                                                              FILED
                                                          NOVEMBER 17, 2016
                                                        In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division Ill




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                            )        No. 33346-9-111
                                                )
                       Respondent,              )
                                                )
                V.                              )        UNPUBLISHED OPINION
                                                )
PHILLIP JOHN MOTYKA JR.,                        )
                                                )
                      Appellant.                )

       LAWRENCE-BERREY, J. -         Phillip Motyka Jr. appeals his sentence for unlawful

possession of a firearm in the first degree. He argues the trial court failed to conduct a

proper Blazina 1 inquiry before imposing $3,561.12 in legal financial obligations (LFOs),

including $2,261.12 in discretionary LFOs. He also raises numerous other arguments in

his statement of additional grounds (SAG). We reject Mr. Motyka's SAG arguments, but

determine that the trial court's inquiry into his current and future ability to pay

discretionary LFOs was inadequate. We therefore affirm but remand for the trial court to

conduct a proper Blazina inquiry.


       1
           State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d 680 (2015).
No. 33346-9-III
State v. Motyka


                                         FACTS

       We discuss certain facts beyond the sentencing hearing to provide a context for

arguments raised by Mr. Motyka in his SAG.

       Around September of 2014, Tri-Cities Metro Drug Task Force (Task Force)

investigated Mr. Motyka for supplying narcotics. To assist in its investigation, the Task

Force used a confidential informant (CI). The CI had participated at least three times

with the Task Force in successful undercover buy operations. The CI also had prior

convictions known to the Task Force. The Task Force, nevertheless, determined that the

CI was reliable.

       The CI performed a controlled drug buy of narcotics from Mr. Motyka under the

supervision of the Task Force. To assist the operation, Detective Kevin Barton sought

and secured transmission and recording authorization for a body wire worn by the CI

during the controlled buy. After the controlled buy, Detective Barton submitted the body

wire for postoperationjudicial review. The trial court found that the authorization

complied with the requirements ofRCW 9.73.230 and signed the report. Based on the

entire investigation, including the controlled buy with the CI, Detective Barton obtained a

search warrant. The search warrant authorized law enforcement to search Mr. Motyka's

property for controlled substances and all related paraphernalia, including firearms. Law

enforcement executed the search warrant, and found a firearm on Mr. Motyka's property

inside a locked safe.



                                            2
No. 33346-9-III
State v. Motyka


       On October 7, 2014, the State charged Mr. Motyka with delivery of a controlled

substance-heroin. Mr. Motyka refused the State's first offer and, at the November 5,

2014 omnibus hearing, the State added two additional counts of unlawful possession of a

firearm in the first degree. Shortly thereafter, Mr. Motyka agreed to plead guilty. At the

November 12, 2014 plea hearing, Mr. Motyka changed his mind. The State later

amended the charges, this time withdrawing one of the firearm charges.

       Because the State wished to protect its CI from disclosure, the State did not

provide Mr. Motyka with full discovery. Discussions occurred, and the State made clear

its intent to add enhancements to the charges if Mr. Motyka insisted on "outing" the CI.

On December 27, 2014, defense counsel requested full discovery after acknowledging

her client understood the consequences. On January 2, 2015, the State sent additional

discovery materials to defense counsel.

       Mr. Motyka was granted furlough requests to leave the jail for five hours, once for

January 26, 2015, and also for February 3, 2015. Mr. Motyka failed to return after his

second furlough. The court issued a bench warrant. On March 13, 2015, Mr. Motyka

was arrested, returned to jail, and appeared in court where bail was set at $100,000.

      The State charged Mr. Motyka under a separate cause number with escape in the

second degree. The State notified defense counsel that she was on its witness list.

Defense counsel requested the court to appoint conflict counsel. At the April 15, 2015

omnibus hearing, Mr. Motyka pleaded guilty to the escape charge, and defense counsel

withdrew her request for appointment of conflict counsel.

                                             3
No. 33346-9-III
State v. Motyka


       Also on April 15, 2015, the trial court signed an omnibus order requiring the State

to disclose various items. The State complied with the omnibus order on April 28, 2015.

The nearly two-week delay for disclosing the items was mostly due to the deputy

prosecutor's prescheduled absences.

       Beginning on April 22, 2015, the parties exchanged e-mails attempting to schedule

an interview between defense counsel and the CI. The parties agreed to schedule the

interview for 11 :00 a.m. on May 8, 2015.

       Mr. Motyka filed a motion to dismiss on May 4, 2015, arguing the State failed to

provide a copy of the Cl's contract. The State promptly requested the contract from the

Task Force, and the contract was provided to defense counsel on May 5, 2015.

       The trial court denied Mr. Motyka's motion to dismiss. Thereafter, Mr. Motyka

apparently agreed to a stipulated facts trial in exchange for the State charging him with

only one count of unlawful possession of a firearm in the first degree.

       After a stipulated facts trial, the trial court convicted Mr. Motyka of unlawful

possession of a firearm in the first degree. At the sentencing hearing, the State produced

a letter setting forth all 16 of Mr. Motyka's prior felony criminal convictions. Mr.

Motyka had signed the letter after consulting with his attorney, indicating he agreed with

the crimes as a true and accurate history of his criminal history. The trial court reviewed

this document with Mr. Motyka. The trial court asked Mr. Motyka, "You're employable,

are you not, Mr. Motyka?" Report of Proceedings (RP) (May 20, 2015) at 3. Mr.



                                             4
No. 33346-9-III
State v. Motyka


Motyka answered in the affirmative. The court then imposed $3,561.12 in LFOs,

including $2,261.12 in discretionary LFOs.

                                           ARGUMENT

A.     OFFENDER SCORE CALCULATION

       Mr. Motyka initially argued that the State did not offer supporting evidence of his

prior convictions. After Mr. Motyka filed his initial brief, the State designated the letter

for this court's review. In his reply brief, Mr. Motyka concedes that the State presented

evidence supporting his prior convictions.

B.     UNPRESERVED LFO ERROR

       Mr. Motyka argues the trial court erred when it imposed discretionary LFOs

against him without adequately inquiring into his current and future ability to pay.

       Whenever a person is convicted, the trial court "may order the payment

of a legal financial obligation" as part of the sentence. RCW 9.94A.760(1 ); accord

RCW 10.01.160(1 ). By statute, the trial court is not authorized to order a defendant to

pay costs unless he or she is or will be able to pay them. RCW 10.01.160(3). In

determining the amount and method of payment of costs, the trial court shall take account

of the financial resources of the defendant and the nature of the burden that payment of

costs will impose. Id. Accordingly, "a trial court has a statutory obligation to make an

individualized inquiry into a defendant's current and future ability to pay before the court

imposes LFOs." State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d 680 (2015).



                                              5
No. 33346-9-III
State v. Motyka


       Importantly, "[t]he record must reflect that the trial court made an individualized

inquiry into the defendant's current and future ability to pay." 2 Id. at 838. However,

neither RCW 10.01.160 nor the constitution "' requires a trial court to enter formal,

specific findings regarding a defendant's ability to pay [discretionary] court costs."'

State v. Lundy, 176 Wn. App. 96, 105, 308 P.3d 755 (2013) (alteration in original)

(quoting State v. Curry, 118 Wn.2d 911,916, 829 P.2d 166 (1992)).

       "The trial court's determination 'as to the defendant's resources and ability to pay

is essentially factual and should be reviewed under the clearly erroneous standard.'"

State v. Bertrand, 165 Wn. App. 393, 404 n.13, 267 P .3 d 511 (2011) (quoting State v.

Baldwin, 63 Wn. App. 303,312,818 P.2d 1116, 837 P.2d 646 (1991)). "'A finding of

fact is clearly erroneous when, although there is some evidence to support it, review of all

of the evidence leads to a definite and firm conviction that a mistake has been

committed.'" Lundy, 176 Wn. App. at 105 (internal quotation marks omitted) (quoting

Schryvers v. Coulee Cmty. Hosp., 138 Wn. App. 648, 654, 158 P.3d ·113 (2007)).

       "A defendant who makes no objection to the imposition of discretionary LFOs at

sentencing is not automatically entitled to review." Blazina, 182 Wn.2d at 832. Subject

to three exceptions that do not apply here, RAP 2.5(a) provides that an "appellate court



      2
          Although courts have little guidance regarding what counts as an "individualized
inquiry," Blazina makes clear, at a minimum, the sentencing court "must also consider
important factors ... such as incarceration and a defendant's other debts, including
restitution, when determining a defendant's ability to pay," and "should also look to the
comment in court rule GR 34 for guidance." Blazina, 182 Wn.2d at 838.

                                             6
No. 33346-9-III
State v. Motyka


may refuse to review any claim of error which was not raised in the trial court." Blazina

confirmed that an appellate court's discretion under RAP 2.5(a) extends to review of a

trial court's imposition of discretionary LFOs. Blazina, 182 Wn.2d at 834-35.

       Under Blazina, each appellate court is entitled to "make its own decision to accept

discretionary review" of unpreserved LFO errors. Id. at 835. Admittedly, the judges of

this court are not in agreement as to what extent discretion should be exercised to review

unpreserved LFOs. An approach favored by the author, and one which another panel

member is willing to accept, is to consider the administrative burden and expense of

bringing a defendant to court for a new hearing, versus the likelihood that the

discretionary LFO result will change. "An important consideration of this analysis is the

dollar amount of discretionary LFOs imposed by the sentencing court." State v.

Arredondo, 190 Wn. App. 512, 53 8, 360 P .3d 920 (2015), review granted in part, 185

Wn.2d 1024, 369 P.3d 502 (2016). An analysis of the appropriate factors convinces a

majority of this panel that remand is necessary.

       First, the dollar amount of the discretionary LFOs the trial court imposed supports

granting review. The trial court imposed both mandatory and discretionary LFOs. The

mandatory LFOs included the $500 victim assessment, $200 criminal filing fee, and the

$100 deoxyribonucleic acid (DNA) collection fee. See RCW 7.68.035(1)(a);

RCW 36.18.020(2)(h); RCW 43.43.7541. The trial court also imposed a $500 fine under

RCW 9A.20.021. This division recently decided that a trial court may impose fines

under RCW 9A.20.021 without inquiring into a defendant's ability to pay. See State v.

                                             7
No. 33346-9-III
State v. Motyka


Clark, 191 Wn. App. 369, 375-76, 362 P.3d 309 (2015); accord State v. Calvin, 176 Wn.

App. 1, 25,316 P.3d 496 (2013), review granted in part, 183 Wn.2d 1013, 353 P.3d 640

(2015). These mandatory LFOs are required irrespective of Mr. Motyka's ability to pay.

Lundy, 176 Wn. App. at 102-03. Accordingly, the discretionary LFOs that require the

trial court to inquire into Mr. Motyka's ability to pay total $2,261.12.

       The second factor-the administrative burden and expense of bringing Mr.

Motyka to court for a new sentencing hearing-weighs against granting review. Remand

is not required for the trial court to address any other sentencing errors, so the trial court

would have to hold a resentencing hearing for the sole purpose of conducting a Blazina

inquiry. Mr. Motyka is incarcerated, so the State would incur the expense of transporting

him to court.

       The final factor weighs in favor of granting review-a new sentencing hearing

would likely change the LFO result. The only inquiry here was if Mr. Motyka could hold

a job. No discussion of his debts or any other part of his financial situation took place.

Because of Mr. Motyka's extensive criminal history, it is very likely he has substantial

unpaid LFOs, and it is also very likely he would have substantial difficulty obtaining a

job that pays more than subsistence.

       For these reasons, a majority of this panel determines that we must remand for an

adequate Blazina inquiry.




                                               8
No. 33346-9-III
State v. Motyka


                  STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       A defendant is permitted to file a pro se SAG in a criminal case on direct appeal.

RAP 10.1 O(a). This statement is not required to cite authorities or to the record itself, but

must have sufficient specificity to inform the court of the "nature and occurrence" of

specified errors. RAP 10.lO(c). The SAG must not rely on matters outside the record.

State v. McFarland, 127 Wn.2d 322,338,899 P.2d 1251 (1995).

A.     SPEEDY TRIAL

       Mr. Motyka asserts that his speedy trial rights were violated. However, the record

reflects that Mr. Motyka did not object to the time setting for trial below, and the rule

clearly states that a party who fails to make such a motion within the specified time frame

shall lose the right to object. CrR 3.3(d)(3). Mr. Motyka has waived his ability to contest

speedy trial now.

B.     BODY WIRE

       Mr. Motyka challenges the authorization of the body wire on two fronts. He

claims that the body wire was not properly authorized because it was not signed by the

CI, and that Detective Barton indirectly perjured himself to the trial court when seeking

the authorization.

       Law enforcement may in certain circumstances use a body wire conversation

recording device as authorized by RCW 9.73.230. Several requirements are listed; the

one at issue in Mr. Motyka's argument reads: "The names of the authorizing and

consenting parties, except that in those cases where the consenting party is a

                                              9
No. 33346-9-III
State v. Motyka


confidential informant, the name of the confidential informant need not be divulged."

RCW 9.73.230(2)(b) (emphasis added). The CI was not required to be named on the

report nor sign the report.

       Mr. Motyka's claim that Detective Barton perjured himself depends on facts

outside the record. When a claim is brought on direct review, this court will not consider

matters outside the trial record. McFarland, 127 Wn.2d at 335. The record on appeal is

insufficient for this court to consider Mr. Motyka's claim of perjury. If Mr. Motyka

wishes to raise an issue on appeal that requires evidence of facts outside the record, he

must raise them in a personal restraint petition. Id.

C.     SEARCH WARRANT SCOPE EXCEEDED

       Mr. Motyka next argues that the search of his property exceeded the scope of the

search warrant when officers opened a locked safe on his premises and found one of his

firearms.

       Improperly obtained evidence may be excluded from trial. The state and federal

constitutions protect individuals from unreasonable searches and seizures, but a

seasonable objection must be made to preserve the right. State v. Baxter, 68 Wn.2d 416,

423, 413 P.2d 638 (1966). A failure to move the trial court to suppress evidence is a

waiver of the right to have it excluded in violation of the Fourth Amendment. State v.

Tarica, 59 Wn. App. 368,373, 798 P.2d 296 (1990), overruled on other grounds by

McFarland, 127 Wn.2d 322 (discussing RAP 2.5). Mr. Motyka never moved the trial



                                              10
No. 33346-9-III
State v. Motyka


court to have the contents of the locked safe excluded, so he cannot now appeal on

constitutional grounds.

D.     BRADY3 VIOLATION

       Mr. Motyka argues that the State committed a clear Brady violation by

withholding discovery until five days before trial. At the April 22, 2015 omnibus, the

trial date was set for May 18, 2015.

       The discovery that Mr. Motyka means is either the Cl's contract with the Task

Force, or the CI interview. The Cl's contract was disclosed May 5, 2015, and the CI

interview was scheduled for May 8, 2015. These dates are 13 days and 10 days before

the trial, respectively.

       The Brady rule is designed to ensure the fairness of criminal trials, and a

defendant must establish three prongs to show a violation:'" [(l)] The evidence at issue

must be favorable to the accused, either because it is exculpatory, or because it is

impeaching; [(2)] that evidence must have been suppressed by the State, either willfully

or inadvertently; and [(3)] prejudice must have ensued.'" State v. Mullen, 171 Wn.2d

881, 895, 259 P.3d 158 (2011) (alterations in original) (quoting Strickler v. Greene, 527

U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)).




       3   Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

                                             11
No. 33346-9-III
State v. Motyka


        1.    Neither item was suppressed by the State

       Neither the Cl's contract nor the CI interview were suppressed. But production of

the contract and the interview were both delayed. But even if delay could be considered

evidence suppression, the record explained below shows that the delay was mostly

attributable to Mr. Motyka's actions.

       It took until December 27, 2014 for defense counsel to request full disclosure,

which included the CI' s contract, from the State. The delay was due to plea negotiations,

and the consequences that would follow if Mr. Motyka insisted on such disclosure.

       The State delayed disclosure of the Cl's contract by not disclosing the contract in

January 2015. But in early February 2015, Mr. Motyka escaped while on furlough. His

escape delayed the process until his arrest on the bench warrant on March 13, 2015. His

escape also resulted in a new charge against him, and his counsel's request for the court

to appoint conflict counsel. This request was withdrawn on April 15, 2015, after Mr.

Motyka pleaded guilty to escape.

       The State did not attempt to schedule an interview with the CI between early

January until mid-April because of Mr. Motyka's absence and because of his counsel's

conflict.

       On April 15, 2015, an omnibus order was entered that required the State to

produce various items. These items did not include the Cl's contract. For the next

couple weeks, the parties worked on scheduling the CI interview. On May 4, 2015, Mr.



                                            12
No. 33346-9-III
State v. Motyka


Motyka brought a motion to dismiss for not disclosing the CI' s contract. The State

produced the Cl's contract the following day.

       For the most part, it was Mr. Motyka's own actions that delayed disclosure of the

Cl's contract and in conducting the CI interview. Even if delay by the State could be a

form of evidence suppression, the State's delay was minimal compared to the delay

caused directly and indirectly by Mr. Motyka's escape.

       2.     The delayed disclosure was not prejudicial

       Mr. Motyka fails to show or explain how he was prejudiced by the delayed

disclosure. The CI contract was discussed heavily in oral argument at a hearing on the

defense's motion to dismiss. The CI contract and Cl's credibility also figured heavily in

Mr. Motyka's CrR 3.6 suppression hearing. Neither hearing was resolved in favor of Mr.

Motyka, but in light of the robust discussion of the CI contract on the record, there is no

indication that Mr. Motyka suffered any prejudice.

E.     CONFIDENTIAL INFORMANT

       Mr. Motyka asserts that the CI was not credible, so that the search warrant issued

was not supported by probable cause.

       A magistrate exercises judicial discretion in determining whether to issue a

warrant, and that decision is reviewed for abuse of discretion. State v. Vickers, 148

Wn.2d 91, 108, 59 P.3d 58 (2002). Doubts are resolved in favor of the search warrant,

and great deference is shown to the issuing magistrate. Id. at 108-09. "Probable cause is

established in an affidavit supporting a search warrant by setting forth facts sufficient for

                                             13
No. 33346-9-III
State v. Motyka


a reasonable person to conclude the defendant probably is involved in criminal activity".

State v. Huft, 106 Wn.2d 206, 209, 720 P.2d 838 (1986). Under circumstances where an

informant's tips lead to the issuance of a search warrant, Washington follows the Aguilar-

Spinelli4 test requiring that the affidavit must demonstrate the informant's (1) basis of

knowledge and (2) veracity. Vickers, 148 Wn.2d at 112. Even if the test failed, probable

cause can still be established by independent police investigation. Id.

       Mr. Motyka's theory appears to be that the CI failed the veracity prong of the test

for search warrants based off an informant's tips. The CI had a history of criminal acts

and drug abuse and the Cl's contract with police was terminated after this operation.

However, the record shows that there was diligent independent police investigation, more

than sufficient to cure any deficiency, as the entire body wire operation was designed to

corroborate the informant's tip. Any deficiency in the Cl's credibility was cured by the

independent police investigation. There was no abuse of discretion by the trial court.




       4
          Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli
v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), abrogated by
Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), but adhered to
by State v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984).

                                             14
. No. 33346-9-III
  State v. Motyka


        Affirm but remand for a proper Blazina inquiry.

        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:                                                                    j




                                             15
