFENSE COUNSEL]: Right, your Honor. I had made that decision on
       my own not to present Ms. Clouse or any other witness, regardless ofw at
       Mr. Vickers may or may not have said to me or agreed to. I would-I
       would object to an inquiry in that regard because it's my decision and t e
       conversations I had with Mr. Vickers in that regard are confidential. M
       sense is that is not a proper inquiry by the Court.
       THE COURT: I am not going to inquire.

RP at 234-35. Because it appears from counsel's statement that he made an in ormed,

tactical decision not to call the witnesses, Mr. Vickers's claim of ineffective a sistance

fails. State v. Robinson, 79 Wn. App. 386,396,902 P.2d 652 (1995) ("[A] co plaint that

an attorney erred in failing to call a certain witness is ordinarily rejected as tac ical.").

       Mr. Vickers next argues that he "was given an all-white jury with no sc eening for

bias and prejudice." SAG at 2. "To establish ineffective assistance of counsel based on

trial counsel's performance during voir dire, a defendant generally must demo strate the

absence of a legitimate strategic or tactical reason for counsel's performance." State v.

Johnston, 143 Wn. App. 1, 17, 177 P.3d 1127 (2007) (citing In re Pers. Restr int of

Davis, 152 Wn.2d 647, 709, 101 P.3d 1 (2004)).

       After the trial court introduced the parties to the venire and briefly expl ined the

case, and before turning voir dire over to the lawyers, the trial court asked the      embers

of the venire whether there was anything about the case "that might cause you to begin

this trial with any feelings or concerns regarding your participation" or wheth r anyone

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No. 33095-8-111
State v. Vickers


knew of "any reason why you might not be able to try this case impartially an be fair to

both the State and the Defendant." RP at 22-23. The three members of the ve ire who

responded "yes" were questioned by the prosecutor and two who expressed bi s toward

the defendant personally (not mentioning his race) were excused. RP at 24-30 Mr.

Vickers fails to demonstrate that his lawyer did not make a tactical decision n t to offend

prospective jurors who might view additional, more pointed questioning as im licitly

accusing them of racism. He also fails to demonstrate any probability that the ·urors

seated (who acquitted him on one count) were biased against him.

       Examination of confidential informant. Mr. Vickers suggests he wasp vented

from challenging the credibility of the confidential informant. The confidenti 1

informant's identity was revealed, she testified, and the jury heard that she wa working

for the police to resolve theft charges, had been addicted to prescription pain   edication,

and the money she received as a confidential informant was her only source o mcome.

Mr. Vickers does not demonstrate any error or ineffectiveness of his lawyer in this

connection.

       Right to medical care. Finally, Mr. Vickers claims he did not receive n eded

treatment and medication for his bipolar disorder "[b]efore arrest," and was al o denied a

right to treatment under the Eighth Amendment to the United States Constituti n. SAG

at 3. Such a claim must be addressed by a personal restraint petition, not in th direct

appeal of a criminal conviction.

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No. 33095-8-III
State v. Vickers


       We reverse and remand for a new sentencing hearing. We exercise our iscretion

under RAP 14.1 to deny the State costs on appeal.

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

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

2.06.040.



                                                 Siddoway, J.

WE CONCUR:




Pennell, J.




                                             9
