                                                                                         COURT Or APPEALS
                                                                                                 DIVISION 11

                                                                                        20I Li AUG - 5    AM 10: 38

                                                                                        STATE OF WASHINGTON




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

STATE OF WASHINGTON,                                                              No. 43927 -1 - II


                                    Respondent,                             UNPUBLISHED OPINION


          v.




MICHAEL S. NORRIS,


                                    Appellant.


          BJORGEN, A. C. J. —     Following a stipulated facts bench trial, the trial court found Michael

Norris guilty of four counts of first degree child rape, two counts of second degree child rape,

two counts of first degree child molestation, and two counts of second degree child molestation.'


Norris timely appeals his judgment and sentence, asserting that ( 1) the trial court judge erred by

failing   to   recuse   himself from presiding   over   the   case, (   2) the sentence for one of his second


degree    child molestation convictions exceeds         the statutory      maximum    for that   offense, ( 3)   the


sentence on his other second degree child molestation conviction, when combined with his


community custody term, exceeds the statutory maximum for that offense, and ( 4) the trial court

erred when it found he had the present or likely future .ability to pay his legal financial

obligations.




1 Norris' s judgment and sentence incorrectly states that his convictions were entered pursuant to
a   guilty   plea.
No. 43927 -1 - II



          Norris has        also   filed   a statement of additional grounds ( SAG),       in which he asserts ( 1) he


should have been allowed to consult a federal public defender before signing his stipulation of

facts   agreement, (     2) his defense counsel rendered ineffective assistance by allowing him to sign

the stipulated facts agreement while in a fragile mental state and by engaging in unethical

conduct, and ( 3) the trial court judge and the prosecutor committed misconduct resulting in a

violation of his civil rights. Additionally, Norris repeats his appellate counsel' s claim that the

trial court judge should have recused himself from presiding over the case. We affirm Norris' s

convictions, but remand to the trial court to correct Norris' s sentence consistent with this


opinion.



                                                                  FACTS


             We recite here some of the established facts in Norris' s case as stated in our opinion from


his previous interlocutory appeal:

                       On     August        16,     2006,       United    States   Immigration   and   Customs
             Enforcement ( ICE) agents and Oregon Department of Justice agents executed a
             federal   warrant     to   search    Norris'   s   Vancouver, Washington, home. Federal agents
             seized his computer hard drive and videotapes, constituting thousands of images
             of what appeared to be child pornography.
                       During the search, Norris admitted to ICE Agent James Mooney that he
             possessed child        pornography. The federal agents seized evidence from Norris' s
             home, but did          not place Norris under arrest. The Vancouver police arrested

             Norris based on his incriminating statements and the evidence seized by federal
             agents but they did not seize any evidence. The federal agents removed the seized
             evidence to a federal facility in Portland, Oregon, known as the Northwest
             Regional Computer Forensics Laboratory.
                    The State charged Norris with four counts of first degree child rape, two
             counts of second degree child rape, one count of third degree child rape, two
             counts of first degree child molestation, two counts of second degree child
             molestation, and two counts of sexual exploitation of a minor.


State   v.   Norris, 157 Wn.         App.    50, 55 -56, 236 P. 3d 225 ( 2010) ( internal footnote omitted).




                                                                     2
No. 43927- 1- 11



         The State further alleged that Norris used a position or status of trust to facilitate the


commission of each of his 13 charged offenses and that his offenses were part of a pattern of


ongoing sexual abuse against the child victims, a female and a male. Over the course of

numerous pretrial hearings spanning several months, the trial court addressed issues regarding

the State' s obligation to turn over certain evidence to the defense in light of an apparent conflict

between state and federal law that we resolved in our opinion from Norris' s interlocutory appeal.

See Norris, 157 Wn. App. at 56 -65.

         At a March 9, 2007 pretrial hearing, the trial court expressed its concern about playing

video recorded evidence depicting sexually abusive conduct involving minors to the jury in open

court. The trial court judge stated:


         I ...am sensitive to the fact that this is, in fact, a public setting, but I' m not going
         to be turning this into a circus for viewing child pornography, it' s just not
         appropriate.

                But I, again, I' m making that as a generalized human statement, not as a
         decision or ruling of the Court.

Report   of   Proceedings ( RP) (        March 9, 2007) at 50. Later in the hearing, the following discussion

took place:


                     Trial       I guess heads -up on the other thing is that if you' re going
                             court]:

         to —if    you are going to be asking me to limit what the jury sees, I guess at some
         point I' ll have to—
                     State] : Preview.
                     Trial   court] : —      make that call.
                     State] :Make —make          —yes,   I agree.
                     Trial   court]: (     Inaudible) preview if that' s what-
                     State]: Understood.
                     Trial   court]:      What the images are, what the attorneys have told me they
         are, (   inaudible) I don' t want to see them.


RP ( March 9, 2007)          at   53.   At a March 30, 2007 pretrial hearing, the trial court stated its concern

that viewing the video evidence in the case may violate federal child pornography laws, stating:

                                                               3
No. 43927 -1 - II



                  Are immunity issues involved? I mean, I' d like —I' d be interested in what
         the Department of Justice is saying from the federal level, because the potential to
         expose —I mean, even myself sitting here looking at something that —     that —  that I
         consider to be highly distasteful to me, personally, could put me in —  in a position

         of being in violation of the law.
                And I certainly don' t want to do that, but at the same time, I don' t want to
         hamper the ability of either side to present their theory of the case to a fair and
         impartial jury.
                 So I would ask that you ask —make that inquiry [ State], and if—defense[
         counsel], by all means make the same inquiry.




RP ( March 30, 2007) at 75 -76. The discussion then turned to issues regarding jury selection, and

the trial court stated:


         I have no problem with bringing in as many people as we need to finding [ sic] a
         fair and impartial panel, and have a special questionnaire if that' s what it takes,
         and   find   out what people' s   sensitivities are. I mean, if someone is going to be
         so — I   was   going to say   grossed out —   so deeply offended by the viewing of this,
         then maybe we should be looking at it.
                I' m sorry, I just slipped into a street expression.

         I can tell you, as I' ve told you in private, that I have no desire to see it, okay.

RP ( March 30, 2007) at 78 -80.

         Norris was given the opportunity to view the video evidence, but at the April 13, 2007

pretrial hearing the State informed the trial court that Norris had declined to do so. Defense

counsel expressed concern over Norris' s refusal to view the video evidence, stating:

                   Mr. Norris has indicated to me on several occasions that I have not given
         him the opportunity to view the information, view the evidence against him. This
         is the   evidence against   him. It is   explicit,   it is distasteful.
                                                                      The jury will find it so.
         I think he should have the ability or the opportunity to see it before he, in essence,
         exercises his right to present it to a jury.

RP ( April 13, 2007) at 13.


         On June 14, 2007, Norris filed an affidavit of prejudice and motion to reassign the case to


a   different judge   as a matter of right under   RCW 4. 12. 050. Norris'         s affidavit alleged   in   part   that
No. 43927- 1- 11



the trial court judge had " expressed his ` distaste' and ` disgust' with child pornography and ... .

 his   wish[ es]   that he did    not    have to    view    the evidence         in this    case."     Clerk' s Papers ( CP) at 319.


In response to this allegation, the trial court judge stated that he was unsure whether he had used

those particular words. The trial court further stated:


          I will tell you as a human being, I have no desire to view child pornography. I am
          not   lookingforward to being [ sic] sitting here viewing it. If, in fact, it is what is
          truly depicted. But I don' t believe I ever characterized it that way. And I' d also
          raise another point with you, is that I' m not the fact finder in this case. It' s going

          to be the   jury   that'   s   the    fact finder.       It' s my job to have a fair and impartial trial
          and to keep the case moving in an appropriate manner under the law.
                    I think, while I understand what your Counsel is saying, and I would point
          out to you also, the viewing of child pornography, I don' t believe I would be
          alone    in the    personal      human        reaction      to that.          I think all of our judges, and
          probably most folks I know, would not seek out to view child pornography as a
          matter of choice.        That' s       not   something that          they desire. Now, I' m sure there' s a
          segment of society that' s interested in that, because of the pervasiveness I read
          about it being on the Internet and other places like that.
                  But I can honestly say I' m not looking forward to that. I don' t think most
          people would look forward to viewing that.

RP ( June 6, 2007) at 16 -17. The trial court judge denied Norris' s RCW 4. 12. 050 motion on the


basis that he had already made discretionary rulings in the case, but stated that he would consider

further briefing on the issue of disqualification based on actual prejudice under RCW 4. 12. 040.

          During a September 28, 2007 motion hearing, the trial court judge ruled that the defense

was entitled to examine certain evidence subject to entry of a protective order to not further

disseminate the images contained in the evidence, stating:

            T] he defense will have access through the coordination with the federal entity,
           whoever     it is, to look      at   the original       images.       Any image that they feel they need
           to look    at   that   will    be    by
                                                 presented            the      State.
                                                                 I' m predicating that on any
           evidence that the State intends to present to my jury is the evidence we''re talking
           about that they' ll have access to the originals.    I' m not looking to put child
           pornography       out on      the     streets,   I' m   not       looking    to titillate   anyone.   I just don' t
           even want to see it myself.



                                                                         5
No. 43927 -1 - II



                 I didn' t    ask   for this trial. I don' t          want      to   see   these images.     What little bit
        I' ve seen, to put a point on it and to put it in language I knew from the streets of
        New York, it      grossed me out,                okay?  And that' s why we' ve been going through
        this   process   of how      we' re        going to           this to a jury. How are we going to
                                                                present


        keep   the   public   from seeing it?             How [ are we] going to keep the press from seeing
        it?


RP ( Sept. 28, 2007) at 40 -42. At a November 29, 2007 motion hearing, the trial court again

addressed issues regarding the presentation of video evidence at trial, stating:

        I don' t know if I       said   this   on record,        but I    will   say it      now.    I know I' ve said it in
        private to the two of you. I have looked at just snippets of the proposed evidence.
        And I'   m   going to have to              use    sort of a street           term.       I am concerned about the

        ability to get a jury that'            s   capable      of   viewing         what    I    would   characterize —and

        again, I' m using, for lack            of a   better term,        street     language— material that is gross,

        okay, and in some way not inflame them at the same time.

                 And I'      m   not    saying           at   this   point, [    State],      that I' m ruling that 150
        photographs are too long or that an hour or 20 minutes of videotape is too long.
        I' m saying my knee-jerk reaction is that I' d like to be able to narrow the field.

RP ( Nov. 29, 2007) at 17 -18.


        On January 16, 2008, Norris filed a second affidavit of prejudice and motion to reassign

the case to a different judge, this time alleging actual prejudice under RCW 4. 12. 040. Norris' s

affidavit of prejudice alleged in part:


        In recent weeks, I have learned that J. Wulle has been censured by the State' s
        Commission on Judicial Conduct for actions which, in part, included gratuitous
        and prejudicial references regarding sexual orientation. I am charged with various
        sex offenses, many of which involve homosexual acts, and given the nature of J.
        Wulle' s prejudices, I do not believe I will receive a fair and impartial trial before
        the assigned court.



CP at 322. Norris attached to his motion and affidavit of prejudice a copy of Judge John Wulle' s

censure order. The censure order stated that Judge Wulle had stipulated to violating former Code




                                                                      6
No. 43927 -1 - II


                                                                                   2
of   Judicial Conduct ( CJC) Canons 1, 2( A),                 and    3( A)(3)          based in part on the following conduct

at a juvenile drug court conference in Los Angeles:

                   b. When the facilitator assigned to the Clark County team introduced
           himself to the group during the first breakout session, he noted he was from San
           Francisco,   a city he characterized                 as   very liberal           and    litigious.    Respondent
           interjected, " Yeah, and very gay."                   Members of the team found Respondent' s
           comment to be inappropriate because it was gratuitous and seemed to be directed
           at the facilitator.


                   d. Later in the week, during a break in the conference, other fac[ ility]
           members asked Respondent who Clark County' s facilitator was, and he answered,
            the black gay guy."

CP at 326 -27. The censure order found the following mitigating factors with regard to Judge

Wulle' s conduct at the Los Angeles conference:


                   In mitigation, Respondent' s conduct appears to have been an aberration.
           He believes the conduct occurred as a result of his misguided attempts to fit in
           with the team and /or be humorous. Witnesses familiar with Respondent described
           his behavior        at   the conference as      being     out of character.            These witnesses do not
           believe Respondent to be                 racist,    homophobic              or   anti- Semitic.      Respondent' s
           reputation     is   generally that       of a      thoughtful          jurist.   There is no indication that
           Respondent exploited his judicial position to satisfy personal desires. Respondent
           maintains that he did not intend to offend or demean anyone.


CP at 329. At a January 25, 2008 hearing, the trial court denied Norris' s reassignment motion,

stating:




2
    Former CJC Canon 1,               now codified at   CJC     rule      1. 2,   provided, "     Judge[ s] shall uphold and
promote                         integrity ... of the judiciary." Former CJC Canon 2( A), now
            the independence [ and]
codified at    CJC   rule      2. 2Judge[ s] shall respect and comply with the law and act at all
                                      provided, "

times in a manner that promotes public confidence in the integrity and impartiality of the
judiciary." Former CJC Canon3( A)(3), now codified at CJC rule 2. 8( B), provided:
            Judge[ s] shall be patient, dignified, and courteous to litigants, jurors, witnesses,
           lawyers, ...         and others with whom the judge deals in an official capacity, and
           shall require similar conduct of lawyers, court staff, court officials, and others
           subject to the judge' s direction and control.
                                                                      7
No. 43927 -1 - II



         I pride myself on bending over backwards as a rule number one that anyone that
         walks into my courtroom regardless of who or what they are will be treated fairly
         and that the justice system will provide fairness to them.
                  That is my responsibility under the state Constitution and the federal
         Constitution.
                  I leave it for others to determine if I accomplish that task, but that is my
         goal, that is what I' ve done.
                  I have bent         over   backward[ s]   to make sure that you have adequate
         representation, that you have had more than enough resources, even when people
         who control the purse strings have told me, We don' t want to do it, we don' t think
         the Defense is    entitled    to it.   I' ve erred on the side of protecting the rights of the
         defendant.
                  I will continue to do so.


RP ( Jan. 25, 2007) at 419.


         On February 4, 2008, the trial court held a hearing at which the State presented the video

and photographic evidence that it intended to present at trial. During the hearing, the trial court

stated, "   From the beginning there has been no one who wants to look at these images any less

than me. If I could get rid of this case, I would. But I have a responsibility and I' m going to

fulfill it." RP ( Feb. 4, 2008) at 494.


          On March 4, 2008, Norris filed a motion to dismiss his charges or, in the alternative, to


suppress all the photographic and video evidence based on the State' s alleged discovery

violations, which motion the trial court denied. Norris filed an interlocutory appeal with our

court. In our opinion from Norris' s interlocutory appeal, we held that the federal Adam Walsh

Child Protection and Safety Act of 20063 did not preempt Washington State' s criminal discovery

rules and, thus, the State was obligated under CrR 4. 7 to produce to the defense copies of the

photographic and video evidence that it intended to present at trial subject to a protective order.


Norris, 157 Wn.     App.   at   78.   We remanded to the trial court to determine the appropriate remedy



3
    Pub. L. No. 109 -248, § 504, 120 Stat. 629, 631 ( 2006) ( codified       at   18 U. S. C. § 3509( m)).
                                                            8
No. 43927- 1- 11



for the State' s discovery violation, which remedy we noted could include reconsideration of

Norris' s dismissal and suppression motions. Norris, 157 Wn. App. at 79 -81.

       On remand, Norris entered into a stipulation in which he admitted to several of the facts


forming the bases for his charges, admitted to the alleged aggravating factors, withdrew his

dismissal and suppression motions, and waived his speedy trial and jury trial rights. The

stipulation further provided that the State would recommend a 35- year - -life sentence as part of
                                                                       to


a global settlement     to   resolve   his federal   and state charges.   On June 1, 2012, Norris filed a


motion for disqualification of the trial court judge and for substitution of counsel based on an in-


chambers meeting that had occurred between the State, defense counsel, and the trial court judge

prior to Norris entering into his stipulation and waivers.

        The trial court denied Norris' s motions at a July 30, 2012 hearing, reasoning that there

was " no credible evidence of          anything inappropriate that   was   done in my   chambers."   RP ( July

30, 2012) at 27. With regard to the in- chambers meeting, the trial court judge recalled the

following:

        In this case [ the State and defense counsel] came to me and I am really shocked to
        find   out    the request to talk to         me   came   from [ defense   counsel].   I have no
        recollection and had no role in that, I just had the attorneys appear in my
        chambers, and they simply told me that the case has got a federal implication, and
        I   went   okay, fine.... [     T] he only comment I made during the whole conversation
        is let me know when you have the agreement.


        I simply listened to attorneys who came to me with a request, they told me what
        they were going to do and I just went fine, let' s go it or, you know, let me know
        when you' ve         got   it done.   That I don' t believe is me exercising anything more
        than the listening mode.

RP ( July 30, 2012) at 26 -27. The trial court then proceeded to the stipulated facts bench trial.




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No. 43927- 1- 11



           At the bench trial, the State asked the trial court whether it recalled viewing the images

presented at    the    February     4, 2008      hearing.     RP ( July 30, 2012)   at     40 -41.    The trial court


responded, "    I recall the hearing, Counselor, but not the images. I' ve made a consolidated effort

to block those out of my memory. I have to admit that I had an emotional reaction to them .. .

 i] n a   negative   way."    RP ( July 30, 2012)        at   41.   In further discussion, the trial court also stated:


                  There is nothing more that I desire to do than to never see these images
           again....   I recall depictions, Counselor, but I' ve tried to block them out of my
           mind, if I can be as blunt as I can ... I' m disgusted by looking at the images. I
           was deeply offended, okay....     And that was not a judicial response, that was a
           human     response....           As   a parent,    I had that   response,   I   admit     it....    If I could

           avoid looking at them again, I would be a very happy man.
                    But at the same time if either side is requesting that I review the images
           for whatever purposes you gentlemen ... have, I will, as they say, bite the bullet
           and look again....     I have the recollection, Counsel, but I' ve tried very hard to
           blot it out of my mind. I can' t be any clearer on the record than that.

RP (   July   30, 2012)      at   43 -44.    Following the stipulated facts bench trial, the trial court found

Norris guilty of four counts of first degree child rape, two counts of second degree child rape,
                                                                                                                                   4
two    counts of     first degree    child molestation, and          two   counts of second          degree   child molestation.




The trial court also found the aggravating circumstances alleged with regard to each of the

offenses. When imposing its sentence, the trial court commented:

           I cannot believe that I am hearing what I consider to be unimaginable crimes. The
           cruelty you have showed these children, the depravity of the images I had to view
           just boggles the mind, and for that reason, I am inclined to give you a life
           sentence, but I' m going to honor the agreement that you made with the State, 35
           years.




4
 The trial court granted the State' s motion to dismiss its charges on two counts of sexual
exploitation of a minor and one count of third degree child rape.
                                                                    10
No. 43927- 1- 11



RP (   July   30, 2012)       at   103.   The trial court imposed an exceptional sentence for all counts and


sentenced Norris to a total 35 -year term of incarceration to run concurrent with Norris' s federal


sentence. Norris timely appeals his convictions and sentence.

                                                       ANALYSIS


                                   I. MOTIONS TO REASSIGN THE TRIAL COURT JUDGE


         Norris first contends that the trial court judge' s decision to deny his June 2007 and

January 2008 motions for reassignment violated his due process rights, the appearance of

fairness doctrine, and former CJC Canon 3( D)( 1). 5 We disagree.
                                                                                                   6
             Due   process,   the   appearance of   fairness,   and   former CJC Canon 3( D)( 1)       require that a



judge disqualify him or herself from hearing a case if that judge is biased against a party or if his

or her impartiality may be reasonably questioned. In re Marriage ofMeredith, 148 Wn. App.

887, 903, 201 P. 3d 1056 ( 2009).             The test for determining whether a judge' s impartiality might

reasonably be questioned is an objective one that assumes the reasonable person knows and

understands all the relevant facts. Sherman v. State, 128 Wn.2d 164, 206, 905 P. 2d 355 ( 1995).

We presume that a judge acts without bias or prejudice. State v. Franulovich, 89 Wn.2d 521,

525, 573 P. 2d 1298 ( 1978).              The party claiming bias or prejudice must support the claim with

evidence of the trial court' s actual or potential bias. State v. Gamble, 168 Wn.2d 161, 187 -88,

225 P. 3d 973 ( 2010).


             We review a trial court' s ruling on a reassignment motion for an abuse of discretion.

State   v.   Davis, 175 Wn.2d 287, 305, 290 P. 3d 43 ( 2012). A trial court abuses its discretion if its



5 Norris does not challenge the trial court' s denial of his June 2012 motion for reassignment, and
he concedes that he was not entitled to reassignment as a matter of right under RCW 4. 12. 050.

6 Former CJC Canon 3( D)( 1) is now codified at CJC Canon 2, Rule 2. 11( A).
                                                                11
No. 43927 -1 - II



decision " is manifestly   unreasonable or   based   upon untenable grounds or reasons."   State v.


Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995).


        Norris asserts that Judge Wulle' s comments at the 2006 Los Angeles training conference,

for which he was later censured, was evidence of Judge Wulle' s bias against homosexual


individuals. Norris further asserts that because some of his charges had alleged sexual acts


against a same -sex victim, Judge Wulle' s ability to impartially preside over Norris' s trial might

have reasonably been questioned. We disagree.

        First, without excusing Judge Wulle' s conduct at the conference, the censure order found

such conduct to be an aberration and a misguided attempt at humor. The censure order further


found that witnesses familiar with Judge Wulle did not believe him to be homophobic. More


important, and even assuming that Judge Wulle' s comments at the conference showed his bias

against homosexual individuals, we reject any argument equating homosexuality with the alleged

conduct of a defendant accused of committing pedophilic sex acts against a same -sex victim.

Accordingly, we hold that the trial court did not abuse its discretion by denying Norris' s January

2008 reassignment motion on this ground.


        Norris also asserts that a reasonable person could question Judge Wulle' s ability to be

impartial based on his numerous comments about the State' s proposed video and photographic


evidence, which evidence showed Norris' s sexual misconduct against the minor victims. Again,


we disagree. Although Judge Wulle' s numerous comments suggested that he had a strong

personal reaction to the proposed evidence in the case, there is no evidence in the record that his


personal reaction affected his ability to be impartial or affected his ability to ensure that Norris

received a fair trial.



                                                      12
No. 43927 -1 - II



         First, Judge Wulle' s comments were directed solely at the proposed video and

photographic evidence. The comments did not indicate that Judge Wulle had formed an opinion


about Norris' s guilt.


         Second, several of Judge Wulle' s comments were made in the context ofjury selection

and the logistics of presenting the evidence to the jury. For example, at the March 30, 2007

pretrial hearing, Judge Wulle stated his willingness to call a large potential jury pool and to give

a juror questionnaire to determine the potential jurors' sensitivities to viewing the video and

photographic evidence. Although Judge Wulle had resorted to what he described as " street


language" in stating his concern over potential jurors being " grossed out" by such evidence, it is

clear in context that Judge Wulle' s primary concern was in securing a " fair and impartial" jury in

light of the conduct shown in the video and in photographic evidence. RP ( March 30, 2007) at


78 -80. Judge Wulle also stated that he was personally " grossed out" by the proposed evidence at

a September 28, 2007 motion hearing. RP ( Sept. 28, 2007) at 40 -42. But, in context, Judge

Wulle' s comment was directed at the logistics of presenting the evidence to the jury at trial in an

open courtroom and did not express a bias against Norris. Judge Wulle also referred to the


proposed evidence as " gross" a third time at the November 29, 2007 motion hearing. RP ( Nov.

29, 2007)   at   17 -18.   Specifically, Judge Wulle stated his concern " about the ability to get a jury

that' s capable of viewing what I would characterize - and again, I' m using, for lack of a better
                                                       -

term, street language --material that is gross, okay, and in some way not inflame them at the same.

time."   RP ( Nov. 29, 2007) at 17 -18. Again, in context, Judge Wulle made his challenged


comment in regard to securing and retaining an impartial and dispassionate jury. Judge Wulle' s




                                                       13
No. 43927 -1 - II



use of the terms " gross" and " grossed out" to refer to the proposed evidence in the case, while


inartful, did not demonstrate his inability to be impartial while presiding over Norris' s trial.

         Third, with regard to Judge Wulle' s comments about his personal discomfort with having

to view the proposed evidence, we cannot say that such comments demonstrated his inability to

be impartial. Although Judge Wulle' s expressed reluctance about having to view the video and

photographic evidence, he nonetheless viewed the evidence to fulfill his obligation to make


discovery and evidentiary rulings in the case.

         Finally, Judge Wulle' s comments at the July 30, 2012 bench trial that he was " disgusted"

by the video and photographic evidence did not demonstrate his inability to be impartial as he

imposed the State' s recommended 35 -year sentence despite having discretion to impose a life

sentence.   RP ( July 30, 2012)     at   43.   Accordingly, we hold that the trial court did not abuse its

discretion by denying Norris' s June 14, 2007 reassignment motion on this ground.

                                                   II. SENTENCING


A.       Second Degree Child Molestation Convictions


         Next, Norris contends that the trial court exceeded its statutory authority by ( 1) imposing

an exceptional 35 -year sentence term for one of his second degree child molestation convictions


 count nine) and ( 2) by imposing a 10 -year sentence term plus a 36 -month community custody

term   for his   other second   degree   child molestation conviction ( count eight).   The State concedes


that the trial court erred with regard to its sentence on both counts. We accept the State' s


concession and remand for a correction of Norris' s sentence.


         RCW 9A.44. 086( 2)       provides, "    Child molestation in the second degree is a class B


felony."    Under RCW 9A. 20. 021( 1)( b), "[ u] nless a different maximum sentence for a classified



                                                          14
No. 43927 -1 - II



felony is   specifically   established   by   a statute of    this   state,"   the maximum sentence for a class B


felony is 10 years. Although RCW 9. 94A.535 allows for an exceptional sentence upward based

upon various aggravating factors, a sentencing court may not impose an exceptional sentence

that exceeds the statutory maximum for the offense. State v. Gore, 143 Wn.2d 288, 313 - 14, 21

P. 3d 262 ( 2001),     overruled on other grounds by State v. Hughes, 154 Wn.2d 118, 110 P. 3d 192

 2005).     Here, Norris' s exceptional 35 -year sentence on count nine clearly exceeded the statutory

maximum sentence of 10 years and, thus, we remand to the trial court to correct Norris' s


sentence to conform with RCW 9A.20. 021.


          Additionally, RCW 9. 94A.701( 9) prohibits a sentencing court from imposing a term of

incarceration and a term of community custody that, when combined, exceeds the statutory

maximum sentence for the offense. Here, Norris' s 10 -year sentence term and 36 -month


community custody term on count eight, when combined, exceeded the 10 -year statutory

maximum sentence for that offense. Accordingly, we remand to the trial court to correct

Norris' s sentence to conform with RCW 9A.20. 021 and RCW 9. 94A.701( 9).


B.        Legal Financial Obligations ( LFOs)


          Next, Norris contends that the trial court erred by finding that he had the likely present or

future ability to pay his LFOs. As an initial matter, Norris does not distinguish between his

statutorily mandated LFOs and the LFOs imposed within the trial court' s discretion. Norris' s

statutorily   mandated     LFOs include       a $   500   victim assessment      fee, RCW 7. 68. 035( 1)(   a),   a $ 200


criminal    filing   fee, RCW 36. 18. 020( 2)( h),        and a $   100 DNA (deoxyribonucleic acid) collection


fee, RCW 43. 43. 7541.        The trial court was required to impose these fees regardless of Norris' s




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ability to pay and, thus, it did not err by doing so. See, e. g., State v. Lundy, 176 Wn. App. 96,

102 -03, 308 P. 3d 755 ( 2013).


        With regard to Norris' s discretionary LFOs, this issue is not ripe for our consideration,

and, thus, we decline to address it on the merits here. Under RCW 10. 01. 160, a trial court has

discretion to order a defendant convicted of a felony to repay court costs, including attorney fees,

as part of the defendant' s judgment and sentence. However, RCW 10. 01. 160( 3) provides:


        The court shall not order a defendant to pay costs unless the defendant is or will
        beable to pay them. In determining the amount and method of payment of costs,

        the court shall take account of the financial resources of the defendant and the
        nature of the burden that payment of costs will impose.


        A trial court is not required to enter formal, specific findings about a defendant' s ability

to pay discretionary LFOs before imposing the LFOs. State v. Curry, 118 Wn.2d 911, 916, 829

P. 2d 166 (   1992).   However, the      record must      be   sufficient   for   us   to   review whether "'   the trial


court judge took into account the financial resources of the defendant and the nature of the


burden '   under a clearly erroneous standard. State v. Bertrand, 165 Wn. App. 393, 404, 267

P. 3d 511 ( 2011) (    quoting State v., Baldwin, 63 Wn. App. 303, 312, 818 P. 2d 1116, 837 P. 2d 646

 1991)), review denied, 175 Wn.2d 1014 ( 2012).


        However, in Bertrand,        we       held that ' the meaningful time to examine the defendant' s


ability to pay is   when   the   government seeks         to collect the obligation. '           165 Wn. App. at 405

 quoting Baldwin,       63 Wn.    App.   at   310) (   emphasis added).      We also noted:


         The defendant may petition the court at any time for remission or modification
        of the payments on [ the basis of manifest hardship]. Through this procedure the

        defendant is entitled to judicial scrutiny of his obligation and his present ability to
        pay at the relevant time."




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Bertrand, 165 Wn.      App.   at   405 ( alteration in     original) (   quoting Baldwin, 63 Wn. App. at 310-

11);   see also   Lundy,   176 Wn.   App.   at   108 (   discussing    ripeness of   LFO   challenge).   Here, there is


no evidence in the record that the State has yet attempted to collect Norris' s LFOs. Accordingly,

this issue is not ripe for our review, and we decline to address it further here.


                                                   III. SAG ISSUES


          In his SAG, Norris first argues that he should have been allowed to consult a federal


public defender before signing his stipulation of facts agreement with the State. But Norris does

not assert, nor does the record show, that anyone prevented him from consulting with his federal

public defender prior to signing his stipulation of facts agreement. Because Norris' s argument

on this issue concerns matters outside of the record on review, we do not address it further here.

See State   v.   McFarland, 127 Wn.2d 322, 338             n. 5,   899 P. 2d 1251 ( 1995) ( "[ A] personal restraint


petition is the appropriate means of having the reviewing court consider matters outside the

record. ").




          Next, Norris argues in his SAG that his defense counsel rendered ineffective assistance


by allowing Norris to sign his stipulated facts agreement while in a fragile mental state. Again,

Norris' s claim refers to matters outside the appeal record and, therefore, we do not address it in

this opinion. McFarland, 127 Wn.2d at 338 n. 5. Norris also asserts that his defense counsel was


ineffective for engaging in unethical conduct. Specifically, Norris asserts that his counsel

engaged in unethical conduct by engaging in improper communications with the prosecuting

attorney' s office and with the trial court judge without his presence. The record on appeal

contains an affidavit by defense counsel that acknowledges that defense counsel engaged in this

conduct. However, Norris does not allege, and counsel' s affidavit does not show, any prejudice


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resulting from defense counsel' s conduct. Accordingly, Norris fails to demonstrate ineffective

assistance of counsel on this ground. See McFarland, 127 Wn.2d at 334 -35 ( To demonstrate


ineffective assistance of counsel, a defendant must show both deficient representation and


resulting prejudice.).


         Next, Norris argues that the prosecutor and the trial court engaged in misconduct


resulting in a violation of his civil rights. The nature of Norris' s arguments on this issue is

difficult to discern. Norris first appears to argue that the trial court' s grant of continuances


violated his right to a speedy trial. Norris does not indicate, however, whether he is raising this

claim with regard to his constitutional speedy trial right or, instead, is challenging his right to a

timely   trial   under court rule   CrR 3. 3.   Additionally, Norris does not indicate which specific

continuance ruling or rulings he is challenging, and he provides no argument as to how the trial

court abused its discretion in granting those continuances. Although a SAG need not make

reference   to the record or   cite   to legal authority, " the appellate court will not consider a


defendant /appellant' s statement of additional grounds for review if it does not inform the court of


the nature and occurrence of alleged errors" and " the appellate court is not obligated to search

the record in support of claims made in" the SAG. RAP 10. 10( c).


         Norris also appears to assert that the prosecutor committed misconduct by presenting the

trial court with transcripts from recordings of telephone calls Norris made while in jail, which


transcripts Norris argues lack any probative value. Again, Norris' s argument on this issue is

difficult to discern. The transcripts at issue were not used as substantive evidence of Norris' s


guilt and, instead, were simply an attachment to the State' s response to Norris' s defense

counsel' s motion to withdraw from representation. Even if the State had sought admission of the



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No. 43927- 1- 11



transcripts as substantive evidence of Norris' s guilt, the transcripts contain several admissions by

Norris to committing some of the charged crimes and were thus relevant under ER 401.

Accordingly, this claim is meritless.

        Finally, Norris asserts in his SAG that the trial court erred by denying Norris' s

reassignment motions. Because we have already addressed this claim above as argued by

Norris' s appellate counsel, we do not revisit the issue again here. Accordingly, we affirm

Norris' s convictions, but remand to the trial court for a correction of Norris' s sentence consistent


with this opinion.



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

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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