author: Leach, J.

text:
    STATE of Washington, Respondent, v. Nicholas Windsor ANDERSON, Appellant.
    No. 76672-4-I C/w No. 78070-1-I
    Court of Appeals of Washington, Division 1.
    FILED: August 5, 2019
    PUBLISHED OPINION
   Leach, J.

¶1 Nicholas Anderson appeals his judgment and sentence for multiple offenses arising from a car crash. He also appeals a restitution order requiring that he pay almost $90,000 for a passenger's medical expenses. He challenges the constitutionality of a warrantless blood draw, raises two sentencing issues, clams ineffective assistance of counsel based on his counsel's failure to object to the restitution order, and challenges the imposition of a $100 DNA (deoxyribonucleic acid) fee.

¶2 Anderson establishes two errors. A jury must decide whether his prior reckless driving conviction qualifies as a "prior offense" under RCW 46.61.5055. That did not happen here. And State v. Ramirez requires striking Anderson's $100 DNA fee. So we remand for the superior court to empanel a jury to decide the prior offense issue and to strike the DNA fee.

FACTS

¶3 In October 2014, Anderson was living with his high school friend, Michael Powers. Powers would occasionally let Anderson drive his car. The evening of October 24, 2014, Anderson drank at home and then went to a bar to watch a hockey game. About 12:30 a.m., Powers heard Anderson's voice and then heard his car start. Anderson took Powers's car without his permission.

¶4 Around 2:00 a.m., Sergeant Jamie Douglas responded to a multivictim car crash in Auburn. At the scene, Douglas saw an "obliterated" car off the roadway, a path of debris, an uprooted tree with an 18-inch base, uprooted utility boxes, and guy wires that had been supporting a telephone pole torn out of the ground. The speed limit on the road was 35 m.p.h. but, based on the scene, Douglas estimated the car was traveling close to 100 m.p.h. Deputy Jace Hoch had observed the car earlier traveling at about 90 m.p.h. but could not catch it. He asked dispatch to let the Auburn Police Department know that the car was heading toward Auburn.

¶5 Four of the five passengers in the car, Andrew Tedford, Caleb Graham, Rehlein Stone, and Suzanne McCay, died. They suffered extensive injuries, including amputations and dissected and evulsed organs. Multiple occupants were ejected from the vehicle. The fifth passenger, James Vaccaro, also suffered serious injuries, including traumatic brain injury, that have had lasting effects. Anderson's injuries included lacerations to his face, liver, and kidney, a collapsed lung, four rib fractures, a wrist fracture, and bleeding around his adrenal gland. Officer Derek Anderson, a collision investigation officer, responded to the scene and testified, "The scale and the amount of damage and unfortunate loss of life in this case has been unparalleled in my ... eight years of [investigating collision] scenes."

¶6 At the scene, Officer Josh Gustafson asked Anderson who had been driving the car. Anderson said that he had. Anderson told Sergeant Douglas that he did not "make the turn." Saliva found on the driver's side airbag matched Anderson's DNA.

¶7 Multiple individuals who responded to the scene smelled alcohol on Anderson. Anderson told paramedic Paul Nordenger that he had had "a few drinks." Nordenger drew Anderson's blood at the scene without a warrant. Test results showed that his blood alcohol content (BAC) was 0.19 grams of alcohol per 100 milliliters of blood and that he had 2.0 nanograms of THC (tetrahydrocannabinol) per milliliter. Anderson was taken to Harborview Medical Center. Toxicologist Asa Louis testified that a second blood draw taken there showed a BAC of 0.18.

¶8 The State charged Anderson with four counts of vehicular homicide, one count of vehicular assault, one count of reckless driving, and an aggravator for injury to the victim "substantially exceeding the level of bodily harm necessary to satisfy the elements of [vehicular assault]." A jury convicted Anderson as charged.

¶9 The sentencing court imposed concurrent sentences of 280 months for each of the four vehicular homicide convictions. It also imposed two 24-month enhancements to run consecutively to each of the vehicular homicide convictions and to each other (192 months total) because Anderson had two prior convictions for driving under the influence (DUI) and reckless driving. And it imposed 120 months for the vehicular assault conviction and 364 days for the reckless driving conviction to run consecutively to the vehicular homicide convictions and the enhancements. The court sentenced Anderson to a total of 592 months in prison and 364 days in jail. It waived all nonmandatory legal financial obligations (LFOs) and imposed a $100 DNA fee. The court also ordered Anderson to pay $97,996.48 in restitution for Tedford's and Stone's funeral expenses and for Vaccaro's medical expenses. Anderson appeals.

ANALYSIS

I. The Constitutionality of the First Warrantless Blood Draw

¶10 Anderson challenges the constitutionality of the warrantless blood draw at the scene, claiming that exigent circumstances did not exist. He does not challenge the second blood draw at Harborview. We reject his claim.

¶11 "As a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution." A blood test is a search and seizure. A recognized exception to the warrant requirement allows a warrantless search or seizure when exigent circumstances exist. A court examines the totality of the circumstances to determine whether they exist. They exist where "the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence." The natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, for example, when delay results from the warrant application process. The State has the burden of showing exigent circumstances by clear and convincing evidence. Whether exigent circumstances exist is a legal question this court reviews de novo.

¶12 Anderson cites City of Seattle v. Pearson to support that here, no exigent circumstances existed. There, police arrested Pearson for DUI and vehicular assault after she struck a pedestrian with her car, performed poorly on field sobriety tests, and admitted that she had smoked marijuana earlier in the day. Police transported her to the hospital two hours after the incident. About thirty minutes after Pearson's arrival, a nurse drew her blood without a warrant. This blood draw showed her THC concentration was approximately 20 nanograms. Pearson asked the court to suppress this evidence. The trial court admitted it, finding that exigent circumstances existed to justify the warrantless blood draw.

¶13 This court reversed, holding, "Because the City failed to show by clear and convincing evidence that obtaining a warrant would have significantly delayed collecting a blood sample, the natural dissipation of THC in Pearson's bloodstream alone did not constitute an exigency sufficient to bypass the warrant requirement." In its analysis of the totality of the circumstances, this court noted an officer's testimony that a warrant usually takes between 60 and 90 minutes, municipal, district, and superior court judges are available to sign warrants, and police can secure warrants by telephone. A toxicologist testified that unless a person is a chronic marijuana user, THC generally dissipates from a person's blood stream within 3 to 5 hours after smoking. And this court observed that in Missouri v. McNeely, the Supreme Court of the United States explained that the presence of other officers weighs against the conclusion that exigent circumstances existed. This court reasoned that because there were nine officers at the scene, one officer could have transported Pearson to the hospital to collect a blood sample while another officer obtained a warrant, so "[t]he delay-if any-would have been minimal."

¶14 The State relies on State v. Inman to show that exigent circumstances existed. In Inman, Inman crashed his motorcycle on a rural road, injuring him and his passenger. "Inman had facial trauma, including bleeding and abrasions on the face, and a deformed helmet." A bystander told police that Inman had been unconscious for five minutes before regaining consciousness. A paramedic administered emergency treatment. A responding officer spoke with Inman and smelled intoxicants on him. Inman admitted that he had been drinking before driving his motorcycle. Responders at the scene conducted a warrantless blood draw. The State charged Inman with vehicular assault. Inman asked the trial court to suppress evidence of the blood draw, which the court declined to do, finding exigent circumstances existed.

¶15 Division Two of this court affirmed the trial court's decision and held that the totality of the circumstances supported that exigent circumstances existed. The court considered that Inman received emergency medical services and treatment for possible spine injuries, helicopters were coming to medevac him to the nearest trauma center at the time of the blood draw, it would have taken at least 45 minutes to prepare and obtain a warrant, and obtaining a warrant by telephone was questionable because the responding officer lacked reliable cell phone coverage in the rural area. The court stated that "[u]nder the circumstances, obtaining a warrant was not practical" because of delay and because Inman's continued medical treatment could have impacted the integrity of the blood sample. The court distinguished these circumstances from those in Pearson based on the severity of injuries involved, the necessity for the administration of medication and transportation, the time available to obtain a warrant before transport, and the accessibility of a telephonic warrant.

¶16 The circumstances here are more like those in Inman. In the trial court's order denying Anderson's request to suppress the blood draw results, the court made a number of undisputed findings that are relevant here. Similar to Inman, the trial court found that Anderson was in a high-impact collision resulting in serious injuries. Although Anderson was able to respond to Douglas's questions at the scene, make eye contact, and walk to the medic station with a firefighter supporting him on either side, he also had serious injuries that required treatment. These included lacerations to his face and organs, fractures, a collapsed lung, and bleeding around his adrenal gland.

¶17 In addition, multiple responders smelled alcohol on Anderson, Anderson told Gustafson that he had been driving, and he told Gustafson that he had been drinking before driving. And paramedic Nordenger told first responding officer Douglas that the medics would be giving Anderson medication and intubating him. Douglas knew from his experience in law enforcement and as a paramedic that this emergency medical treatment could impair the integrity of the blood sample. He estimated that it would take 40 to 90 minutes to obtain a warrant for blood. At 2:10 a.m., 10 minutes after arriving to the scene, Douglas ordered a warrantless blood draw, which medics conducted at 2:14 a.m. Gustafson followed the medic vehicle to the hospital.

¶18 Anderson contends that similar to Pearson, there were multiple officers at the scene and it was possible to obtain a telephonic warrant, so no exigent circumstances existed. Although a warrant was more readily available here than it was in Inman because the location of the crash was not remote, the carnage at the scene and Anderson's injuries were more severe. And, unlike in Pearson, officers did not wait an extended period to transfer Anderson to the hospital. Officers were also unable to interact significantly with Anderson before or during transportation to the hospital as a result of his immediate need for medical attention. Similar to Inman, the trial court's uncontested finding states that medical treatment could have impacted the reliability of the blood draw results. A warrant was not practical because the delay caused by obtaining a warrant would result in the destruction of evidence or postpone Anderson's receipt of necessary medical care. The totality of the circumstances establish that exigent circumstances existed to justify a warrantless blood draw.

II. Anderson's Prior Reckless Driving Conviction

¶19 Next, Anderson challenges the trial court judge's decision that his 2005 reckless driving conviction was a "prior offense" under RCW 46.61.5055. He contends that whether his reckless driving conviction qualifies as a "prior offense" presents a fact question that a jury must resolve, while the State asserts that it is a threshold question of law for the judge. We agree with Anderson.

¶20 Whether an issue presents a question of law or fact is a question of law that this court reviews de novo.

¶21 Two United States Supreme Court decisions control this issue. In Apprendi v. New Jersey, the Supreme Court held that the constitutional rights to due process and a jury entitle a defendant to have any fact (other than the fact of a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt. In Blakely v. Washington, the Supreme Court held that the statutory maximum sentence described in Apprendi is the maximum sentence the judge may impose without any finding of additional facts beyond those reflected in the jury's verdict. So we must decide whether the trial court relied on any fact not reflected in the jury's verdict to determine that Anderson's earlier reckless driving conviction qualified as a prior conviction that required a sentencing enhancement.

¶22 RCW 9.94A.533(7) states, "An additional two years shall be added to the standard sentence range for vehicular homicide committed while under the influence of intoxicating liquor or any drug ... for each prior offense as defined in RCW 46.61.5055." RCW 46.61.5055 defines "prior offense" as "[a] conviction for a violation of RCW ... 46.61.500 [reckless driving] ... if the conviction is the result of a charge that was originally filed as a violation of RCW 46.61.502 [DUI]." This statute thus defines what earlier convictions are prior offenses that increase mandatory minimum sentences for certain driving convictions. Here, Anderson pleaded guilty to reckless driving in 2005. The State claims Anderson was originally charged with DUI. The sentencing court agreed and considered the 2005 reckless driving conviction to be a prior offense and imposed a 24-month enhancement for it to run consecutively to each of the four vehicular homicide convictions and to another prior offense enhancement.

¶23 The parties agree that the jury was not asked to decide if the challenged reckless driving conviction involved alcohol or drugs or whether it was originally charged as a DUI.

¶24 Anderson relies on State v. Mullen to support that a jury must make a factual finding to determine whether a reckless driving conviction is a qualifying prior offense. In Mullen, the State charged Mullen with felony DUI based, in part, on its claim that a prior reckless driving conviction was a "prior offense" under RCW 46.61.5055. Division Two of this court held that the trial court violated due process when it declined to give Mullen's proposed jury instruction requiring that the State prove beyond a reasonable doubt that alcohol or drugs were involved in his prior reckless driving conviction. The court reasoned that because the involvement of alcohol or drugs in the prior conviction is an essential element of felony DUI but not reckless driving, the State must prove to a jury whether the reckless driving conviction involved alcohol or drugs.

¶25 A panel of this court disagreed with Mullen in State v. Bird and in State v. Wu. In Bird, Bird's DUI charge was elevated to a felony under a different subsection of the prior offense statute based on a prior vehicular assault conviction. This court relied on its opinion in State v. Chambers to support the proposition that "[w]hether a prior conviction qualifies as a predicate offense is a threshold question of law for the court, and not an essential element of the crime of felony DUI." In doing so, it stated,

We disagree with Division Two's recent opinion, State v. Mullen, 186 Wash. App. 321, 345 P.3d 26 (2015), holding otherwise.
In Mullen, a divided court held that the trial court erred in not instructing a jury that the State was required to prove beyond a reasonable doubt that alcohol or drugs were involved in the prior conviction for reckless driving. But the issue of whether that conviction qualifies is a question of law, not fact.[ ]

¶26 This court held that because Bird's statement on his guilty plea and the incorporated police reports proved that the vehicular assault conviction involved alcohol, sufficient information existed to allow the trial court to determine that the guilty plea was based on the DUI prong of vehicular assault and that it served as a predicate offense, elevating the DUI to a felony.

¶27 Similarly, in Wu, this court held that it was a threshold question of law for the trial court to determine if Wu's prior convictions for reckless driving involved intoxicating alcohol or drugs and were thus qualifying prior offenses elevating his DUI to a felony. But in Judge Mary Kay Becker's dissenting opinion, she noted the critical distinction between a "prior conviction" and a "prior offense." She stated that Bird was correct in stating that whether a prior conviction qualifies as a predicate offense is a threshold question of law for the court; she asserts, however, that Bird inaccurately criticized Mullen because Bird involved

a prior conviction for enhancement without any other facts. [And w]hat Mullen holds is that a prior conviction for reckless driving qualifies as a "prior offense" for enhancement purposes only when it is accompanied by the additional aggravating fact that it was for a violation initially filed as a DUI.[ ]

¶28 We hold, consistent with Apprendi, Mullen, and Judge Becker's dissent in Wu, whether Anderson's reckless driving conviction qualifies as a prior offense requires a factual finding that a jury must make because the enhancement cannot apply based only on the fact of the reckless driving conviction. Due process thus requires remand so the court may empanel a jury to make this determination.

III. Fact Question for the Jury on Remand

¶29 Anderson contends that the State must prove to a jury whether drugs or alcohol were involved while the State asserts it must prove that the reckless driving offense was originally charged as a DUI. Both parties rely on City of Walla Walla v. Greene. The State's interpretation is consistent with our Supreme Court's holding in Greene. There, our Supreme Court reviewed a constitutional challenge to the prior offense statute based on a prior conviction for negligent driving. It expressly overruled this court's holding in State v. Shaffer. In Shaffer, this court held that the mandatory sentencing enhancement for vehicular homicide based on a prior reckless driving conviction was unconstitutional because it was based on an unproved allegation of DUI that resulted in the reckless driving conviction.

¶30 Our Supreme Court in Greene quoted this court's citation of the statutory definition under former RCW 9.94A.310(7) (2000) in Shaffer as follows: " 'An additional two years shall be added to the standard sentence range for vehicular homicide committed while under the influence of intoxicating liquor or any drug ... for each prior offense [of driving under the influence].' " Our Supreme Court explained that this court erred by adding the emphasized language because the statutory list of prior offenses contains more than a DUI conviction; it lists other specific convictions that constitute a prior offense but limits the application of the statute to those convictions originally charged as a DUI. The court reasoned, "[T]he fact that [Greene] was convicted of first degree negligent driving is sufficient to satisfy her due process protections because all elements of that offense are established by virtue of the conviction itself." It also stated, "[D]ue process is satisfied for the purposes of this mandatory enhancement if the prior conviction exists and the prosecution can establish that intoxicating liquor or drugs were involved in that prior offense." But this dicta is neither consistent with Greene's overruling of Shaffer nor with the prior offense statute. A requirement that the State prove the involvement of alcohol or drugs instead of the fact that the conviction was first charged as a DUI adds language to the statute in the way that our Supreme Court found unacceptable in overruling Shaffer. And the prior offense statute defines "reckless driving" as a "prior offense" if the conviction is the result of a charge originally filed as a DUI. Consistent with this language, the State need prove only that the prior reckless driving conviction was originally charged as a DUI.

IV. Consecutive Sentencing Enhancements

¶31 Anderson contends that the trial court exceeded its statutory authority by running consecutively to each other his two 24-month sentencing enhancements on each of the base sentences for vehicular homicide. We disagree.

¶32 This court reviews questions of statutory interpretation de novo. In construing a statute, a reviewing court seeks to determine and carry out the legislature's intent. This court determines legislative intent from the statute's plain language, " 'considering the text of the provision in question, the context of the statute in which the provision is found, related provisions, amendments to the provision, and the statutory scheme as a whole.' " A statute is ambiguous if it is susceptible to more than one reasonable interpretation; only then does this court use statutory construction, legislative history, and relevant case law to help discern legislative intent. The rule of lenity requires that a court interpret an ambiguous statute in the defendant's favor absent legislative intent to the contrary.

¶33 The vehicular homicide statute provides, "Vehicular homicide is a class A felony punishable under chapter 9A.20 RCW, except that, for a conviction under subsection (1)(a) of this section [the DUI prong], an additional two years shall be added to the sentence for each prior offense as defined in RCW 46.61.5055." RCW 9.94A.533(7) describes how a court must apply a prior offense enhancement to a sentence for vehicular homicide. When a court imposes a sentence under Washington's Sentencing Reform Act of 1981, it must do so in accordance with the statutes in effect at the time the defendant committed the offense. At the time of Anderson's offense, former RCW 9.94A.533(7) (2013) stated,

An additional two years shall be added to the standard sentence range for vehicular, homicide committed while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502 for each prior offense as defined in RCW 46.61.5055. All enhancements under this subsection shall be mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions.

(Emphasis added.)

¶34 In 2016, the legislature amended subsection (7) to read, in relevant part,

An additional two years shall be added to the standard sentence range for vehicular homicide committed while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502 for each prior offense as defined in RCW 46.61.5055.
Notwithstanding any other provision of law, all impaired driving enhancements under this subsection are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other impaired driving enhancements, for all offenses sentenced under this chapter.[ ]

(Emphasis added.)

¶35 Anderson asserts that the statute in effect at the time that he committed vehicular homicide was ambiguous. He cites State v. Conover to support this assertion. In Conover, the court considered whether RCW 9.94A.533(6) required a court to run school bus route stop sentence enhancements on multiple counts consecutively to, or concurrently with, one another. This subsection used language similar to that in the version of subsection (7) in effect at the time of Anderson's offenses. It stated, "All enhancements under this subsection shall run consecutively to all other sentencing provisions, for all offenses sentenced under this chapter." Our Supreme Court determined that this language is ambiguous and, after viewing the statute in context and applying rules of statutory interpretation, held that this language does not require that the enhancements run consecutively to one another.

¶36 In examining subsection (6), the court compared it to subsections (3)(e) and (4)(e). These subsections provide for consecutive firearm and deadly weapon enhancements, respectively, and state that the enhancements "shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements." The court reasoned that because subsections (3)(e) and (4)(e) explicitly require their respective enhancements to run consecutively to other enhancements and subsection (6) does not, the legislature did not intend the enhancements in subsection (6) to run consecutively to one another. It stated that a contrary interpretation would make the additional language in subsections (3)(e) and (4)(e) superfluous.

¶37 Anderson maintains that because the version of subsection (7) in effect at the time he committed vehicular homicide used language identical to that in subsection (6), our Supreme Court's reasoning in Conover controls. The State responds that the current statute should apply because the 2016 amendment was a clarifying amendment that did not create new law. Our Supreme has stated, "Although we generally presume that a new legislative enactment is an amendment that changes a law, the presumption may be rebutted by clear evidence that the legislature intended an interpretive clarification." "A statutory amendment will be applied retroactively, if constitutionally permissible under the circumstances, when it is ... curative in that it clarifies or technically corrects ambiguous statutory language." ¶38 Two circumstances present here indicate that the amendment is a clarification: the original statute was ambiguous and the amendment followed uncertainty about the meaning of the original statute. First, based on the Washington Supreme Court's reasoning in Conover, subsection (7) is ambiguous. Second, in the legislative session following Conover, the legislature did not amend subsection (6) but, instead, amended subsection (7) to its current form quoted above. The final bill report for this amendment states, under the heading " Washington v. Conover," "It is clarified that Vehicular Homicide-DUl sentence enhancements are mandatory, must be served in confinement, and they must be served consecutively to the person's standard sentence and any other impaired driving enhancements." This is clear evidence that the legislature intended an interpretative clarification.

¶39 Anderson contends that it is not a clarifying amendment because the legislature had ample opportunity to amend subsection (7) after Washington Supreme Court cases earlier than Conover holding that similar language was ambiguous and did not require that enhancements run consecutively to one another. But because the legislature had opportunity to clarify subsection (7) in the past and did not does not mean that the 2016 amendment was not a clarification. The 2016 amendment to RCW 9.94A.533(7) was a clarifying amendment that applies retroactively to Anderson. Thus, the trial court did not exceed its statutory authority in running his sentencing enhancements for each of his two prior offenses consecutively to one another.

V. Restitution Order

¶40 Anderson next claims that the trial court also exceeded its statutory authority by imposing $87,437.15 in restitution for Vaccaro's medical expenses because the record does not establish a sufficient causal connection between these expenses and his injuries caused by the crash. As a preliminary issue, the State contends that Anderson cannot assert this issue on appeal because he did not object below. We agree.

¶41 Generally, a party may raise on appeal only those issues raised at the trial court. But RAP 2.5(a)(1) permits a party to raise lack of trial court jurisdiction for the first time on appeal. Anderson does not contest that his trial attorney did not object to the restitution order. He claims that because the trial court improperly ordered restitution, it acted outside of its statutory authority, which he can challenge for the first time on appeal under RAP 2.5(a)(1). He cites a footnote in State v. Fleming to support this argument. On appeal to this court, Fleming claimed that the trial court erred in awarding $300 in restitution for goods associated with an uncharged crime. Although this court noted that Fleming did not challenge the restitution order based on a lack of jurisdiction, this court stated, "[l]f the trial court improperly ordered restitution for the $300, it was outside of its statutory authority, a challenge which can be made for the first time on appeal."

¶42 The State responds that Fleming does not control because, here, it is not at issue whether the trial court exceeded its statutory authority by awarding restitution, for example, for an uncharged crime or for damages clearly not related to the crime. We agree that because Anderson is asserting that only some of Vaccaro's claimed medical expenses did not result from the collision, he has not challenged the trial court's jurisdiction. Instead, at issue is whether the trial court abused its discretion by awarding Vaccaro almost $90,000 in restitution. Anderson did not preserve this issue on appeal, and we decline to review it.

VI. Ineffective Assistance of Counsel

¶43 Anderson also claims ineffective assistance of counsel because his trial counsel did not object to Vaccaro's restitution award. We disagree.

¶44 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee the right to effective assistance of counsel. To prove ineffective assistance, an appellant must show that (1) counsel provided representation so deficient that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced him. This court gives counsel's performance great deference and employs a strong presumption of reasonableness. The reasonableness inquiry requires that the defendant show the absence of legitimate strategic or tactical reasons for the challenged conduct. A defendant shows prejudice when there is a reasonable probability that but for counsel's errors, the result of the trial would have been different. Claims of ineffective assistance present mixed questions of law and fact that this court reviews de novo.

¶45 A statute provides the trial court's authority to order restitution to crime victims. A court's restitution award

shall be based on ... actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense.[ ]

"Restitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person ... unless extraordinary circumstances exist which make restitution inappropriate." A restitution award "must be based on a causal relationship between the offense charged and proved and the victim's losses or damages." Proof of expenditures or a summary of medical treatment do not necessarily establish a causal connection because "it is often not possible to determine from such documentation whether all the costs incurred were related to the offender's crime." The Washington Supreme Court has stated, "The legislature intended 'to grant broad powers of restitution' to the trial court."

¶46 Anderson relies on State v. Hassan to support that his counsel provided ineffective assistance by not objecting to Vaccaro's restitution award. There, Hassan told his friend, Tiffany Gilpin, that he would loan her $1,000 to help repair her car. Hassan gave her a $2,400 check, asked her to deposit it, and then withdraw $1,400 to give him because it was an easier method of getting cash than going to his bank. Gilpin followed these instructions, after which Hassan's check did not clear. A jury convicted Hassan of unlawful issuance of a bank check. At sentencing, Hassan's counsel objected to the State's request for $2,400 in restitution to Gilpin, claiming only that Hassan had repaid $400 to her. The trial court ordered Hassan to pay the full $2,400, and Hassan appealed, claiming ineffective assistance. Division Two of this court held that Hassan's trial attorney provided ineffective assistance, reasoning that the record did not support Gilpin suffered a loss resulting from the $1,000 loan she thought she was receiving, so the evidence did not show that she sustained more than a $1,400 loss. And there was no conceivable tactical reason for Hassan's counsel not to object.

¶47 Anderson also cites State v. Dennis and State v. Bunner to support that the causal relationship between Vaccaro's medical expenses and the collision is insufficient. In Dennis, Dennis pleaded guilty to assaulting several police officers, and the State asked for restitution for two officers' medical expenses. This court held that the State established the required causal connection between Officer Zsolt Dornay's injuries and the assault but failed to do so for Officer Aaron Libby. This court reasoned that a letter from the State's victim assistance unit and probable cause certification stating that the officers were treated at Northwest Hospital "for their injuries" and the workers' compensation letter describing Dornay's injuries sufficiently established a causal connection. But it held that evidence showing Northwest Hospital treated Libby for injuries on an unknown date was not sufficient.

¶48 In Bunner, Bunner pleaded guilty to rape of a child in the second degree, and the State asked that he pay restitution. The State offered a Department of Social and Health Services medical report listing medical services charged and the amount the State had paid. In accepting the State's concession that this report did not establish a sufficient causal connection, this court reasoned, "[T]his summary, which does not indicate why medical services were provided, fails to establish the required causal connection between the victim's medical expenses and the crime committed."

¶49 Here, Jacob Vaccaro, Vaccaro's brother, testified that Vaccaro was in a coma at Harborview Medical Center for a month after the October 25, 2014, crash. He also testified that Vaccaro did cognitive and physical therapy for months. Dr. Lisa Cooper, who treated Vaccaro in the emergency room on the day of the collision, described his injuries and treatments, including a diagnosis of traumatic brain injury. Dr. Aaron Bunnell, a rehabilitation medicine doctor at Harborview Medical Center, testified that Vaccaro was his patient in inpatient rehabilitation at the hospital starting in December 2014. Bunnell described Vaccaro's injuries and their effects on Vaccaro's functionality, including "a number of features of a severe traumatic brain injury."

¶50 At the restitution hearing, the State asked for $87,437.15 in restitution for medical services provided to Vaccaro. In support of this claim, the State provided a claim summary prepared by the insurance company that detailed the service dates, provider names, diagnosis codes, and amounts billed and paid. The State also attached a sheet detailing the diagnosis related to each code. The claim summary shows that medical services began on October 25, 2014, the date of the incident, and concluded on June 13, 2016, with the majority of the services provided before January 2015. The diagnoses associated with these services relate to injuries that Cooper and Bunnell specifically attributed to Vaccaro in their testimony or are reasonably associated with the injuries Cooper and Bunnell described. These include head and brain injuries, lung injuries, extremity injuries, abnormal gait, and coma, among others. The majority of treatment after January 31, 2015, was for "late effect of intracranial injury without mention of skull fracture."

¶51 Anderson contends that similar to Hassan, Dennis, and Bunner, any causal connection is insufficient. He claims that the testimony at trial fails to establish the required causal connection because none of the witnesses offered specific dates associated with medical treatment, how much the treatment cost, whether it was paid, and, if so, by whom. Anderson also maintains that neither the testimony at trial nor the documentation the State presented at the restitution hearing supports that the treatment Vaccaro received after January 2015 was related to the incident.

¶52 The testimony at trial describing most of Vaccaro's injuries and treatments and stating critical dates, together with the detailed claim summary and diagnoses sheet, establish a sufficient causal connection between Vaccaro's medical expenses and his injuries resulting from the collision. This evidence, unlike that presented in Dennis and Bunner, shows why medical services were provided and includes the service dates. And, unlike Hassan, the State requested restitution only for unpaid costs Vaccaro actually incurred.

¶53 Because the State provided evidence to establish a sufficient causal connection between Vaccaro's medical treatment and the incident, the trial court did not abuse its discretion by awarding Vaccaro almost $90,000 in restitution. Counsel's performance did not fall below an objective standard of reasonableness because he did not object to a restitution award that was within the trial court's discretion. Anderson does not show his trial attorney provided ineffective assistance.

VII. DNA Fee

¶54 Anderson asserts that State v. Ramirez requires that this court strike the $100 DNA collection fee imposed as part of his sentence. We agree.

¶55 In Ramirez, our Supreme Court discussed and applied House Bill (HB) 1783, which became effective June 7, 2018, and applies prospectively to all cases on direct appeal. Our Supreme Court explained that HB 1783 categorically prohibits the imposition of discretionary LFOs on indigent defendants. HB 1783 also amends the DNA fee statute to establish that "the DNA database fee is no longer mandatory if the offender's DNA has been collected because of a prior conviction."

¶56 Here, the sentencing court imposed a $100 DNA fee. After entry of judgment and sentence, the trial court found Anderson indigent. RCW 43.43.754(1)(a) requires collection of a biological sample for purposes of DNA identification analysis from every adult or juvenile convicted of a felony or certain other crimes. Anderson claims that because he has previous felony convictions, he would necessarily have had his DNA sample collected. He asserts that because he has previously had his sample collected and the trial court found him indigent, Ramirez requires that this court strike his DNA fee.

¶57 The State contends Anderson's factual assertion that he has previously submitted a DNA sample to the State fails on direct appeal if the record does not show that he actually submitted a DNA sample for a qualifying conviction. The State relies on State v. Lewis and State v. Thornton to support this argument. In both cases, this court and Division Three, respectively, denied the defendant's request that it strike the DNA fee because the judgment and sentence listing criminal history was not sufficient to show that the defendant had submitted a DNA sample to the Washington State Patrol Crime Laboratory.

¶58 But both Lewis and Thornton were decided before Ramirez. Before Ramirez, RCW 43.43.754(2) provided an exemption from the DNA fee only "[i]f the Washington state patrol crime laboratory already has a DNA sample from an individual for a qualifying offense." HB 1783 makes the DNA fee discretionary if the defendant's DNA has been collected because of a prior conviction; it does not require that the defendant provide proof that the laboratory has his DNA sample. Post- Ramirez, in State v. Maling, Division Three of this court struck Maling's DNA fee because he was indigent at the time of sentencing and his "lengthy felony record indicates a DNA fee has previously been collected." Similarly, because Anderson has been convicted of prior felonies, for which RCW 43.43.754(1)(a) required collection of a DNA sample, the DNA fee is discretionary. And because the trial court found him indigent and Ramirez prohibits the imposition of discretionary LFOs on indigent defendants, we remand for the court to strike the DNA fee from Anderson's judgment and sentence.

VIII. Statement of Additional Grounds for Review

¶59 Anderson raises a number of issues in his statement of additional grounds for review (SAG). These relate to probable cause, ineffective assistance of counsel, prosecutorial misconduct, judicial misconduct, and sufficiency of the evidence. Although a defendant is not required to cite to the record or authority in his SAG, he must still "inform the court of the nature and occurrence of [the] alleged errors." This court is not required to search the record to find support for the defendant's claims. Anderson appears to claim (1) the fruit of the poisonous tree doctrine barred admission of the statements he made at the scene of the incident because he was under duress; (2) the prosecutor committed misconduct because she admitted to not having probable cause, used improper phrasing, and tampered with a witness; (3) his trial counsel provided ineffective assistance by failing to object in a number of instances; and (4) the trial judge committed judicial misconduct because she was prejudiced against him. Because Anderson's claimed errors lack specificity and would require this court to search the record for any support, we decline to review them.

CONCLUSION

¶60 Whether Anderson's prior reckless driving conviction qualifies as a "prior offense" for purposes of enhancing his term of imprisonment for vehicular homicide involves a question of fact that a jury must decide. We remand for the superior court to empanel a jury to decide this question and for the court to strike the DNA fee.

Chun, J. (dissenting in part)

¶61 We concur with all aspects of the lead opinion except section III., which regards the "Fact Question for the Jury On Remand."

This opinion constitutes the majority view on this discrete issue.

¶62 In City of Walla Walla v. Greene, our Supreme Court stated that former RCW 46.61.5505(12)(a)(v) (2003) requires "the State to establish that a prior driving conviction involved use of intoxicating liquor or drugs." 154 Wash.2d 722, 727-28, 116 P.3d 1008 (2005). According to the court, this proof of involvement of intoxicating liquor or drugs satisfies due process and preserves the constitutionality of the statute. 154 Wash.2d at 728, 116 P.3d 1008. Rather than dicta, this language serves to save a statute that would otherwise unconstitutionally allow for a sentencing enhancement based on a charge not proven beyond a reasonable doubt. Requiring a jury to find only that a reckless driving offense was originally charged as a DUI leads back to the issues of constitutionality supposedly cured by Greene. In keeping with the reasoning of Greene, we conclude the State must prove to a jury that drugs or alcohol were involved in the prior offense in order to satisfy due process.

I CONCUR:

Andrus, J.

      191 Wash.2d 732, 746-50, 426 P.3d 714 (2018).

      State v. Duncan, 146 Wash.2d 166, 171, 43 P.3d 513 (2002).

      State v. Curran, 116 Wash.2d 174, 184, 804 P.2d 558 (1991).

      Missouri v. McNeely, 569 U.S. 141, 148-49, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

      McNeely, 569 U.S. at 149, 133 S.Ct. 1552.

      State v. Baird, 187 Wash.2d 210, 218, 386 P.3d 239 (2016).

      McNeely, 569 U.S. at 156, 133 S.Ct. 1552.

      State v. Inman, 2 Wash. App. 2d 281, 290, 409 P.3d 1138, review denied, 190 Wash.2d 1022, 418 P.3d 797 (2018).

      Inman, 2 Wash. App. 2d at 290.

      192 Wash. App. 802, 369 P.3d 194 (2016).

      Pearson, 192 Wash. App. at 807-08, 369 P.3d 194.

      Pearson, 192 Wash. App. at 808, 369 P.3d 194.

      Pearson, 192 Wash. App. at 808-09, 369 P.3d 194.

      Pearson, 192 Wash. App. at 809, 369 P.3d 194.

      Pearson, 192 Wash. App. at 809, 369 P.3d 194.

      Pearson, 192 Wash. App. at 809, 369 P.3d 194.

      Pearson, 192 Wash. App. at 816, 369 P.3d 194.

      Pearson, 192 Wash. App. at 814, 369 P.3d 194.

      Pearson, 192 Wash. App. at 814-15, 369 P.3d 194.

      569 U.S. 141, 153-54, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

      Pearson, 192 Wash. App. at 816, 369 P.3d 194.

      Pearson, 192 Wash. App. at 816, 369 P.3d 194.

      2 Wash. App. 2d 281, 409 P.3d 1138, review denied, 190 Wash.2d 1022, 418 P.3d 797 (2018).

      Inman, 2 Wash. App. 2d at 284.

      Inman, 2 Wash. App. 2d at 284.

      Inman, 2 Wash. App. 2d at 284.

      Inman, 2 Wash. App. 2d at 284.

      Inman, 2 Wash. App. 2d at 284.

      Inman, 2 Wash. App. 2d at 285.

      Inman, 2 Wash. App. 2d at 285.

      Inman, 2 Wash. App. 2d at 285.

      Inman, 2 Wash. App. 2d at 286.

      Inman, 2 Wash. App. 2d at 291.

      Inman, 2 Wash. App. 2d at 291-92.

      Inman, 2 Wash. App. 2d at 292.

      Inman, 2 Wash. App. 2d at 292-93.

      This court accepts unchallenged findings as true on appeal. State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003).

      State v. Mullen, 186 Wash. App. 321, 328, 345 P.3d 26 (2015).

      530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

      542 U.S. 296, 303-05, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

      RCW 46.61.5055(14)(a)(xii).

      186 Wash. App. 321, 324, 345 P.3d 26 (2015).

      Mullen, 186 Wash. App. at 324, 345 P.3d 26.

      Mullen, 186 Wash. App. at 329, 345 P.3d 26.

      Mullen, 186 Wash. App. at 329, 345 P.3d 26.

      187 Wash. App. 942, 352 P.3d 215 (2015).

      6 Wash. App. 2d 679, 431 P.3d 1070 (2018), review granted, 193 Wash.2d 1002, 438 P.3d 120 (2019).

      Bird, 187 Wash. App. at 943, 352 P.3d 215.

      157 Wash. App. 465, 479, 237 P.3d 352 (2010).

      Bird, 187 Wash. App. at 945, 352 P.3d 215.

      Bird, 187 Wash. App. at 945, 352 P.3d 215.

      Bird, 187 Wash. App. at 946-47, 352 P.3d 215.

      Wu, 6 Wash. App. 2d at 681, 688.

      Wu, 6 Wash. App. 2d at 695 (Becker, J. dissenting).

      Wu, 6 Wash. App. 2d at 697 (Becker, J. dissenting).

      This section of the opinion reflects the conclusion of only one member of the panel. For the majority opinion on the issue of the fact question for the jury on remand, please see the concurrence.

      154 Wash.2d 722, 116 P.3d 1008 (2005).

      113 Wash. App. 812, 55 P.3d 668 (2002) ; Greene, 154 Wash.2d at 724, 728, 116 P.3d 1008.

      Shaffer, 113 Wash. App. at 819, 822, 55 P.3d 668.

      Greene, 154 Wash.2d at 727, 116 P.3d 1008 (alterations in original) (internal quotation marks omitted) (quoting Shaffer, 113 Wash. App. at 816, 55 P.3d 668 ).

      Greene, 154 Wash.2d at 727, 116 P.3d 1008.

      Greene, 154 Wash.2d at 728, 116 P.3d 1008.

      Greene, 154 Wash.2d at 728, 116 P.3d 1008.

      State v. Conover, 183 Wash.2d 706, 711, 355 P.3d 1093 (2015).

      Conover, 183 Wash.2d at 711, 355 P.3d 1093.

      Conover, 183 Wash.2d at 711, 355 P.3d 1093 (quoting Ass'n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wash.2d 342, 350, 340 P.3d 849 (2015) ).

      State v. Ervin, 169 Wash.2d 815, 820, 239 P.3d 354 (2010).

      Conover, 183 Wash.2d at 712, 355 P.3d 1093.

      RCW 46.61.520(2).

      Ch. 9.94A RCW.

      RCW 9.94A.345.

      Laws of 2016, ch. 203, § 7.

      183 Wash.2d 706, 355 P.3d 1093 (2015).

      Conover, 183 Wash.2d at 711, 355 P.3d 1093.

      Conover, 183 Wash.2d at 711, 355 P.3d 1093 ; RCW 9.94A.533(6).

      Conover, 183 Wash.2d at 707-08, 355 P.3d 1093.

      Conover, 183 Wash.2d at 712, 355 P.3d 1093.

      Conover, 183 Wash.2d at 712, 355 P.3d 1093 ; RCW 9.94A.533(3)(e), (4)(e).

      Conover, 183 Wash.2d at 712-13, 355 P.3d 1093.

      Conover, 183 Wash.2d at 718, 355 P.3d 1093.

      Gray v. Suttell & Assocs., 181 Wash.2d 329, 342, 334 P.3d 14 (2014).

      Barstad v. Stewart Title Guar. Co., 145 Wash.2d 528, 536-37, 39 P.3d 984 (2002).

      Gray, 181 Wash.2d at 342-43, 334 P.3d 14.

      Final B. Rep. on Engrossed Substitute H.B. 2700, at 4, 64th Leg. Reg. Sess. (Wash. 2016).

      In re Det. of Brown, 154 Wash. App. 116, 121, 225 P.3d 1028 (2010) ; RAP 2.5(a).

      75 Wash. App. 270, 276 n.3, 877 P.2d 243 (1994).

      Fleming, 75 Wash. App. at 276, 877 P.2d 243.

      Fleming, 75 Wash. App. at 276 n.3, 877 P.2d 243.

      State v. Enstone, 137 Wash.2d 675, 679-80, 974 P.2d 828 (1999) (stating a court abuses its discretion when its restitution order is manifestly unreasonable or based on untenable grounds or reasons).

      Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

      Strickland, 466 U.S. at 687, 104 S.Ct. 2052 ; State v. Thomas, 109 Wash.2d 222, 226, 743 P.2d 816 (1987).

      State v. Grier, 171 Wash.2d 17, 33, 246 P.3d 1260 (2011).

      State v. McFarland, 127 Wash.2d 322, 336, 899 P.2d 1251 (1995).

      State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996).

      In re Pers. Restraint of Fleming, 142 Wash.2d 853, 865, 16 P.3d 610 (2001).

      State v. Tobin, 161 Wash.2d 517, 523, 166 P.3d 1167 (2007).

      RCW 9.94A.753(3).

      RCW 9.94A.753(5).

      State v. Johnson, 69 Wash. App. 189, 191, 847 P.2d 960 (1993).

      State v. Dennis, 101 Wash. App. 223, 227, 6 P.3d 1173 (2000).

      Tobin, 161 Wash.2d at 524, 166 P.3d 1167 (quoting State v. Davison, 116 Wash.2d 917, 920, 809 P.2d 1374 (1991) ).

      184 Wash. App. 140, 336 P.3d 99 (2014).

      Hassan, 184 Wash. App. at 144, 336 P.3d 99.

      Hassan, 184 Wash. App. at 144, 336 P.3d 99.

      Hassan, 184 Wash. App. at 144, 336 P.3d 99.

      Hassan, 184 Wash. App. at 143-44, 336 P.3d 99.

      Hassan, 184 Wash. App. at 144, 336 P.3d 99.

      Hassan, 184 Wash. App. at 145, 150-51, 336 P.3d 99.

      Hassan, 184 Wash. App. at 152, 336 P.3d 99.

      Hassan, 184 Wash. App. at 152, 336 P.3d 99.

      101 Wash. App. 223, 6 P.3d 1173 (2000).

      86 Wash. App. 158, 936 P.2d 419

      Dennis, 101 Wash. App. at 224-25, 6 P.3d 1173.

      Dennis, 101 Wash. App. at 225, 6 P.3d 1173.

      Dennis, 101 Wash. App. at 227-28, 6 P.3d 1173.

      Dennis, 101 Wash. App. at 228, 6 P.3d 1173.

      Bunner, 86 Wash. App. at 159, 936 P.2d 419.

      Bunner, 86 Wash. App. at 159, 936 P.2d 419.

      Bunner, 86 Wash. App. at 159-60, 936 P.2d 419.

      For purposes of clarity, we refer to Jacob Vaccaro as Jacob and James Vaccaro as Vaccaro.

      191 Wash.2d 732, 746-50, 426 P.3d 714 (2018).

      Ramirez, 191 Wash.2d at 738, 747, 426 P.3d 714 ; Laws of 2018, ch. 269.

      Ramirez, 191 Wash.2d at 739, 426 P.3d 714.

      RCW 43.43.7541.

      Ramirez, 191 Wash.2d at 747, 426 P.3d 714.

      194 Wash. App. 709, 720-21, 379 P.3d 129 (2016).

      188 Wash. App. 371, 373-74, 353 P.3d 642 (2015).

      Lewis, 194 Wash. App. at 720, 379 P.3d 129.

      6 Wash. App. 2d 838, 844, 431 P.3d 499 (2018), review denied, 193 Wash.2d 1006, 438 P.3d 118 (2019).

      RAP 10.10(c).

      RAP 10.10(c).


source: Caselaw Access Project

author: Sutton, J.

license: Public Domain

text:
    STATE of Washington, Respondent, v. Quran Dayman Ali INGRAM, Appellant.
    No. 50577-1-II
    Court of Appeals of Washington, Division 2.
    Filed August 6, 2019
    Kathryn A. Russell Selk, Russell Selk Law Office, 1037 Ne 65th St., Seattle, WA, 98115-6655, for Appellant.
    Rachael Rogers, Clark County Prosecuting Attorney's Office, Po Box 5000, Vancouver, WA, 98666-5000, for Respondent.
    PUBLISHED IN PART OPINION
   Sutton, J.

¶1 Quran Dayman Ali Ingram appeals from his jury trial convictions for residential burglary (domestic violence) and violation of a domestic violence court order. He argues that the trial court erred when it imposed bail and denied him pretrial release based on personal recognizance and by ruling that the validity of a foreign protection order is not an element of the offense of violation of a domestic violence court under RCW 26.50.110(1)(a). In the published portion of this opinion, we hold that although the bail issue is moot, we reach the issue because it is a matter of public importance; the trial court was not required to enter findings; the trial court erred by imposing bail without first considering less restrictive alternatives and Ingram's financial resources; and the validity of the foreign protection order is not an element of the offense.

¶2 In the unpublished portion of the opinion, we hold that remand for reevaluation of several legal financial obligations (LFOs) is required and do not reach Ingram's pro se ineffective assistance of counsel claim raised in his statement of additional grounds (SAG) because that claim involves matters outside the appellate record. Accordingly, we affirm Ingram's convictions, but we remand for the trial court to reexamine the LFOs consistent with this opinion.

FACTS

I. CHARGES

¶3 On November 30, 2016, Tiffany Ingram obtained a restraining order in Oregon (Oregon order), prohibiting her husband Ingram from entering or remaining in the area within 150 feet of her current or future residence. The Oregon order stated that the addresses of these locations were being withheld for safety reasons. In another section, the Oregon court struck additional language that stated, "Stay away from home on Rossiter, mother[']s on Alder, Sister[']s on Hood pl [sic] and Grandmother[']s on Riverview." Clerk's Papers (CP) at 56. Tiffany provided the Oregon court with a "safe" "[r]esidence/[c]ontact [a]ddress," in Portland. CP at 61.

¶4 On December 1, Tiffany, who had been staying with relatives in Oregon, returned to the home on Rossiter Lane that she and Ingram had shared, locked up the home, and turned off the lights. The next day, she drove past the home and saw that there were lights on inside. Tiffany called the police. The police found Ingram inside the home, and Ingram showed them a copy of the Oregon order. The police arrested Ingram.

II. PRETRIAL AND TRIAL PROCEEDINGS

¶5 The State charged Ingram with residential burglary (domestic violence) and a gross misdemeanor violation of a domestic violence court order. Ingram pleaded not guilty to the charges.

A. RISK ASSESSMENT AND BAIL HEARINGS

¶6 Ingram was booked into jail on December 2. On December 4, based on the statement of probable cause, a judge certified that there was probable cause to arrest Ingram. A court date was set for December 5.

¶7 In a December 4 risk assessment, the Clark County Corrections Release Unit assigned Ingram a "risk score" of four, which fell between a medium risk (three) and a high risk (five). The release unit's assessment noted that Ingram reported that (1) he had lived by himself in Vancouver, Washington, for the past two and a half years, (2) he had previously lived in Portland, Oregon, (3) he had no family in Clark County, (4) he had not provided any references, and (5) he was unemployed. The assessment further stated that Ingram (1) had a history of escape, (2) was currently on probation on an Oregon driving-related charge, (3) had a criminal history, (4) had prior failures to appear but no bail jump convictions, and (5) had mental health issues including anxiety and posttraumatic stress disorder and had received prior psychiatric treatment. Based on these facts and its risk assessment, the release unit recommended that Ingram be denied release "due to extensive criminal, [failure to appear], and escape record." CP at 3. On December 4, a judge also issued an order of conditions for release on bail stating that Ingram was not subject to bail until a court hearing set for December 5.

¶8 At Ingram's first appearance on December 5, the State requested $60,000 bail. The State justified this request based on Ingram's prior convictions for unlawful possession of a firearm in 2007, second degree assault in 1997, second degree burglary in 1997, first degree escape in 1995, first degree robbery in 1994, and second degree robbery in 2001. The State also commented that Ingram had "six different cases [in Oregon] that have gone to warrant" and that he had "prior [failures to appear] on his cases." 1 Report of Proceedings (RP) at 5. Defense counsel, who had just been appointed to Ingram's case and had just received the statement of probable cause, requested $5,000 bail after noting that the no contact order violation did not involve violence.

¶9 The trial court set bail at $60,000 after commenting that when Tiffany applied for the restraining order, she had asserted that Ingram "had recently held a gun to her head." 1 RP at 6. The trial court also stated that it would reexamine bail at the next hearing. It does not appear that the trial court entered any written findings related to the bail decision following the December 5, 2016 hearing. At no point during the hearing did the trial court discuss any less restrictive alternatives to bail or Ingram's financial resources.

¶10 On December 16, Ingram was arraigned. He pleaded not guilty. Although the trial court had stated at the December 5 hearing that it would reexamine bail at the next hearing, no one raised any bail issues.

¶11 On December 21, before a different judge, Ingram requested that the court grant him supervised release. After arguing that there was insufficient evidence to support the charges because the Oregon order was invalid, Ingram requested that the trial court amend the bail order and grant him supervised release because he did not "have the funds to bail out" and he had a legitimate challenge to the charges. 1 RP at 12. After hearing Ingram's criminal history and argument from the parties, the judge deferred this decision to the original trial court judge, effectively denying Ingram's request for supervised release.

¶12 On December 28, before the first judge, Ingram asked for a bail reduction based on his legal argument that the Oregon protection order was invalid. The trial court denied this request. The trial court commented that it had originally set bail based on "criminal history, failures to appear, and [the] likelihood of reappearance in court," and that nothing had changed in relation to those factors. 1 RP at 22. During this hearing, there was no discussion of Ingram's financial status or any less restrictive conditions of release other than release on recognizance.

B. VALIDITY OF OREGON ORDER

¶13 At various stages of the pretrial proceedings, the parties addressed whether the validity of the Oregon order could be raised before the jury. The trial court ruled that Ingram could not "challenge the validity of the order in Oregon in a Washington criminal case" and that validity of the Oregon order was not an element of the offense. 1 RP at 103.

C. TRIAL

¶14 The State presented testimony from Tiffany and the officers who arrested Ingram. Ingram did not call any witnesses. The jury instructions for the violation of the court order did not require the jury to find that the Oregon order was valid.

¶15 The jury found Ingram guilty of residential burglary and violation of a domestic violence court order. Ingram appeals.

ANALYSIS

I. BAIL ISSUES

¶16 Ingram contends that the trial court erred when it set his bail and refused to release him on his own recognizance and when it denied his renewed motions to reduce his bail requirement. Specifically, Ingram argues that the trial court (1) failed to enter oral or written findings, (2) failed to consider the factors required in CrR 3.2(c) and (e) and the record does not support findings under either subsection, (3) failed to consider less restrictive conditions of release or Ingram's financial resources before imposing the bail requirement, and (4) denied him effective assistance of counsel by not allowing appointed defense counsel time to prepare for the initial bail hearing. A. MATTER OF CONTINUING AND SUBSTANTIAL PUBLIC INTEREST

¶17 We must first address whether this issue is moot. An issue is moot if we can no longer provide effective relief. State v. Gentry , 125 Wash.2d 570, 616, 888 P.2d 1105 (1995). We can no longer provide effective relief here because Ingram has been convicted and pretrial bail is no longer available to him.

¶18 We may, however, consider a moot issue if it involves matters of continuing and substantial public interest. State v. Cruz , 189 Wash.2d 588, 598, 404 P.3d 70 (2017). In determining whether a case presents an issue of continuing and substantial public interest, we consider (1) the public or private nature of the issue, (2) whether guidance for public officers on the issue is desirable, and (3) the likelihood that the issue will recur. Cruz , 189 Wash.2d at 598, 404 P.3d 70. We also consider " 'the likelihood that the issue will escape review because the facts of the controversy are short-lived.' " State v. Huckins , 5 Wash. App. 2d 457, 463, 426 P.3d 797 (2018) (internal quotation marks omitted) (quoting Westerman v. Cary , 125 Wash.2d 277, 286-87, 892 P.2d 1067 (1994) ).

¶19 As we have recognized before, the setting of bail is an issue of a public nature and "there is currently a dearth of cases" addressing bail issues. Huckins , 5 Wash. App. 2d at 463-64, 426 P.3d 797 ; see also State v. Barton , 181 Wash.2d 148, 152, 331 P.3d 50 (2014) (accepting review of moot bail case because it was a matter of continuing and substantial public interest). Deciding this case would provide a useful reminder to the trial courts of the requirements of setting bail and release conditions for criminal defendants-issues that are likely to recur. Furthermore, "given the time constraints inherent in criminal cases, the issue might otherwise evade appellate review." Huckins , 5 Wash. App. 2d at 464, 426 P.3d 797. Accordingly, we review Ingram's bail arguments on the merits because they present matters of continuing and substantial public interest.

B. FINDINGS

¶20 Ingram argues that the trial court was required to make "specific findings under CrR 3.2(a)(1) or (2)" and that the court failed to comply with this requirement. Appellant's Opening Br. at 29. He suggests that the absence of specific findings demonstrates that the trial court ignored the presumption of release on personal recognizance pending trial. Ingram fails to establish that oral or written findings are required, but we review the record to determine if the trial court considered the relevant factors before determining whether release on personal recognizance was appropriate or whether bail was required.

¶21 Whether oral or written findings are required is a question of law, which this court reviews de novo. State v. Hanson , 151 Wash.2d 783, 784-85, 91 P.3d 888 (2004). We apply canons of statutory interpretation when construing court rules. State v. Robinson , 153 Wash.2d 689, 692, 107 P.3d 90 (2005). The plain language of a court rule controls when it is unambiguous. Robinson , 153 Wash.2d at 693, 107 P.3d 90.

¶22 CrR 3.2(a) provides:

Any person, other than a person charged with a capital offense, shall at the preliminary appearance ... be ordered released on the accused's personal recognizance pending trial unless:
(1) the court determines that such recognizance will not reasonably assure the accused's appearance, when required, or
(2) there is shown a likely danger that the accused:
(a) will commit a violent crime, or (b) will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice.
....
In making the determination herein, the court shall, on the available information, consider the relevant facts including, but not limited to, those in subsections (c) and (e) of [ CrR 3.2 ].

(Emphasis added.) CrR 3.2(c) and (e) similarly require only that the trial court "consider" various factors and do not expressly require any oral or written findings.

¶23 Although oral or written findings are helpful on appeal, unlike other rules that clearly require oral or written findings, CrR 3.2 does not expressly require that the trial court enter any oral or written findings. CrR 3.2(a) requires only that the trial court (1) "determine[ ]" whether release on personal recognizance is insufficient to reasonably assure the defendant's appearance or protect against harm and (2) "consider" the relevant facts. And CrR 3.2(c) and (e) require the court only to "consider" the factors. Thus, CrR 3.2 itself does not require oral or written findings.

¶24 Nor does Ingram cite to any other authority that requires oral or written findings in this context. Although he cites State v. Rose , 146 Wash. App. 439, 191 P.3d 83 (2008), for his assertion that the trial court must "rebut the presumption of release by making the specific findings under CrR 3.2(a)(1) or (2), prior to imposing any conditions of release," Rose did not address whether findings were required and does not require oral or written findings. Appellant's Opening Br. at 29. In Rose , we merely examined the record to determine whether there was a "determination related to [the defendant's] unlikeliness to appear" and whether there was any evidence introduced "that would have supported a trial court finding that [the defendant] would be unlikely to appear." 146 Wash. App. at 450, 191 P.3d 83 (emphasis added).

¶25 Because oral or written findings are not required by the rule, Ingram cites no authority requiring the entry of oral or written findings under CrR 3.2(a), and the trial court made oral findings at a subsequent hearing, Ingram's argument fails.

C. CONSIDERATION OF FACTORS AND SUPPORT FOR FINDINGS

¶26 Ingram further argues that the record does not show that the trial court considered the required factors stated in CrR 3.2(c) and (e). In analyzing this issue, we examine the record to determine if the record supports a determination that Ingram would be unlikely to appear or that Ingram was a substantial danger. Rose , 146 Wash. App. at 446-47, 448-54, 191 P.3d 83. Here, the record supports both determinations.

¶27 We review a trial court's determination of whether a defendant is likely to flee and whether a defendant is likely to pose a substantial danger to the community for abuse of discretion. State v. Smith , 84 Wash.2d 498, 505, 527 P.2d 674 (1974). A trial court abuses its discretion if its decision falls outside the range of acceptable choices, its decision is unsupported by the record, or the court applies an incorrect legal standard.

State v. Dye , 178 Wash.2d 541, 548, 309 P.3d 1192 (2013).

¶28 CrR 3.2(c) provides:

In determining which conditions of release will reasonably assure the accused's appearance, the court shall, on the available information, consider the relevant facts including but not limited to:
(1) The accused's history of response to legal process, particularly court orders to personally appear;
(2) The accused's employment status and history, enrollment in an educational institution or training program, participation in a counseling or treatment program, performance of volunteer work in the community, participation in school or cultural activities or receipt of financial assistance from the government;
(3) The accused's family ties and relationships;
(4) The accused's reputation, character and mental condition;
(5) The length of the accused's residence in the community;
(6) The accused's criminal record;
(7) The willingness of responsible members of the community to vouch for the accused's reliability and assist the accused in complying with conditions of release;
(8) The nature of the charge, if relevant to the risk of nonappearance;
(9) Any other factors indicating the accused's ties to the community.

¶29 Here, the information available to the trial court included the information in the release unit's report, which addressed factors 1 through 7. And the trial court was aware of Ingram's current charges and was able to review the factual basis for those charges, including the fact that Tiffany had informed law enforcement officers that she had applied for the no contact order after Ingram held a gun to her head. Additionally, the State described Ingram's criminal history, including his escape conviction and prior failures to appear in several Oregon cases. The information before the trial court also showed that the release unit considered Ingram to be a medium to high flight risk; Ingram had a history of escape and failure to appear; he had no employment tying him to the community; no one had vouched for him; Ingram had ties to another state, including formerly residing in Oregon; and he had mental health issues. These factors support the determination that personal recognizance would not reasonably assure Ingram's appearance when required.

¶30 The evidence in the record also supports a finding of dangerousness.

¶31 CrR 3.2(e) provides:

In determining which conditions of release will reasonably assure the accused's noninterference with the administration of justice, and reduce danger to others or the community, the court shall, on the available information, consider the relevant facts including but not limited to:
(1) The accused's criminal record;
(2) The willingness of responsible members of the community to vouch for the accused's reliability and assist the accused in complying with conditions of release;
(3) The nature of the charge;
(4) The accused's reputation, character and mental condition;
(5) The accused's past record of threats to victims or witnesses or interference with witnesses or the administration of justice;
(6) Whether or not there is evidence of present threats or intimidation directed to witnesses;
(7) The accused's past record of committing offenses while on pretrial release, probation or parole; and
(8) The accused's past record of use of or threatened use of deadly weapons or firearms, especially to victims or witnesses.

¶32 The available information showed that Ingram had prior convictions for firearm possession and assault; no one had offered to vouch for him; the current charge, although not a violent offense in itself, stemmed from a protection order that was obtained following a violent act against the protected party; Ingram had a history of mental health issues; Ingram had in the past threatened Tiffany with a deadly weapon; and Ingram was on probation when he committed the current offense. These factors, particularly the recent violent act against Tiffany, support the determination that there was a substantial danger that if released, Ingram would either commit a violent crime or seek to intimidate a witness or interfere with the administration of justice.

D. FAILURE TO CONSIDER LESS RESTRICTIVE CONDITIONS OF RELEASE

¶33 Ingram next argues that the trial court failed to comply with CrR 3.2(d) by failing to consider less restrictive conditions of release and when setting the bail amount. Because the trial court did not consider less restrictive conditions of release or Ingram's financial resources before imposing the $60,000 bond as required under both CrR 3.2(b) and CrR 3.2(d), this argument has merit.

¶34 CrR 3.2(b) requires that if the trial court determines that the accused is not likely to appear if released on personal recognizance, it must impose the least restrictive of several enumerated conditions. Huckins , 5 Wash. App. 2d at 467-68, 426 P.3d 797. CrR 3.2(b) also requires that if the trial court imposes a bond, the court must consider the defendant's financial resources. CrR 3.2(b)(7). Similarly, CrR 3.2(d) requires that if the trial court determines that the accused poses a substantial danger, the court is allowed to impose one or more of several enumerated conditions. If the trial court requires the defendant to "post a secured or unsecured bond," the court can impose this condition only "if no less restrictive condition or combination of conditions would reasonable assure the safety of the community." CrR 3.2(d)(6). Additionally, if the trial court requires a bond, the court must consider, "on the available information, the accused's financial resources for the purposes of setting a bond that will reasonably assure the safety of the community and prevent the defendant from intimidating witnesses or otherwise unlawfully interfering with the administration of justice." CrR 3.2(d)(6)

¶35 Regardless of whether the trial court imposed bail to ensure Ingram's appearance or to protect the public, the court was required to consider less restrictive alternatives and to consider Ingram's financial resources. CrR 3.2(b)(7), (d)(6). There is nothing in the record suggesting that the trial court did either before setting bail. Thus, Ingram can show that the trial court erred by imposing the $60,000 bond. But because Ingram has been convicted and is no longer subject to pretrial bail or conditions, there is no relief that we can offer.

E. DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL

¶36 Ingram also argues that the bail hearing "might have gone a different way" if he had not been forced to rely on newly assigned counsel who had no knowledge of the case or Ingram's personal circumstances. Appellant's Opening Br. at 46. He suggests that with time to prepare, defense counsel would have been better prepared in relation to the facts and the law. Because Ingram cites no law in support of this argument beyond general law stating that effective assistance of counsel requires more than just having counsel physically present, we decline to address this issue. RAP 10.3(a)(6) ; Cowiche Canyon Conservancy v. Bosley , 118 Wash.2d 801, 809, 828 P.2d 549 (1992) (court need not address arguments unsupported by citation to authority).

II. VALIDITY OF THE FOREIGN PROTECTION ORDER IS NOT AN ESSENTIAL ELEMENT

¶37 Ingram next argues that the trial court erred when it concluded that the validity of the Oregon order was not an essential element of the offense of a violation of a domestic violence no contact order under RCW 26.50.110. Whether the validity of a foreign protection order is an element of the crime of violation of a domestic violence court order is an issue of first impression.

¶38 Ingram contends that the plain language of RCW 26.50.110(1)(a) establishes that the validity of the Oregon order is an essential element. The State responds that under State v. Miller , 156 Wash.2d 23, 123 P.3d 827 (2005), the validity of the Oregon order is not an essential element but, rather, a legal question related to the admissibility of the order for the trial court to decide. We hold that the validity of the Oregon order is not an essential element of the crime of violation of a domestic violence court order.

A. LEGAL PRINCIPLES

¶39 We review questions of law and issues of statutory interpretation de novo. State v. Conover , 183 Wash.2d 706, 711, 355 P.3d 1093 (2015) ; Miller , 156 Wash.2d at 27, 123 P.3d 827.

¶40 The essential elements of the crime are those that the State must prove to sustain a conviction. State v. Peterson , 168 Wash.2d 763, 772, 230 P.3d 588 (2010). To determine the essential elements, we first look to the statute. State v. Williams , 162 Wash.2d 177, 183, 170 P.3d 30 (2007) ; State v. Mason , 170 Wash. App. 375, 379, 285 P.3d 154 (2012).

¶41 Our primary objective when interpreting a statute "is to determine and give effect to the legislature's intent." State v. Budik , 173 Wash.2d 727, 733, 272 P.3d 816 (2012). We first look to the plain meaning of the statute. Budik , 173 Wash.2d at 733, 272 P.3d 816. " 'In determining the plain meaning of a provision, we look to the text of the statutory provision in question, as well as the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.' " Budik , 173 Wash.2d at 733, 272 P.3d 816 (internal quotation marks omitted) (quoting State v. Ervin , 169 Wash.2d 815, 820, 239 P.3d 354 (2010) ). "Common sense informs our analysis," and we must avoid constructions that would yield an unlikely, absurd, or strained result. State v. Alvarado , 164 Wash.2d 556, 562, 192 P.3d 345 (2008) ; State v. Barbee , 187 Wash.2d 375, 389, 386 P.3d 729 (2017).

B. VALIDITY OF FOREIGN ORDER IS NOT AN ELEMENT

¶42 RCW 26.50.110(1)(a) provides in part:

Whenever ... there is a valid foreign protection order as defined in RCW 26.52.020 , and the respondent or person to be restrained knows of the order, a violation of any of the following provisions of the order is a gross misdemeanor, except as provided in subsections (4) and (5) of this section[ ]:
(i) The restraint provisions prohibiting acts or threats of violence against, or stalking of, a protected party, or restraint provisions prohibiting contact with a protected party;
(ii) A provision excluding the person from a residence, workplace, school, or day care;
(iii) A provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location;
... or
(v) A provision of a foreign protection order specifically indicating that a violation will be a crime.

(Emphasis added.)

¶43 RCW 26.52.020 provides:

A foreign protection order is valid if the issuing court had jurisdiction over the parties and matter under the law of the state, territory, possession, tribe, or United States military tribunal. There is a presumption in favor of validity where an order appears authentic on its face.
A person under restraint must be given reasonable notice and the opportunity to be heard before the order of the foreign state, territory, possession, tribe, or United States military tribunal was issued, provided, in the case of ex parte orders, notice and opportunity to be heard was given as soon as possible after the order was issued, consistent with due process.

¶44 Ingram argues that RCW 26.50.110(1)(a) 's plain language, which requires a valid foreign protection order as defined in RCW 26.52.020, establishes that the validity of the foreign protection order is an element of the crime that must be found by the jury. But Ingram reads this language in isolation.

¶45 When RCW 26.50.110(1)(a) is read with RCW 26.52.020, it becomes apparent that the question of whether a foreign order is valid requires an examination of legal issues, such as jurisdiction. See Pruczinski v. Ashby , 185 Wash.2d 492, 374 P.3d 102 (2016). As acknowledged in Miller , the validity of a court order "normally turn[s] on questions of law," and "[q]uestions of law are for the court, not the jury, to resolve." 156 Wash.2d at 31, 123 P.3d 827.

¶46 Ingram argues that Miller does not apply because it addresses domestic (Washington) protection orders and, unlike the clause addressing foreign protection orders, the plain language of RCW 26.50.110 does not require proof that domestic protection orders are valid. Although Miller is not directly on point, it is still instructive.

¶47 Miller not only acknowledged that the validity of an order involved legal issues, it also stated that the question of a protection order's validity was a threshold matter related to the admissibility of the order. 156 Wash.2d at 31, 123 P.3d 827. The Miller court stated,

The court, as part of its gate-keeping function, should determine as a threshold matter whether the order alleged to be violated is applicable and will support the crime charged. Orders that are not applicable to the crime should not be admitted. If no order is admissible, the charge should be dismissed.

156 Wash.2d at 31, 123 P.3d 827 (footnote omitted). Although Miller addressed Washington State (domestic) protection orders, the relationship between a protection order's validity and its admissibility does not depend on whether the protection order is domestic or foreign. Thus, before the trial court can admit the foreign protection order, it must first determine its validity, and it would be redundant to also require a jury to also make this finding. Additionally, it would lead to an absurd result if the question of the validity of a protection order is a question of law under some circumstances but not others.

¶48 The potential redundancy combined with the fact that determining the validity of an order is generally a legal question and our need to avoid an absurd result lead us to conclude that the validity of the foreign protection order is not an essential element that the jury must decide. Because the validity of the Oregon order was not an element of the offense, the trial court did not err when it ruled on the validity of the order.

¶49 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

Worswick, P.J.

Melnick, J.

      A "foreign protection order" is an order or injunction "issued by a court of another state, territory, or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia, or any United States military tribunal, or a tribal court, in a civil or criminal action." RCW 26.52.010(3).

      The legislature amended this statute in 2017. Laws of 2017, ch. 230, § 9. Because the 2017 amendments did not alter the language at issue here, we cite to the current version of the statute.

      RAP 10.10.

      We refer to Tiffany Ingram by her first name for clarity. We intend no disrespect.

      The Honorable James Rulli signed this order.

      The Honorable Daniel Stahnke presided over this hearing.

      Based on the information in the appellate record, this was the first hearing following the December 5 hearing.

      Judge Stahnke presided over this hearing.

      The Honorable Scott Collier presided over this hearing.

      Judge Stahnke presided over this hearing.

      Judge Stahnke entered this order and presided over the trial.

      Ingram also presents several constitutional arguments related to his bail. Because we exercise our discretion and conclude that the trial court erred on nonconstitutional grounds, we do not address Ingram's constitutional arguments. State v. Smith , 104 Wash.2d 497, 505, 707 P.2d 1306 (1985) ("A court will not reach a constitutional issue if it can decide the case on nonconstitutional grounds.").

      CrR 3.2 was amended in 2017. The amendment did not affect subsections (a), (c), or (e), so we cite to the current version of the rule.

      See , e.g., CrR 3.6(b) (expressly requiring trial court to enter written findings of fact and conclusions of law if evidentiary hearing is conducted); JuCR 7.11(c), (d) (expressly requiring juvenile court to state its findings of fact and enter its decision on the record, and to enter written findings and conclusions in a case that is appealed); CR 54(2)(b) (expressly requiring written findings on CR 54 order).

      Ingram suggests that the trial court's comments at the initial bail hearing regarding Tiffany's allegations that Ingram had recently held a gun to her head demonstrates that the trial court imposed bail based solely on safety concerns. But this argument overlooks the trial court's statement on the record during the December 28 hearing.
      Also referring to the trial court's reference to Tiffany's allegations, Ingram argues that it was improper and unconstitutional for the court "to rely on the nature of a charge or unproven allegations as the primary or sole basis for determining issues of pretrial release." Appellant's Opening Br. at 32-33. The trial court's remarks at the December 28 hearing clarified that it was not solely relying on Tiffany's assertions when it imposed bail and that the court in fact considered other factors. Because the record shows that the court was not relying only on this allegation, Ingram's assertion that such sole reliance was error fails.

      Subsections (4) and (5) set out the circumstances that elevate the offense from a gross misdemeanor to a felony. See RCW 26.50.110(4), (5).

      In his assignments of error, Ingram also asserts that the charging information and jury instructions were inadequate because they did not include the validity of the Oregon order as an element. Because we hold that the validity of the Oregon order was not an element, these arguments also fail.
      Additionally, in his argument, Ingram questions the validity of the Oregon order. Although this discussion could imply that Ingram is challenging the trial court's ruling that the Oregon order was valid, he does not raise this claim in his assignments of error or issue statements and he ties this discussion to his assertion that validity of the Oregon order was an element of the offense. Accordingly, we limit our analysis to whether the validity of the Oregon order was an element of the offense. See Eichler v. Yakima Valley Transp. Co. , 83 Wash.2d 1, 6, 514 P.2d 1387 (1973) ("Arguments that are not supported by specific assignments of error will not be considered.") (citing Rutter v. Rutter , 59 Wash.2d 781, 370 P.2d 862 (1962) ).