                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       November 15, 2018




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 49709-3-II

                               Respondent,

         v.

 WILLIAM EDWARD LUNDSTROM,                                      PUBLISHED OPINION

                               Appellant.

        LEE, A.C.J. — William E. Lundstrom appeals his sentence for two counts of unlawful

possession of a controlled substance and the legal financial obligations (LFOs) imposed against

him. Lundstrom argues that his pretrial appearance in restraints violated his due process rights,

but he does not seek any relief due to any alleged violation of his due process rights. Rather,

Lundstrom argues only that we address his claim as a matter of continuing and substantial public

interest. Lundstrom also argues that the trial court abused its discretion in imposing LFOs against

him.

        Because pretrial restraint is an issue of continuing and substantial interest, we address

whether Lundstrom’s pretrial restraint violated his due process rights despite the fact that

Lundstrom does not seek any relief. And we hold that Lundstrom’s pretrial restraint violated due

process. As to the LFO challenge, we remand to the trial court for application of recent legislative
No. 49709-3-II


amendments to the LFO statutes, consistent with State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714

(2018).

                                              FACTS

          The State charged Lundstrom with two counts of unlawful possession of a controlled

substance. At a preliminary appearance, Lundstrom appeared in restraints. Before the proceeding

ended, defense counsel stated, “I do take exception to the gentleman being—looks like five-point

shackles without an independent fiduciary [sic] determination of the appropriateness of that.”

Verbatim Report of Proceedings (VRP) (Nov. 9, 2016) at 32. The trial court did not respond to

defense counsel’s statement.

          Lundstrom subsequently filed a motion objecting to the restraints and requesting removal

of the shackles. The motion included a certified statement from defense counsel, which stated that

he had made a public disclosure request with the Clallam County Sheriff’s Office (CCSO) for their

policies and discovered that CCSO policy 15.106.1 required all inmates to be brought to court in

full restraints (waist chain, cuffs, and leg irons) for their first appearance. There is no record

showing whether Lundstrom noted the motion for hearing before the trial court, whether the trial

court held a hearing on the motion, or whether the trial court ruled on the motion.

          Lundstrom pleaded guilty to two counts of unlawful possession of a controlled substance.

At sentencing, Lundstrom objected to the imposition of any LFOs, including any community

custody fees. Lundstrom’s only source of income was his social security disability benefits. The

trial court imposed a $500 crime victim assessment, a $200 criminal filing fee, and a $100 DNA

collection fee. The trial court also ordered Lundstrom to “pay supervision fees as determined by




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No. 49709-3-II


[the Department of Corrections]” based on the trial court’s belief that the supervision fees were

mandatory. Clerk’s Papers (CP) at 20.Lundstrom appeals his sentence.

                                            ANALYSIS

A.     PRETRIAL RESTRAINT

       Lundstrom argues that his pretrial restraint violated his due process rights because the trial

court failed to make an individualized determination on the necessity of restraints.1 We agree.

       1.      Continuing and Substantial Public Interest

       Lundstrom does not seek any relief due to any alleged violation of his due process rights

and argues only that we should address his claim as a matter of continuing and substantial public

interest. Generally, we do not consider claims that are moot or present only abstract questions.

State v. Beaver, 184 Wn.2d 321, 330, 358 P.3d 385 (2015). However, we have the discretion to

decide an issue if the question is one of continuing and substantial public interest. Id.

       Our Supreme Court held that

               To determine whether a case presents an issue of continuing and substantial
       public interest, we consider three factors: “[(1)] the public or private nature of the
       question presented, [(2)] the desirability of an authoritative determination for the
       future guidance of public officers, and [(3)] the likelihood of future recurrence of
       the question.”

Id. (alteration in original) (internal quotation marks omitted) (quoting State v. Hunley, 175 Wn.2d

901, 907, 287 P.3d 584 (2012)). “The continuing and substantial public interest exception has

been used in cases dealing with constitutional interpretation, the validity of statutes or regulations,



1
  The State argues that the record is insufficient for us to review the issue. We disagree. The
record includes a transcript of the pretrial proceeding where defense counsel took exception to the
restraints and the motion defense counsel subsequently filed objecting to the restraints. Therefore,
the record is sufficient for review.


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No. 49709-3-II


and matters that are sufficiently important to the appellate court.” Id. at 331. The exception is not

used in fact-specific cases. Id.

       Here, all factors weigh in favor of addressing Lundstrom’s claim. First, claims involving

constitutional or statutory issues, such as the pretrial restraint challenge here, are public in nature.

See Id.. Second, a determination of the pretrial restraint issue is desirable to provide guidance to

public officers on the use of pretrial restraints in the future. Third, the issue is likely to recur as

the pretrial restraint policies of the CCSO will continue to affect future defendants brought before

the Clallam County Superior Court for pretrial hearings.            Therefore, we address whether

Lundstrom’s pretrial restraint violated due process.

       2.       Due Process

       We review constitutional claims de novo. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d

207 (2012). Our state constitution provides that “[i]n criminal prosecutions the accused shall have

the right to appear and defend in person.” WASH. CONST. art. I, § 22. The right to appear and

defend in person includes “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.” State v. Williams, 18 Wash. 47, 51, 50 P. 580 (1897).

       Our Supreme Court has “long recognized that a prisoner is entitled to be brought into the

presence of the court free from restraints.” State v. Damon, 144 Wn.2d 686, 690, 25 P.3d 418

(citing Williams, 18 Wash. at 50), as modified, 33 P.3d 735 (2001). “[R]egardless 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.” State



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No. 49709-3-II


v. Walker, 185 Wn. App. 790, 797, 344 P.3d 227 (addressing the defendant’s right to be free from

restraints at sentencing), review denied, 183 Wn.2d 1025 (2015). Restraints are disfavored because

they may interfere with important constitutional rights, “including the presumption of innocence,

privilege of testifying in [sic] one’s own behalf, and right to consult with counsel during trial.”

State v. Hartzog, 96 Wn.2d 383, 398, 635 P.2d 694 (1981).

        But a defendant’s right to be in court free from restraints is not limitless. Walker, 185 Wn.

App. at 800. The right may yield to courtroom safety, security, and decorum. Id. A defendant

may be restrained if necessary to prevent injury, disorderly conduct, or escape. Id.

        The trial court is vested with the discretion to provide for courtroom security in order to

ensure the safety of court officers, parties, and the public. State v. Turner, 143 Wn.2d 715, 725,

23 P.3d 499 (2001). The trial court must exercise discretion in determining the extent to which

courtroom security measures are necessary and its decision must be founded upon a factual basis

set forth in the record. State v. Finch, 137 Wn.2d 792, 846, 975 P.2d 967, cert. denied, 528 U.S.

922 (1999). The trial court should allow restraints only after conducting a hearing and entering

findings on the record sufficient to justify their use on a particular defendant. Walker, 185 Wn.

App. at 800. Failing to exercise its discretion constitutes constitutional error. See State v. Clark,

143 Wn.2d 731, 775, 24 P.3d 1006, cert. denied, 534 U.S. 1000, (2001) (“[W]here no balancing

or analysis as to the need to restrain [the defendant] was done, his shackling was constitutional

error.”).

        Here, the trial court abused its discretion and committed constitutional error when it failed

to address the issue of Lundstrom’s pretrial restraint. Although Lundstrom may have failed to note

his motion for hearing, defense counsel nonetheless raised the issue when he took exception to the



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No. 49709-3-II


use of pretrial restraints. The trial court failed to respond or otherwise address the particular use

of restraints on Lundstrom or the CCSO policy on restraints. By failing to do so and allowing

Lundstrom to be restrained, the trial court failed to exercise its discretion and effectively deferred

the decision to the CCSO policy. See Hartzog, 96 Wn.2d at 400 (“A broad general policy of

imposing physical restraints upon prison inmates charged with new offenses because they may be

‘potentially dangerous’ is a failure to exercise discretion.”) (quoting People v. Duran, 16 Cal. 3d

282, 545 P.2d 1322, 127 Cal. Rptr. 618, 90 A.L.R.3d 1 (1976)); see also State v. Jaquez, 105 Wn.

App. 699, 709, 20 P.3d 1035 (2001) (“[T]he sole reason for the trial court’s allowing the use of

restraints was because it was general jail policy. . . . [A] court’s decision to defer to the security

policy of correctional officers is unjustifiable.”). As a result, the trial court abused its discretion

and committed constitutional error by failing to make an individualized inquiry into the necessity

for pretrial restraints when Lundstrom took exception to the use of pretrial restraints. Therefore,

we hold that Lundstrom’s due process rights were violated by his pretrial restraint.2



2
  Because Lundstrom does not request relief resulting from any violation of his due process rights,
our inquiry ends with a determination that his due process rights were violated by his pretrial
restraints.

        Generally, an error that violates a defendant’s constitutional right is presumed to be
prejudicial. Finch, 137 Wn.2d at 859. But the State can overcome the presumption by showing
the error was harmless beyond a reasonable doubt. Finch, 137 Wn.2d at 859. “A claim of
unconstitutional shackling is subject to harmless error analysis.” State v. Hutchinson, 135 Wn.2d
863, 888, 959 P.2d 1061 (1998), cert. denied, 525 U.S. 1157 (1999). The likelihood of prejudice
is significantly reduced in a proceeding without a jury. State v. E.J.Y., 113 Wn. App. 940, 952, 55
P.3d 673 (2002). There is a presumption that the trial court properly discharged its official duties
without bias or prejudice. In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004).

       Here, even though the trial court erred, the error was harmless beyond a reasonable doubt.
Lundstrom pleaded guilty and waived his rights to a public trial by an impartial jury and to the
presumption of innocence. Thus, those rights could not have been violated. In pleading guilty,


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No. 49709-3-II


B.       LEGAL FINANCIAL OBLIGATIONS

         Lundstrom argues that the trial court abused its discretion when it imposed LFOs and LFO

payment terms. In light of recent statutory amendments, we remand the LFO issue to the trial

court.

         The legislature recently amended former RCW 36.18.020(2)(h), and as of June 7, 2018,

trial courts are prohibited from imposing the $200 criminal filing fee on defendants who are

indigent at the time of sentencing. Laws of 2018, ch. 269, §17; Ramirez, 191 Wn.2d 732. Our

Supreme Court has held that the amendment applies prospectively and is applicable to cases

pending on direct review and not final when the amendment was enacted. Id. at 747. The

legislature also recently amended former RCW 43.43.7541, and as of June 7, 2018, states, in part:

         Every sentence imposed for a crime specified in RCW 43.43.754 must include a
         fee of one hundred dollars unless the state has previously collected the offender’s
         DNA as a result of a prior conviction.

         In light of the recent statutory amendments and the court’s holding in Ramirez, we reverse

the imposition of LFOs and remand to the trial court to impose LFOs consistent with the recent

legislative amendments.3



Lundstrom also agreed to the recommendations of the State, including the imposition of an
exceptional sentence. Thus, there was no prejudice in regards to sentencing because the trial court
followed the sentencing recommendation Lundstrom agreed to in his plea agreement.
Furthermore, Lundstrom was restrained pretrial, outside the presence of a jury. The likelihood of
prejudice is substantially reduced when a jury is not present and the trial court is presumed to
discharge its duties without prejudice. E.J.Y., 113 Wn. App. at 952; Davis, 152 Wn.2d at 692.
Therefore, the error regarding Lundstrom’s pretrial restraint was harmless.
3
 We also note that, although the trial court intended to impose only mandatory LFOs, it imposed
costs of community custody, which are discretionary LFOs. RCW 9.94A.703(2)(d) (“Unless
waived by the court . . . the court shall order an offender to . . . [p]ay supervision fees as determined
by the department.”) (emphasis added).


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No. 49709-3-II


                                       CONCLUSION

       We hold that Lundstrom’s pretrial restraint violated his due process rights. We reverse

imposition of LFOs and remand for the trial court to impose LFOs consistent with the recent

legislative amendments to the LFO statutes.



                                                  Lee, A.C.J.
 We concur:



Bjorgen, J.




Melnick, J.




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