                                                                        FILED
                                                                     MARCH 15, 2016
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 32799-0-111
                     Respondent,             )
                                             )
      v.                                     )
                                             )
JUAN MANUAL REYES,                           )         UNPUBLISHED OPINION
                                             )
                     Appellant.              )

       SIDDOWAY, C.J. -    After a jury found Juan Reyes guilty of first degree robbery,

he was sentenced to 40 months in prison and 36 months of community custody. The

sentencing court imposed, as costs, $489 .18 in defense investigator fees advanced by the

State. Mr. Reyes did not object. He now appeals the term of community custody and the

legal financial obligation (LFO).

      The State concedes that only "serious violent offense[ s]" as defined by the

Sentencing Reform Act of 1981, chapter 9.94A RCW, subject an offender to a three year

sentence to community custody, and first degree robbery is not a "serious violent

offense." RCW 9.94A.030(45); RCW 9.94A.701(1). First degree robbery, a class A·

felony, is a "violent offense," and is subject to an 18-month sentence to community

custody. RCW 9.94A.030(54)(a)(i); RCW 9A.56.200(2); RCW 9.94A.701(2). We
No. 32799-0-111
State v. Reyes


accept the State's concession and remand with directions to correct the term of

community custody.

       The only remaining issue is whether imposing the cost of the defense investigator

as part of Mr. Reyes's judgment and sentence violates Washington statutes or the United

States or Washington Constitutions. For reasons set forth below, we conclude that it does

not, and we affirm that legal financial obligation.

                                           ANALYSIS

       "Whenever a person is convicted in superior court, the court may order the

payment of a legal financial obligation as part of the sentence." RCW 9.94A.760(1).

Among costs that fall within the statutory definition of "legal financial obligation" are

"court-appointed attorneys' fees, and costs of defense ... assessed to the offender as a

result of a felony conviction." RCW 9.94A.030(30). RCW 10.01.160(2) describes the

scope and limitations on the type of costs that can be imposed on an offender, and

provides that they "shall be limited to expenses specially incurred by the state in

prosecuting the defendant" and "cannot include expenses inherent in providing a

constitutionally guaranteed jury trial."

       Mr. Reyes represents that his trial lawyer obtained court authorization to hire the

investigator whose services accounted for the $489 .18 under "CrR 3 .1 ( f)( 1) [which]

provides: 'A lawyer for a defendant who is financially unable to obtain investigative,

expert, or other services necessary to an adequate defense in the case may request them

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State v. Reyes


by a motion to the court.'" Br. of Appellant at 6. From that, he argues that his

investigator's services were "inherent in providing a constitutionally guaranteed jury

trial" within the meaning ofRCW 10.01.160(2) and therefore not chargeable as costs. He

also suggests that State payment of necessary investigative services performed for an

indigent defendant is required by the Fifth, Sixth and Fourteenth Amendments to the

United States Constitution.

       We examined the meaning of the phrase "expenses inherent in providing a

constitutionally guaranteed jury trial" in RCW 10.01.160(2) in State v. Diaz-Farias,

observing that no reported Washington decision had construed the prohibition on

imposing such expenses "or attempted to reconcile it with the legislature's provision

elsewhere that some constitutionally required expenditures by the State can be imposed

on criminal defendants." _ Wn. App._, 362 P.3d 322, 326 (2015). Following case

law in Michigan and Oregon, from whose cost-reimbursement statutes RCW 10.01.160

was copied, we concluded that in using the phrase "expenses inherent in providing a

constitutionally guaranteed jury trial," the legislature "intended to encompass only

expenses relating to a defendant's jury trial itself, not expenses associated with other

constitutional rights that apply at the time of trial." Diaz-Farias, 362 P.3d at 327.

Accordingly, RCW 10.01.160(2) does not exclude the cost of a defense investigator from

costs of defense that can be imposed on an offender.




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State v. Reyes


       Diaz-Farias also observed that it was determined long ago that Washington's cost

reimbursement statutes "satisfy the requirements of a constitutional cost and fee recovery

regime." Id. at 325 (citing State v. Curry, 118 Wn.2d 911, 915-16, 829 P.2d 166 (1992)).

Washington statutes include requirements that "[t]he court shall not order a defendant to

pay costs unless the defendant is or will be able to pay them," RCW 10.01.160(3), and

provide for remission of costs or modification of the method of payment if the court

determines after the sentence is imposed that the costs "will impose a manifest hardship

on the defendant or his family." RCW 10.01.160(4); and see Curry, 118 Wn.2d at

915-16 (identifying constitutional requirements that are met by Washington statutes).

       Because defense investigation costs imposed by the court fall within the statutory

definition of "legal financial obligations," are not excluded from recovery by RCW

10.01.160(2), and Washington has adopted a constitutional cost recovery regime, the trial

court did not err in imposing the cost.

                      STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds (SAG), Mr. Reyes raises two: that ( 1)

he was not given proper clothing for trial, and (2) he was required to wear a wrist band

that identified him as an inmate.

       Trial clothing. Mr. Reyes contends that he was given only his own street clothing

to wear during trial, which he contends was dirty, inappropriate, and prejudiced the jury

against him.

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State v. Reyes


       We note first that this challenge depends on matters outside our record. We have

no information whether Mr. Reyes requested some reasonable accommodation as to his

attire that was denied, 1 or just how dirty and inappropriate his clothing was. As a result,

we cannot consider any alleged error, abuse and prejudice in this 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.

       We also observe that Mr. Reyes has not cited any authority supporting a right to

wear clothing of his choice to trial. Street clothes, even if dirty, do not imply or suggest

guilt. Johnson v. State, 838 S.W.2d 906, 909 (Tex. App. 1992).

       Wrist band. Likewise, there is nothing in our record that suggests that Mr. Reyes

brought his concern about his jail identification wristband to the attention of the court, or

that jurors could even see the wristband and recognize what it was. Here again, the

record is insufficient for review on direct appeal.

       We also point out that other jurisdictions have rejected due process challenges to

an inmate's having worn a wristband during trial absent evidence that the wristband

affected the outcome of the trial, often noting that institutions other than jails use

wristbands for identification. E.g., Morris v. State, 696 S.W.2d 616, 621 (Tex. App.




       1
         Even objection to being tried in identifiable prison clothes can be waived.
Estelle v. Williams, 425 U.S. 501, 512-13, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).

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State v. Reyes


1985); State v. Johnson, 128 N.C. App. 361, 365, 496 S.E.2d 805 (1998); People v.

Williams, 33 Cal. App. 4th 467, 475-76, 39 Cal. Rptr. 2d 358 (1995).

      We affirm the LFO and remand the case for the limited purpose of correcting the

term of community custody.

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

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

2.06.040.




WE CONCUR:




Lawrence-Berrey, J.




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