State v. Huckins

426 P.3d 797

STATE of Washington, Respondent,

v.Alexander James HUCKINS, Appellant.

No. 50091-4-II

Court of Appeals of Washington, Division 2.

Filed September 25, 2018

Kathryn A. Russell Selk, Russell Selk Law Office, 1037 Ne 65th St., Seattle, WA, 98115-6655, for Appellant.

Jesse Espinoza, Clallam County Deputy Prosecuting Attorn., 223 E. 4th St. Ste. 11, Port Angeles, WA, 98362-3000, for Respondent.

PUBLISHED OPINION

Melnick, J.

¶ 1 Alexander James Huckins appeals an order requiring him to pay $1,000 bail pending his trial for assault in the second degree. Huckins ultimately pled guilty to a reduced charge of felony harassment. Although Huckins does not seek reversal of his conviction, he contends that the trial court violated the pretrial release rule, CrR 3.2(d)(6), and his constitutional rights by ordering bail he could not afford without doing the analysis required by the rule. He also challenges several provisions of his sentence.

¶ 2 Despite its mootness, we address the issue of bail because it is of continuing and substantial public interest. We conclude that the trial court abused its discretion by failing to consider less restrictive conditions than monetary bail. We remand to the trial court to strike the portion of Huckins’s sentence that was based on a statute that did not exist.

FACTS

I. INCIDENT

¶ 3 On November 15, 2016, Huckins, while in his residence, threatened to stab his roommate. Huckins was upset because his Facebook account had been hacked, and he suspected his roommate of being involved. Police responded to the residence. They questioned Huckins and arrested him.

II. BAIL HEARING

¶ 4 The State charged Huckins with assault in the second degree, a domestic violence allegation. Huckins first appeared in court the day after his arrest. An attorney who was present represented him at the hearing for the purpose of setting bail.

¶ 5 The State requested that the trial court set bail in the amount of $5,000. The State based its recommendation on Huckins’s misdemeanor domestic violence conviction from the previous April and the current allegations of threatening a roommate with a knife.

It also requested an order forbidding Huckins from contacting the victim and requiring him to stay at least 1,000 feet from his residence.

¶ 6 Huckins’s attorney stated that he would be investigating a possible alibi defense and that he questioned the categorization of the case as domestic violence. He also pointed out that Huckins had complied with prior restraining orders against him.

¶ 7 Huckins stated that his only source of income was social security disability (SSD) for his mental disability. His defense attorney suggested that, under Wakefield ,¹ the trial court had to consider that Huckins had no money to post bail. The State argued that it was not requesting bail out of concern for Huckins failing to appear, but based on his recent assault conviction and the nature of the allegations.

¶ 8 The court ruled:

[I]t’s just the actual, the fact that he was convicted of a domestic violence assault last year and this year he’s charged with another domestic violence assault, a more serious one, again, is the Court’s concern, and I’m a little bit nervous about just releasing him because I don’t really understand this whole thing and it did involve, allegedly, somebody being told that he was going to get stabbed in the gut with a knife that was pulled on him, which does not sound good to the Court. I think what I’m going to do is, I may change my mind on this but at this point I’m going to set a small amount of bail. I know it’s less than the State is seeking but I’m going to set bail at $1,000.00. I think to Mr. Huckins that would be a lot of money and I might give some thought to the special report calendar, especially if I knew a little more about what Mr. Huckins was doing, if he’s actively engaged in some sort of treatment or counseling and I guess I’m a little bit concerned about what his relationship is with this house and what he has there, if his possessions are there and that kind of thing and I don’t need to know all that right today but it just seems like those are the kind of the issues.

Report of Proceedings (RP) at 13-14.

¶ 9 The court then entered an order setting conditions of release pending trial. It used a form with the preprinted language "THE COURT HAVING DETERMINED that release on personal recognizance will not reasonably assure his/her appearance, or there is a danger that Defendant will commit a violent crime or interfere with the administration of justice, IT IS ORDERED that:" Clerk’s Papers (CP) at 48. The court then checked boxes that stated the following:

1. [X] Release is authorized upon posting of cash bail or execution of security bond in the amount of $1000. Bail/bond is posted to guarantee compliance with all conditions of release herein and may be forfeited upon a violation of conditions and/or a failure to appear

....

3. [X] Defendant shall maintain physical residence at: provide to court.

4. [X] Defendant’s travel is restricted to: Western Washington.

....

6. [X] Defendant shall not contact/have any communication with: Alexander Evans.

....

8. [X] Defendant shall not possess any firearms or other deadly weapons.

....

10. [X] Defendant shall not use/possess any controlled substances except as prescribed by a physician.

11. [X] Defendant shall not commit any criminal violation of law.

12. [X] Defendant shall maintain contact with his/her attorney and appear in Court as directed.

CP at 48.

III. PLEA AND SENTENCE

¶ 10 Huckins did not post bail and remained in custody. On January 3, 2017, Huckins pled guilty to the reduced charge of felony harassment and he received credit for time served of fifty-four days.

¶ 11 The trial court also sentenced Huckins to twelve months of community custody with conditions, including that he comply with the statutory requirements of RCW 9.94A.120(8)(b)(c)² . The court waived all discretionary and mandatory legal financial obligations because Huckins "has been on SSD all his life, has never worked, has only a $733 a month income from S.S.D., has no assets and has had mental health issues including PTSD and bi-polar disorder which precludes future employment." CP at 20.

¶ 12 The trial court observed that it was unsure whether it had the authority to waive Department of Corrections (DOC) supervision fees and stated that it would not do so. Huckins requested a stay of all financial obligations associated with community custody supervision and other costs associated with DOC and the court suggested that Huckins appeal because it did not believe it had the authority to waive them. The judgment and sentence did not impose DOC or community custody-related financial obligations.

¶ 13 Huckins appeals the trial court’s bail order and his sentence.

ANALYSIS

I. MOOTNESS

¶ 14 Huckins contends that we should consider his bail arguments on the merits despite their mootness. He contends that the bail rule and constitutional violations in this case raise questions of continuing and substantial public interest that are likely to arise again but evade review. We agree.

¶ 15 "A case is moot if a court can no longer provide effective relief." Orwick v. City of Seattle , 103 Wash.2d 249, 253, 692 P.2d 793 (1984).

¶ 16 We may retain and decide a moot appeal "if it involves matters of continuing and substantial public interest." State v. Hunley , 175 Wash.2d 901, 907, 287 P.3d 584 (2012). In determining whether a case presents issues of continuing and substantial public interest, we consider: " ‘[ (1) ] the public or private nature of the question presented, [ (2) ] the desirability of an authoritative determination for the future guidance of public officers, and [ (3) ] the likelihood of future recurrence of the question.’ " Hunley , 175 Wash.2d at 907, 287 P.3d 584 (internal quotation marks omitted) (quoting In re Pers. Restraint of Mattson , 166 Wash.2d 730, 736, 214 P.3d 141 (2009) ). We also evaluate the " ‘level of genuine adverseness and the quality of advocacy of the issues’ " and " ‘the likelihood that the issue will escape review because the facts of the controversy are short-lived.’ " Westerman v. Cary , 125 Wash.2d 277, 286-87, 892 P.2d 1067 (1994) (quoting Hart v. Dep’t of Soc. & Health Servs. , 111 Wash.2d 445, 448, 759 P.2d 1206 (1988) and Seattle v. State , 100 Wash.2d 232, 250, 668 P.2d 1266 (1983) (Rosellini, J., dissenting) ).

¶ 17 The issue in this case is of a public nature involving the setting of bail and concerning the interpretation of a court rule. The proper interpretation and application of the bail rule is relevant to all criminal cases and there is currently a dearth of cases on point. Deciding this issue would provide useful guidance and assistance to all judges who have a duty to set release conditions for criminal defendants. The setting of release conditions is likely to recur. Additionally, given the time constraints inherent in criminal cases, the issue might otherwise evade appellate review.

¶ 18 The Supreme Court recently accepted review of a moot bail case because "the proper form of bail is a matter of continuing and substantial public interest, overcoming any claim of mootness."³ State v. Barton , 181 Wash.2d 148, 152, 331 P.3d 50 (2014) (internal quotation marks omitted). The Supreme Court has also observed that "the issue of bail is one which will escape review because the facts of the controversy are short lived: an arrestee will be detained only pending a preliminary appearance." Westerman , 125 Wash.2d at 287, 892 P.2d 1067.

¶ 19 The State contends that Huckins has an alternative remedy for violations of CrR 3.2 precluding the necessity of reviewing a moot issue. It argues that "the defendant may file a motion to reduce bail or for release on personal recognizance and the court’s decision on that motion will be a final decision which is subject to discretionary review." Br. of Resp’t at 6. However, the State does not suggest how this alternative method of obtaining...