      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              )
STATE OF WASHINGTON,                          )         No. 73532-2-I
                                              )                                       r-~
                                                                                      ~      (J~   c:
                        Respondent,           )         DIVISION ONE                  ~c
                                                                                      r
                                              J                                       r’~.

                                              )                                       ~
LAVONDA SUE BECK,                             )         UNPUBLISHED
                                              )                                       •J~    ::~~
                        Appellant             )         FILED July25 2016             ~



       Ccx, J.   —   Lavonda Beck appeals, arguing that the trial judge’s nonverbal

communication constituted an unconstitutional comment on the evidence. For

the first time on appeal, Beck contends that the statutes imposing the mandatory

DNA collection fee and mandatory Victim Penalty Assessment (VPA) violate

substantive due process. She also argues that the trial court abused its

discretion by imposing the DNA collection fee and that her counsel was

ineffective for failing to object to the imposition of the fee. Lastly, Beck argues

that the trial court failed to determine whether Beck had the ability to pay the

DNA collection fee and VPA.

       We assume, without deciding, that the nonverbal communications of the

trial judge were comments on the evidence. Nevertheless, this record shows no

prejudice to Beck could have resulted. Beck’s substantive due process

challenges to the DNA collection fee and VPA statutes are neither ripe for review

nor manifest constitutional errors under RAP 2.5(a)(3). Beck’s counsel’s
No. 73532-2-1/2


performance did not fall “below an objective standard of reasonableness.”1 Thus,

counsel was not ineffective. Lastly, the trial court was not required to inquire into

Beck’s ability to pay the DNA collection fee and VPA because these legal

financial obligations are mandatory. We affirm.

       Barbara and Paul Hanson employed Beck as a caretaker, and Beck

moved into the Hansons’ home. The Hansons later noticed that some of their

property was missing, which the police later discovered at pawn shops.

       The State charged Beck with three counts of first degree trafficking in

stolen property. A jury found Beck guilty as charged, and the trial court entered

its judgment and sentence on the verdicts. The sentence requires Beck to pay

the $500 mandatory VPA and the $100 mandatory DNA collection fee.

           Beck appeals.

                           COMMENT ON THE EVIDENCE

       Beck argues that the trial judge’s nonverbal actions constituted an

improper comment on the evidence. Assuming, without deciding, this is true, we

hold that this record shows no prejudice could have resulted.

       Article IV, section 16 of Washington’s constitution prohibits judges from

conveying their “personal attitudes toward the merits of the case.”2 This

provision prevents the court’s opinion of submitted evidence from influencing the



       1Strickland v. Washinciton, 466 U.S. 668, 688, 104 5. Ct. 2052, 80 L. Ed.
2d 674 (1984).
       2 State v. Higgins, 168 Wn. App. 845, 859, 278 P.3d 693 (2012) (quoting
State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)).


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No. 73532-2-1/3


jury.3 A trial judge violates this provision if the judge’s words or actions convey

his or her personal feelings.4 We review the facts and circumstances of each

case when determining whether a trial judge’s conduct constituted a comment on

the evidence.5

       A trial judge violates article IV, section 16 by commenting on a witness’s

credibility.6 A judge may question witnesses and ask clarifying questions, but the

judge’s attitude toward the case’s merits must not appear reasonably inferable

from the nature or manner of the judge’s statements.7 The trial court errs when it

communicates to the jury its feelings as to the truth value of a witness’s

testimony.8

           We presume that judicial comments are prejudicial.9 The State bears the

burden of showing that the defendant was not prejudiced, “unless the record

affirmatively shows that no prejudice could have resulted.”1°

       Here, during the State’s cross-examination of Beck, she testified about

certain property she claimed the Hansons gave her, when she received the

       ~ State v. Miller, 179Wn. App. 91, 107, 316 P.3d 1143 (2014).

       ~ Higgins, 168 Wn. App. at 859.

       ~ State v. Francisco, 148 Wn. App. 168, 179, 199 P.3d 478 (2009).

       6   State v. Sivins, 138 Wn. App. 52, 59, 155 P.3d 982 (2007).

       ‘   State v. Eisner, 95 Wn.2d 458, 463, 626 P.2d 10 (1981).

       8    Francisco, 148 Wn. App. at 179.

       ~ State v. Brush, 183 Wn.2d 550, 559, 353 P.3d 213 (2015).

       10   kI. (quoting State v. Levy, 156 Wn.2d 709, 723, 132 P.3d 1076 (2006)).



                                           3
No. 73532-2-1/4


property, and when she pawned certain of these items. The trial judge asked for

clarification as to when certain events occurred. The judge stated, “I’m sorry, I’m

going to interrupt. Is there a year for some of these things?”11

       After Beck responded, the State resumed questioning. Beck’s counsel

then objected to the trial judge’s “facial comments.”12 The trial judge noted the

objection, and counsel objected again “to any facial comments.”13 The State

resumed its questioning to clarify the timing of events.

       During recess and outside the jury’s presence, counsel for Beck made a

further record:

       [COUNSEL]: Your Honor, with due respect I don’t think it was
       appropriate to make facial comments when the court was clarifying
       a question of Ms. Beck. The court raised its hand and Your Honor
       shook your head back and forth. And I’m concerned it sends a
       message to the jury that you as a judge may not believe or have
       questions about her credibility. I’m not saying that’s what
       happened, but I am concerned about those perceptions and that’s
       why I objected. And I don’t mean to insult the court. I am just—

       THE COURT: No, that’s okay. You need to make that objection if
       you feel it’s appropriate. And I don’t recall waving my hand. But
       you’re an officer of the court and you say that, then I’m sure
       that that’s what you saw. And—and I will instruct the jury again that
       if they perceive that I have made a comment that they are not to
       consider any comment that I have made.114~

       The jury did not return, and court was adjourned.



       11   Report of Proceedings (April 14, 2015) at 404.

       12   Id.

       13   Id.

       14   kI. at 407-08.



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No. 73532-2-1/5


       The next day, the trial court read the jury instructions before closing

arguments. Counsel for Beck did not request further relief from the trial court by

requesting any curative instruction or otherwise. But counsel made a further

record that day by filing a declaration regarding the incident, stating that the trial

judge shook her head and “put her hand up” when questioning Beck. Counsel

also stated that the judge “had an inquisitive and confused look on her face.”

       On this record, it is impossible for this court to review whether these

nonverbal actions violated the constitutional prohibition against a judge

commenting on the evidence. Nevertheless, we assume, without deciding, that

they did. Thus, the question is whether this record shows no prejudice to Beck

could have occurred.

       We conclude that this record shows no such prejudice could have

occurred. The court twice orally instructed the jury to disregard any expression

of personal opinion of the judge about testimony or witness “value.” The first was

prior to opening statements. The second was when the court read its jury

instructions at the close of the case. These written instructions included the

general instruction that includes the admonishment to disregard any comments

on the evidence by the judge. We presume that jurors follow the court’s

instructions.15 Notably, counsel for Beck did not request any further relief by way

of a curative instruction or otherwise for the alleged comments on the evidence.




       15   State v. Allen, 182 Wn.2d 364, 380, 341 P.3d 268 (2015).


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No. 73532-2-1/6


       In State v. Elmore, the supreme court approved the use of instructions to

cure a judicial comment on the evidence.16 Similar instructions were twice given

in this case.

       Beck relies on State v. Lampshire17 to argue that instructing the jury to

disregard the judge’s comment would not cure the resulting prejudice. That case

is distinguishable.

       In that case, during Martha Lampshire’s direct examination, the State

objected to the materiality of Lampsh ire’s testimony.18 The trial judge then stated

“Counsel’s objection is well taken. We have been from bowel obstruction to

sister Betsy, and I don’t see the materiality, counsel.”19

       On appeal, the State argued that the trial court’s subsequent instruction to

the jury to disregard this comment on the evidence cured any error from the trial

judge’s comment. The supreme court disagreed.

       The supreme court stated that “the trial judge allowed wide latitude” in

Lampshire’s examination.20 Specifically, the record showed that Lampshire

testified about her daughter’s bowel condition and about visiting her mother in

another state.21 The supreme court then determined that the trial judge’s remark


       16    139 Wn.2d 250, 276, 985 P.2d 289 (1999).

       17    74 Wn.2d 888, 447 P.2d 727 (1968).

       18 Id. at 891.
        19   Id.

       20    Id. at 892.

       21    Id.


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No. 73532-2-1/7


“implicitly conveyed to the jury his personal opinion concerning the worth of the

defendant’s testimony” and “undermined” the testimony’s credibility.22 According

to the supreme court, the comment was not capable of later correction by

instruction.

       Here, the trial judge did not explicitly state an opinion on the materiality of

Beck’s testimony. Beck’s claim that the trial judge’s nonverbal comments did so

is a claim we cannot review on this record.

       In this case, however, the court twice instructed the jury to disregard any

remarks that could be construed as comments on the evidence. And this

admonishment was contained in the written instructions that went to the jury

room. It is noteworthy that counsel for Beck did not request any further relief

after making a record of objections to the nonverbal actions of the trial judge.

Accordingly, we conclude that this record shows that Beck could not have been

prejudiced by the trial judge’s nonverbal actions.

                         LEGAL FINANCIAL OBLIGATIONS

        Beck argues that, as applied to an indigent defendant, the DNA collection

fee and the VPA statutes violate substantive due process. She also argues that

she may raise her substantive due process claim for the first time on appeal as a

manifest constitutional error under RAP 2.5. Because we recently rejected

similar arguments in State v. Shelton,23 we do so here.



        22   Id.

        23   No. 72848-2, slip op. at 7-13 (Wash. Ct. App. June 20, 2016).



                                           7
No. 73532-2-118


          In that case, the trial court ordered Michael Shelton to pay the $500

mandatory victim penalty assessment and the $100 mandatory DNA fee.24 For

the first time on appeal, Shelton argued that as applied to an indigent defendant,

the DNA collection fee statute violates substantive due process.25

          This court held that Shelton’s substantive due process challenge to the

DNA fee statute was not ripe for review because the State did not seek “to

enforce collection of the DNA fee or impose sanctions for failure to pay the DNA

fee.”26

          This court also held that Shelton’s claim was not a manifest constitutional

error, stating “‘[i]f the facts necessary to adjudicate the claimed error are not in

the record on appeal, no actual prejudice is shown and the error is not

manifest.”27 The record “contain[ed] no information about [Shelton’s] future

ability to pay the mandatory $100 DNA fee.”28 Thus, Shelton could not show that

his claim was a manifest constitutional error under RAP 2.5(a)(3) “[u]ntil the State

seeks to enforce collection of the DNA fee or impose a sanction for failure to

pay.”29


          24   Id. at 1.

          25   Id. at 3.

          261d.at5.
        kI. at 7 (quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d
          27
1251 (1995)).
          28   Id.

          29   Id.



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No. 73532-2-1/9


       Although Shelton addressed only the DNA fee, its reasoning also applies

to the VPA. Both the VPA and DNA collection fee are mandatory legal financial

obligations. And Beck does not argue that these mandatory legal financial

obligations should be analyzed differently.

       Shelton controls this case. Here, as in Shelton, the record does not

indicate that the State seeks to enforce collection of the DNA collection fee or

VPA or to impose sanctions for failure to pay. And Beck does not argue

otherwise. Thus, Beck’s as-applied substantive due process challenge to the

statutes is not ripe for review.

       The record does not contain sufficient information about Beck’s future

ability to pay the mandatory $100 DNA collection fee and the mandatory $500

VPA. The record on appeal shows that Beck received social security disability

income, but the record does not contain the amount of this income. Additionally,

the record does not show Beck’s assets or debts. Thus, “‘the facts necessary to

adjudicate the claimed error are not in the record on appeal.”3° Accordingly,

Beck fails to show actual prejudice, and her claimed error is not manifest.

Consequently, we decline to further address this claim raised for the first time on

appeal.

                    INEFFECTIVE ASSISTANCE OF COUNSEL

       Beck argues that she received ineffective assistance of counsel when her

counsel failed to inform the trial court of RCW 9.94A.777, which governs the



       30   Id. (quoting McFarland, 127 Wn.2d at 333).



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No. 73532-2-1/10


imposition of certain legal financial obligations upon defendants suffering from

mental health conditions. We disagree.

       Both the federal and state constitutions provide the right to counsel.31 The

right to counsel includes the right to effective assistance of counsel.32 Ineffective

assistance of counsel “is an issue of constitutional magnitude that may be

considered for the first time on appeal.”33

       To establish an ineffective assistance claim, the defendant must first show

that counsel’s performance was deficient.34 This requirement involves showing

that counsel’s performance ‘fell below an objective standard of

reasonableness.”35 Judicial scrutiny of counsel’s performance is “highly

deferential.”36 We make every effort “to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.”37




       31   u~s• C0NsT.   amend. VI; C0NsT. art. I,   § 22.
        Strickland, 466
       32                    u.s. at 686; State v. Crawford,   159 Wn.2d 86, 97, 147
P.3d 1288 (2006).
       ~ State v. KyIlo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).

       ~ Strickland, 466 U.S. at 687.

            Id. at688.

            Id. at689.
       ~ Id.



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No. 73532-2-I/li


       Second, the defendant must show that the deficient performance

prejudiced the defense.38 Prejudice is defined as “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.”39 “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”4°

       We review de novo whether a defendant received ineffective assistance of

counsel.41

       Here, Beck argues that her counsel’s performance was deficient because

he failed to inform the trial court of RCW 9.94A.777. That statute provides:

       (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.




            Id. at687.

       39kiat694.
       40   Id.

       41   State v. Maynard, 183 Wn.2d 253, 259, 351 P.3d 159 (2015).



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No. 73532-2-1/12


       Beck’s counsel’s performance did not fall “below an objective standard of

reasonableness.”42 Specifically, her counsel’s decision to not inform the trial

court of RCW 9.94A.777 was not unreasonable.

       Counsel could have reasonably believed that RCW 9.94A.777 did not

apply. Although the record shows that Beck received social security disability

income, the record does not show that Beck receives social security disability

income solely due to a mental health condition. Further, Beck testified about her

past and recent employment history. She also described her extensive caretaker

responsibilities to the Hansons and testified that she “can work with a disability.”

Thus, although Beck received social security disability income, the record does

not show that she suffered from a mental health condition that prevented her

“from participating in gainful employment.”43 Accordingly, the record does not

show that RCW 9.94A.777 applied, and counsel’s performance was not deficient.

       Because Beck fails to show the presence of the first prong of her claim,

we need not address the second prong, prejudice.

     MANDATORY LEGAL FINANCIAL OBLIGATION & ABILITY TO PAY

       Beck argues that the trial court failed to recognize that the DNA collection

fee was not mandatory under RCW 9.94A.777. Beck also argues that the trial

court abused its discretion by imposing the DNA collection fee and VPA without

inquiring into Beck’s ability to pay.



       42   Strickland, 466 U.S. at 688.

       ~ RCW 9.94A.777(2).



                                           12
No. 73532-2-l113


      Beck raises these arguments for the first time on appeal. And as stated

above, the record does not show that RCW 9.94A.777 applied. Thus, the

mandatory DNA collection fee statute, RCW 43.43.7541, applied. Further, trial

courts must impose the DNA collection fee and VPA “irrespective of the

defendant’s ability to pay.”44 Accordingly, we reject these arguments.

      We affirm the judgment and sentence.




WE CONCUR:



   t)L ~i                                                            I




       ‘~   State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).


                                         13
