* State of Washington, Respondent v. Steven Keith Nelson, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 57445-4-II
Respondent,
v.
PART PUBLISHED OPINION
STEVEN KEITH NELSON,
Appellant.
MAXA, P.J. – Steven Nelson appeals his sentence of life without release/parole (LWOP)
as authorized under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570.
Nelson was convicted of second degree assault, and he had two previous strike offenses: separate
convictions of first degree assault and second degree assault.
Nelson argues that the POAA is unconstitutional as applied because it is administered in
a racially disproportionate manner. He relies on the framework that the Supreme Court used to
hold that the death penalty was unconstitutional in State v. Gregory, 192 Wn.2d 1, 22, 427 P.3d
621 (2018). He also relies on a declaration from appellate counsel attached as an appendix to his
opening brief providing data regarding the number of Black defendants compared to the number
of White defendants given LWOP sentences under the POAA. That data was not presented to
the trial court, and Nelson did not argue in the trial court that his LWOP sentence was
unconstitutional.
The State filed a motion to strike Nelson’s evidence in the appendix and all argument
based upon such evidence, arguing that the submission of such evidence violated RAP 9.11. The
State also argues that Nelson cannot raise this issue for the first time on appeal because his claim
Filed
Washington State
Court of Appeals
Division Two
June 25, 2024
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No. 57445-4-II
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does not constitute manifest constitutional error. On the merits, the State argues that the
evidence is insufficient to establish a constitutional violation.
We (1) deny the State’s motion to strike because we may take judicial notice of the
evidence, the evidence provided was from reputable sources, and the State challenged the
reliability of the evidence in its response brief; (2) exercise our discretion to consider Nelson’s
constitutional argument for the first time on appeal; and (3) hold that although Nelson shows that
the POAA may have a racially disproportionate impact, he has not shown that the POAA is
administered in a racially disproportionate manner as found in Gregory.
Therefore, we hold that the POAA is not unconstitutional as applied. We reject Nelson’s
additional arguments on the merits in an unpublished portion of this opinion. Accordingly, we
affirm Nelson’s conviction and sentence, but we remand for the trial court to strike the crime
victim penalty assessment (VPA) from the judgment and sentence.
FACTS
In January 2021, Patricia McCray was living on the street and met Nelson outside of her
tent. They purchased crack cocaine and went back to Nelson’s residence and drank and smoked
together. Nelson became agitated and paranoid, and accused McCray of stealing the drugs or his
money. He then grabbed a knife and stabbed McCray multiple times.
The State charged Nelson with first degree assault. After a mistrial, a second trial was
held and the jury found Nelson guilty of second degree assault while armed with a deadly
weapon.
Nelson stipulated that he previously had been convicted of two other felonies that were
defined as most serious offenses – first degree assault and second degree assault. RCW
9.94A.030(32)(a)-(b). These convictions are considered strike offenses under the POAA. RCW
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No. 57445-4-II
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9.94A.030(37)(a)(i)-(ii). Because Nelson’s current offense of second degree assault while armed
with a deadly weapon also was a strike offense, the trial court sentenced Nelson to LWOP.
Nelson appeals his sentence.
ANALYSIS
A. STATE’S MOTION TO STRIKE
The State filed a motion to strike Nelson’s evidence in the appendix of his opening brief
and all argument based upon such evidence because (1) such evidence was not a part of the
appellate record, (2) Nelson’s appellate counsel prepared the evidence making it an improper
declaration and inadmissible testimony, and (3) the State did not have an opportunity to
challenge the reliability of the evidence. We deny the State’s motion.
First, although Nelson did not present his evidence in the trial court, we may still
consider the evidence as part of the appellate record. Courts “take ‘judicial notice of implicit and
overt racial bias against [B]lack defendants in this state’ and . . . will consider such historical and
contextual facts when deciding cases.” State v. Hawkins, 200 Wn.2d 477, 501, 519 P.3d 182
(2022) (quoting Gregory, 192 Wn.2d at 22). The court in Hawkins stated,
We have also recognized the judiciary’s role in perpetuating racism within the
justice system and have committed to changing that. In line with that appreciation
of historical and contextual accuracy, we have considered a wide variety of data
when making our decisions. In some cases involving racially disproportionate
outcomes, we have considered statistical evidence that was developed as part of the
record. In other cases, we have considered available data, history, and context,
even if it was not developed as part of the record. In other words, the judicial branch
can rely on history and context on issues of race to the same extent that courts have
always relied on history and context to analyze all other issues.
200 Wn.2d at 501 (citations omitted).
Second, the evidence Nelson provides in the appendix does not represent “testimony” of
his appellate counsel. Although Nelson’s attorney submitted a declaration, it merely states how
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No. 57445-4-II
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and where he gathered the evidence. He maintains that the evidence provided was from
reputable sources, such as the Washington State Caseload Forecast Council, the United States
Census Bureau, Columbia Legal Services, and the Sentencing Guidelines Commission.
Third, although the State makes a sound argument that they should have an opportunity
to challenge the reliability of the evidence, it did so in its response brief. Not only does the State
challenge the data, but it provides its own evidence from a task force research working group and
the Sentencing Project.
The State notes that in Gregory, the Supreme Court granted the State’s request to hold a
hearing to challenge the report upon which the defendant relied. 192 Wn.2d at 12-13. Although
no hearing was actually held, the commissioner solicited additional information through
interrogatories, filings, and follow-up questions. Id. at 13. But in that case the defendant had
commissioned an expert study, and the State had concerns about the researcher’s statistical
methodology and reliability. Id. at 12.
Here, Nelson’s attorney did not commission his own study for the purpose of his
argument. Instead, he gathered existing statistics and data from reputable sources and submitted
them in the format of an appendix. And just like in Gregory, the State was still able to express
its disagreement and overall assessment of the appendix in its response brief.
Therefore, we deny the State’s motion to strike.
B. CONSIDERATION OF UNPRESERVED ARGUMENT
The State argues that Nelson did not preserve the POAA issue for appeal because he did
not challenge the constitutionality of the POAA at the trial court. The State claims that the issue
does not constitute manifest constitutional error under RAP 2.5(a)(3) because it depends solely
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No. 57445-4-II
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on evidence outside the record that was not submitted to the trial court. We exercise our
discretion to consider this issue.
RAP 2.5(a) states that the “appellate court may refuse to review any claim of error which
was not raised in the trial court.” However, a party may raise a manifest error affecting a
constitutional right for the first time on appeal. RAP 2.5(a)(3). And we have discretion to
consider unpreserved claims even if they do not involve manifest constitutional errors. See State
v. Clare, ___ Wn. App. 2d ___, 544 P.3d 1099, 1103 (2024). In addition, we may exercise our
discretion to reach the issue presented in order to further clarify the law. State v. Grott, 195
Wn.2d 256, 270, 458 P.3d 750 (2020).
The State cites to State v. Davis, 175 Wn.2d 287, 290 P.3d 43 (2012), abrogated in part
by Gregory, 192 Wn.2d 1. In Davis, the defendant brought a motion to dismiss in the trial court,
arguing that the death penalty violated the Washington Constitution. Davis, 175 Wn.2d at 343.
The motion was based on federal law and uncited statistics. Id. On appeal, the defendant
supported this argument with statistics and data, but the Supreme Court struck that evidence. Id.
The court held that the argument was not manifest because the record was insufficient to review
it. Id. at 344. The court stated, “we have a severe lack of information on the death penalty’s
implementation, which makes it difficult for us to perform any meaningful analysis.” Id. at 345.
As in Davis, the trial court record is insufficient for us to review Nelson’s constitutional
claim. And because the trial court was not provided with the data Nelson has submitted on
appeal, the alleged constitutional error may not be manifest.
On the other hand, Nelson’s argument is based on state law and reputable statistics,
which we have decided not to strike. And the Supreme Court has acknowledged that “Black
defendants appear to receive [LWOP] sentences at a far greater rate than white defendants.”
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No. 57445-4-II
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State v. Jenks 197 Wn.2d 708, 712, 487 P.3d 482 (2021). Therefore, we exercise our discretion
under RAP 2.5(a) to consider Nelson’s argument that the POAA is unconstitutional.
C. CONSTITUTIONALITY OF PERSISTENT OFFENDER ACCOUNTABILITY ACT
Nelson argues that the POAA is unconstitutional as applied because it is administered in
a racially disproportionate manner. He argues that we should apply the same analysis the
Supreme Court used in Gregory to invalidate the death penalty. Although Nelson raises serious
concerns about the racially disproportionate impact of the POAA, he has not shown that the
POAA is administered in a racially disproportionate manner as found in Gregory. Therefore, we
disagree.
1. Legal Principles
Article I, section 14 of the Washington Constitution provides, “Excessive bail shall not
be required, excessive fines imposed, nor cruel punishment inflicted.” “This court has
‘repeated[ly] recogni[zed] that the Washington State Constitution’s cruel punishment clause
often provides greater protection than the Eighth Amendment.’ ” Gregory, 192 Wn.2d at 15
(quoting State v. Roberts, 142 Wn.2d 471, 506, 14 P.3d 713 (2000)).
We review constitutional challenges de novo. State v. Ross, 28 Wn. App. 2d 644, 646,
537 P.3d 1114 (2023), review denied, 2 Wn.3d 1026, 544 P.3d 30 (2024). Statutes are presumed
constitutional and the challenger has the burden to show unconstitutionality. Id. “An as-applied
challenge to a statute’s constitutionality requires examination of the statute in the specific
circumstances of the case.” Id. If a court holds that a statute is unconstitutional as applied, the
statute is not invalidated, but instead its application is prohibited in the specific context and
future similar contexts. Id.
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Under the POAA, a persistent offender is an offender who has on three separate
occasions committed felonies that are most serious offenses. RCW 9.94A.030(37)(a)(i)-(ii).
RCW 9.94A.030(32) defines “most serious offense” as any class A felony as well as a number of
other offenses. Sentencing courts must count all prior adult convictions for most serious
offenses as “strikes.” State v. Reynolds, 2 Wn.3d 195, 200, 535 P.3d 427 (2023). After three
strikes, the offender must be sentenced to LWOP. RCW 9.94A.570. A trial court lacks
discretion to impose any other sentence. State v. Crawford, 159 Wn.2d 86, 101, 147 P.3d 1288
(2006).
Before being convicted of his current offense, Nelson had two separate prior convictions
of first degree assault and second degree assault. Both are defined as most serious offenses.
RCW 9.94A.030(32)(a)-(b). In addition, Nelson’s current offense of second degree assault is
defined as a most serious offense. RCW 9.94A.030(32)(b). Because Nelson now has been
convicted on three separate occasions for most serious offenses, he fits within POAA’s definition
of a persistent offender.
2. Gregory Decision
Nelson argues that the POAA is unconstitutional as applied under the framework the
Supreme Court used for finding the death penalty unconstitutional in Gregory, 192 Wn.2d 1.
In Gregory, a jury convicted the defendant of aggravated first degree murder. 192 Wn.2d
at 6. The same jury, and another jury on remand for resentencing, concluded that there were not
sufficient mitigating circumstances to merit leniency and sentenced the defendant to death. Id. at
6-7.
At the time, Washington’s capital punishment statutes – contained in chapter 10.95 RCW
– provided for a special sentencing proceeding where either a judge or a jury would determine
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whether there were sufficient mitigating circumstances to merit leniency when a defendant was
found guilty of aggravated first degree murder. Id. at 10. If such circumstances were present,
then the defendant would be sentenced to LWOP. Id. If the defendant instead was sentenced to
death, then the sentence would automatically be reviewed by the Supreme Court. Id. The court
was required to determine “(a) whether there was sufficient evidence to justify the judge’s or
jury’s finding in the special sentencing proceeding, (b) whether the death sentence [was]
excessive or disproportionate to the penalty imposed in similar cases, considering the crime and
the defendant, (c) whether the death sentence was brought about through passion or prejudice,
and (d) whether the defendant had an intellectual disability.” Id.
The defendant in Gregory challenged the constitutionality of the death penalty, claiming
that his death sentence was random, arbitrary, and impermissibly based on his race. Id. at 11.
The defendant commissioned a study by Katherine Beckett and Heather Evans (Beckett report)
on the effect of race and the county of conviction on the imposition of the death penalty. Id. at
12. The Beckett report concluded that “black defendants were four and a half times more likely
to be sentenced to death than similarly situated white defendants.” Id. The State raised concerns
about the statistical analysis in the report and filed a report by its own expert. Id. at 12-13. The
court ordered a hearing before the Supreme Court Commissioner, who provided a report
outlining the disagreements between the experts and evaluating the strengths and weaknesses of
the defendant’s analysis. Id. at 13.
After running additional models as requested by the commissioner, Beckett summarized
her findings on race as follows:
“[F]rom December 1981 through May of 2014, special sentencing proceedings in
Washington State involving Black defendants were between 3.5 and 4.6 times as
likely to result in a death sentence as proceedings involving non-Black defendants
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No. 57445-4-II
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after the impact of the other variables included in the model has been taken into
account.”
Id. at 19 (quoting Resp. to Comm’r’s Suppl. Interrogs. at 16 (Sept. 29, 2017)). The court gave
“great weight to Beckett’s analysis and conclusions.” Id.
The Supreme Court stated that the most important consideration was whether the
evidence showed that race had a “meaningful impact on imposition of the death penalty.” Id. at
20. The court emphasized that it made this determination “by way of legal analysis, not pure
science.” Id. As a result, the court declined to require “indisputably true social science to prove
that our death penalty is impermissibly imposed based on race.” Id. at 21.
The court stated, “Given the evidence before this court and our judicial notice of implicit
and overt racial bias against black defendants in this state, we are confident that the association
between race and the death penalty is not attributed to random chance.” Id. at 22. The court
concluded, “When the death penalty is imposed in an arbitrary and racially biased manner,
society’s standards of decency are even more offended. Our capital punishment law lacks
‘fundamental fairness’ and thus violates article I, section 14.” Id. at 24 (quoting State v.
Bartholomew, 101 Wn.2d 631, 640, 683 P.2d 1079 (1984)).
The Supreme Court further held that the death penalty failed to serve the penological
goals of retribution and deterrence. Gregory, 192 Wn.2d at 24. Beckett’s analysis demonstrated
that there was “ ‘no meaningful basis for distinguishing the few cases in which [the death
penalty] is imposed from the many cases in which it is not.’ ” Id. at 25 (quoting Furman v.
Georgia, 408 U.S. 238, 313, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (White, J., concurring)).
The court stated, “To the extent that race distinguishes the cases, it is clearly impermissible and
unconstitutional.” Gregory, 192 Wn.2d at 25.
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3. Analysis
Nelson argues that the POAA is unconstitutional because it is administered in a racially
disproportionate manner. The Supreme Court in Jenks acknowledged “serious concerns about
the racially disproportionate impact of the POAA.” 197 Wn.2d at 712. The court stated, “Black
defendants appear to receive [LWOP] sentences at a far greater rate than white defendants” and
“the legislature itself acknowledged this in drafting ESSB 5288, noting that ‘[t]here is racial
disparity in how the persistent offender statute is enforced. Four percent of the population [of
Washington] is African American yet a disproportionate number have been convicted as
persistent offenders.’ ” Id. (quoting S.B. REP. ON S.B. 5288, 66th Leg., Reg. Sess. (Wash.
2019)). But the court stated that the constitutional issue was not before the court and that “[s]uch
constitutional consideration must await the appropriate case.” Id. at 712-13.
Gregory found the death penalty was unconstitutional because of the racial disparity in
assessing the death penalty. 192 Wn.2d at 24. However, imposition of a LWOP sentence under
the POAA involves a different procedure than the imposition of the death penalty addressed in
Gregory.
The prosecutor had discretion whether to seek the death penalty. Under former RCW
10.95.040(1)-(2) (1981), the prosecutor had to file within 30 days a notice of a special sentencing
proceeding to determine whether the death penalty should be imposed. If no notice was filed, the
prosecutor could not request the death penalty. Former RCW 10.95.040(3). The concurring
opinion in Gregory noted that prosecutors in only three counties had filed death notices since
2000, meaning that where a crime was committed was a deciding factor in whether the death
penalty was imposed. 192 Wn.2d at 44 (Johnson, J., concurring).
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If the death penalty was sought, the judge or the jury had discretion as to whether there
were sufficient mitigating circumstances to merit leniency from a death sentence. Gregory, 192
Wn.2d at 10. And if the defendant was sentenced to death, then it was in the Supreme Court’s
discretion as to whether the sentence was proportionate. Id. Proportionality review was
conducted on an individual basis. Id. at 26. “ ‘At its heart, proportionality review will always be
a subjective judgment as to whether a particular death sentence fairly represents the values
inherent in Washington’s sentencing scheme for aggravated murder.’ ” Id. (quoting State v.
Pirtle, 127 Wn.2d 628, 687, 904 P.2d 245 (1995)).
Under the POAA, the prosecutor has discretion whether to charge a strike offense. But
after a conviction, the application of the POAA does not involve any discretion of the prosecutor
or a judge/jury or a proportionality review. A defendant is sentenced to LWOP when they have
been convicted of any felony that is considered a most serious offense and they were convicted
on at least two separate occasions of felonies that were considered most serious offenses. RCW
9.94A.030(37)(a)(i)-(ii). The statute provides a list of felonies that are considered most serious
offenses, including first and second degree assault. RCW 9.94A.030(32)(a)-(b). In other words,
a LWOP sentence is automatic if the defendant has been convicted of three separate most serious
offenses.
Because Nelson was previously convicted of first and second degree assault, he was
sentenced to LWOP when he was again convicted of second degree assault. The POAA is not
administered on a case by case basis as the death sentence was administered in Gregory. The
POAA is administered the same way no matter who the defendant; all offenders who commit
three most serious offenses will be sentenced to LWOP. Further, unlike for the death penalty,
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the Supreme Court has held that the POAA serves the penological goals of retribution,
deterrence, and incapacitation. State v. Moretti, 193 Wn.2d 809, 826-30, 446 P.3d 609 (2019).
Like the Supreme Court in Jenks, we have serious concerns about the racially
disproportionate impact of the POAA. However, this disproportionate impact likely is due to
systemic racial injustice throughout the criminal justice system rather than the administration of
the POAA. We are not in a position to address these systemic problems.
Nelson has not shown that the POAA is administered in a racially disproportionate
manner as in Gregory. Therefore, we hold that the POAA is not unconstitutional as applied.
CONCLUSION
We affirm Nelson’s conviction and sentence, but remand for the trial court to strike the
VPA from the judgment and sentence.
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.
UNPUBLISHED PORTION
In the unpublished portion of this opinion, we hold that (1) the trial court did not violate
Nelson’s right to counsel when it failed to inquire into his requests for new defense counsel
because Nelson never properly filed any motions on which the trial court could rule; (2)
regarding the trial court’s finding that a witness’s prior testimony could be admitted because she
was unavailable to testify, Nelson waived his right to confrontation argument on appeal because
he failed to renew his objection regarding the sufficiency of the evidence of the witness’s
unavailability in the trial court; and (3) as the State concedes, the trial court should strike the
$500 VPA from the judgment and sentence.
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ADDITIONAL FACTS
Relevant Witnesses
Cynthia Davis rented a room in the same house in which Nelson lived. Davis and her
boyfriend, Marvin Leikam, were present in the house when Nelson assaulted McCray. They did
not witness the assault, but they saw McCray come out of Nelson’s room covered in blood.
Mistrial
Nelson’s first trial took place in December 2021. The morning before trial began, Nelson
expressed that he was unhappy with defense counsel and requested to continue the trial in order
to obtain a different lawyer. The trial court stated that Nelson’s motion was untimely and that it
would not continue the trial nor appoint new counsel.
Davis testified and was subject to cross-examination by defense counsel. The jury was
unable to reach a verdict, and the trial court declared a mistrial.
Requests for New Counsel
Shortly after the mistrial, Nelson sent a letter to the trial court requesting assignment of
new counsel because there was a breakdown of communication and trust with his defense
counsel. The court filed the letter and forwarded copies to the prosecutor and defense counsel.
But the court noted that it “does not act on ex-parte letters or improperly filed pleadings. If
matters are to be considered by the Court, they must be properly filed and placed on the docket
with due notice to all parties and in accordance with court rules.” Clerk’s Papers (CP) at 141.
Nelson then sent to the trial court a “Motion for Substitution of Assigned Counsel in Lieu
of Second Trial.” CP at 142-47. It was filed with the court as “Correspondence to Court.” CP at
142. Nelson outlined the breakdown of communication between him and defense counsel. The
trial court took no action.
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No. 57445-4-II
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Nelson again sent another letter to the trial court noting the breakdown of communication
between him and defense counsel. The court again filed the letter and forwarded copies to the
prosecutor and defense counsel. But the court again noted that it “does not act on ex-parte letters
or improperly filed pleadings. If matters are to be considered by the Court, they must be
properly filed and placed on the docket with due notice to all parties and in accordance with
court rules.” CP at 153.
In February 2022, Nelson appeared before the trial court and requested to represent
himself due to a breakdown in communication with defense counsel. After a lengthy colloquy,
the court determined that Nelson was making this request knowingly and intelligently and
allowed Nelson to represent himself. The court appointed the previous defense counsel as
standby counsel.
Davis’s Prior Testimony
The State filed a motion to admit the prior testimony of Davis from the first trial. The
State argued that Davis was unavailable under ER 804(a)(4) because of mental illness, and
therefore her prior testimony was admissible under ER 804(b)(1). Because Nelson cross-
examined her at the previous trial, the trial court stated that the right to confrontation was not at
issue but whether Davis was unavailable was “more of a gray area.” Rep. of Proc. (RP) (August
29, 2022) at 32-34.
The trial court heard testimony from Leikam as an offer of proof. Leikam testified that
Davis had paranoid schizophrenic disorder, schizoaffective disorder, and attention deficit
hyperactivity disorder. He also testified that during the previous nine months, he noticed that
Davis’s mental health issues had gradually gotten worse to “monumentally worse.” RP (August
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29, 2022) at 38. Leikam stated that this was because she stopped taking her medications and
refused to touch base with treatment providers.
But Leikam also testified that Davis had normal memory and was still grounded in
reality. Although she “may not be able to articulate that well or stick to the issues at hand,” she
had a clear memory. RP (August 29, 2022) at 47.
Nelson argued that Leikam’s testimony did not accurately explain what Davis’s mental
health status was and that her status should be determined by a mental health professional. The
trial court ruled that the record did not establish that Davis was unavailable under ER 804.
Two days later, the State brought forward new information regarding Davis’s mental
health status. The previous night, Davis attempted to light her neighbor’s lawn on fire, defecated
and urinated in the street, and was involuntarily detained. She would not be released for at least
a week.
Jeffrey Thiry, a sergeant with the Tacoma Police Department (TPD), testified that when
he tried to locate Davis for trial, he learned that she was suspected of committing arson and that
TPD officers had involuntarily committed her. The designated crisis responder told Thiry that
Davis had been transferred to the hospital and that she would be transported to a secured facility
that night. Thiry stated that Davis would be detained for a week.
Nelson did not cross-examine Thiry. When the trial court asked Nelson if he had “any
reason why the Court should not admit the prior testimony” upon finding that Davis was
unavailable, he responded, “No, Your Honor.” RP (August 31, 2022) at 446. The court then
granted the State’s motion to admit Davis’s prior testimony. Nelson did not object.
A transcript of Davis’s testimony from the first trial was read to the jury during the
second trial. Nelson did not object.
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Conviction and Sentence
The jury found Nelson guilty of second degree assault while armed with a deadly
weapon. In October 2022, the trial court sentenced Nelson and determined that Nelson was
indigent. However, the trial court imposed the $500 VPA.
Nelson appeals his conviction and sentence.
ANALYSIS
A. RIGHT TO COUNSEL
Nelson argues that the trial court violated his right to counsel when it failed to inquire
into his repeated motions for new counsel. We disagree.
1. Legal Principles
Article I, section 22 of the Washington Constitution and the Sixth Amendment to the
United States Constitution guarantee a criminal defendant the right to assistance of counsel.
When a defendant requests substitute counsel, the request must be timely and stated
unequivocally. State v. Elwell, 199 Wn.2d 256, 272, 505 P.3d 101 (2022). The trial court must
decide whether the relationship between defense counsel and the defendant has completely
collapsed. Id.
When reviewing the trial court’s ruling, we consider “ ‘(1) the extent of the conflict, (2)
the adequacy of the [trial court’s] inquiry, and (3) the timeliness of the motion.’ ” Id. at 272-73
(quoting State v. Cross, 156 Wn.2d 580, 607, 132 P.3d 80 (2006), abrogated on other grounds
by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018)). When a trial court learns of a conflict
between counsel and a defendant, the court has “ ‘an “obligation to inquire thoroughly into the
factual basis of the defendant’s dissatisfaction” ’ sufficient to reach an informed decision.” State
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v. Davis, 3 Wn. App. 2d 763, 790, 418 P.3d 199 (2018) (quoting State v. Thompson, 169 Wn.
App. 436, 462, 290 P.3d 996 (2012)).
We review trial court decisions relating to differences between defense counsel and a
defendant for an abuse of discretion. Elwell, 199 Wn.2d at 273.
2. Analysis
Here, Nelson never properly filed any motions on which the trial court could rule.
Nelson sent two letters to the trial court, to which the court responded each time that it would not
act on ex-parte letters and that Nelson must properly file a motion. Nelson also sent to the court
a motion requesting new counsel, but it was filed with the court as a “Correspondence to Court,”
and not as a properly filed motion. CP at 142-47.
When the trial court granted Nelson’s request to represent himself, Nelson did not ask for
substitution of counsel. He only requested to proceed pro se.
Nelson claims that the trial court abused its discretion when it required him to comply
with court rules because Pierce County Local Rule (PCLR) 7(a)(3)(A), which states the process
for properly filing motions, does not apply to criminal cases. But CR 5, which governs the
service and filing of pleadings and other papers in civil cases, also governs the service and filing
of written motions in criminal cases. CrR 8.4.
Nelson also claims that the trial court should have inquired into the basis of his request
for new counsel once the court learned of the conflict. But Nelson never properly filed any
motions and so the issue was never properly before the trial court to give rise to an obligation to
inquire into the conflict between Nelson and defense counsel.
Therefore, we hold that the trial court did not violate Nelson’s right to counsel.
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No. 57445-4-II
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B. WITNESS UNAVAILABILITY
Nelson argues that the trial court erred when it found Davis unavailable to testify, and
therefore violated his right to confrontation when it admitted Davis’s prior trial testimony. The
State argues that Nelson waived this argument on appeal because he failed to renew his objection
regarding the sufficiency of the evidence of Davis’s unavailability. We agree with the State.
Under RAP 2.5(a), “[t]he appellate court may refuse to review any claim of error which
was not raised in the trial court.” However, an exception applies for manifest errors affecting a
constitutional right. RAP 2.5(a)(3). But Nelson does not claim manifest error; he argues that he
properly objected in the trial court.
Initially, Nelson objected to the State’s motion when he argued that Leikam’s testimony
did not accurately explain what Davis’s mental health status was and that her status should be
determined by a mental health professional. But he did not renew this objection when the State
presented new evidence two days later.
After Thiry testified about Davis’s unavailability, the trial court asked Nelson if he had
“any reason why the Court should not admit the prior testimony” upon finding that Davis was
unavailable. RP (August 31, 2022) at 446. Nelson responded, “No, Your Honor.” RP (August
31, 2022) at 446. And when the court granted the State’s motion to admit Davis’s prior
testimony and a transcript of Davis’s testimony from the first trial was read to the jury, Nelson
did not object either time.
The record shows that Nelson did not renew his previous objection regarding Davis’s
availability to testify. Therefore, we hold that Nelson waived this argument on appeal.
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No. 57445-4-II
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C. CRIME VICTIM PENALTY ASSESSMENT
Nelson argues, and the State concedes, that the $500 VPA should be stricken from his
judgment and sentence. We agree.
Effective July 1, 2023, RCW 7.68.035(4) prohibits courts from imposing the VPA on
indigent defendants as defined in RCW 10.01.160(3). See State v. Ellis, 27 Wn. App. 2d 1, 16,
530 P.3d 1048 (2023). For purposes of RCW 10.01.160(3), a defendant is indigent if they meet
the criteria in RCW 10.10.010(3). Although this amendment took effect after Nelson’s
sentencing, it applies to cases pending on appeal. Ellis, 27 Wn. App. 2d at 16.
The trial court sentenced Nelson in October 2022 and determined that Nelson was
indigent. The State concedes that the VPA should be stricken. Therefore, on remand the trial
court must strike the VPA from the judgment and sentence.
CONCLUSION
We affirm Nelson’s conviction and sentence, but we remand for the trial court to strike
the VPA from the judgment and sentence.
MAXA, P.J.
We concur:
LEE, J.
CHE, J.
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