    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                                     DIVISION ONE

STATE OF WASHINGTON,                            No. 69732-3-1


                       Respondent,

             v.

                                                ORDER GRANTING MOTION
VERNON MAURICE WALKER,                          FOR RECONSIDERATION,
                                                WITHDRAWING AND REPLACING
                       Appellant.               OPINION




      A motion for reconsideration was filed by respondent, State of Washington

asking the court to reconsider the published opinion filed in this case on December 8,

2014. The panel has considered the motion and determined it should be granted.

      Now, therefore, it is hereby

      ORDERED that the motion for reconsideration is granted and the opinion of this

court filed December 8, 2014 is withdrawn and replaced with a revised opinion.

      SO ORDERED
             RED


      Dated this   r day o\$J2M4AJJJ^f^'
                   \      day o\^fUMAAJJLiX^~T2015.

                                         FOR THE COURT:




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                                          *<Le-<*-*^/i _
      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                                  No. 69732-3-1
                     Respondent,
                                                                              I
                                                  DIVISION ONE
       v.



VERNON WALKER,                                    PUBLISHED OPINION          5
                                                                             en

                     Appellant.                   FILED: February 9. 2015 ~

       Spearman, C.J. — Vernon Walker pleaded guilty to one count of murder in

the second degree and one count of assault in the second degree arising from a

2003 shooting. At his sentencing hearing, jail security officers transported him to

court wearing handcuffs and leg restraints. The trial court denied Walker's motion

for an order removing the handcuffs for the hearing. On appeal, Walker argues

that the denial of his motion violated his constitutional right to appear before the

court free of physical restraint. He also contends the error was not harmless and

he is entitled to a new sentencing hearing. We affirm.


                                       FACTS


       On June 25, 2003, Vernon Walker shot and killed Darreion Roche. He

also fired shots at another man, Quency Cummings-Williams. Five days later, the

State charged Walker with murder in the first degree and assault in the first
No. 69732-3-1/2


degree. Before Walker could be arrested on these charges, he fled to Canada.

When apprehended there, he contested extradition for over seven years. He was

eventually returned to King County where he pleaded guilty to amended charges

of murder in the second degree and assault in the second degree. Before

sentencing, Walker noted a motion to appear at the sentencing proceeding

unshackled, on the grounds that it would be "very prejudicial" for him to appear

before the sentencing judge in restraints. Verbatim Report of Proceedings (VRP)

(10/26/12) at 9.

       The King County Department of Adult and Juvenile Detention (DAJD) filed

a brief in opposition to the motion, which was supported by a declaration from

Corinna Hyatt, the facility major for the King County Correctional facility and an

employee of the DAJD. Hyatt's declaration detailed Walker's violent criminal

history, his documented gang affiliation, his lengthy attempt to fight extradition in

the present case, and his various admitted infractions for violence and other

misconduct in the jail. Hyatt acknowledged that there was no evidence that

Walker had a present plan to escape. She also did not allege that Walker had

previously engaged in any misconduct in court or in transport to or from the

courtroom. The State deferred to the DAJD on the issue of restraints.

       On November 9, 2012, the judge heard argument on Walker's motion.

Walker argued he had a constitutional right to appear in court free from

restraints, regardless of whether a jury was present, and that there was no

factual basis to support his shackling. He contended that because he had no
No. 69732-3-1/3


history of disrupting court proceedings or attempting to escape from the

courtroom, there was no reason to believe that he would do so at his sentencing

hearing. He argued that the DAJD's claims otherwise were speculative. Walker

also asserted that restraints would dehumanize him and prejudice the sentencing

judge.

         In response, the DAJD first argued that under the separation of powers

doctrine the question of whether and how Walker should be restrained in the

courtroom was solely within the discretion of DAJD. It also contended that

Walker's constitutional right to appear free from restraint applied only when a jury

was present, and that judges are presumed not to be prejudiced by a defendant's

appearance in restraints. Lastly, the DAJD argued that Walker's violent criminal

history, his misconduct in jail, his gang affiliation, and his history of eluding law

enforcement, justified the use of restraints on him during court proceedings.

         The trial court concluded that, while it was "not prohibited from exercising

some authority over security, the Court, any court, is wise to take into account

the judgment and the information that's available to the Department of Adult and

Juvenile Detention." VRP (11/9/12) at 10. The judge denied Walker's motion,

finding "ample reason" for keeping Walker restrained during sentencing. VRP

(11/9/12) at 11.

         At the December 11, 2012, sentencing hearing, Walker renewed his

objection to appearing in restraints. The court overruled the objection and
No. 69732-3-1/4


sentenced him to a standard-range sentence of 270 months of confinement on

the murder charge and forty-three months on the assault charge, to run

concurrently.1 This sentence fell below the top, but above the midpoint of the

standard range, and was two years less than the sentence recommended by the

State. Walker appeals the sentence.

                                       DISCUSSION

       It is well settled that in a proceeding before a jury a criminal defendant has

a constitutional right to appear free from restraints or shackles of any kind. In

State v. Williams, 18 Wash. 47, 50 P. 580 (1897), the defendant's conviction for

burglary was reversed because the trial court, without justification, denied the

defendant's motion that he and his witnesses be unmanacled before the jury

during the trial. The court cited article 1, section 22 of the Washington State

Constitution which provides "In criminal prosecutions the accused shall have the

right to appear and defend in person," and stated:

       The right here declared is to appear with the use of not only his
       mental but his physical faculties unfettered, and unless some
       impelling necessity demands the restraint of a prisoner to secure the
       safety of others and his own custody, the binding of the prisoner in
        irons is a plain violation of the constitutional guaranty.

Id. at 51.




         1 Based on Walker's offender score of six, the presumptive sentence range was 195 to
295 months of confinement on the murder charge and thirty-three to forty-three months on the
assault. As part of the plea agreement, Walker agreed not to seek an exceptional sentence
downward. He recommended a sentence at the bottom of the standard range. The State
recommended a sentence at the top of the standard range.
No. 69732-3-1/5


        Although, the right found in Williams, was in the context of a jury trial, the

court did not expressly limit application of that right to proceedings in which a jury

was present. The court cited the rule at common law that not only is a defendant

entitled to be free of shackles at trial, "prior to 1722, when a prisoner was

arraigned or appeared at the bar of the court to plead, he was presented without

manacles or bonds, unless there was evident danger of his escape." Id. at 49.

The court further noted that the common law of England was "expressly adopted

by legislative enactment at the first session of the legislative assembly of this

territory, and there is no doubt that the ancient right of one accused of crime

under an indictment or information to appear in court unfettered, is still preserved

in all its original vigor in this state." Id. at 50.

        Many subsequent cases, in Washington and other jurisdictions, have

addressed the right to appear in court free of physical restraint, but nearly all

have addressed the right in the context of a jury trial. See State v. Finch, 137

Wn.2d 792, 842-43, 975 P.2d 967 (1999) and cases cited therein.2 Walker asks


         2 Illinois v.Allen. 397 U.S. 337, 90 S.Ct. 1057, 25 LEd.2d 353 (1970); State v. Hartzoq.
96 Wn.2d 383, 635 P.2d 694 (1981); State v. Ollison. 68 Wn.2d 65, 411 P.2d 419 (1966); State v.
Sawyer. 60 Wn.2d 83, 371 P.2d 932 (1962); State v. Williams. 18 Wash. 47, 50 P. 580 (1897);
State v. Tollev. 290 N.C. 349, 226 S.E.2d 353 (1976); Snow v. Oklahoma. 489 F.2d 278 (10th
Cir.1973); Kennedy v. Cardwell. 487 F.2d 101 (6th Cir.1973); United States ex rel. Stahl v.
Henderson. 472 F.2d 556 (5th Cir.1973); United States v. Roustio. 455 F.3d 366 (7th Cir.1972);
Dorman v. United States, 435 F.2d 385 (D.C.Cir. 1970); United States v. Thompson, 432 F.2d
997 (4th Cir.1970); United States v. Samuel. 431 F.2d 610 (4th Cir.1970); Loux v. United States.
389 F.2d 911 (9th Cir.1968); Blaie v. United States. 136 F.2d 284 (D.C.Cir. 1943); People v.
Thomas, 1 Mich.App. 118, 134 N.W.2d 352 (1965); Commonwealth v. Brown, 364 Mass. 471,
305 N.E.2d 830 (1973); State v. Borman, 529 S.W.2d 192 (Mo.App.1975); State v. Roberts. 86
N.J.Super. 159, 206 A.2d 200 (1965); French v. State. 377 P.2d 501 (Okla.Crim.App.1962);
Commwealth v. Cruz, 226 Pa.Super. 241, 311 A.2d 691 (1973); Thompson v. State, 514 S.W.2d
275 (Tex.Crim.App.1974); Sparkman v. State. 27 Wis.2d 92, 133 N.W.2d 776 (1965).
No. 69732-3-1/6


us to expressly extend the right to include appearances at all court proceedings,

regardless of whether a jury is present.

         As an initial matter we address the DAJD's argument below that, under

the separation of powers doctrine, it has sole discretion to determine whether

and in what manner an inmate may be required to appear before the court in

restraints.3 The DAJD argued that prison administrators have plenary authority to

determine whether an inmate defendant must wear restraints in the courtroom. In

support of this position, it cites Thornburgh v. Abbott, 490 U.S. 401, 409, 109

S.Ct. 1874, 104 L.Ed.2d 459 (1989); Turner v. Saflev, 482 U.S. 78, 97, 107 S.Ct.

2254, 96 L.Ed.2d 64 (1987); and Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct.

1861, 60 L.Ed.2d 447 (1979). These cases hold only that courts generally accord

prison administrators wide deference in the adoption and execution of policies

and practices which are necessary to preserve order, discipline, and security

within penal institutions. See e.g. Thornburgh, 490 U.S. at 413 (holding that

prison administrator's rules and regulations affecting the sending of publications

to prisoners are generally valid if they are "'reasonably related to legitimate

penological interests.'") (Quoting Turner, 482 U.S. at 89). But the issue before us

is whether to accord similar deference to the decisions of prison administrators

regarding the use of restraints on an inmate defendant once the defendant is in

the courtroom.



          3 Although the State does not make this argument on appeal, we address it to make clear
the trial court's authority to determine the manner in which an in-custody defendant appears
before it.




                                               6
No. 69732-3-1/7


        The interests of prison administrators in the security of their institutions

and the resulting decision to use restraints are readily distinguishable from the

interests of the court. To be sure, on matters of courtroom security, those

interests may overlap because of common concerns about preventing injury to

those in the courtroom, preventing disorderly conduct in the courtroom, and

preventing escape. Finch, 137 Wn.2d at 846; Hartzog, 96 Wn. 2d at 398. But,

unlike in a penal setting, a court is also required to balance the need for a secure

courtroom with the defendant's presumption of innocence, ability to assist

counsel, the right to testify in one's own behalf, and the dignity of the judicial

process. Finch, at 844-45. While prison officials may be well positioned to assist

the trial court in deciding matters of courtroom security, they are in no position to

weigh and balance the many factors the court must consider when determining

whether, and in what manner a defendant should be restrained during a court

proceeding. We hold that regardless of the nature of the court proceeding or

whether a jury is present, it is particularly within the province of the trial court to

determine whether and in what manner, shackles or other restraints should be

used.


        Next, we consider Walker's claim that he has a right under the

Washington State constitution to appear for sentencing free from restraints.

Because no case expressly finds such a right in the Washington constitution,

Walker relies primarily on California cases as persuasive authority in support of
No. 69732-3-1/8


his claim.4 But even ifwe were to follow the cited cases and find such a right

under our state constitution, we conclude that Walker would not be entitled to the

relief he seeks.


        In People v. Fierro. 1 Cal.4th 173, 821 P.2d 1302 (1991), the defendant

was sentenced to death after being convicted by a jury of first degree murder and

two counts of robbery. The defendant appeared in handcuffs and shackles for a

preliminary hearing without a jury at which he was identified as the assailant by

an eyewitness. Prior to the hearing, the defendant moved to have the restraints

removed. The trial court summarily denied the motion. On appeal to the

California Supreme Court, the defendant argued for reversal of his conviction

because, among other reasons, the trial court's refusal to remove the restraints

during the preliminary hearing prejudicially tainted the witnesses' identification of

him as the perpetrator.

       The Fierro court agreed that, absent a showing of "'evident necessity,'" a

defendant has the right to appear at all court proceedings, including non-jury

proceedings, unencumbered by physical restraints. Id. at 219-220. The court

noted that at least since 1871, California courts had identified reasons to prohibit



        4 Walker also cites People v. Boose. 66 lll.2d 261, 362 N.E.2d 303 (1977) in support of
his argument. In that case, the Illinois Supreme Court prohibited shackling a defendant in a
competency hearing absent finding a strong necessity for doing so. But, as the State points out,
the competency proceeding at issue was before a jury. In addition, subsequent to Boose the
Illinois Supreme Court adopted ILCS S. Ct. Rule 430 which provides that the general rule against
restraints without judicial findings is "limited to trial proceedings in which the defendant's
innocence or guilt is to be determined, and does not apply to bond hearings or other instances
where the defendant may be required to appear before the court prior to a trial being
commenced."




                                                8
No. 69732-3-1/9


the unjustified use of restraints in the courtroom that went well beyond the issue

of prejudicing the defendant in the eyes of the jury.5 In People v. Harrington, 42

Cal. 165, 168 (1871), the court observed that the use of restraints "without

evident necessity ... inevitably tends to confuse and embarrass [the accused's]

mental faculties, and thereby materially to abridge and prejudicially affect his

constitutional rights of defense." In People v. Duran, 16 Cal.3d 282, 290, 545

P.2d 1322 (1976), the court found the unjustified use of restraints was an "affront

to human dignity" and showed "disrespect for the entire judicial system." In

Solomon v. Superior Court of Los Angeles County, 122 Cal.App.3d 532, 536, 177

Cal.Rptr. 1 (1981), the court noted that "[ajlthough the Duran opinion was written

in the context of a jury trial it has application to other proceedings as well.

Respect for the dignity of the individual and the court are values to be preserved

whether or not a jury is present." Relying on these cases, the Fierro court


        5 We note that the U.S. Supreme Court and the Washington State Supreme Court have
also acknowledged that the unjustified use of shackling undermines important values beyond the
concern for jury prejudice. See Deck v. Missouri, 544 U.S. 622, 631, 125 S.Ct. 2007, 161 L.Ed.2d
953 (2005):
        The courtroom's formal dignity, which includes the respectful treatment of
        defendants, reflects the importance of the matter at issue, guilt or innocence,
        and the gravity with which Americans consider any deprivation of an
        individual's liberty through criminal punishment. And it reflects a seriousness of
        purpose that helps to explain the judicial system's power to inspire the
        confidence and to affect the behavior of a general public whose demands for
        justice our courts seek to serve. The routine use of shackles in the presence of
        juries would undermine these symbolic yet concrete objectives.
See also Finch, 137 Wn.2d at 845 ("Shackling or handcuffing a defendant has also been
discouraged because it restricts the defendant's ability to assist his counsel during trial, it
interferes with the right to testify in one's own behalf, and it offends the dignity of the judicial
process.") (Citing Allen. 397 U.S. at 344); State v. Damon, 144 Wn.2d 686, 691, 25 P.3d 418
(2001) ("keeping the defendant in restraints during trial may deprive him of the full use of all his
faculties.") (Citing State v. Williams. 18 Wash. 47, 50 P. 580 (1827)).
No. 69732-3-1/10


concluded that the rule of "evident necessity" for the use of restraints, first

enunciated in Harrington in the context of a jury trial, was applicable to all court

proceedings. The court stated that the rule:

        Serves not merely to insulate the jury from prejudice, but to maintain
        the composure and dignity of the individual accused, and to
        preserve respect for the judicial system as a whole; these are
        paramount values to be preserved irrespective of whether a jury is
        present during the proceeding. Accordingly, we hold that, as at trial,
        shackling should not be employed at a preliminary hearing absent
        some showing of necessity for their use.

]d at 219-20.

        Significantly, while the Fierro court acknowledged the dangers of

unwarranted shackling at the preliminary hearing, it also observed that because

in the absence of a jury the dangers are not as substantial as those presented at

trial "a lesser showing than that required at trial is appropriate." jd. Thus, even if

we were to follow Fierro, the issue presented here is whether the record in this

case is sufficient to meet that "lesser showing."

        Unlike in Fierro, here the trial court did not summarily deny the

defendant's motion. Instead after a full hearing, the trial court determined that

under the circumstances Walker should remain restrained during the sentencing

proceeding. The question before us is whether, in light of the "lesser showing"

required under Fierro, the trial court abused its discretion when it denied Walker's

motion.6 Finch, 137 Wn.2d at 846. An abuse of discretion occurs when the



       6 California courts also review the decision to restrain a defendant during court
proceedings for abuse of discretion. Duran, 16 Cal.3d at 292-93.




                                                10
No. 69732-3-1/11


discretion is exercised on untenable grounds. A discretionary decision rests on

untenable grounds if it is unsupported by the facts in the record. Mayer v. STO

Industries, Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).

       A defendant's right to appear in court free from restraints is not unlimited.

Finch, 137 Wn.2d at 846. The right may yield in the interest of courtroom safety,

security, and decorum.7 Id. Restraints are permissible if necessary to prevent

injury to persons in the courtroom, disorderly conduct at trial, or escape, jd.;

Hartzog, 96 Wn.2d at 398. But a trial court should allow the use of restraints only

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

to justify their use on a particular defendant. Damon, at 691-92; Hartzog, at 400.

A decision to restrain a defendant "must be founded upon a factual basis set

forth in the record." Id.

       Walker argues that the trial court erred because it failed to exercise its

discretion, and instead "abdicat[ed] its responsibility in favor of the jail staff's

conclusion that Mr. Walker behaved poorly while in jail" and should, therefore, be

shackled. Brief of Appellant at 11. The record does not support this argument.

The record shows that the trial court considered the evidence submitted and

listened to the arguments of both parties before rendering its decision on whether

Walker should be unshackled during his sentencing. Walker relies on Hartzog to

support his argument otherwise, but the reliance is misplaced.



       7 California law on this issue is in accord. Duran, 16 Cal.3d at 290-91.




                                               11
No. 69732-3-1/12


        In Hartzog, 96 Wn.2d at 387, a Walla Walla Superior Court judge issued a

blanket security order that all Walla Walla inmate defendants appearing in

superior court were required to wear physical restraints.8 The order was issued

after a corrections officer working in the courthouse was severely injured by a

cigarette lighter, which had been turned into a small bomb and secreted into the

courthouse by prison inmates. Id. The order applied without regard to individual

inmates' prior behavior and solely on the basis of their status as inmates at the

Walla Walla penitentiary.

        On appeal, our Supreme Court concluded that the blanket security order

was invalid because it was based on the "general conditions at the [petitioner's]

place of confinement," not on factors "shown directly attributable to petitioner." Id,

at 399. The Court identified several factors a trial court should consider in

assessing whether a defendant should be restrained in the presence of a jury:

        [T]he seriousness of the present charge against the defendant;
        defendant's temperament and character; his age and physical
        attributes; his past record; past escapes or attempted escapes,
        and evidence of a present plan to escape; threats to harm
        others or cause a disturbance; self-destructive tendencies; the
        risk of mob violence or of attempted revenge by others; the
        possibility of rescue by other offenders still at large; the size
        and mood of the audience; the nature and physical security of
        the courtroom; and the adequacy and availability of alternative
        remedies.


Id. at 400.




        8 The policy also required inmates to be searched at the penitentiary before departure,
subjected to a skin and probe search upon arrival at the Walla Walla County Jail, and seated
away from counsel table during trial, kl




                                                12
No. 69732-3-1/13


       Hartzog is of no help to Walker because here, there was no blanket order

applicable to all inmates based solely on their status as inmates. Instead, the trial

court's decision was based on evidence that related to Walker's unique

circumstances. Moreover, in reaching its conclusion that restraints were

warranted in this case the trial court took into account appropriate factors

suggested in Hartzog. The trial court considered that Walker had plead guilty to

murder and felony assault in the current case, and had convictions of other

violent crimes in the United States and Canada. The court also considered

evidence that Walker was affiliated with a street gang in King County, had been

involved in fights during his detention in Canada, and while awaiting trial in the

King County Jail, he had fought with one inmate and displayed threatening

behavior toward others. The court also took into account Walker's history of flight

and his ability to access resources in the community that might aid a future

escape.


       While this showing may be insufficient to justify shackling a defendant in

the presence of the jury, in light of the lesser showing required under Fierro in a

non-jury setting, the evidence before the trial court was more than adequate to

support its decision to use restraints. We conclude that the court properly

exercised its discretion after hearing from the interested parties and considering

factors related to Walker's unique circumstances.

       Walker also argues that the use of shackles "infringes on the defendant's

right to counsel in that it interferes with the defendant's ability to communicate



                                         13
No. 69732-3-1/14


with his lawyer." Brief of Appellant at 7. Walker is correct that courts have

recognized the use of restraints at sentencing may impair a defendant's ability to

communicate with his attorney. See Deck, 544 U.S. at 631; United States v.

Cooper, 591 F.3d 582, 588 (7th Cir. 2010) (restraints could potentially impede

access to defense counsel); Damon, 144 Wn.2d at 691 (restraints may affect the

right to confer with counsel during a trial); Finch, 137 Wn.2d at 845 (restraints

restrict the defendant's ability to assist his counsel); Fierro, 1 Cal.4th at 220 ("the

unjustified use of restraints could, in a real sense, impair the ability of the

defendant to communicate effectively with counsel.") (Citing Harrington, 42 Cal at

168). But, Walker fails to point to any evidence in the record that the restraints

used in this case interfered in any way with his ability to communicate with his

lawyer. Absent such a showing, we cannot conclude that shackling impaired

Walker's ability to assist or communicate with defense counsel.

       We hold that it was within the trial court's sole discretion to determine

whether Walker should be restrained during his sentencing hearing. We also hold

that the record was sufficient to support the trial court's decision to maintain

Walker's restraints during the hearing and does not show that Walker was

prejudiced thereby. Furthermore, even if we were to follow Fierro, as Walker

requests, on this record the trial court's denial of Walker's motion to remove the

restraints was not an abuse of discretion.




                                           14
No. 69732-3-1/15


      Affirmed.




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WE CONCUR:




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