                                                                       FILED
                                                                  FEBRUARY 11, 2020
                                                               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. 36089-0-III
                                              )
                      Respondent,             )
                                              )
                v.                            )         UNPUBLISHED OPINION
                                              )
 GAVIN DAVID WOLF,                            )
                                              )
                      Appellant.              )

      SIDDOWAY, J. — After being permitted to participate in Spokane County mental

health court for two years in lieu of criminal prosecution, Gavin Wolf was terminated

from the court program and convicted of three counts of third degree assault.

Incorporating much from an opinion filed today in another appeal by Mr. Wolf, we reject

his contention that he was denied due process and find no abuse of discretion by the

mental health court judge in ordering that Mr. Wolf wear waist restraints during the

termination hearing. We affirm the convictions but grant Mr. Wolf’s request for

Ramirez1 relief from some of the terms of his judgment and sentence.




      1
          State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).
No. 36089-0-III
State v. Wolf


                    FACTS AND PROCEDURAL BACKGROUND

       Just before midnight on an evening in August 2015, officers responded to a report

of a disorderly male at a movie theater in downtown Spokane. On their arrival, theater

personnel identified Gavin Wolf as the individual who had threatened staff and who they

wanted trespassed. Officers escorted him out of the theater. Once outside, Mr. Wolf told

the officers he needed medical treatment for a toe injury he suffered on a theater

escalator. When medical help responded, the officers left.

       About two hours later, the officers were on a scheduled break and stopped at

Deaconess Hospital to eat. Upon entering the hospital, they saw that hospital security

guards were having trouble with Mr. Wolf. The guards told the police officers that Mr.

Wolf had caused problems and they wanted him trespassed from the hospital. In

response to the officers telling him he was trespassed, Mr. Wolf was belligerent and

yelled obscenities, but he eventually left—only to return, pound on the hospital’s glass

doors, and flip off the officers as they watched from inside. The officers decided to place

Mr. Wolf under arrest. When they stepped outside and attempted to place Mr. Wolf in

handcuffs, he strenuously resisted. In the course of being forcibly restrained, Mr. Wolf

suffered a bloody nose. As his nose bled heavily, Mr. Wolf both spat blood and

purposefully blew blood from his nose at the police and security officers.




                                             2
No. 36089-0-III
State v. Wolf


       In his dealings with police officers on the evening of his arrest, Mr. Wolf informed

two officers that he was infected with MRSA2 and was hepatitis C positive. The two

police officers and one security officer who were struck by Mr. Wolf’s blood spray were

required to go through exposure protocols.

       Mr. Wolf was charged with three counts of third degree assault. Prior to these

charges, Mr. Wolf had successfully applied for drug court in lieu of prosecution to

resolve burglary and burglary-related charges in State v. Wolf, Spokane County Superior

Court cause no. 14-1-01937-9. (We refer to that case, both in the trial court and on

appeal (Court of Appeals No. 36088-1-III (Wash. Ct. App., Feb. 11, 2020 (unpublished))

as Wolf I). In March 2016, he was permitted to transfer to mental health court with the

opportunity to resolve the charges in that case, and he opted into mental health court to

resolve the three third degree assault charges in this case as well. He signed a mental

health court waiver and agreement that required him to participate in treatment, to refrain

from using or possessing drugs or alcohol, and to commit no new criminal law violations.

The agreement notified him of acts or omissions on his part that would subject him to

termination from the mental health court program, one being “[r]e-arrest during the

treatment program.” Clerk’s Papers (CP) at 8. He agreed that if he was terminated from

the mental health court program, he would proceed to a bench trial on the charges against



       2
           Methicillin-resistant Staphylococcus aureus.

                                              3
No. 36089-0-III
State v. Wolf


him, and the court’s decision would be based solely on the information in the police

reports.

       As recounted in greater detail in this panel’s opinion filed today in Wolf I, Mr.

Wolf was arrested for a new charge of second degree malicious mischief in January 2018.

As a result of the new arrest, the State sought to terminate his participation in the mental

health court program. A termination hearing was held on March 13, 2018, at which the

mental health court judge granted a State motion that Mr. Wolf remain in waist restraints

during the hearing. At the conclusion of the hour-and-a-half long hearing, the mental

health court judge terminated Mr. Wolf’s participation in mental health court.

       Mr. Wolf agreed to have the mental health court judge preside at his stipulated

facts trial in this matter, which took place the following month. He was found guilty as

charged and was sentenced to a prison-based drug offender sentencing alternative. In

entering judgment, the trial court imposed three then-mandatory legal financial

obligations (LFOs) and ordered Mr. Wolf to pay supervision costs. He appeals.

                                        ANALYSIS

I.     MR. WOLF FAILS TO DEMONSTRATE A VIOLATION OF HIS RIGHT TO DUE PROCESS

       Mr. Wolf’s first assignment of error is to alleged denials of due process at his

termination hearing.

       Both the federal and state constitutions guarantee a criminal defendant the right to

due process of the law. U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. For parole


                                              4
No. 36089-0-III
State v. Wolf


revocation decisions, the United States Supreme Court long ago identified some minimal

due process guarantees: written notice, disclosure to the parolee of evidence against him,

opportunity to be heard, right to confront adverse witnesses, a neutral decisionmaker, and

a written statement of evidence considered. Morrissey v. Brewer, 408 U.S. 471, 488-89,

92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Washington decisions have held the guarantees

to apply in analogous contexts, including termination from a therapeutic court program.

See Wolf I, slip op. at 7 (citing cases).

       Mr. Wolf contends he was not provided with written notice of claimed violations,

the prosecution did not disclose the evidence it was relying on in seeking termination, he

was not permitted to call witnesses or present evidence, he was not given the right to

confront or cross-examine witnesses, he did not receive a decision from a neutral

decisionmaker, the court did not require the prosecution to prove by a preponderance of

the evidence that Mr. Wolf had violated his agreement, and it did not enter adequate

written findings and conclusions.

       As explained in Wolf I, RAP 2.5(a) states the general rule that we will not review

an error that is raised for the first time on appeal, and Mr. Wolf failed to preserve all but

one of the due process arguments advanced in his opening brief. Wolf I, slip op. at 7-18.

He argues that the deprivations he asserts qualify as manifest constitutional error

reviewable under RAP 2.5(a)(3), but we disagree. If there was error, it was not manifest.



                                              5
No. 36089-0-III
State v. Wolf


       We incorporate the analysis set forth in Wolf I. See Wolf I, slip op. at 7-18. The

due process errors asserted on appeal are not manifest or fail for other reasons. No

violation of Mr. Wolf’s due process right is shown.

II.    THE TRIAL COURT CONDUCTED AN ADEQUATE HEARING BEFORE GRANTING THE
       STATE’S MOTION THAT MR. WOLF REMAIN IN WAIST RESTRAINTS

       Mr. Wolf’s next assignment of error is to the court’s order that he remain in waist

restraints during the termination hearing.

       A trial court has a duty to provide for courtroom security, and measures needed to

protect the safety of court officers, parties, and the public, are within the court’s

discretion. State v. Hartzog, 96 Wn.2d 383, 396, 635 P.2d 694 (1981). In exercising

discretion, the trial court must bear in mind a defendant’s right “to be brought before the

court with the appearance, dignity, and self-respect of a free and innocent” individual.

State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999). This includes a defendant’s

right “to be brought into the presence of the court free from restraints.” State v. Damon,

144 Wn.2d 686, 690, 25 P.3d 418 (2001). Restraints should be allowed “only after

conducting a hearing and entering findings into the record that are sufficient to justify

their use on a particular defendant.” State v. Walker, 185 Wn. App. 790, 800, 344 P.3d

227 (2015). We review a trial court’s decision to keep a defendant restrained for abuse of

discretion. State v. Turner, 143 Wn.2d 715, 724, 23 P.3d 499 (2001).




                                               6
No. 36089-0-III
State v. Wolf


       As explained in Wolf I, we find no abuse of discretion by the trial court in ordering

that Mr. Wolf remain in waist restraints during the hour-and-a-half long hearing. As

further explained in that opinion, we hold that even if the court’s discretion was abused,

the error was harmless beyond a reasonable doubt.

III.   RAMIREZ RELIEF

       Finally, Mr. Wolf asks this court to remand this case to the trial court to strike the

criminal filing and DNA3 collection fees imposed by his judgment and sentence as well

as the provisions requiring Mr. Wolf to pay the costs of community custody and accruing

interest. He relies on Ramirez, which held that relief from LFOs that became effective in

June 2018 apply to cases then pending on direct appeal. 191 Wn.2d at 735.

       For reasons explained in Wolf I, we will direct the trial court to strike the

challenged LFOs from Mr. Wolf’s judgment and sentence, a ministerial correction that

will not require Mr. Wolf’s presence. See Wolf I, slip op. at 21-22.

                      STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds (SAG), Mr. Wolf raises the same four

issues raised in the SAG he filed in Wolf I. We reject the first three grounds,4

incorporating our analysis in Wolf I. See Wolf I, slip op. at 22-24.


       3
        Deoxyribonucleic acid.
       4
        The first three grounds raised by Mr. Wolf’s SAG deal with his allegedly
improper admission to the mental health court program; his contention that at the
termination hearing, the burden of proof was improperly shifted to him; and an

                                              7
No. 36089-0-III
State v. Wolf


       Mr. Wolf’s fourth ground for relief alleges that he was improperly denied a

contested competency hearing. We address that issue here, since the relevant record was

filed only in this matter.

       At the outset of Mr. Wolf’s stipulated facts trials for the assault charges in this

case and the burglary and burglary-related charges in Wolf I, Mr. Wolf sought to

represent himself, telling the court that his court-appointed defender was unwilling to

advance an argument that Mr. Wolf was mentally incompetent to stand trial. The trial

court satisfied itself that Mr. Wolf’s request for self-representation was unequivocal,

explained to Mr. Wolf the incongruity between asking to proceed pro se and claiming to

be incompetent, and engaged in a Faretta5 colloquy, before granting Mr. Wolf’s request

to proceed pro se. In the process—and as part of concluding that Mr. Wolf could

represent himself—the trial court found Mr. Wolf competent, pointing to Mr. Wolf’s

presumed competency, a contemporaneous finding in a separate criminal case that Mr.

Wolf was competent to stand trial,6 the trial court’s several years’ experience with Mr.

Wolf in therapeutic courts, and Mr. Wolf’s discussions with the court, his tracking of the

issues, and his legal research. A criminal defendant’s motion to proceed pro se may be




appearance of fairness challenge.
       5
         Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
       6
         A competency evaluation was ordered and a finding of competency was made in
the prosecution of the 2018 charge of second degree malicious mischief that triggered the
State’s request that Mr. Wolf’s participation in mental health court be terminated.

                                              8
No. 36089-0-III
State v. Wolf


granted only if (among other things) the defendant is competent to stand trial. State v.

Coley, 180 Wn.2d 543, 560, 326 P.3d 702 (2014). When Mr. Wolf sought to call

witnesses to contest his competency, the trial court would not allow it, pointing out that it

was deciding a self-representation issue; it was not engaged in a competency proceeding.

       Citing Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975),

Mr. Wolf now argues that when there is conflicting evidence of competency to stand trial

and competency is contested, a full and fair hearing must be held. What Drope actually

held is that where evidence suggested that a Missouri criminal defendant was not

competent, an examination under the state’s statutory proceeding for competency

determinations should have been ordered. Id. at 177-78, 181.

       In Washington State, chapter 10.77 RCW prescribes the procedures and standards

trial courts use to investigate and judge the competency of defendants to stand trial.

Coley, 180 Wn.2d at 551. When there is reason to doubt the competency of the

defendant, the court on its own motion or on the motion of any party must order that a

qualified expert or professional evaluate and report on the defendant’s mental condition.

RCW 10.77.060(1). No one ever requested that Mr. Wolf’s competency be evaluated in

this matter.

       This is not to say that if the process provided by chapter 10.77 RCW is never

initiated, a defendant who is or was truly incompetent to stand trial has no redress. Case

law holds that if a defendant claiming incompetency supports a motion with substantial

                                              9
No. 36089-0-III
State v. Wolf


evidence of incompetency, the trial court must either grant the motion or hold a formal

competency hearing. State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d 377 (2010).

“In contrast, when an incompetency claim is not supported by substantial evidence, the

defendant has not demonstrated a manifest injustice and the trial court may deny the

motion without holding a formal competency hearing.” Id. at 793. Mr. Wolf did not

present the court with substantial evidence of incompetency.7

       Additionally, if evidence following conviction indicates that a defendant was

incompetent at trial, there could be a violation of due process; in such a case, we would

remand for a fact finding hearing. State v. Wright, 19 Wn. App. 381, 387, 575 P.2d 740

(1978). Before we would order that relief, however, a defendant must present evidence

that he was incompetent at the time of trial. There is no such evidence in our record. See

id., at n.7. If Mr. Wolf has evidence outside the record that would indicate he was



       7
         In proceedings below, Mr. Wolf pointed to record evidence that he had been
found eligible for mental health court, transport officers had referred to his mental health
issues in asking that he be restrained during the termination hearing, and his case
manager addressed his mental health struggles at the termination hearing. The trial court
responded:
       Having a mental health illness does not mean you’re not competent. Those
       are two separate things. . . . It simply means you are dealing with a mental
       illness. That is a different issue.
Report of Proceedings (Jan. 30, 2018) at 87. We agree. To demonstrate that he was
incompetent to stand trial, Mr. Wolf was required to demonstrate that he lacked the
capacity to understand the nature of the proceedings against him and was unable to assist
in his own defense. See RCW 10.77.010(15) (defining “Incompetency”).

                                             10
No. 36089-0-111
State v. Wolf


incompetent at the time of his stipulated facts trial, his remedy is to file a personal

restraint petition supported by that evidence. See State v. Norman, 61 Wn. App. 16,

27-28, 808 P.2d 1159 (1991).

       We affirm Mr. Wolfs convictions. We remand to the trial court with instructions

to strike the criminal filing and DNA collection fees imposed by his judgment and

sentence as well as the provisions requiring him to pay the costs of community custody

and accruing interest. 8

       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, C.J. •                            Fearing, J.




       8
       Mr. Wolfs opening brief includes an assignment of error to cumulative error that
we need not address, having found no error.

                                              11
