State of Washington v. Phillip John Motyka, Jr. ( 2016 )

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V. ) UNPUBLISHED OPINION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 Wash. 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.
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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.
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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.
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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 Wash. 2d 827, 830, 344 P.3d 680 (2015).
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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 Wash. 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 Wash. 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 Wash. App. at 105 (internal quotation marks omitted) (quoting
Schryvers v. Coulee Cmty. Hosp., 138 Wash. 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 Wash. 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 Wash. 2d at 838.
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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 Wash. 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 Wash. App. 512, 53 8, 360 P .3d 920 (2015), review granted in part, 185
Wash. 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.
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Clark, 191 Wash. 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 Wash. 2d 1013, 353 P.3d 640
(2015). These mandatory LFOs are required irrespective of Mr. Motyka's ability to pay.
Lundy, 176 Wash. 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.
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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 Wash. 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
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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 Wash. 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 Wash. 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 Wash. 2d 322 (discussing RAP 2.5). Mr. Motyka never moved the trial
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No. 33346-9-III
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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 Wash. 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).
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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.
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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
Wash. 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
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a reasonable person to conclude the defendant probably is involved in criminal activity".
State v. Huft, 106 Wash. 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 Wash. 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 Wash. 2d 432, 688 P.2d 136 (1984).
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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