     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                               No. 77707-6-I
                       Respondent,
      v.                                       DIVISION ONE

BRIA BEATRICE WALKER,                          UNPUBLISHED OPINION

                       Appellant.              FILED: July 29, 2019


       LEAcH, J.   —   Bria Walker was convicted of second degree possession of

stolen property, theft of a motor vehicle, and two counts of second degree

identity theft after being terminated from Adult Drug Treatment Court (drug court).

She appeals the superior court’s denial of her request for a drug offender

sentencing alternative (DOSA) and the imposition of four legal financial

obligations (LFOs). She also challenges the adequacy of the court’s findings of

fact and conclusions of law entered upon her convictions but not the sufficiency

of the evidence to support the convictions.

       First, the court reasonably exercised its discretion when it denied her

DOSA, appropriately considering the record before it. And Walker does not show

a lack of impartiality. We affirm the denial of the DOSA.
No. 77707-6-1 /2



        Second, in light of State v. Ramirez1 and the recent amendments to RCW

36.18.020(2)(h), RCW 2.30.030(5), and RCW 10.01.160(3), we remand for the

superior court to strike the filing fee, deoxyribonucleic acid (DNA) fee, and drug

court fee. But because RCW 7.68.035(1)(a) requires that the sentencing judge

impose a victim penalty assessment on a defendant convicted of a crime, we

affirm this fee.

        Last, Walker cannot challenge the adequacy of the court’s written findings

and conclusions under CrR 6.1(d) for the first time on appeal where she makes

no challenge to the sufficiency of the evidence to support her convictions.

        We affirm in part and remand for the superior court to strike the relevant

fees.

                                  BACKGROUND

        In December 2016, the State charged Walker with second degree

possession of stolen property, theft of a motor vehicle, and two counts of second

degree identity theft. On February 8, 2017, the superior court approved Walker’s

entry into drug court.

        While she was in drug court, two of her urinalyses (UA5) tested positive for

methamphetamine, she missed two group sessions and a doctor’s appointment,

she failed to appear for one UA, and she failed to appear in court on August 11,

2017. The drug court issued a bench warrant.



        1191 Wn.2d 732, 747, 426 P.3d 714 (2018).

                                         -2-
No. 77707-6-1 I 3



       In early September, police arrested her on new charges for possession of

drug paraphernalia and retail theft in the third degree.      Later that month, the

superior court terminated her from drug court “[g]iven [her] new criminal charges,

[her] being on warrant status, basically a complete failure of drug court.”

       The superior court conducted a stipulated bench trial and found Walker

guilty as charged and entered findings of facts and conclusions of law. Walker

requested a DOSA.        The Department of Corrections (DCC) conducted a

screening and recommended against her receiving a DOSA.

      At the sentencing hearing, the prosecution opposed a DOSA and

recommended the court sentence Walker to the upper end of the standard range.

Walker’s counsel said that a DOSA by itself would “be the longest prison time

she’s ever done, by a great deal.” Counsel asserted that the ongoing supervision

under DOSA would make Walker less of a risk to the community than she would

be if given the standard range sentence with less monitoring. Walker said she

was sorry for giving up on herself and told the court that she was “not done

fighting” her addiction. Walker’s mother told the court that a DOSA would help

Walker battle her serious addiction.

      The court denied Walker’s DOSA request and sentenced her to 57 months

in prison and 12 months of community custody.          It also ordered a chemical

dependency evaluation and required her to follow any recommended treatment.

It imposed a $500 victim penalty assessment, a $200 filing fee, a $100 DNA fee,




                                        -3-
No. 77707-6-1 /4



and a $900 drug court fee.         It waived all other fines, fees, costs, and

assessments.

      Walker appeals.

                                   ANALYSIS

                        Denial of Walker’s DOSA Request

      Walker asserts that the superior court did not exercise unbiased discretion

when it denied her DOSA request. We disagree.

       First, she contends that the trial court categorically denied her DOSA

request.   RCW 9.94A.660 authorizes a judge to order a reduced sentence,

treatment, and supervision to an eligible nonviolent drug offender.2 We generally

do not review a decision whether to grant a DOSA.3 But we may review the

procedure the court used to reach its decision.4     If a trial court categorically

refuses to consider a statutorily authorized sentencing alternative, it abuses its

discretion and commits reversible error.5

      For example, in State v. Grayson,6       the Washington Supreme Court

reversed Grayson’s sentence because the trial court denied him a DOSA




      2  State v. Grayson, 154 Wn.2d 333, 337, 111 P.3d 1183 (2005).
       ~ Grayson, 154 Wn.2d at 338 (citing State v. Bramme, 115 Wn. App. 844,
850, 64 P.3d 60 (2003)); State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214
(2003).
       ~ Williams, 149 Wn.2d at 147.
       ~ Grayson, 154 Wn.2d at 342 (quoting State v. Garcia-Martinez, 88 Wn.
App. 322, 330, 944 P.2d 1104 (1997)).
       6154 Wn.2d 333, 342, 111 P.3d 1183 (2005).


                                        -4-
No. 77707-6-1 / 5



“‘mainly’ because [the court] believed there was inadequate funding to support

the program” and “did not articulate any other reasons for denying the DOSA.”

      Here, the trial court considered all of the evidence and arguments before it

and addressed them on the record.                These included DOC’s recommendation

against a DOSA, the prosecution’s argument against a DOSA, Walker’s

counsel’s argument for a DOSA, Walker’s argument for a DOSA, and Walker’s

mother’s e-mail and her statements to the court in support of a DOSA. The trial

court, addressing Walker, described its reasons for denying her DOSA request:

      You’ve been using for a long time. We’ve got more than a dozen
      inpatient treatment programs for you, three here in this drug court,
      different modalities.      .




              You’ve been on methadone. You’ve been on Suboxone.
      You’ve     . attempted Vivitrol. The Vivitrol didn’t work because—
                         .   .


      well, it actually did work because you used meth instead. You got
      around the Vivitrol, because Vivitrol is a heroin blocker, [an] oploid
      blocker, so you used meth.     .   I don’t know what [you mean when
                                         .   .


      you say], “I’m not going to stop fighting”; you stopped fighting a long
      time ago. You just have. You’re fighting for your addiction. I don’t
      see where a therapeutic setting will do you any good, because the
      therapeutic setting that we’ve had in these different modalities does
      not change your behavior.

             And so in the classic talk of recovery, clearly, bottom line is
      you haven’t reached bottom. The consequences are not severe
      enough for you to make any changes.         There’s no doubt in my
                                                       .   .   .


      mind that at times you truly do want to be clean and sober. I don’t
      think there’s any doubt in my mind about that, but you haven’t, in
      any respect, given yourself any permission to be clean and
      sober. .       .




            And so my thought here is just [to] sentence you to the
      maximum amount that I can do, 57 months, and maybe during that
      period of time, the gravity of your addiction will maybe impress
      upon you that you need to change your behavior. Because you



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No. 77707-6-1 / 6


          have every tool at your disposal, you’ve been immersed in the
          recovery field. .




                  [Your mother] thinks there’s another way to work with you. I
          don’t know any other way to work with you, because when
          somebody won’t work with themselves, there’s no way for us to
          work with them. So until you’re ready to forgive yourself, until
          you’re ready to accept yourself, there’s nothing left for you out here.
          I wish it was different, but it isn’t.

                So I’m going to deny the motion for a prison-based DOSA
          and sentence you to the terms [that] you contracted in for.
          Contrary to Walker’s claim, the superior court considered far more than

simply Walker’s termination from drug court. It did not categorically deny her the

DOSA.

          Second, Walker contends that the judge exhibited unfairness and bias

toward her during the hearing accepting her into drug court and at the sentencing

hearing.      For this reason, she asks this court to reverse and remand for

resentencing before a different judge. The State contends that Walker cannot

raise this issue on appeal because she did not raise it in the trial court. It also

contends that the trial judge did show or appear to show unfairness or bias

toward Walker.

          Generally, a party may raise on appeal only those issues raised at the trial

court.7     But an appellant may raise an issue for the first time on appeal if it

involves a manifest error affecting a constitutional right.8 This test, however,

requires a trial court error. This court must preview the merits of the claimed



          ~ RAP 2.5(a).
          8 RAP 2.5(a).



                                            -6-
No. 77707-6-1 I 7



constitutional violation to determine whether the argument is likely to succeed.9

Only if an error did occur does this court address whether the error caused actual

prejudice and was therefore manifest.1°

       The federal and state constitutions each guarantee a criminal defendant

the right to an impartial court for trial and sentencing proceedings.11 Under “the

appearance of fairness doctrine, a judicial proceeding is valid if a reasonably

prudent, disinterested observer would conclude that the parties received a fair,

impartial, and neutral hearing.”12

       Drug court is therapeutic court, where a judge has statutory authority to

work “in ways that depart from traditional judicial processes to allow defendants

or respondents the opportunity to obtain treatment services to address particular

issues that may have contributed to the conduct that led to their arrest.”13

       Walker relies on comments the trial judge made in February 2017 in an

exchange with Walker before accepting her into drug court and at the sentencing

hearing. At the February 2017 hearing, the judge spoke strongly to Walker and

to the other participants. Early in the proceeding, he asked Walker why she used

drugs every day.




       ~ In re Det. of Brown, 154 Wn. App. 116, 121-22, 225 P.3d 1028 (2010).
       10 State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007).
       11 U.S. C0NsT. amends. VI, XIV; WAsH. C0NsT. art. I § 22; State v. Solis
Diaz, 187 Wn.2d 535, 539-40, 387 P.3d 703 (2017).
       12 Solis-Diaz, 187 Wn.2d at 540 (citing State v. Gamble, 168 Wn.2d 161,
187, 225 P.3d 973 (2010)).
       13 RCW 2.30.030(1).



                                        -7-
No. 77707-6-1 I 8


               MS. WALKER: I believe I’m an addict. I know I can’t use. I
      still use.

           THE COURT: Why? Because I’m an addict? It’s a circular
      argument. It’s a cop-out. Uncomfortable now?

             MS. WALKER: No, I’m not uncomfortable.

             THE COURT: I haven’t even begun yet.

                MS. WALKER: I just don’t have the answers yet. Hopefully
      I’ll figure it out.

             THE COURT: Would it blow your mind if I told you you did?

             MS. WALKER: I mean.

             THE COURT: You all do already.
      Later, the judge asked Walker again why she used, and they had the

following exchange:

             MS. WALKER: To hide my feelings.     .   .,   I guess.

             THE COURT: So you agree that you want to feel different.
      That’s why you use, because you don’t like the way you feel when
      you’re not using. Right?

             MS. WALKER: My feelings.

             THE COURT: Everybody with me? Not with me?

             MS. WALKER: No, I mean, I am to a certain extent, but.

             THE COURT: What extent?

            MS. WALKER: Well, I mean, I don’t really use to like—well, I
      mean, I’m sure I do. But I mean, I do it more because the lifestyle
      and using is—

             THE COURT: Bullshit.

             MS. WALKER: —all I know.

             THE COURT: Bullshit.


                                      -8-
No. 77707-6-1 I 9



             MS. WALKER: It’s uncomfortable for me to be clean.

             THE COURT: Right. It has nothing to do with the lifestyle.
      These are all little excuses you’re making yourself so you don’t
      really deal with the real issue. Lifestyle. Your lifestyle’s good.
      Your lifestyle landed you talking in front of me in a court of law on a
      Wednesday afternoon on February the 8, 2017.

             What [is it] about that lifestyle that’s so appealing?

             MS. WALKER: I didn’t say anything was appealing about it.

             THE COURT: Lifestyle.

              MS. WALKER: I said it’s all I know. I don’t have like any
      silver memories of myself. So to be sober—

             THE COURT: That’s cool.

             MS. WALKER: —is very uncomfortable.

             THE COURT: Why?

             MS. WALKER: Because I don’t know how to.

             THE COURT: Just quit using. I got you kind of sidetracked
      on that one. So I started with the proposition that we use. Now
      you’re telling me you’re closing me off now. That’s the international
      body language sign. So we start with the proposition that we use to
      make ourselves feel better or different, to change our perception, to
      have a different reality because we don’t like what it was before we
      used.

             We don’t like our reality when we’re not using or we don’t
      like our—ourselves when we’re not using. I know this, because
      nobody in their right mind would continue to use if it made them feel
      worse. That just doesn’t happen. It’s like hitting yourself over the
      head with a hammer. So you must like something of it, and if
      you’re honest about it, you like not thinking.

              So logically, it follows, we don’t like where we’re at when
      we’re not using. We don’t like who we are. We don’t like our
      reality. We don’t like the feelings we have when we’re not using.
      And there’s the answer. What is it here that we don’t like about
      ourselves?


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No. 77707-6-1 /10



             What’s the malfunction? What’s the hurt? What’s the
      injury? What’s the anger? What’s the upset? What is it here that
      keeps that voice going, the little voice that we hear that says we’re
      no good and if people really knew who we were, they’d want
      nothing to do with us, a voice that says we don’t deserve to be
      happy, we don’t deserve success.

             That voice here that says we don’t deserve to be clean and
      sober. We’re pieces of shit, and if anybody really knew who we
      were, they’d hate us as we hate ourselves.

             Where is that voice coming from, that’s the question. Why
      do you use? To shut the voice up. Am I right? Or am I right?
      You[’ve] got to answer the question. Where is the voice coming
      from? Answer the question, you’ll be free. You don’t answer the
      question, we’re just playing games.

            You have to drill down here. It’s not about not using. Hell.
     About 10 years from now your brains are going to explode and
     you’re going to say it had nothing to do with drugs. My addiction
     has nothing to do with drugs. This has everything to do with in here
     and this malfunction. It doesn’t make any sense any other way.

              You got to ask the question. You got to have the courage to
      do it. Is it hard? Hardest thing you’ll ever do in your lives. Hardest
      thing you’ll ever do in your lives is to have that conversation and get
      right by yourselves. There’s no other way, though. There’s no
      other path.

            I don’t believe in relapses. I just believe that you haven’t
     answered the question sufficiently, that you hadn’t given it a full and
     honest examination, that you haven’t drilled down to find out who
     you are.

            When did you start using?

             MS. WALKER: When I was 13.

             THE COURT: Thirteen. You have no idea who you are,
     which is kind of sad. But it’s kind of cool in the sense that now you
     can define who you want to be. They say that until your brains are
     fully developed at the age of 25, if you dump a bunch of mood into
     the mind-altering substances on top of it, it stops the natural growth
     and progression.



                                       -10-
No. 77707-6-1 I 11


              So I got a 20—13-year-old in a 27-year-old body over here,
       who’s trying to search and find out who she is, but the beauty of it is
       you can write your own damn story if you have the courage to do
       so.

              That’s what I do here, that’s my function, is to make sure
       you’re engaging in that type of discovery. Anybody can sit here
       and be like a probation officer, but I don’t want to do that. I don’t
       care about that. I don’t care about your UA5. I don’t care about
       your—I don’t care. What I care about is are you doing the work
       necessary inside to make a goddamn difference. That’s what I care
       about.

       At the final sentencing hearing, the judge responded to Walker’s

statement that she “was not done fighting” with the statement quoted earlier in

this opinion.

       Later, when he sentenced her, he said, ‘[U]ntil you’re ready to forgive

yourself, until you’re ready to accept yourself, there’s nothing left for you out

here. I wish it was different, but it isn’t.”

       Walker pulls phrases from the exchanges, such as, “I don’t believe in

relapses,” “Uncomfortable now?,” and “you stopped fighting long ago.” But when

considered in the context of the entire February 2017 exchange and the

complete sentencing hearing, these phrases do not establish bias. For example,

Walker contends the judge called her a liar. At the initial hearing, the judge did

question her honesty when he commented, “Bullshit,” after she said the lifestyle

was all she really knew. But then she revealed that it was “uncomfortable” for

her “to be clean,” and the judge responded, “Right.” Although a judge should not

use profanity, this exchange does not establish bias.         Rather, it shows the

judge’s intent to engage Walker in the therapeutic process of addressing her



                                            —11—
No. 77707-6-1 /12



addiction. During that same proceeding, he also welcomed her to drug court,

spoke of her inherent capacity to do the needed work, and displayed no

indication that he anticipated she would fail in the program.

      An exchange between Walker and the trial judge at a May 2017 hearing

illustrates the judge’s attitude toward Walker. Walker appeared because she had

not attended a UA test.      She was also late to the hearing.     After the judge

imposed sanctions for this misconduct, the following exchange occurred:

               THE COURT: Anything you need from me?

               MS. WALKER: No. Just keep pushing me.

               THE COURT: Okay. I can do that.

               MS. WALKER: (Unintelligible) I’ll get in trouble.

               THE COURT: Are you sure?

               MS. WALKER: Yeah.

             The COURT: All right. Thanks for coming back. Thanks for
      allowing me to talk with you. I’ll see you next week. You stay until
      the end of the calendar.

      The court then asked those present to applaud Walker, presumably

because she had been clean and sober for 55 days.

      Walker cites State v. Lemke,14 in which the same superior court judge did

not appear reasonably impartial toward a participant in drug court. During those

proceedings, the judge called Lemke a “fucking addict” and “just a criminal.”15



      14   7 Wn. App. 2d 23, 27-28, 434 P.3d 551 (2018).
      15   Lemke, 7 Wn. App. 2d at 25, 27.


                                        -12-
No. 77707-6-1 /13



He told Lemke, “You can’t even give me a clean date you’re so fucked up”16 and

said, “So not only is he an addict, he’s also a liar and thief.”17 After Lemke’s

attorney requested a DOSA, the judge said, “I’m not giving him a residential

DOSA.”18

       The judge’s treatment of Walker does not compare to his treatment of

Lemke. He did not call Walker a thief or a criminal. Instead, he pushed her to

explore the cause of her drug use and told her she had the capacity to address

her addiction.     He considered the results of the DOC’s screening and the

statements by the parties and their witnesses. We conclude that Walker fails to

establish that a reasonable person might question the impartiality of the superior

court judge. So she does not establish manifest constitutional error entitling her

to raise this issue for the first time on appeal.

                             Legal Financial Obligations

       Next, Walker asserts that the trial court erred in imposing four LFOs

because the 2018 amendments to LFO-related statutes enacted under House Bill

1783 retroactively apply to her.       We agree that three of the four fees she

challenges must be stricken.

A. Mandato,y Victim Penalty Assessment

       Walker challenges the court’s imposition of the $500 victim penalty

assessment.      RCW 7.68.035(1)(a) requires that a trial court impose a penalty

       16   Lemke, 7 Wn. App. 2d at 26.
       17   Lemke, 7 Wn. App. 2d at 26.
       18   Lemke, 7 Wn. App. 2d at 26.


                                          -13-
No. 77707-6-1 / 14



assessment on “any person         .   .   .   found guilty in any superior court of having

committed a crime,” except for crimes identified in RCW 7.68.035(2).                These

assessments fund programs for victims and witnesses.19                      The statutory

amendments passed in 2018 retain the fee as mandatory.2° The court did not err

in imposing the victim penalty assessment.

B. Discretionary Fees

       Walker challenges the $200 filing fee, the $100 DNA fee, and the $900

drug court fee on the grounds that the legislature’s 2018 modifications to LFO

statutes apply to her sentence.

       In 2015, the Washington Supreme Court held that under RCW

10.01.160(3), sentencing judges must “make an individualized inquiry into the

defendant’s current and future ability to pay before the court imposes LFOs.”21

Subsequently, in 2018, the legislature passed House Bill 1783 which amended

statutes governing the imposition of discretionary LFOs.                 House Bill 1783,

effective June 7, 2018, amended former RCW 36.18.020(2)(h) (2015) to prohibit

trial courts from imposing the $200 court filing fee on indigent defendants.22 It

also eliminated the mandatory $100 DNA collection fee where “the state has

previously collected the offender’s DNA as a result of a prior conviction.”23 It did

      19   RCW 7.68.035(4).
      20   LAws OF 2018, ch. 269 § 19; State v. Catling, 193 Wn.2d 252, 259-60,
438 P.3d 1174 (2019) (noting that House Bill 1783 “specifically and repeatedly”
identifies the assessment fee as mandatory).
        21 State v. Blazina, 182 Wn.2d 827, 839, 344 P.3d 680 (2015).
        22 LAWS OF 2018, ch. 269, § 6(3).
        23 RCW 43.43.7541.



                                                  -14-
No. 77707-6-1 /15



not directly affect RCW 2.30.030(5) which confers on the superior court the

discretion to reduce or waive fees for therapeutic courts “[u]pon a showing of

indigence under RCW 10.101.010.”            But it amended RCW 10.01.160(3) to

prohibit sentencing courts from imposing discretionary costs on indigent

defendants.24 Under Ramirez, these amendments apply prospectively to Walker

because her direct appeal was pending at the time of the amendment’s

enactment.25

       The superior court did not make an inquiry into Walker’s ability to pay

before it imposed the LFO5 at issue. And Walker demonstrated her indigency for

this appeal.26    Walker was convicted of several felonies in 2014, and the

prosecution’s record of her criminal history stated that the State had previously

collected her DNA. And the judgment and sentence in this case states that DNA

testing was not required because the Washington State Patrol Crime Laboratory

already had a sample.27



       24 LAws OF 2018, ch. 269, § 17(2)(h).
       25 Ramirez, 191 Wn.2d at 747. The State’s response focuses largely on
the cost of drug court and declares that “[i]f fees could not be imposed against
indigent participants, they could rarely be imposed at all [in drug court].” This
argument ignores Ramirez and Blazina. As the court in Blazina noted, ‘[T]he
State cannot collect money from defendants who cannot pay.” Blazina, 182
Wn.2d at 837.
       26 Ramirez similarly demonstrated his indigence at the appeal stage.
Ramirez, 191 Wn.2d at 747.
       27 The State asserts, “In the present case, the record does not show
whether or not the defendant previously submitted a DNA sample.” But it fails to
address the documents in the record asserting that she did previously submit a
sample. And, if these are insufficient, it fails to identify what, exactly, is sufficient
to show DNA was previously collected.

                                          -15-
No. 77707-6-1 / 16



       The State concedes that the $200 filing fee should be stricken. We agree

and remand for that purpose.       Because the record shows that the State has

already collected Walker’s DNA, we also remand for the superior court to strike

the $100 DNA collection fee.28          Finally, because the drug court fee is

discretionary and the 2018 amendment to RCW 10.01.160(3) prohibits

sentencing courts from imposing discretionary costs on indigent defendants, we

remand for the superior court to strike the $900 drug court fee.

                       Findings of Fact and Conclusions of Law

       Last, Walker challenges, under CrR 6.1(d), the adequacy of the trial

court’s findings of fact and conclusions of law entered with her convictions. She

claims they were insufficient because ‘they reiterated the charging document and

added no information about the factual basis for each crime.” Walker does not

challenge the sufficiency of the evidence to support her convictions. She does

not claim that the findings fail to address any element of a crime for which the

court convicted her.     Nor does she claim that the trial court failed to find any

element of any crime proved beyond a reasonable doubt.

       In response, the State contends that Walker cannot raise this issue

because she did not object to the adequacy of the findings and conclusions in the

trial court. We agree.


      28  The State cites to State v. Thibodeaux, 6 Wn. App. 2d 223, 230, 430
P.3d 700 (2018), review denied, 192 Wn.2d 1029 (2019). It states that here, as
in Thibodeaux, the record is silent as to whether Walker’s DNA was collected.
But the record here is not silent.

                                        -16-
No. 77707-6-1 / 17



      As we have noted, a party generally may not raise an issue for the first

time on appeal. Unlike Walker’s claim of judicial bias, this claim does not raise

any constitutional issue. Nor does she assert that any other exception to the

general rule applies. Indeed, Walker does not respond in her reply brief to the

State’s argument. We exercise our discretion under RAP 2.5 and decline to

consider the issue.

                                 CONCLUSION

      We affirm in part and remand for the superior court to strike the criminal

filing fee, the DNA collection fee, and the drug court fee from the judgment and

sentence.




WE CONCUR:



(jkkWh,(~.




                                      -17-
