State Of Washington, V Levar Demetrius Couch ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
February 6, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50592-4-II
Respondent, UNPUBLISHED OPINION
v.
LEVAR DEMETRIUS COUCH,
Appellant.
BJORGEN, J.P.T.* — Levar Demetrius Couch appeals his convictions based on guilty
pleas for attempting to elude a pursuing police vehicle, driving while under the influence of
alcohol, and second degree driving on a suspended license.
Couch’s court-appointed appellate counsel has filed a motion to withdraw on the ground
that there is no basis for a good faith argument on appeal. The motion presents three potential
issues that counsel claims would be frivolous: (1) whether Couch made a knowing and
intelligent guilty plea, (2) whether Couch was afforded his right to allocution, and (3) whether
the trial court properly imposed discretionary legal financial obligations (LFOs). While this
appeal was pending, the Washington Supreme Court issued its decision in State v. Ramirez, 191
Wn.2d 732, 426 P.3d 714 (2018), which modified the standards governing the imposition of
LFOs. Couch’s appellate counsel then filed a supplemental brief arguing that under Ramirez the
$200 criminal filing fee LFO was improperly imposed on Couch.
*
Judge Bjorgen is serving as a judge pro tempore for the Court of Appeals, pursuant to RCW
2.06.150.
No. 50592-4-II
We deny counsel’s motion to withdraw and direct her to pursue Couch’s appeal on the
issues of whether the trial court adequately inquired into his ability to pay discretionary LFOs,
whether the $200 criminal filing fee was validly imposed on Couch, and whether the interest
accrual provision in Couch’s judgment and sentence was validly imposed.
FACTS
A. Substantive Facts
Couch pled guilty to attempting to elude a pursuing police vehicle, driving while under
the influence of alcohol (DUI), and second degree driving on a suspended license. Couch signed
a statement of defendant on a plea of guilty. Counsel assisted Couch through his guilty plea and
at his subsequent sentencing hearing.
The State recommended consecutive sentences for the negotiated plea, and the court
informed Couch that it alone had the discretion to decide whether the sentences would be
concurrent or consecutive. Couch affirmed that he understood it was within the court’s authority
to make this decision. The parties agreed that Couch’s offender score on the eluding charge was
2 based on a prior DUI conviction plus the current DUI conviction. The court agreed to the plea
recommendation and imposed consecutive sentences.
Before imposing discretionary LFOs, the court discussed with Couch his work history
and education, establishing that at the time of his arrest Couch had been working at Nordstrom
and that he had gone through the 12th grade in school. Based on this discussion, the court
determined that Couch had the present and future ability to pay discretionary LFOs. The court
then imposed two discretionary LFOs: a $500.00 court-appointed attorney fee and, for count II
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only, a $2,895.50 assessment. The court also imposed a number of other LFOs, among which
was a $200 criminal filing fee assessment. The judgment and sentence for count I also stated:
The financial obligations imposed in this judgment shall bear interest from the date
of the judgment until payment in full, at the rate applicable to civil judgments.
RCW 10.82.090.
Clerk’s Papers at 28. The court further ordered Couch to have an alcohol evaluation and placed
him on bench probation.
Couch appeals his judgment and sentence.
B. Motion to Withdraw
Couch’s court-appointed appellate counsel filed a motion to withdraw, which includes a
discussion of issues that potentially could be raised on appeal. The State filed a response
agreeing that there are no nonfrivolous issues on appeal. Couch was served with both his
counsel’s motion to withdraw and the State’s response. Couch did not file a statement of
additional grounds.
C. Supplemental Briefing
After the decision in Ramirez, Couch’s appellate attorney filed a motion for permission to
file a supplemental brief arguing that the $200 criminal filing fee LFO was not valid under
Ramirez and Laws of 2018, chapter 269, section 17. We granted the motion, accepted the brief,
and allowed the State to file a brief in response. The State agreed that because the trial court had
found Couch indigent, Ramirez and the 2018 legislation barred imposition of the criminal filing
fee. The State also noted in its briefing that the 2018 legislation eliminated the accrual of interest
on nonrestitution LFOs and stated that the interest accrual provision in Couch’s judgment and
sentence should be stricken for that reason.
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No. 50592-4-II
ANALYSIS
MOTION TO WITHDRAW
Couch’s court-appointed appellate counsel moves to withdraw on the grounds that there
is no basis for a good faith argument on appeal. We disagree.
A. Legal Principles
Under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),
appellate counsel for a criminal defendant is authorized to file a motion to withdraw if there are
no nonfrivolous grounds that can be raised on appeal.
“[I]f counsel finds his case to be wholly frivolous, after a conscientious examination
of it, he should so advise the court and request permission to withdraw. That
request must, however, be accompanied by a brief referring to anything in the
record that might arguably support the appeal. A copy of counsel’s brief should be
furnished the indigent and time allowed him to raise any points that he chooses; the
court—not counsel—then proceeds, after a full examination of all the proceedings,
to decide whether the case is wholly frivolous.”
State v. Hairston, 133 Wn.2d 534, 537-38, 946 P.2d 397 (1997) (emphasis omitted) (quoting
Anders, 386 U.S. at 744). If we agree that the appeal is wholly frivolous, we will grant the
motion to withdraw and dismiss the appeal. See State v. Theobald, 78 Wn.2d 184, 187, 470 P.2d
188 (1970).
RAP 18.3(a)(2) outlines the procedure for filing an Anders motion. The motion filed by
the defendant’s attorney must “identify the issues that could be argued if they had merit” with
references to the record, and the motion and answer from the adverse party must be served on the
person represented by counsel seeking to withdraw. RAP 18.3(a)(2).
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B. Motion Procedure
Couch’s counsel followed the procedure required under Anders and under RAP
18.3(a)(2). With the procedural requirements being met, we next consider whether there are any
nonfrivolous claims Couch could make on appeal.
C. Analysis of Potential Appellate Issues
The material facts are accurately set forth in counsel’s motion to withdraw. The motion
identified the following potential issues on appeal:
1. Whether Couch made a knowing and intelligent guilty plea;
2. Whether the trial court afforded Couch his right to allocution;
3. Whether the trial court adequately inquired into Couch’s ability to pay
discretionary LFOs before imposing them.
Br. of Appellant at 2-5. In addition, Couch argues in his supplemental brief that the $200
criminal filing fee LFO is invalid under Ramirez and the 2018 legislation. As noted, the State
agrees with that contention and takes the position that the interest accrual provision also runs
afoul of Ramirez and the 2018 legislation.
In considering these issues, we have reviewed counsel’s motion, the State’s response, and
the parties’ supplemental briefing. In addition, as required under Anders, we have independently
reviewed the record to determine if there are other nonfrivolous issues that could be raised on
appeal. See Anders, 386 U.S. at 744.
1. Knowing and Intelligent Guilty Plea
Counsel argues that Couch could potentially argue that he did not make a knowing and
intelligent guilty plea. We agree that doing so would be frivolous.
“Due process requires an affirmative showing that a defendant entered a guilty plea
intelligently and voluntarily,” with knowledge that certain rights will be waived. State v. Ross,
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No. 50592-4-II
129 Wn.2d 279, 284, 916 P.2d 405 (1996); State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228(1996). The trial court “shall not accept a plea of guilty, without first determining that it is made
voluntarily, competently and with an understanding of the nature of the charge and the
consequences of the plea.” CrR 4.2(d). Whether a plea is knowingly, intelligently, and
voluntarily made is determined from a totality of the circumstances. Branch, 129 Wn.2d at 642.
A defendant’s signature on a plea statement is strong evidence of a plea’s voluntariness. Id.
Couch told the court he understood the consequences of the guilty plea and signed the
plea form. The trial court discussed with him the rights he was giving up, answered his
questions, and confirmed that he understood what was happening and what the implications of
his sentence would be, including confirming that he was making his plea knowingly,
intelligently, and voluntarily. He has not moved to withdraw his plea.
We agree with Couch’s counsel and the State that the facts of this case did not support an
argument that Couch did not make a knowing and intelligent guilty plea. We accordingly hold
that arguing to the contrary would be frivolous on appeal.
2. Right to Allocution
Counsel asserts that Couch could potentially argue that he was not afforded his right to
allocution. We agree that doing so would be frivolous.
Allocution is the right of a criminal defendant to make a personal argument or statement
to the court before the pronouncement of sentence. State v. Canfield, 154 Wn.2d 698, 701, 116
P.3d 391 (2005). At sentencing, the trial court must allow argument from the defendant on the
sentence to be imposed. RCW 9.94A.500(1).
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No. 50592-4-II
At sentencing, before imposing the sentence, the trial court asked Couch if he had
anything to say. Couch apologized for his actions, expressed his wishes to get alcohol treatment
to do right by his family, and discussed his work and education history with the court.
Because the court gave Couch the opportunity to speak on his own behalf prior to
sentencing, he was afforded his right to allocution. We hold that any argument to the contrary
would be frivolous on appeal.
3. Discretionary LFOs
Counsel claims that Couch could potentially argue that the trial court did not adequately
inquire into his ability to pay discretionary LFOs before imposing them. We think there is a
legitimate, good faith argument to support this claim. Therefore, we deny counsel’s request to
withdraw with respect to this issue.
In sentencing, courts must impose mandatory LFOs, and may impose discretionary costs.
RCW 9.94A.760; former RCW 10.01.160(1) (2011). In determining the amount and method of
payment of costs, the sentencing court is required to take account of the financial resources of
the defendant and the nature of the burden that payment of costs will impose. Former RCW
10.01.160(3). The sentencing court must conduct on the record an individualized inquiry into
the defendant’s present and future ability to pay before imposing discretionary costs. State v.
Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015). This inquiry requires the court to consider
factors such as incarceration and a defendant’s other debts, including restitution, when
determining his ability to pay. Id. Trial courts should seek additional guidance from court rule
GR 34, which lists the ways a person may prove indigent status for the purpose of seeking a
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No. 50592-4-II
waiver of filing fees and surcharges. Id. If a defendant is indigent under GR 34, “courts should
seriously question that person’s ability to pay LFOs.” Id. at 839.
After counsel filed her motion to withdraw, our Supreme Court clarified a heightened
standard for Blazina inquiries. Ramirez, 191 Wn.2d 732. Ramirez noted that the financial
statement section of a motion for indigency asks defendants questions relating to five categories:
(1) employment history, (2) income, (3) assets and other financial resources, (4) monthly living
expenses, and (5) other debts. Id. at 744. The court held that “[t]o satisfy Blazina and RCW
10.01.160(3)’s mandate that the State cannot collect costs from defendants who are unable to
pay, the record must reflect that the trial court inquired into all five of these categories before
deciding to impose discretionary costs.” Id. The court also held that de novo review applies to
an alleged failure by the trial court to make an adequate inquiry under Blazina. Id. at 742.
The trial court inquired into Couch’s employment and education history, establishing that
until his arrest he had worked for one and a half years in the women’s shoes department at
Nordstrom and that he had attended school through the 12th grade. It then made the following
on-the-record assessment of Couch’s ability to pay discretionary LFOs:
At this point, since you’re not doing a lot of time and since you do have
work history and since you can make this up, I’m going to impose $200 court costs,
$500 dollar crime victim penalty assessment, the DNA [(deoxyribonucleic acid)]
sample, $500 reimbursement to DAC [(Department of Assigned Counsel)], the
$2895.50 assessment, and the $124 for DUI recovery.
Verbatim Report of Proceedings (June 15, 2017) at 7.1
1
The record is unclear as to whether the $2,895.50 assessment is a mandatory DUI fine or a
discretionary assessment. However, it is clear that the DAC $500.00 court-appointed attorney
fee was a discretionary LFO. Hence, regardless of whether the $2,895.50 assessment is a
mandatory or discretionary LFO, there remains a nonfrivolous argument that the discretionary
$500.00 fee was improperly imposed. Further, the lack of clarity in the nature of the $2,895.50
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No. 50592-4-II
Although the trial court inquired into Couch’s employment and education history, it made
no inquiry into his debts or other “‘important factors’” relating to his current and future ability to
pay discretionary LFOs, such as his income, assets and other financial resources, and monthly
living expenses. Ramirez, 191 Wn.2d at 735 (quoting Blazina, 182 Wn.2d at 838). Nor does the
record reflect that the court inquired into whether Couch was indigent under GR 34, though
Couch made no argument or showing that he is indigent.
Under Ramirez, Couch has a legitimate argument that the trial court did not adequately
inquire into his ability to pay discretionary LFOs before imposing them. We hold that this
argument would not be frivolous on appeal.
4. The Criminal Filing Fee
Both Couch’s appellate counsel and the State take the position that the criminal filing fee
may not be imposed on indigent defendants such as Couch. This issue is presented in the context
of appellate counsel’s motion to withdraw. Therefore, under Anders and Hairston, both supra,
we examine whether a challenge by Couch to the criminal filing fee LFO would be frivolous.
Ramirez applied the 2018 legislation to cases that were not yet final when the legislation
was enacted, even though sentencing occurred before enactment. Ramirez, 191 Wn.2d at 749.
The present appeal is such a case. The 2018 legislation prohibits assessment of the $200
criminal filing fee against those who are indigent under RCW 10.101.010(3)(a) through (c).
LAWS OF 2018, ch. 269, § 17. The trial court found Couch to be indigent for purposes of seeking
review at public expense.
assessment may serve as additional grounds for an argument that the court may have improperly
imposed discretionary LFOs.
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No. 50592-4-II
Therefore, Couch has a legitimate argument that the trial court improperly imposed the
$200 criminal filing fee LFO on him. This argument would not be frivolous on appeal.
5. The Interest Accrual Provision
This issue was not raised in either the motion to withdraw or Couch’s supplemental brief.
However, we are required under Anders to independently review the record to determine if there
are other nonfrivolous issues that could be raised on appeal. Anders, 386 U.S. at 744. We agree
with the State that a challenge to the interest accrual provision would not be frivolous.
As noted, the judgment and sentence for count I stated that financial obligations imposed
by it shall bear interest from the date of the judgment until payment in full at the rate applicable
to civil judgments. CP 28. Section 5(b) of the 2018 legislation states that as of its effective date
“penalties, fines, bail forfeitures, fees, and costs imposed against a defendant in a criminal
proceeding shall not accrue interest.” LAWS OF 2018, ch. 269, § 5(b).
Therefore, Couch has a legitimate argument that the interest accrual provision in his
judgment and sentence conflicts with the 2018 legislation. This argument would not be frivolous
on appeal.
6. Other Nonfrivolous Issues
We have independently reviewed the record and could not identify any other
nonfrivolous issues that could be raised on appeal.
CONCLUSION
If an appellate court “‘concludes that there are nonfrivolous issues to be raised, it must
appoint counsel to pursue the appeal and direct that counsel prepare an advocate’s brief before
deciding the merits.’” State v. Nichols, 136 Wn.2d 859, 861, 968 P.2d 411 (1998) (quoting
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No. 50592-4-II
McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 444, 108 S. Ct. 1895, 100 L. Ed.
2d 440 (1988)). In this opinion we identify three nonfrivolous issues that can be raised in
Couch’s appeal: whether the trial court adequately inquired into his ability to pay discretionary
LFOs, whether the $200 criminal filing fee LFO was validly imposed on Couch, and whether the
interest accrual provision in Couch’s judgment and sentence was validly imposed. Therefore, we
deny counsel’s motion to withdraw and direct her to pursue Couch’s appeal on these issues,
including preparation of advocate’s briefs.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Bjorgen, J.P.T.
We concur:
Johanson, P.J.
Sutton, J.
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