State v. Couch
| Decision Date | 06 February 2019 |
| Docket Number | 50592-4-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. LEVAR DEMETRIUS COUCH, Appellant. |
UNPUBLISHED OPINION
Levar Demetrius Couch appeals his convictions based on guilty pleas for attempting to elude a pursuing police vehicle, driving while under the influence of alcohol, and second degree driving on a suspended license.
Couch's court-appointed appellate counsel has filed a motion to withdraw on the ground that there is no basis for a good faith argument on appeal. The motion presents three potential issues that counsel claims would be frivolous: (1) whether Couch made a knowing and intelligent guilty plea, (2) whether Couch was afforded his right to allocution, and (3) whether the trial court properly imposed discretionary legal financial obligations (LFOs). While this appeal was pending the Washington Supreme Court issued its decision in State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), which modified the standards governing the imposition of LFOs. Couch's appellate counsel then filed a supplemental brief arguing that under Ramirez the $200 criminal filing fee LFO was improperly imposed on Couch.
We deny counsel's motion to withdraw and direct her to pursue Couch's appeal on the issues of whether the trial court adequately inquired into his ability to pay discretionary LFOs, whether the $200 criminal filing fee was validly imposed on Couch, and whether the interest accrual provision in Couch's judgment and sentence was validly imposed.
Couch pled guilty to attempting to elude a pursuing police vehicle driving while under the influence of alcohol (DUI), and second degree driving on a suspended license. Couch signed a statement of defendant on a plea of guilty. Counsel assisted Couch through his guilty plea and at his subsequent sentencing hearing.
The State recommended consecutive sentences for the negotiated plea, and the court informed Couch that it alone had the discretion to decide whether the sentences would be concurrent or consecutive. Couch affirmed that he understood it was within the court's authority to make this decision. The parties agreed that Couch's offender score on the eluding charge was 2 based on a prior DUI conviction plus the current DUI conviction. The court agreed to the plea recommendation and imposed consecutive sentences.
Before imposing discretionary LFOs, the court discussed with Couch his work history and education, establishing that at the time of his arrest Couch had been working at Nordstrom and that he had gone through the 12th grade in school. Based on this discussion, the court determined that Couch had the present and future ability to pay discretionary LFOs. The court then imposed two discretionary LFOs: a $500.00 court-appointed attorney fee and, for count II only, a $2, 895.50 assessment. The court also imposed a number of other LFOs, among which was a $200 criminal filing fee assessment. The judgment and sentence for count I also stated:
The financial obligations imposed in this judgment shall bear interest from the date of the judgment until payment in full at the rate applicable to civil judgments. RCW 10.82.090.
Clerk's Papers at 28. The court further ordered Couch to have an alcohol evaluation and placed him on bench probation.
Couch appeals his judgment and sentence.
Couch's court-appointed appellate counsel filed a motion to withdraw, which includes a discussion of issues that potentially could be raised on appeal. The State filed a response agreeing that there are no nonfrivolous issues on appeal. Couch was served with both his counsel's motion to withdraw and the State's response. Couch did not file a statement of additional grounds.
After the decision in Ramirez, Couch's appellate attorney filed a motion for permission to file a supplemental brief arguing that the $200 criminal filing fee LFO was not valid under Ramirez and Laws of 2018, chapter 269, section 17. We granted the motion, accepted the brief, and allowed the State to file a brief in response. The State agreed that because the trial court had found Couch indigent, Ramirez and the 2018 legislation barred imposition of the criminal filing fee. The State also noted in its briefing that the 2018 legislation eliminated the accrual of interest on nonrestitution LFOs and stated that the interest accrual provision in Couch's judgment and sentence should be stricken for that reason.
ANALYSIS
Motion to Withdraw
Couch's court-appointed appellate counsel moves to withdraw on the grounds that there is no basis for a good faith argument on appeal. We disagree.
Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellate counsel for a criminal defendant is authorized to file a motion to withdraw if there are no nonfrivolous grounds that can be raised on appeal.
State v. Hairston, 133 Wn.2d 534, 537-38, 946 P.2d 397 (1997) (emphasis omitted) (quoting Anders, 386 U.S. at 744). If we agree that the appeal is wholly frivolous, we will grant the motion to withdraw and dismiss the appeal. See State v. Theobald, 78 Wn.2d 184, 187, 470 P.2d 188 (1970).
RAP 18.3(a)(2) outlines the procedure for filing an Anders motion. The motion filed by the defendant's attorney must "identify the issues that could be argued if they had merit" with references to the record, and the motion and answer from the adverse party must be served on the person represented by counsel seeking to withdraw. RAP 18.3(a)(2).
Couch's counsel followed the procedure required under Anders and under RAP 18.3(a)(2). With the procedural requirements being met, we next consider whether there are any nonfrivolous claims Couch could make on appeal.
The material facts are accurately set forth in counsel's motion to withdraw. The motion identified the following potential issues on appeal:
Br. of Appellant at 2-5. In addition, Couch argues in his supplemental brief that the $200 criminal filing fee LFO is invalid under Ramirez and the 2018 legislation. As noted, the State agrees with that contention and takes the position that the interest accrual provision also runs afoul of Ramirez and the 2018 legislation.
In considering these issues, we have reviewed counsel's motion, the State's response, and the parties' supplemental briefing. In addition, as required under Anders, we have independently reviewed the record to determine if there are other nonfrivolous issues that could be raised on appeal. See Anders, 386 U.S. at 744.
Counsel argues that Couch could potentially argue that he did not make a knowing and intelligent guilty plea. We agree that doing so would be frivolous.
"Due process requires an affirmative showing that a defendant entered a guilty plea intelligently and voluntarily," with knowledge that certain rights will be waived. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996); State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). The trial court "shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea." CrR 4.2(d). Whether a plea is knowingly, intelligently, and voluntarily made is determined from a totality of the circumstances. Branch, 129 Wn.2d at 642. A defendant's signature on a plea statement is strong evidence of a plea's voluntariness. Id.
Couch told the court he understood the consequences of the guilty plea and signed the plea form. The trial court discussed with him the rights he was giving up, answered his questions, and confirmed that he understood what was happening and what the implications of his sentence would be, including confirming that he was making his plea knowingly, intelligently, and voluntarily. He has not moved to withdraw his plea.
We agree with Couch's counsel and the State that the facts of this case did not support an argument that Couch did not make a knowing and intelligent guilty plea. We accordingly hold that arguing to the contrary would be frivolous on appeal.
Counsel asserts that Couch could potentially argue that he was not afforded his right to allocution. We agree that doing so would be frivolous.
Allocution is the right of a criminal defendant to make a personal argument or statement to the court before the pronouncement of sentence. State v. Canfield, 154 Wn.2d 698, 701, 116 P.3d 391 (2005). At sentencing, the trial court must allow argument from the defendant on the sentence to be imposed. RCW 9.94A.500(1).
At sentencing, before imposing the sentence, the trial court asked Couch if he had anything to say. Couch apologized for his actions, expressed his wishes to get alcohol treatment to do right by his family, and discussed his...
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