State of Washington v. Jay Trevor Powers

FILED
AUGUST 15, 2017
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. 34006-6-111
Respondent, )
)
V. )
)
JAY TREVOR POWERS, ) UNPUBLISHED OPINION
)
Appellant. )

SIDDOWAY, J. -Trevor Powers appeals some of the costs imposed in the

judgment and sentence convicting him of two counts of second degree assault with

firearm enhancements. In a pro se statement of additional grounds, he raises challenges

to the convictions and the enhancements. We find no error or abuse of discretion and

affirm.

FACTS AND PROCEDURAL BACKGROUND

In March 2015, Trevor Powers was employed as a caretaker at the Canon De Sol

Winery. On the evening of March 15, 2015, he and his roommate Brent Parrish were

driving back to the winery after a several hour absence when they saw a black pickup

truck parked on the property with its headlights off. Mr. Parrish, who was driving, pulled

in front of the truck, shining his headlights into the cab. Mr. Powers took a handgun out
No. 34006-6-III
State v. Powers

of his backpack, loaded it, stuck it in his belt, got out of the car and approached the truck

with the reported intention of speaking with its occupants.

The parked truck belonged to 21-year-old Matthew Mahan, who had driven to the

winery with his girlfriend, 19- or 20-year-old Alyssa Aitoro, to park and talk about

problems they were having in their relationship. With the problems apparently resolved,

they had moved into the back seat. When they saw Mr. Parrish's car turning into the

winery property, they resumed their seats in the front.

When the car stopped in front of them, almost blocking them, Mr. Mahan turned

on his headlights. As Mr. Powers approached them, he had one hand in the air and the

other behind his back, apparently reaching for his waistband. Fearing he had a gun, Mr.

Mahan floored his gas pedal and made a hard right tum to get around the car. As he did,

Mr. Powers began to fire at the pickup truck. Mr. Mahan put his arm around Ms.

Aitoro's back and pushed her down as he continued to drive away. Eleven bullet holes

were later found in the truck, starting at the driver's side door, continuing down the

driver's side of the pickup, and finishing in the back of the truck. When the couple

arrived at Ms. Aitoro's home, her father called police.

Mr. Powers was interviewed late that evening and again two days later by Benton

County Sheriffs Detective Justin Gerry. On March 20, five days after the incident, he

was charged with two counts of second degree assault, each with a firearm enhancement.

The charges were later amended to include one count of first degree malicious mischief.

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State v. Powers

Mr. Powers's first court-appointed lawyer was Sylvia Comish and trial was

initially set for May 11, 2015. During her representation, Ms. Comish arranged for a

forensic psychological assessment of Mr. Powers by Philip Barnard, a clinical

psychologist. Dr. Barnard sent an eight page report to Ms. Comish on April 29, 2015, in

which he expressed opinions that Mr. Powers was mentally competent and normal or

average in many respects, but concluded with an opinion that at the time of the alleged

assaults, "several contributing elements" resulted in "significantly impaired" reasoning,

judgment, and impulse control that Dr. Barnard characterized as resulting in "diminished

capacity." Clerk's Papers (CP) at 96.

Mr. Powers signed three waivers of his speedy trial right in May, July, and August

2015, the third of which was to allow John Chambers, who substituted as counsel for Ms.

Comish in July, to be ready for trial. Trial ultimately began on December 7, 2015.

Mr. Powers did not testify at trial but his two recorded police interviews were

entered into evidence. Mr. Parrish testified for the defense. Mr. Powers' s defense at

trial, consistent with his statements to Detective Gerry, was that he reasonably unloaded

his handgun in self-defense after Mr. Mahan floored his gas pedal and the pickup came

"flying at him, full throttle, engine revving, rocks flying everywhere." Report of

Proceedings (RP) at 207. 1

1
All references to the report of proceedings are to the volume that begins with Mr.
Powers' s arraignment on March 23, 2015, and includes the trial proceedings.

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State v. Powers

The jury was unpersuaded by the defense and found Mr. Powers guilty on all

counts, returning special verdicts finding that he had been armed with a firearm in

committing the assaults. At sentencing, defense counsel Chambers asked the court to

impose an exceptional downward sentence, explaining that he had supplied the State with

a copy of Dr. Barnard's forensic evaluation, which would support RCW

9.94A.535(l)(c)'s mitigating circumstance of having "commited the crime under duress,

threat, or compulsion insufficient to constitute a complete defense, but which

significantly affected [the defendant's] conduct." RP at 23 7.

The trial court denied the request for a departure and sentenced Mr. Powers to a

total 85 months' confinement. It imposed costs in the total amount of $4,552.50, listing

several that were summarized on a cost bill signed by a deputy court clerk that the court

attached to the judgment and sentence. Mr. Powers did not object. The court also

imposed restitution in the stipulated amount of $8,520.90, consisting of the insurer's

$7,084.56 cost of repairs to Mr. Mahan's pickup, $800 to Mr. Mahan for repair costs not

covered by insurance, and $636.34 in counseling expenses incurred by Ms. Aitoro.

Mr. Powers appeals.

ANALYSIS

The only assignments of error made by Mr. Powers's brief on appeal are to the

superior court's allegedly improper delegation to the court clerk of the authority to

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State v. Powers

impose special costs and to the prosecutor's alleged failure to fulfill its obligation to

examine and approve the cost bill.

Mr. Powers points out that by statute, it is only the superior court who may order

the payment of a legal financial obligation (hereafter sometimes "LFO") as part of a

convicted defendant's sentence, and that the court

must on either the judgment and sentence or on a subsequent order to pay,
designate the total amount of a legal financial obligation and segregate this
amount among the separate assessments made for restitution, costs, fines,
and other assessments required by law.

RCW 9.94A.760(1) (emphasis added). He adds that costs imposed on a defendant "shall

be limited to expenses specially incurred by the state in prosecuting the defendant ....

They cannot include expenses inherent in providing a constitutionally guaranteed jury

trial." RCW 10.01.160(2).

He also points out that by statute, it is the duty of the prosecutor to

[c]arefully tax all cost bills in criminal cases and take care that no useless
witness fees are taxed as part of the costs and that the officers authorized to
execute process tax no other or greater fees than the fees allowed by law.

RCW 36.27 .020(7).

In this case, he contends, the trial court said only the following in imposing over

$4,500 in LFOs on Mr. Powers:

THE COURT: I would impose, then, the restitution as indicated; the
$500 crime victim assessment; $100 felony DNA collection fee.
Mr. Powers, you were working at the time of this the incident. Is
there any reason that you are not capable of working?

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No. 34006-6-111
State v. Powers

DEFENDANT POWERS: Not at this time, no, Ma'am.
THE COURT: I would impose, then, the court costs, attorney's fees,
[and] jury fee.
Costs and fees in the sum of $4,552.50; plus the restitution.

RP at 244-45. In addition, Mr. Powers acknowledges that the judgment and sentence

signed by the court directed payment of the $500 crime victim assessment, $250 jury

demand fee, $700 in attorney fees, and the $200 filing fee. Br. of Appellant at 5.

Mr. Powers's concern is with an additional ''special cost reimbursement" of

$2,742.50 that the superior court included in its total, derived from the cost bill signed by

deputy court clerk Amy Hauer. CP at 107. He concedes the cost bill includes notations

of two amounts that add up to the $2,742.50-"DR $2,000" and "INV $742.50"-but

complains that these are unidentified and "[t]here is no way to determine from the record

whether or not the special cost reimbursement falls within the prohibitions of RCW

10.01.160(2)." Br. of Appellant at 7.

Neither party has briefed the issue of whether these assignments of error may be

raised for the first time on appeal. See RAP 2.5(a). In State v. Diaz-Farias, 191 Wn.

App. 512,520,362 P.3d 322 (2015), we held that an assignment of error to costs that a

defendant contends are not authorized by statute under any circumstances is one that can

be raised for the first time on appeal. Lacking briefing from the parties, we will assume

without deciding that Mr. Powers's argument that the superior court improperly delegated

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State v. Powers

authority to the court clerk falls within this category. We deem waived his argument that

the prosecutor failed in this case to carefully review and tax costs.

In responding to the challenge to the special cost reimbursement, the State points

to documents in the record that explain the "DR $2,000" and "INV $742.50" notations on

the cost bill. CP at 107. The first is a $2,000 bill for Dr. Barnard's (hence, "DR") expert

services for the defense. CP at 117. The second is a $742.50 bill for a defense

investigator (hence, "INV"). CP at 118. Mr. Powers accepts these as supporting

documents, but argues by reply that a defendant, through court-appointed counsel, has a

right to such services that is guaranteed by the Sixth Amendment to the United States

Constitution, the Washington State Constitution, Const. art. 1, § 22, and CrR 3 .1 ( f)( 1),

citing State v. Punsalan, 156 Wn.2d 875, 878, 133 P.3d 934 (2006). He contends that the

services of Dr. Barnard and the investigator were necessary for him to present a defense

and are thereby "expenses inherent in providing a constitutionally guaranteed jury trial"

that RCW 10.01.160(2) forbids a court to impose on a defendant.

We find no improper delegation of authority by the trial court. It was the court,

not the clerk, that imposed the special cost reimbursement, by including it in the

$4,552.50 total costs imposed in the judgment and sentence. We also find an adequate

segregation of the costs by the court, where the judgment and sentence incorporated the

attached cost bill by reference. The statutes relied on by Mr. Powers do not require any

particular form of segregation, and the incorporation of a cost bill prepared by a court

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No. 34006-6-III
State v. Powers

clerk is an adequate procedure for informing the defendant of each assessment taxed and

for purposes of appeal. Any lack of clarity in listing costs as "DR" and "INV" was a

problem that should have been raised in the trial court and has now been remedied by the

State's response.

Defense expert and investigator expenses are not '·expenses inherent in providing

a constitutionally guaranteed jury trial" within the meaning ofRCW 10.01.160(2). In

Diaz-Farias, this court concluded that when the legislature used the phrase "expenses

inherent in providing a constitutionally guaranteed jury trial" in that statute, it "' intended

to encompass only expenses relating to a defendant's jury trial itself, not expenses

associated with other constitutional rights that apply at the time of trial.'" 191 Wn. App.

at 523 (quoting State v. Ferman-Velasco, 333 Or. 422, 41 P.3d 404 (2002)). Fees related

to experts are an expense specially incurred by the State in prosecuting a defendant. See

Utter v. Dep't of Soc. & Health Servs., 140 Wn. App. 293,311, 165 P.3d 399 (2007)

(costs relating to a competency evaluation); State v. Baggett, 103 Wn. App. 564, 13 P.3d

659 (2000), review denied, 143 Wn.2d 1011, 21 P.3d 291 (2000) (expert witness costs).

We find no error.

STATEMENT OF ADDITIONAL GROUNDS

In a prose statement of additional grounds (SAG), Mr. Powers raises four. While

his second ground claims ineffective assistance of counsel, which can be raised for the

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State v. Powers

first time on appeal, his first, third, and fourth are all issues that implicate RAP 2.5(a),

under which issues are waived if not raised in the trial court.

"RAP 2.5(a) states the general rule for appellate disposition of issues not raised in

the trial court: appellate courts will not entertain them." State v. Guzman Nunez, 160 Wn.

App. 150, 157, 248 P.3d 103 (2011), aff'd and remanded sub nom. State v. Nunez, 174

Wn.2d 707,285 P.3d 21 (2012) (citing State v. Scott, 110 Wn.2d 682,685, 757 P.2d 492

(1988) ). The rationale for refusing to review an issue raised for the first time on appeal is

well settled-issue preservation helps promote judicial economy by ensuring "that the

trial court has the opportunity to correct any errors, thereby avoiding unnecessary

appeals." State v. Robinson, 171 Wn.2d 292, 304-05, 253 P.3d 84 (2011) (citing Scott,

110 Wn.2d at 685).

We first address the three grounds that implicate RAP 2.5(a) and then tum to Mr.

Powers' s claim of ineffective assistance of counsel.

SAG No. 1. Mr. Powers's first ground for relief is an alleged violation of his right

to a speedy trial, based on a Hobson's choice he claims was presented by his last waiver

of that right, in late July 2015, when he wanted the opportunity to work with his new

lawyer, Mr. Chambers. With respect to this ground, Mr. Powers not only implicitly

waived error by failing to raise it in the trial court, he signed explicit waivers. And under

CrR 3.3(d)(3), by failing to file a motion objecting to his continued trial date within 10

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State v. Powers

days after notice, Mr. Powers lost his right to object that a trial did not take place within

the time limits prescribed by the rule.

State v. Michielli, 132 Wn.2d 229,937 P.2d 587 (1997), on which Mr. Powers

relies, was not decided on speedy trial grounds. Instead, late-filed charges were

dismissed in that case after the defendant successfully raised an issue of prosecutorial

mismanagement.

SAG No. 3. Mr. Powers's third ground for relief boils down to a claim of

instructional error. Because Mr. Powers was charged with assault in the second degree

under RCW 9A.36.02l(l)(c), the trial court instructed the jury on the required element

that the assaults were with a deadly weapon. It also defined "firearm," and instructed the

jury that a firearm is a deadly weapon. The special verdict forms completed by the jury

stated that Mr. Powers "[w]as ... armed with a firearm at the time of the commission of'

the crimes of assault. CP at 84, 86.

The only flaw in the jury instructions that Mr. Powers identifies-and identifies

too late-is that the jury instructions on the state's burden in obtaining the special

verdicts stated that it must prove beyond a reasonable doubt that the defendant was

"armed with a deadly weapon." CP at 81, 82. This was based on the State's proposed

instructions, which included Washington Pattern Jury Instruction: Criminal (WPIC)

2.07 .02, when it should have proposed WPIC 2.10.01 instead. See CP at 53, 26. The

defense made no objection to these instructions at the instruction conference.

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State v. Powers

As pointed out in Scott, the general rule that we do not entertain issues not raised

in the trial court has specific applicability with respect to claimed errors in jury

instructions in criminal cases through CrR 6.15( c), requiring that timely and well stated

objections be made to instructions given or refused "' in order that the trial court may

have the opportunity to correct any error."' 110 Wn.2d at 686 (quoting City of Seattle v.

Rainwater, 86 Wn.2d 567, 571, 546 P.2d 450 (1976) overruled on other grounds by State

v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991)). Mr. Powers does not suggest an

exception to RAP 2.5(a) that allows him to challenge the instructions for the first time on

appeal. 2

SAG No. 4. Mr. Powers's fourth ground for relief is that the trial court erred in not

inquiring whether he had a current or future ability to pay LFOs. RCW 10.01.160(3)

provides that "the court shall not order a defendant to pay costs unless the defendant is or

will be able to pay them. In determining the amount and method of payment of costs, the

2 Mr. Powers also mentions State v. Williams-Walker, 167 Wn.2d 889, 896, 225
P.3d 913 (2010) in connection with SAG No. 3, but no Blakely problem (Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)) is presented.
Williams-Walker actually undercuts any argument Mr. Powers might try to make,
because it holds that sentence enhancements "must be authorized by the jury in the form
of a special verdict" and "the sentencing judge can know which (if any) enhancement
applies only by looking to the jury's special findings." Id. at 900-02. The court held in
Williams-Walker that the court could not look to the jury's general verdict to infer and
resolve ambiguity in the answer to the special verdict. Here, the instructions could have
been more consistent, but the jury's special verdict answer that Mr. Powers was armed
with a firearm was clear. It would be wrong under Williams-Walker to look to the jury
instructions to infer ambiguity in that answer.

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No. 34006-6-III
State v. Powers

court shall take account of the financial resources of the defendant." In State v. Blazina,

182 Wn.2d 827,834,344 P.3d 680 (2015), our Supreme Court concluded that the

legislature intended through the statute for "each judge to conduct a case-by-case analysis

and arrive at an LFO order appropriate to the individual defendant's circumstances,"

requiring an individualized inquiry on the record. Id. at 834, 838. A Blazina inquiry is

required only for discretionary LFOs. State v. Clark, 191 Wn. App. 369,373,362 P.3d

309 (2015).

Because Mr. Powers failed to object, we could decline to review this issue.

Blazina, 182 Wn.2d at 834. A majority of the panel favors exercising our discretion to at

least consider Mr. Powers's argument.

The trial court imposed $3,752.50 in discretionary LFOs. It was aware from Mr.

Powers's interviews by Detective Gerry that Mr. Powers was 31 years old when

interviewed and worked as a caretaker at the time of the crimes. Dr. Barnard's report,

provided by the defense in support of its request for a downward departure from the

standard range, generally recounted Mr. Powers's work history and stated he was a high

school graduate with a Bachelor of Arts degree in international business.

As previously noted, the trial court asked Mr. Powers at sentencing whether there

was any reason he was not capable of working, to which he responded, "Not at this time,

no, Ma'am." RP at 244. In allocuting at sentencing, Mr. Powers told the court that ifhe

received a long sentence, "[I]t won't do anything but hamper my ability to make

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State v. Powers

restitution and pay the substantial court costs and fines that I know I'm gonna settle with

and, ultimately, just make amends for what I did." RP at 240. Again, he did not object

when the trial court announced the costs it would impose.

Given his education and work background, the fact that Mr. Powers is currently 33

years old and will be released from prison before age 40, and his statements to the court,

the trial court's inquiry was sufficient. We will not remand for a further inquiry.

SAG No. 2. We turn last to Mr. Powers's claim of ineffective assistance of

counsel. He claims his trial lawyer was ineffective by failing to request instruction on,

and advocate for, a diminished capacity defense.

Effectiye assistance of counsel is guaranteed by both the Sixth Amendment and

article I, section 22 of the Washington Constitution. U.S. Const. amend. VI; Wash.

Const. art. I, § 22; Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984); State v. Mierz, 127 Wn.2d 460,471, 901 P.2d 286 (1995). To

demonstrate ineffective assistance of counsel, a defendant must show two things: "(1)

defense counsel's representation was deficient, i.e., it fell below an objective standard of

reasonableness based on consideration of all the circumstances; and (2) defense counsel's

deficient representation prejudiced the defendant, i.e., there is a reasonable probability

that, except for counsel's unprofessional errors, the result of the proceeding would have

been different." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)

(citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). When a claim

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State v. Powers

can be disposed of on one ground, this court need not consider both prongs. Strickland,

466 U.S. at 697.

Washington courts strongly presume counsel's representation was effective.

McFarland, 127 Wn.2d at 335. Deficient performance is not shown by matters relating

to trial strategy or tactics. See State v. Sardinia, 42 Wn. App. 533, 542, 713 P.2d 122

(1986).

To prove diminished capacity, a defendant must show the crime charged includes

a particular mental state as an element, present evidence of a mental disorder, and supply

"expert testimony demonstrating the defendant suffered from a mental condition that

impaired his ... ability to form the requisite ... intent." State v. Eakins, 127 Wn.2d 490,

502,902 P.2d 1236 (1995); State v. Atsbeha, 142 Wn.2d 904,921, 16 P.3d 626 (2001).

"' Diminished capacity instructions are to be given whenever there is substantial evidence

of such a condition and such evidence logically and reasonably connects the defendant's

alleged mental condition with the inability to possess the required level of culpability to

commit the crime charged."' State v. Cienfuegos, 144 Wn.2d 222, 227-28, 25 P.3d 1011

(2001) (quoting State v. Griffin, 100 Wn.2d 417, 418-19, 670 P.2d 265 (1983)).

Failure of defense counsel to present a diminished capacity defense, where the

facts support it, was held to satisfy both prongs of the Strickland test in Thomas. In that

case, the theory of defense to a charge of felony flight from a police officer was that

Thomas was too intoxicated to have formulated the required mental state of wanton or

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No. 34006-6-111
State v. Powers

willful disregard. 109 Wn.2d at 227. The diminished capacity instruction that her lawyer

failed to request was entirely consistent with her theory of defense. In the absence of the

instruction, the State argued to the jury that Thomas's intoxication actually caused the

mental state required for the crime, while the instruction would have supported the

contrary defense argument that her drunkenness negated it. Id. at 228. The Supreme

Court concluded that a reasonably competent lawyer would have proposed an instruction

based on pertinent cases. Id. at 229. Its finding of ineffective assistance was further

supported by the defense lawyer's failure to ascertain that his expert on the effects of

alcohol would not qualify as an expert, as a result of which the witness was not allowed

to testify as one. Id. Neither failure could be explained as tactical.

Other cases have found that the failure to request a diminished capacity instruction

is not ineffective assistance where the expert's opinion would not satisfy the standards for

the diminished capacity defense. State v. Harper, 64 Wn. App. 283, 290, 823 P.2d 1137

( 1992). It is not ineffective assistance where it is evidently tactical, with nothing to

suggest the lawyers were not aware of the defense and where they instead pursued a

defense more consistent with their client's statements about the incident. In re Pers.

Restraint of Woods, 154 Wn.2d 400,421, 114 P.3d 607 (2005), overruled on other

grounds by Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006).

Here, our presumption that counsel's decision was tactical finds much support in

the record. While the penultimate paragraph of Dr. Barnard's report speaks-of

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No. 34006-6-III
State v. Powers

"diminished capacity" for the alleged incidents, it was entirely based on Mr. Powers's

self-reporting. And the circumstances Dr. Barnard equated with diminished capacity-

"[Mr. Powers's] reasoning,judgement [sic], and impulse control were significantly

impaired"-do not track the requirements for the legal defense. CP at 96. Mr. Powers's

explanation of his actions to Detective Gerry had been that he was frightened and acted in

self-defense, not that he was impaired by his low blood sugar, clinical depression, or

regular marijuana use noted by Dr. Barnard. Mr. Chambers was clearly aware of Dr.

Barnard's report because he provided it to the court in support of his request for a

downward departure from the standard sentencing range. He essentially admitted he did

not believe Dr. Barnard's findings provided a defense to the assault charges when he

advocated that RCW 9.94A.535(1)(c) applied-telling the court that Mr. Powers's

conduct had significantly been affected by duress, threat, or compulsion "insufficient to

constitute a complete defense." RP at 236-37. Because deficient performance is not

shown, we need not review prejudice. 3

3 Mr. Powers asked that we remand for a RAP 9.11 hearing and direct the trial
court to take additional evidence on the issue of ineffective assistance of counsel, relying
on State v. Jones, 183 Wn.2d 327,352 P.3d 776 (2015). RAP 9.11 authorizes us, in our
discretion, to direct that additional evidence be taken before the decision on review if
(1) [A]dditional proof of facts is needed to fairly resolve the issues on
review, (2) the additional evidence would probably change the decision
being reviewed, (3) it is equitable to excuse a party's failure to present the
evidence to the trial court, (4) the remedy available to a party through
postjudgment motions in the trial court is inadequate or unnecessarily

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State v. Powers

Affirmed.

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.

d?'dhw~ft·
Siddoway, J.

WE CONCUR:

Lawrence-Berrey, A.CJ.
j

Pennell, J.

expensive, (5) the appellate court remedy of granting a new trial is
inadequate or unnecessarily expensive, and (6) it would be inequitable to
decide the case solely on the evidence already taken in the trial court.
RAP 9 .11. We do not find these elements present in this appeal.

17