                                                                    FILED
                                                                   MAY 2, 2019
                                                          In the Office of the Clerk of Court
                                                         WA State Court of Appeals, Division III




  COURT OF APPEALS, DIVISION III, STATE OF
              WASHINGTON
STATE OF WASHINGTON,                              )    No. 35412-1-III
                                                  )
                 Respondent,                      )    ORDER GRANTING
                                                  )    MOTION FOR
          v.                                      )    RECONSIDERATION,
                                                  )    WITHDRAWING
DALLIN D. FORT,                                   )    OPINION FILED
                                                  )    FEBRUARY 26, 2019,
                 Appellant.                       )    AND REMANDING FOR
                                                  )    NEW RAP 9.10 HEARING

       Whereas, on October 29, 2018, we remanded this direct appeal to the trial court

for it to conduct a hearing and answer three questions that would assist in completing

the trial record. These questions are set forth in the attached previous order.

       Whereas, on November 8, 2018, the trial court conducted the requested hearing.

At the hearing, Dallin Fort was not represented by counsel, and he remarked as much.

The trial court permitted the hearing to proceed forward. It thereafter entered written

findings of fact responsive to this court’s questions. Mr. Fort later argued to this court

he was denied his constitutional right to counsel at the November 8, 2018 hearing.

       Whereas, on February 26, 2019, this court issued its unpublished opinion in this

matter. Mr. Fort moved for reconsideration and again argued he was denied his

constitutional right to counsel at the November 8, 2018 hearing. At our request, the
No. 35412-1-111
State v. Fort


State responded to Mr. Fort's motion.

         Whereas, we determine that the November 8, 2018 hearing was not ministerial,

but instead was a critical stage of the proceedings, in that the written findings from the

hearing would resolve a factual issue determinative of this direct appeal. Mr. Fort

therefore had a constitutional right to have counsel present at the hearing. The

absence of counsel constitutes structural error, and such error is not subject to

harmless error analysis.

         IT IS THEREFORE ORDERED

         (1) Mr. Fort's motion for reconsideration is granted;

         (2) This court's February 26, 2019 unpublished opinion is withdrawn;

         (3) The trial court must conduct a new hearing to clarify/supplement the record in

accordance with RAP 9.10, and enter written findings as requested in the attached prior

order;

         (4) Prior to the hearing, the trial court shall appoint counsel for Mr. Fort so he is

represented at the hearing;

         (5) Mr. Fort and both trial counsel shall appear at the hearing; and

         (6) The procedures set forth in the attached prior order shall be followed.

         PANEL:        Judges Lawrence-Berrey, Fearing and Pennell

         FOR THE COURT:




                                                    ROBERT LAWRENC -BER               Y
                                                    CHIEF JUDGE




                                                2
                                                                      FILED
                                                                    Oct 29, 2018
                                                                  Court of Appeals
                                                                      Division Ill
                                                                 State of Washington


           COU~T OF APPEALS, DIVISION Ill, STATE OF WASHINGTON

STATE OF WASHINGTON,                              )     No. 35412-1-111
                                                  )
                  Respondent,                     )
                                                  )    ORDER TRANSFERRING
          v.                                      )    APPEAL TO SUPERIOR
                                                  )    COURT FOR REFERENCE
CALLIN D. FORT,                                   )    HEARING
                                                  )
                  Appellant.                      )


       Dalin Fort has appealed his convictions for two counts of rape of a child in the

first degree. He argues the constitutional prohibition of double jeopardy barred the trial

that led to his conviction. Specifically, he argues that in a previous trial, the court

declared a mistrial for "good cause" rather than "extraordinary and striking

circumstances."

       The State responds that Mr. Fort has waived his challenge to the basis for this

court's declaration of a mistrial. Specifically, the State argues that Mr. Fort moved for

mistrial. In support of its argument, the State cites the October 7, 2017 order declaring

mistrial. In that order, defense counsel approved language stating that "the parties

moved the court for an order of mistrial."

      The transcribed record, however, is silent in this regard. The transcribed record

only shows:
No. 35412-1-111
State v. Fort


               The jury asked the court what it should do if it could not reach a
       unanimous verdict. In response, the court brought the jury into the
       courtroom and asked the foreperson, if given more time, whether there
       was a reasonable probability the jury could reach a unanimous verdict.
       The foreperson responded in the negative. The court then asked counsel
       if either had questions. Neither did. The court instructed the jury to return
       to the jury room where it would receive instructions. The court then went
       into recess.
               The court then reconvened, and immediately began discussing with
       the attorneys possible trial dates. At some point, the order mentioned
       above was handed to the court and the court signed it.

       There is no record of when the court discharged the jury. There is no record of

any discussion about declaring a mistrial, or requesting input from the parties. There is

no record of anyone actually moving for a mistrial. Because of this lack of a record, we

might reasonably infer that the jury was discharged during the court's recess and there

were no discussions between the court and counsel about declaring a mistrial. We

would rather not infer from a lack of record.

      Accordingly, IT IS ORDERED that this appeal is transferred to the Spokane

County Superior Court for a reference hearing to be conducted within the purview of

RAP 16.12, and the court shall enter written findings of fact as to the following

questions:

       1.       Precisely how and at what point was the jury discharged;

      2.        Were there discussions between the court and counsel concerning

declaring a mistrial that are not reflected in the transcribed record and, if so, what does

each party contend was said, and what does the court find was said;

      3.        If there were discussions off the record, who was present, and where did

those discussions occur.




                                                2
No. 35412-1-111
State v. Fort


       In addition to answering these three questions, the trial court may make such

additional findings that are reasonably necessary to provide context concerning how the

declaration of mistrial was entered, so as to avoid the necessity of an additional

reference hearing. If the findings involve off-the-record discussions, the court should

set forth what each party contends was said, and the trial court's findings as to what

was said.

      IT IS FURTHER ORDERED that the trial court shall file within 90-days of the

date of this order, its written findings of fact on the questions set forth and on any other

pertinent factual matters address by the parties. The appellant is thereafter directed to
                                         1
file a supplemental designation of clerk s papers to transmit said findings to the

appellate court and a statement of arrangements for the preparation of a verbatim report

of proceedings for the reference hearing held. Said record shall be provided to this

court at public expense. Thereafter, this court will determine further disposition of Mr.

Fort's Appeal.




                                             3
                                                                      FILED
                                                                  OCTOBER 29, 2019
                                                              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. 35412-1-III
                                               )
                     Respondent,               )
                                               )
              v.                               )         UNPUBLISHED OPINION
                                               )
DALLIN D. FORT,                                )
                                               )
                     Appellant.                )

       LAWRENCE-BERREY, C.J. — Dallin Fort appeals his conviction for two counts of

first degree rape of a child. He argues the trial court violated the constitutional

prohibition on double jeopardy when it ordered a mistrial based only on “good cause”

when the Washington Constitution permits retrial only in cases of “extraordinary and

striking circumstances.” The State responds that Mr. Fort waived this argument by jointly

moving for a mistrial. The record was unclear in this respect, so we remanded the matter

to the trial court for supplementation of the record.

       The facts found by the remand judge support our determination that Mr. Fort, at a

minimum, authorized his attorney to jointly move for a mistrial. We generally affirm, but

remand for the trial court to strike various community custody conditions and to strike the
No. 35412-1-III
State v. Fort


DNA1 collection fee and the criminal filing fee.

                                            FACTS

       Mr. Fort’s first trial in 2006 resulted in his conviction on two counts of first degree

rape of a child. State v. Fort, 190 Wn. App. 202, 213, 360 P.3d 820 (2015). Some time

later, Mr. Fort filed a personal restraint petition, and this court ordered a new trial based

on a public trial rights violation. Id. at 219.

       Mr. Fort was retried in October 2016, but the jury could not reach a unanimous

verdict. The judge asked the presiding juror if, given more time, was there a reasonable

probability of reaching a verdict. The juror responded, “No.” Report of Proceedings

(RP) at 240. The judge asked the court reporter to take the jury to the jury room. The

report of proceedings reflects the court then rescheduled the matter for a new trial.

       A written order entered contemporaneously states, “The Parties moved the court

for: an order declaring a mistrial . . . the court finds that: good cause exists. Trial was had

in the matter and the jury was unable to reach a verdict. . . . IT IS ORDERED that: a

mistrial is declared.” Clerk’s Papers (CP) at 66. The written order reflects it was

presented by the State and approved by defense counsel.




       1
           Deoxyribonucleic acid.

                                                  2
No. 35412-1-III
State v. Fort


       The case was set for a new trial in 2017. The State retried Mr. Fort and he was

found guilty of both counts of first degree rape of a child.

       At sentencing, the trial court ordered various community custody conditions and

legal financial obligations (LFOs) that are challenged on appeal. For instance, the court

ordered that Mr. Fort “not possess or consume alcohol or go to places where alcohol is

the chief commodity for sale.” CP at 107. The court also ordered that he “obtain a

written substance abuse evaluation with a qualified provider approved by [his] assigned

community corrections officer and complete all recommended treatment including

attending AA [Alcoholics Anonymous] and/or NA [Narcotics Anonymous] support

groups and obtaining a sponsor.” CP at 107. The court also required him to submit to

random “UA/BA” (urinalysis and blood-alcohol) monitoring. CP at 107. Finally, the

court imposed various LFOs, including a $100 DNA collection fee and a $200 criminal

filing fee.

       Mr. Fort appeals.

                                        ANALYSIS

       A.     DOUBLE JEOPARDY

       Mr. Fort argues the trial court violated the constitutional prohibition on double

jeopardy when it declared a mistrial based only on “‘GOOD CAUSE’” when the


                                              3
No. 35412-1-III
State v. Fort


Washington Constitution permits a retrial only in cases of “‘EXTRAORDINARY AND

STRIKING CIRCUMSTANCES.’” Br. of Appellant at 6. The State, citing the October

2016 written order, argues Mr. Fort waived this argument by jointly moving for a mistrial.

       The report of proceedings is inconsistent with the written order. It shows that the

court reporter escorted the jury out of the courtroom, and the trial court then discussed

new trial dates. The report of proceedings does not show Mr. Fort moving for a mistrial.

       Because of this inconsistency, we remanded the appeal to the trial court for a

hearing to answer three questions:

              1.      Precisely how and at what point was the jury discharged;
              2.      Were there discussions between the court and counsel
       concerning declaring a mistrial that are not reflected in the transcribed
       record and, if so, what does each party contend was said, and what does the
       court find was said;
              3.      If there were discussions off the record, who was present, and
       where did those discussions occur.

Order Transferring Appeal to Superior Court for Reference Hearing, State v. Fort, No.

35412-1-III (Wash. Ct. App. Oct. 29, 2018) at 2.

       Ultimately, a judge other than the trial judge conducted the remand hearing. In its

August 2, 2019 ruling, the remand judge found:

       [Prior to the trial court discharging the jury,] the parties briefly discussed a
       mistrial based on the hung jury—even Dallin Fort testified at the July 10,
       2019, [remand] hearing that his attorney asked him then if he wanted a new
       trial. There was no objection to declaring a mistrial.

                                              4
No. 35412-1-III
State v. Fort


CP at 171.2

       Analysis of Double Jeopardy Claim

       The United States Constitution and the Washington Constitution prohibit a

defendant from being tried for the same offense twice. U.S. CONST. amend V; CONST.

art. I, § 9; State v. Robinson, 146 Wn. App. 471, 477-78, 191 P.3d 906 (2008). This rule

protects the defendant’s rights to have his or her trial completed by a particular tribunal.

Robinson, 146 Wn. App. at 478. The article I, section 9 double jeopardy provision has

been construed to provide protection identical to that provided under the United States

Constitution. State v. Larkin, 70 Wn. App. 349, 353, 853 P.2d 451 (1993).

       “Once a jury has been empanelled and sworn, jeopardy attaches.” Robinson, 146

Wn. App. at 478. “Once jeopardy has attached, the court must determine whether a retrial

is barred.” Id.

       When the defendant requests a mistrial, double jeopardy does not bar a retrial. Id.

at 478-79. However, when a mistrial is without the consent of the defendant, the court

must find manifest necessity to avoid violating double jeopardy. Id. at 479.




       2
        We decline to discuss the procedures and safeguards used to ensure that our
questions were fairly answered on remand. These procedures and safeguards are
discussed in the remand court’s ruling, attached as an appendix to this opinion.

                                              5
No. 35412-1-III
State v. Fort


      Here, the parties briefly discussed a mistrial. Mr. Fort’s trial attorney asked him if

he wanted a new trial. Mr. Fort could have objected to a new trial, but he did not. At a

minimum, Mr. Fort impliedly authorized his attorney to sign the joint motion for mistrial.

We conclude that Mr. Fort consented to a mistrial and, thus, waived the purported error.

He may not now claim that his later conviction was barred by double jeopardy.

      B.     COMMUNITY CUSTODY CONDITIONS

      Mr. Fort contends the trial court exceeded its authority by ordering various

community custody conditions. The challenged conditions prohibit him from consuming

alcohol, prohibit him from possessing alcohol, and prohibit him from going to places

where alcohol is the chief commodity for sale. These conditions also require him to

undergo urinalysis and blood alcohol testing, and require him to undergo a substance

abuse evaluation and comply with any treatment recommendations.

      The State first responds that Mr. Fort may not challenge the community custody

conditions because he did not object to them below. We disagree. An unlawful sentence

may be challenged for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973

P.2d 452 (1999).

      The State also responds that former RCW 9.94A.713(1) (2001) grants the

Sentencing Review Board (the Board) and the Department of Corrections (DOC)


                                             6
No. 35412-1-III
State v. Fort


authority to impose additional rehabilitative conditions of community custody. That may

be so. But Mr. Fort challenges the conditions imposed on him by the court, not the Board

or the DOC. We express no opinion on the propriety of conditions the Board or the DOC

may impose.

       The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, governs a

court’s imposition of community custody conditions. State v. Coombes, 191 Wn. App.

241, 250, 361 P.3d 270 (2015). Any sentence imposed under the SRA must be in

accordance with the law in effect when the offense was committed. Id.; RCW 9.94A.345.

Mr. Fort’s crimes were committed between June 1, 2003, and September 1, 2003, so we

look to the SRA in effect during that time.

              1.     The prohibition on consuming alcohol is valid

       Former RCW 9.94A.712(6)(a) (2001) permitted a sentencing court to enter

conditions under former RCW 9.94A.700(5) (2002), which provided in pertinent part:

       As a part of any terms of community placement imposed under this section,
       the court may also order one or more of the following special conditions:
              ....
              (d) The offender shall not consume alcohol.




                                              7
No. 35412-1-III
State v. Fort


Therefore, the prohibition against consuming alcohol was lawful under the SRA at

the time the offenses were committed.3

              2.     The prohibitions on possessing alcohol and going to places
                     where alcohol is the chief commodity for sale are not crime
                     related and, thus, are invalid

       Former RCW 9.94A.700(5)(e) authorizes a court to enter crime-related

prohibitions. A “crime-related prohibition” is “an order of a court prohibiting conduct

that directly relates to the circumstances of the crime for which the offender has been

convicted.” Former RCW 9.94A.030(12) (2002). A condition is not crime related if

there is no evidence linking the prohibited conduct to the offense. State v. O’Cain, 144

Wn. App. 772, 775, 184 P.3d 1262 (2008).

       In O’Cain, the defendant was convicted of rape, and the sentencing court

prohibited him from accessing the Internet without prior approval from his supervising

community corrections officer. Id. at 774. We struck down the condition because the

trial court made no finding that Internet use contributed to the defendant’s crime. Id. at

775.


       3
         In State v. Jones, 118 Wn. App. 199, 204, 76 P.3d 258 (2003), the defendant
challenged the community custody condition prohibiting alcohol consumption. Applying
the 1988 amendments to the SRA, the court affirmed the condition, reasoning “the 1988
legislature manifested its intent that a trial court be permitted to prohibit the consumption
of alcohol regardless of whether alcohol had contributed to the offense.” Id. at 206.

                                              8
No. 35412-1-III
State v. Fort


       Here, the trial court did not make any finding that alcohol or any other drug

contributed to Mr. Fort’s crime, the risk of reoffending, or the safety of the community.

Therefore, the trial court erred in prohibiting Mr. Fort from possessing alcohol and from

going to places where alcohol is the chief commodity for sale. In addition, the trial court

erred in requiring Mr. Fort to submit to random UA/BA monitoring, and to obtain a

written substance abuse evaluation and to follow all treatment recommendations.

       C.     STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)

       Mr. Fort submits two arguments in his SAG. In an SAG, this court only considers

arguments that are not repetitive of the party’s briefing. RAP 10.10(a).

       Additional Ground 1—Double Jeopardy

       Mr. Fort contends the trial court erred by not considering factors discussed in

United States v. Bates, 917 F.2d 388, 396 (9th Cir. 1990), which concerns double

jeopardy. Whether Mr. Fort’s retrial violated double jeopardy principles was properly

raised and argued in his opening brief. We decline to revisit the issue in the SAG.

       Additional Ground 2—Ineffective Assistance of Counsel

       Mr. Fort contends he was denied effective assistance of counsel when counsel did

not move to dismiss once the jury was discharged. To prevail on a claim of ineffective

assistance of counsel, a defendant carries the burden of demonstrating (1) the attorney’s


                                             9
No. 35412-1-III
State v. Fort


performance was deficient—that is, it fell below an objective standard of reasonableness,

and (2) the deficiency prejudiced the accused—that is, absent the deficiency there is a

reasonable probability that the result of the proceeding would have been different. State

v. Humphries, 181 Wn.2d 708, 719-20, 336 P.3d 1121 (2014). Mr. Fort’s argument

presupposes that the trial transcript is a complete record and that he did not have an

opportunity to object to a mistrial. We reject Mr. Fort’s argument because he was given

an opportunity to object to a mistrial. The remand judge found that the parties discussed a

mistrial and that Mr. Fort’s attorney asked him if he wanted a new trial. Mr. Fort was

given an opportunity to object to a new trial, but he did not. At a minimum, Mr. Fort

impliedly authorized his attorney to sign the joint motion for mistrial. Mr. Fort has not

shown that his attorney’s performance fell below an objective standard of reasonableness.

       D.     MOTION TO STRIKE DNA COLLECTION FEE AND CRIMINAL FILING FEE

       Mr. Fort filed a motion to reverse two LFOs. Relying on State v. Ramirez, 191

Wn.2d 732, 426 P.3d 714 (2018), he argues we should order the trial court to strike the

$100 DNA collection fee and the $200 criminal filing fee.

       The Ramirez court held that House Bill 1783 applies prospectively to cases on

direct appeal. Id. at 747. House Bill 1783 establishes that the DNA collection fee is no




                                             10
No. 35412-1-III
State v. Fort


longer mandatory if the offender's DNA has already been collected. Id. House Bill 1783

also prohibits imposing the $200 criminal filing fee on indigent defendants. Id.

       Here, Mr. Fort likely had his DNA collected in 2006 after his initial conviction.

He is also indigent for purposes of this appeal. We, therefore, grant Mr. Fort's motion

and direct the trial court to strike the $100 DNA collection fee and the $200 criminal

filing fee.

       E.     APPELLATE COSTS


       Mr. Fort asks that the State not be awarded appellate costs in the event it

substantially prevails. The State has substantially prevailed. In accordance with

RAP 14.6(a), we defer the decision of appellate costs _to our clerk or commissioner.

       Affirm in part, remand to strike DNA collection fee, criminal filing fee, and

certain community custody conditions.

       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.


                                          Lawrence-Berrey, C.J.
WE CONCUR:


Fear!.41?? l:f
                                             11
No. 35412-1-III
State v. Fort




                  APPENDIX




                     12
