                                                              FILED
                                                      COURT OF APPEALS DIY I
                                                       STATE OF WASHINGTON

                                                       20I8 JUL -9 AM 8:38




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       )
                                           )     No. 76409-8-1
                     Respondent,           )
                                           )     DIVISION ONE
              v.                           )
                                           )
CHRISTOPHER LEWIS LOCKEN,                  )     UNPUBLISHED OPINION
                                           )
                     Appellant.            )     FILED: July 9, 2018
                                           )

       BECKER, J. — In light of appellant's extensive history of mental illness and

his receipt of Social Security disability income, we remand for reconsideration of

the legal financial obligations that were imposed when he was convicted.

      Appellant Christopher Locken was arrested and charged with attempting

to elude police pursuit in October 2016.

       Locken suffers from bipolar disorder with manic and psychotic features.

He has been committed involuntarily on at least eight occasions. Locken was

evaluated again after this arrest. The court found him competent to stand trial.

After a one day bench trial, Locken was convicted. He was sentenced to four

months' confinement and $700 in mandatory legal financial obligations.
No. 76409-8-1/2

                            WAIVER OF RIGHT TO TESTIFY

           Locken first contends that he did not make a valid waiver of his right to

testify.

           A party's assignment of error should include a "separate concise

statement of each error a party contends was made by the trial court, together

with the issues pertaining to the assignments of error." RAP 10.3(a)(4).

Assignments of error must be included in the appellant's brief so that the

reviewing court can pinpoint the time and place in the record at which the trial

court allegedly committed error, either by ruling or by failing to rule.

           Locken's assignment of error raises waiver of the right to testify in the

abstract, without identifying an error made by the trial court:

           In violation of the Fifth, Sixth, and Fourteenth Amendments to the
           United States constitution and article 1, section 22 of the
           Washington constitution, Mr. Locken did not knowingly,
           intelligently, and voluntarily waive his right to testify.

As a result of his failure to make a proper assignment of error, Locken's

discussion of waiver is unfocused and the standard of review unclear.

           Locken's claim of error appears to be rooted in an exchange with the trial

court that took place after the State rested its case. At the request of Locken's

attorney, the court asked Locken if it was his free and voluntary choice not to

testify. Locken responded in part that he was "unable to properly comprehend"

because his medication was "not working."

                               [DEFENSE COUNSEL]: Your Honor, Mr.
                  Locken does not wish to testify. He did have a statement
                  he wanted to give to the Court, but—I'm sorry. He does not
                  want to give that to the Court.


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No. 76409-8-1/3

                         So if the Court wants to inquire to make sure Mr.
                 Locken understands his right to testify.
                                 THE COURT: Mr. Locken, I believe it was
                 sometime this week—probably yesterday—that I advised
                 you that you had the right to testify if you wanted to do so.
                         You have the right to remain silent and to refuse to
                 testify, as well.
                         And is it your free and voluntary choice not to testify?
                                THE DEFENDANT: Yes, Your Honor. Four
                 days ago. Yes.
                                THE COURT: Okay. Thank you.
                                THE DEFENDANT: Thank you. Thank you,
                 your eminence.
                                THE COURT: You said four days ago, yes.
                 So that makes me think you answered how long it's been
                 since we had the hearing.
                         But as far as invoking your right to remain silent, you
                 are doing that freely and voluntarily?
                                THE DEFENDANT: I apologize.
                         Hmm. I'm unable to properly comprehend because
                 my medication is not working.
                                 THE COURT: Sir, I'll ask it again then.
                         As to the—your right to invoke your silence, your
                 right to remain silent at trial, is that your free and voluntary
                 choice?
                         That's a "yes" or "no."
                                 THE DEFENDANT: Yes. Thank you, Your
                 Honor.
                                 THE COURT: All right. Thank you.

           According to Locken, his statement that he was unable to comprehend

meant that he did not knowingly, intelligently, and voluntarily waive his right to

testify.

           A defendant has the constitutional right to testify in his own defense.

Rock v. Arkansas, 483 U.S. 44,49, 107 S. Ct. 2704, 97 L. Ed. 2d 37(1987).

Any waiver of a constitutional right must be made knowingly, intelligently, and

voluntarily. State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996).




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No. 76409-8-1/4

       A trial court does not need to obtain an on-the-record waiver of the right

to testify in order to assure that the waiver is valid:

       We believe that the right to testify belongs in the category of rights
       for which no on-the-record waiver is required. . . . The right to
       remain silent is waived by the act of taking the stand; the trial court
       has no duty to inquire as to whether the defendant knowingly and
       intelligently waived the right. Likewise, a court is not obligated to
       obtain an on-the-record waiver of the right to self-representation
       when a defendant appears with counsel. As with the right to self-
       representation, the right not to testify, and the right to confront
       witnesses, the judge may assume a knowing waiver of the right
       from the defendant's conduct. The conduct of not taking the stand
       may be interpreted as a valid waiver of the right to testify.

State v. Thomas, 128 Wn.2d 553, 559, 910 P.2d 475(1996)(citations omitted).

Under Thomas, the trial court did not have to inquire if Locken was voluntarily

waiving his right to testify. The court did so only at the request of defense

counsel.

       While Locken attempts to assert a violation of a constitutional right, his

argument would seem to be more properly characterized as a challenge to the

trial court's previous competency ruling, or alternatively, as an assignment of

error to the trial court's failure to revisit Locken's competency sua sponte.

       "Reviewing courts in Washington customarily defer to the trial court's

judgment of a defendant's mental competency." State v. Coley, 180 Wn.2d 543,

551, 326 P.3d 702(2014), cert. denied, 135 S. Ct. 1444(2015). Competency

rulings are reviewed for an abuse of discretion. Coley, 180 Wn.2d at 551. The

record does not support an argument that the trial court abused its discretion in

judging Locken to be competent.




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No. 76409-8-1/5

       A discussion between the trial court and defendant regarding the right to

testify "might have the undesirable effect of influencing the defendant's decision

not to testify." Thomas, 128 Wn.2d at 560. Locken asserts the court

inappropriately influenced him into agreeing to waive his right to testify. We

disagree. The trial court avoided getting into a discussion that might influence

Locken. The court simply made a minimal inquiry in response to defense

counsel's request. Nothing the court said can be construed as explaining the

benefits or drawbacks of testifying.

       We conclude Locken's first assignment of error lacks merit.

                       LEGAL FINANCIAL OBLIGATIONS

       Next, Locken contends the court erred in imposing legal financial

obligations without first determining whether he had the means to pay them

despite his mental illness.

       At sentencing, the court inquired into Locken's finances. Locken said he

was unemployed and received Social Security disability income. He provided

no information about other sources of income or past employment. Whether he

has some other source of income or is capable of gainful employment is

unclear. Locken told his mental competency evaluator that he had been

employed in the past, most recently working as a clown.

       The court imposed $500 as a victim penalty assessment and $200 for

court costs. These are obligations mandated by state statutes. The judgment

and sentence ordered a notice of payroll deduction. Locken was ordered to




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No. 76409-8-1/6

report to the clerk of the court and the collections deputy to determine the

payment terms for the obligations.

RCW 9.94A.777

       Before imposing legal financial obligations, a trial court must determine

whether a defendant who suffers from a mental health condition has the ability

to pay:

      (1) Before imposing any legal financial obligations upon a
      defendant who suffers from a mental health condition, other than
      restitution or the victim penalty assessment under RCW 7.68.035,
      a judge must first determine that the defendant, under the terms of
      this section, has the means to pay such additional sums.
             (2) For the purposes of this section, a defendant suffers from
      a mental health condition when the defendant has been diagnosed
      with a mental disorder that prevents the defendant from
      participating in gainful employment, as evidenced by a
      determination of mental disability as the basis for the defendant's
      enrollment in a public assistance program, a record of involuntary
      hospitalization, or by competent expert evaluation.

RCW 9.94A.777. Locken contends the court erred in imposing the obligation to

pay $200 in court costs because he suffers from a mental health condition and

lacks the means to pay.

       Although Locken did not raise this objection below, we exercise our

discretion under RAP 2.5 to hear the issue, following State v. Tedder, 194 Wn.

App. 753, 757, 378 P.3d 246 (2016). In Tedder, the defendant had a history of

mental illness, but the parties failed to raise RCW 9.94A.777 at sentencing.

Tedder, 194 Wn. App. at 756. As a result, the trial court did not inquire or

develop the record as to the defendant's ability to participate in gainful

employment. Tedder, 194 Wn. App. at 757. The court remanded for

reconsideration in light of RCW 9.94A.777(1).

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No. 76409-8-1/7

       Here, the State contends the record is inadequate to establish that

Locken cannot participate in gainful employment. But inadequacy of the record

is the very reason why the issue is meritorious. Under the statute, the judge

"must first determine" that a defendant who has a qualifying mental health

condition "has the means to pay such additional sums." RCW 9.94A.777(1).

We conclude remand is necessary to develop the record and consider whether

Locken should be excused from the obligation to pay court costs.

Social Security Disability Income

       Locken contends the court also erred in imposing the obligation to pay a

victim penalty assessment of $500. The victim penalty assessment is

specifically called out in RCW 9.94A.777 as an obligation to which the statute

does not apply, so that it remains mandatory under state statutes even for a

defendant with a mental health condition. But Locken contends a federal

statute, the antiattachment provision of the Social Security Act, relieves him

from the obligation to pay even the victim penalty assessment so long as he

receives Social Security disability income. This argument too is raised for the

first time on appeal. If it were the only issue pertaining to Locken's legal

financial obligations, we would decline to review it. But having decided to

remand for determination of the applicability of RCW 9.94A.777 to the court cost

obligation, we exercise our discretion to address the Social Security disability

question as well.

       Social Security disability income is protected from attachment and "other

legal process":


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No. 76409-8-1/8

              The right of any person to any future payment under this
       subchapter shall not be transferable or assignable, at law or in
       equity, and none of the moneys paid or payable or rights existing
       under this subchapter shall be subject to execution, levy,
       attachment, garnishment, or other legal process, or to the
       operation of any bankruptcy or insolvency law.

42 U.S.C.§ 407(a). The statutory term "other legal process" means a process

"much like the processes of execution, levy, attachment, and garnishment, and

at a minimum, would seem to require utilization of some judicial or quasi-judicial

mechanism, though not necessarily an elaborate one, by which control over

property passes from one person to another in order to discharge or secure

discharge of an allegedly existing or anticipated liability." Wash. State Dep't of

Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 372, 123

S. Ct. 1017, 154 L. Ed. 2d 972(2003).

       When a defendant's only source of income is Social Security disability, a

court order enforcing legal financial obligations falls within the Keffeler definition

of "other legal process." City of Richland v. Wakefield, 186 Wn.2d 596, 609, 380

P.3d 459(2016)(ordering the defendant to pay $15 a month when her only

income was from Social Security disability violated 42 U.S.C. § 407). But so far,

the court order only imposes obligations on Locken; it does not enforce them.

       Currently, a sentencing judge must make an individualized inquiry into a

defendant's current and future ability to pay before imposing discretionary legal

financial obligations. State v. Blazina, 182 Wn.2d 827, 839, 344 P.3d 680

(2015). Locken contends that even when legal financial obligations are

mandatory, courts may not impose them on a defendant who receives Social

Security disability income without first determining that the defendant possesses
No. 76409-8-1/9

an independent source of income from which payment can be drawn. Division

Three recently issued a divided opinion rejecting this argument in State v.

Catling, 2 Wn. App. 2d 819, 413 P.3d 27(2018).

       The majority opinion in Catlino interprets Wakefield as limiting the

enforced collection of obligations, not the act of imposing the obligations.

              The Constitution does not limit the ability of the states to
       impose financial obligations on convicted offenders; it only
       prohibits the enforced collection of financial obligations from those
       who cannot pay them. Thus, ability to pay is not considered when
       imposing mandatory costs and need only be considered at the
       time of collection.

Catling, 2 Wn. App. 2d at 823(citations omitted). The court affirmed the

imposition of the obligations but remanded with an instruction to amend the

judgment to explicitly prohibit the use of Social Security disability benefits in

enforcement proceedings:

       Consistent with Wakefield, we agree that the order that Mr. Catling
       pay $25 per month cannot be enforced against his disability
       income per § 407(a). ... The antiattachment provision prevents
       levying against Social Security disability proceeds, but it does not
       address the debt itself
              We remand the case to superior court to amend its
       judgment and sentence to indicate that the [legal financial
       obligations] may not be satisfied out of any funds subject to 42
       U.S.C. § 407(a).

Catling, 2 Wn. App. 2d at 826.

       Following Catling, we hold that the federal statute does not prevent the

trial court from including a legal financial obligation in the judgment and

sentence of a defendant who receives Social Security disability benefits. Nor is

there any necessity for the court to inquire at the time of sentencing whether the

defendant has other sources of income from which the obligation might be paid.

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No. 76409-8-1/10

Ability to pay "is not considered when imposing mandatory costs and need only

be considered at the time of collection." Catlino, 2 Wn. App. 2d at 823. But we

also agree with Catlino that when sentencing a defendant who receives Social

Security disability benefits, the best practice is to state explicitly in the judgment

and sentence that legal financial obligations may not be satisfied out of any

funds subject to 42 U.S.C. § 407(a).

       When this matter returns to the court to address Locken's claim under

RCW 9.94A.777, the superior court should take the opportunity to amend the

judgment and sentence to indicate that Locken's legal financial obligations may

not be satisfied out of any funds subject to 42 U.S.C. § 407(a).

       In a statement of additional grounds for review under RAP 10.10, Locken

alleges that the officer who arrested him was drunk and that he, Locken, placed

the officer under citizen's arrest. Because the nature of the alleged error is

unidentified, review is not warranted.

       The conviction is affirmed. The matter is remanded for further

proceedings with respect to the legal financial obligations as provided by this

opinion.



                                                    "a,acKeiR ,
WE CONCUR:



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