       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                               No. 78079-4-I
                       Respondent,
       v.                                      DIVISION ONE

JIMROY MANUEL BANNISTER,                       UNPUBLISHED OPINION

                       Appellant.              FILED: August 5, 2019


       LEACH, J.   —   Jimroy Bannister appeals his conviction for possession of

methamphetamine. After Bannister had a pretrial competency evaluation, the

trial court found him competent. He claims the trial court should have inquired

further into his competency after his counsel raised the issue a second time at

the end of closing arguments.        He also contends his counsel provided him

ineffective assistance by misstating the law about the competency standard. And

he challenges the trial court’s imposition of the $100 DNA (deoxyribonucleic acid)

fee.

       First, chapter 10.77 RCW does not require that a court inquire into a

defendant’s competency unless it has doubts about his competency.           Here,

Bannister’s trial counsel again raised the issue of competency after the trial

court’s initial competency ruling but stated that he believed Bannister was

competent. Bannister provides no other evidence to show that the trial court had
No. 78079-4-I /2



reason to doubt his competency. Second, because Bannister does not prove his

trial counsel’s mistaken assertion that different competency standards exist for

standing trial and pleading guilty contributed to his counsel’s belief that he was

competent, he does not show that his counsel performed deficiently. Last, even

though Bannister has a documented history of mental health issues, the trial

court did not consider his ability to pay the $100 DNA fee like RCW 9.94A.777

requires when a defendant suffers from a mental health condition. We affirm in

part and remand to the trial court for it to consider whether Bannister has a

mental health condition that would require it to determine whether he has the

ability to pay the DNA fee.

                                 BACKGROUND

      The State charged Bannister with possession of methamphetamine. In

February 2017, at a pretrial hearing, his counsel asked the court for a

competency evaluation of Bannister.          The trial court ordered Bannister to

complete an out-of-custody competency evaluation at Western State Hospital.

Bannister did not attend the evaluation or his subsequent competency hearing.

In November 2017, the court again ordered a competency evaluation.

       Dr. Cynthia Mundt, a licensed psychologist with the Office of Forensic and

Mental Health Services, evaluated Bannister. Her evaluation report noted that

Bannister had been assessed for competency to stand trial twice before and both

assessments stated that he presented symptoms of psychosis and concluded

that he did not have the requisite capacfty.          After one assessment, he


                                       -2-
No. 78079-4-I I 3



participated in inpatient competency restoration that restored him to competency.

The evaluator at that time noted that Bannister’s symptoms of psychosis were

potentially substance induced.    Mundt documented that Bannister had been

involuntarily detained for inpatient treatment at least once for substance-induced

symptoms. She diagnosed Bannister with unspecified schizophrenia and other

psychotic disorder and unknown substance use disorder.           She stated that

although Bannister “required a great deal of education about typical legal

proceedings”   and   presented    “with     some   mild   evidence   of   cognitive

disorganization,” he demonstrated a “reasonable understanding of his charge

and the legal proceedings he was facing” and “was able to recall detailed

information during the evaluation.”       She concluded, “[D]espite [Bannister’s]

current symptoms of mental illness, [he] has the current capacity to understand

the nature of the proceedings against him and the capacity to assist in his

defense.”

      The trial court found Bannister competent to stand trial. Bannister’s trial

started in late January 2018. Right after closing arguments, Bannister’s counsel

stated that he wanted “to put something on the record before we recess.” He

then stated his concerns about Bannister’s competency:

      It is—it is awkward for me to say, but I believe that—I have had
      concerns about Mr. Bannister’s competency. I do not believe that
      he was—would be found incompetent to stand trial either by a
      private expert or by Western State. It is an issue. I believe that I
      even have trouble—as the court may know, the case law says that
      competency is different for giving up your right to trial versus going
      totrial. I just wanted to express that to the court. Even if we were


                                          -3-
No. 78079-4-I /4


       to come to an agreement at this point, I don’t know if I would feel
       comfortable moving forward with a plea agreement with Mr.
       Bannister, that he would understand the rights he was giving up.

             I only wanted to put that on the record because—it was
       becoming more and more clear throughout today some of the
       concerns that I have had in the past.

       The trial court responded,

       The defendant was found competent, right? We have now gone
       through trial. The jury has been sent out to deliberate, and now we
       are making this record.



               What I want to know from Mr. Repanich is what is the law
       then about raising competency when we have just sent the jury out
       to deliberate because he was found competent to stand trial? This
       was only just raised again just now after the jury was sent out to
       deliberate.

             Are you suggesting that we need to take up competency
       again concerning your client’s ability to stand trial?

       Bannister’s trial counsel clarified, “I believe that Mr. Bannister would be

found competent to stand trial.” He explained that he was raising the issue to

“preserve [it] for the record” because “some of [Bannister’s] behavior during

trial—mostly when the jury wasn’t in the room—seemed a little bit like he—

bizarre. [There were] some comprehension issues.” The trial court clarified that

counsel was not “asking [the court] to do anything. [He was] simply making a

record.” Counsel responded, “Correct.”

      The jury found Bannister guilty as charged.        The trial court imposed a

sentence of credit for time served. Bannister appeals.




                                       -4-
No. 78079-4-I I 5



                                     ANALYSIS

                                    Competency

          First, Bannister contends that the trial court erred when it did not (1)

inquire further about his competency and (2) order a new competency evaluation

after his trial counsel raised the issue after closing arguments. We disagree.

      The due process clause of the Fourteenth Amendment to the United

States Constitution guarantees a criminal defendant the right not to be tried while

incompetent.1      If a court has reason to doubt a defendant’s competency, it

violates due process when it fails to observe the procedures chapter 10.77 RCW

provides to determine competency.2 “Incompetency’ means a person lacks the

capacity to understand the nature of the proceedings against him or her or to

assist in his or her own defense as a result of mental disease or defect.”3

      If a trial court has reason to doubt the defendant’s competency, the statute

requires that the court order an expert to “evaluate and report upon the mental

condition of the defendant.”4      The court must give “considerable weight” to

defense counsel’s opinion regarding his client’s competency and ability to assist

the defense.5 Once the court makes a competency determination, it need not

revisit competency unless new information shows a change in the defendant’s


      1  State v. Heddrick, 166 Wn.2d 898, 903, 215 P.3d 201 (2009).
      2  Heddrick, 166 Wn.2d at 904.
       ~ RCW 10.77.010(15).
       ~ RCW 10.77.060(1)(a).
       ~ State v. Lord, 117 Wn.2d 829, 901, 822 P.2d 177 (1991), overruled on
other prounds by State v. Schierman, 192 Wn.2d 577, 438 P.3d 1063 (2018).

                                         -5-
No. 78079-4-I / 6



condition.6 Reviewing courts defer to the trial court’s judgment of a defendant’s

competency.7 We will reverse a trial court’s competency decision only upon

finding an abuse of discretion.8   A trial court abuses its discretion when no

reasonable judge would have ruled the way that the trial judge did.9

      Here, although after closing arguments Bannister’s trial counsel stated

that he “had concerns about Mr. Bannister’s competency,” he twice stated that he

did not think Bannister was incompetent to stand trial. The sole reason that

counsel provided for raising the issue was that Bannister’s behavior seemed

“bizarre” because Bannister was having comprehension issues. When the trial

court expressly asked counsel whether he was asking it to do anything, counsel

stated, “No”; he wanted only to preserve the issue on the record.        Counsel

provided no new information to suggest that Bannister’s competency had

changed since the court made its original competency determination.

      Bannister contends the trial court erred when it failed to make “the

threshold determination about whether a doubt exists sufficient to warrant an

evaluation” because it (1) relied on its previous finding that he was competent,

(2) placed “undue import” on the fact that the jury was already deliberating when

his counsel raised the issue of competency, and (3) relied on a misstatement of

law by accepting his counsel’s assertion that different competency standards

      6  State v. Ortiz, 119 Wn.2d 294, 301, 831 P.2d 1060 (1992), disapproved
of on other grounds by State v. Condon, 182 Wn.2d 307, 343 P.3d 357 (2015).
       ~ State v. Coley, 180 Wn.2d 543, 551, 326 P.3d 702 (2014).
       8 Coley, 180 Wn.2d at 551.
       ~ State v. Arredondo, 188 Wn.2d 244, 256, 394 P.3d 348 (2017).


                                       -6-
No. 78079-4-I / 7



inform a defendant’s ability to stand trial or to plead guilty. But Bannister cites no

authority requiring the trial court to make a “threshold determination” about a

defendant’s competency without first having doubts about his competency.

Bannister cites only City of Seattle v. Gordon,1° in which this court differentiated

between a determination of a reason to doubt competency and a determination

of competency; we stated that a factual basis must support a motion to determine

competency. For the reasons discussed below, Bannister’s trial counsel did not

provide a factual basis that would have supported that Bannister was

incompetent.

       Bannister asserts that the trial court had reason to doubt his competency

because of the information documented in his evaluation report, including his

history of being found incompetent, his diagnoses, and Mundt’s notes about his

disorganized thought processes and inconsistent understanding of the law. But

Bannister does not challenge the trial court’s initial finding of competency, and he

does not explain why the same information the trial court considered before

finding that he was competent should later cause the court to doubt his

competency. Based on Bannister’s trial counsel’s representations, a reasonable

trial judge could have had no doubts about his competency or not believed that it

had a factual basis to inquire about it. So chapter 10.77 RCW did not require the

trial court to make any further inquiry. The court did not abuse its discretion by



       1039   Wn. App. 437, 441-42, 693 P.2d 741 (1985).


                                         -7-
No. 78079-4-I I 8



not inquiring further into Bannister’s competency or ordering a new competency

evaluation.

                         Ineffective Assistance of Counsel

          Next, Bannister contends that his trial counsel provided ineffective

assistance because he did not ask the court to order a competency evaluation

based on a misunderstanding of law. We disagree.

       The Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington Constitution guarantee the right to effective

assistance of counsel to help ensure a fair trial.11         Claims of ineffective

assistance present mixed questions of law and fact, which this court reviews de

novo.12

      We examine an ineffective assistance claim with a strong presumption

that counsel’s representation was effective.13    To succeed on an ineffective

assistance claim, the defendant must show that (1) his counsel’s performance fell

below an objective standard of reasonableness and (2) prejudiced him.14

Counsel’s performance is deficient if it was unreasonable under prevailing

professional norms and was not sound trial strategy.15          We evaluate the



      11   See State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011); see also
State v. Coristine, 177 Wn.2d 370, 375, 300 P.3d 400 (2013).
               re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610
(2001).
        13 In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1(2004).
        14 Strickland v. Washington, 466 U.S. 668, 687, 104 5. Ct. 2052, 80 L. Ed.
2d 674 (1984).
       15 Davis, 152 Wn.2d at 673.



                                       -8-
No. 78079-4-I I 9



reasonableness of counsel’s performance from “counsel’s perspective at the

time of the alleged error and in light of all the circumstances.”16 A showing of

prejudice requires that the defendant show a reasonable probability that the

result of the trial would have been different without his counsel’s deficient

performance.17 “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.”18

       Bannister claims that his trial counsel provided deficient performance

because he stated that different competency standards applied to a defendant’s

ability to stand trial and his ability to plead guilty and did not raise competency

when he had reason to know that Bannister was incompetent. The State does

not dispute that the same standard of competency applies whether a defendant

decides to go to trial or plead guilty.         But Bannister does not show that his

counsel applied the incorrect competency standard in his assessment that

Bannister was competent after closing arguments. Although Bannister’s counsel

misstated that different competency standards exist, counsel neither misstated

the standard nor discussed the law related to competency. Bannister does not

show deficient performance.

       Even if his counsel’s performance was deficient, Bannister does not show

prejudice.   As discussed above, Bannister presented no evidence that his


       16 Davis, 152 Wn.2d at 673 (quoting Kimmelman v. Morrison, 477 U.S.
365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)).
       17 Strickland, 466 U.S. at 694.
       18 Strickland, 466 U.S. at 694.



                                          -9-
No. 78079-4-I /10



circumstances had changed or gave the trial court reason to doubt his

competency. So he does not show a reasonable probability that the trial court

would have found him incompetent.             He does not overcome the strong

presumption that his counsel’s performance was effective.

                            Legal Financial Obligations

       Last, Bannister asserts that because he suffers from a mental health

condition, the trial court exceeded its authority by imposing the DNA fee without

first determining whether he had the ability to pay as RCW 9.94A.777(1)

requires. The State concedes that this issue requires remand. We agree.

      We review the adequacy of the trial court’s individualized inquiry into a

defendant’s ability to pay legal financial obligations (LFOs) de novo.19

       In general, a court must impose mandatory LFOs regardless of the

defendant’s ability to pay.2°     However, RCW 9.94A.777 requires that if a

defendant is unable to participate in gainful employment because of a mental

disorder, the sentencing judge must determine if he has the ability to pay before

imposing LFOs other than restitution or the victim penalty assessment (VPA):21

       (1) Before imposing any legal financial obligations upon a
      defendant who suffers from a mental health condition, other than
       restitution or the victim penalty assessment under RCW 7.68.035, a
      judge must first determine that the defendant, under the terms of
      this section, has the means to pay such additional sums.


      19State v. Ramirez, 191 Wn.2d 732, 740, 426 P.3d 714 (2018).
     20 State v. Lundy, 176 Wn. App. 96, 102-03, 308 P.3d 755 (2013).
     21 Bannister also asserts that the trial court should reevaluate the VPA on
remand. But RCW 9.94A.777(1) exempts the VPA from its requirements.

                                       -10-
No. 78079-4-I /11


               (2) For the purposes of this section, a defendant suffers from
       a mental health condition when the defendant has been diagnosed
       with a mental disorder that prevents the defendant from
       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.
       Here, the trial court imposed only mandatory LFOs, which were the $500

VPA and the $100 DNA fee.22           Bannister’s competency evaluation report

documented that he has a history of mental health issues, and Mundt diagnosed

him with schizophrenia and other psychotic disorder and unknown substance use

disorder.   During the sentencing hearing, his trial counsel stated that he had

been self-studying to become an auto mechanic and had “been supporting

himself” while being homeless for a number of years. And the evaluation report

states that while Bannister was in jail for the charge at issue here, he worked in

the jail’s kitchen performing janitorial services.   The trial court did not inquire

about whether any mental health condition prevents Bannister from participating

in gainful employment. We remand for the trial court to do so as RCW 9.94A.777

requires. And if the court answers in the affirmative, it must also decide whether

Bannister has the ability to pay the DNA fee.




       22RCW 7.68.035(1)(a) (VPA); RCW 43.43.7541 (DNA fee); Lundy, 176
Wn. App. at 102 (defining the VPA and the DNA fee as mandatory).

                                        —11—
No. 78079-4-I / 12



                                 CONCLUSION

      We affirm in part and remand to the trial court for it to consider whether

Bannister has a mental health condition that would require it to determine

whether he has the ability to pay the DNA fee.




WE CONCUR:




                                      -12-
