State Of Washington, Respondent V. Kenneth Allen Clark, Appellant

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
KENNETH ALLEN CLARK,
Appellant.
No. 76027-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	January 17, 2017
Leach, J. — Kenneth Clark appeals his convictions and sentence for first
degree 	assault, 	second 	degree 	assault, 	unlawful 	imprisonment, 	and 	felony
harassment. 	He claims that a 96-day stay in jail while waiting for competency
restoration treatment violated his substantive due process rights and requires
that the court dismiss his charges. 	He also claims that CrR 3.3(h) and CrR 8.3(b)
require 	dismissal 	because 	governmental 	mismanagement caused 	the 	delay.
Alternatively, Clark claims, he is entitled to dismissal because he did not receive
effective assistance of counsel. 	Clark cites no authority that would permit the
court to vacate his conviction for the due process violation he alleges. 	Because
Clark's other arguments lack merit, we affirm Clark's convictions.
Clark also challenges the imposition of certain mandatory legal financial
obligations (LFOs) that the trial court found he could not pay. 	We agree that the
trial court committed an error. 	A trial court must consider the defendant's ability

No. 76027-1-1/2
to pay even mandatory LFOs when, as in this case, the defendant suffers from a
mental health condition.1
We affirm in part and reverse in part. 	We remand to the trial court with
direction 	to 	consider 	Clark's 	ability to 	pay 	the 	criminal 	filing 	fee 	and 	the
deoxyribonucleic acid (DNA) testing fee.
BACKGROUND
This 	case 	arises 	out of an 	altercation 	between 	Clark 	and 	his 	live-in
girlfriend, Marie Epps, that took place on August 3, 2014. 	According to Epps's
trial testimony, she was upset about Clark's drug use and told him that she did
not want to be with him anymore. 	Epps testified that she had "proof of Clark's
drug use and could tell by his behavior that he was using drugs. 	Clark and Epps
got into an argument, which escalated into a physical fight. 	At one point, Clark
pinned Epps to the ground, lying on top of her, and either bit or cut off her ear.
Epps testified that after that, Clark looked like he was shocked and left.
On August 6, 2014, 	the 	State charged 	Clark with assault in the 	first
degree, 	assault 	in the 	second 	degree, 	unlawful 	imprisonment, 	and 	felony
harassment. 	On August 19, due to concerns about Clark's fitness to proceed,
the court ordered a preliminary competency evaluation. 	On August 28, a mental
health specialist determined that Clark was not competent to stand trial at that
time but could likely regain competency after a restoration period at Western
1 RCW9.94A.777(1).

No. 76027-1-1/3
State Hospital (WSH). 	On September 3, the court ordered a 90-day commitment
so Clark could undergo treatment to regain competency.
Because WSH 	had 	no 	available 	beds, 	Clark 	remained 	in 	the 	Pierce
County Detention and Corrections Center until December 8, 2014. 	Clark moved
to dismiss for the 96-day delay in admitting him to WSH for restoration under
CrR 3.3 and for governmental misconduct under CrR 8.3(b). 	The trial court
denied Clark's motion. 	On March 5, 2015, the trial court found Clark competent
to stand trial. 	The trial court denied a second motion to dismiss for speedy trial
violations and governmental misconduct. 	On July 20, 2015, the case proceeded
as a bench trial.
During 	pretrial 	motions, 	the 	State 	moved 	to 	admit 	prior 	incidents 	of
domestic 	violence 	between 	Clark 	and 	Epps. 	Defense 	counsel 	objected,
suggesting that the court reserve ruling on the issue until it had heard Epps's
testimony. 	The trial court reserved ruling as asked. 	At trial, defense counsel
questioned Epps about an assault she reported to the police.
The 	court 	convicted 	Clark 	as 	charged 	and 	imposed 	$800 	in 	LFOs,
including a $500 crime victim penalty assessment, a $100 DNA testing fee, and a
$200 criminal filing fee.
DISCUSSION
Substantive Due Process Violation
Clark claims that a 	96-day delay 	in obtaining 	competency 	restoration
services violated his substantive due process rights and that the remedy for this

No. 76027-1-1/4
violation is dismissal of charges. 	"The Supreme Court has long recognized that
individuals have a fundamental liberty interest in being free from incarceration
absent a 	criminal conviction, 	and that there are corresponding constitutional
limits on pretrial detention."2 A court decides whether the State has violated the
substantive due process rights of incapacitated criminal defendants by balancing
their liberty interests in freedom from incarceration and in restorative treatment
against the legitimate interests of the State.3 "At the least, due process requires
that the nature and duration of commitment bear some reasonable relation to the
purpose for which the individual is committed."4 The government has a legitimate
regulatory 	interest 	in 	pretrial 	detention 	when 	it 	prevents 	danger 	to 	the
community.5 	"But once a court declares a defendant incompetent to stand trial,
that interest is displaced by the State's interest in 'determin[ing] whether there is
a substantial probability that he will attain [ ] capacity in the foreseeable future.'"6
To support his due process claim, Clark relies on the U.S. District Court's
decision in Trueblood I.7 	Trueblood I was a class action civil suit brought by
2 Trueblood v. Wash. State Dep't of Soc. & Health Servs., 73 F. Supp. 3d
1311, 1314 (W.D. Wash. 2014) (Trueblood I).
3 Or. Advocacy Ctr. v. Mink, 322 F.3d 1101,1121 (9th Cir. 2003).
4 Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d 435
(1972).
5 United States v. Salerno. 481 U.S. 739, 748, 107 S. Ct. 2095, 95 L. Ed.
2d 697 	(1987) 	("We have 	repeatedly held that the 	Government's 	regulatory
interest in community safety can, 	in appropriate circumstances, outweigh 	an
individual's liberty interest.").
6 Disability Law Ctr. v. Utah, 180 F. Supp. 3d 998, 1010 (D. Utah 2016)
(alterations in original) (quoting Jackson, 406 U.S. at 738).
7 Trueblood v. Wash. State Dep't of Social & Health Servs., 73 F. Supp. 3d
1311 (W.D. Wash. 2014) (Trueblood I).

No. 76027-1-1/5
pretrial detainees suspected of being mentally incompetent who waited in jail for
an average of 29 days before receiving a competency evaluation and 15 days for
restoration at WSH, and 50 days for evaluation and 17 days for restoration at
Eastern State Hospital.8 In Trueblood I, the court held that these delays violated
the class members' due process rights.9 	In Trueblood II,10 the court ordered the
Department 	of 	Social 	and 	Health 	Services 	(DSHS) 	to 	provide 	competency
evaluations 	to 	pretrial 	detainees 	within 7 	days 	of 	an 	order 	calling for 	an
evaluation (amended to 14 days on remand) and to provide restoration services
within 7 days of an order calling for treatment. 	Similar to the class members in
the Trueblood cases, Clark waited 9 days for a competency evaluation and an
additional 96 days to receive restoration services. 	We assume that the 96-day
delay violated Clark's substantive due process rights, but he does not show that
the remedy of this violation is a dismissal of charges.
Clark mistakenly asserts that Trueblood I dismissed the charges against
class 	members. 	In Trueblood 	II 	the 	court entered 	a 	permanent injunction,
ordering DSHS to provide timely services, but the court made no ruling about the
criminal charges of class members.11 	In fact, none of the Trueblood decisions
8 Trueblood I, 73 F. Supp. 3d at 1313.
9 Trueblood I. 73 F. Supp. 3d at 1317.
10 Trueblood v. Wash. State Dep't of Soc. & Health Servs.. 101 F. Supp.
3d 	1010, 	1023-24. 	(W.D. 	Wash. 	2015) 	(Trueblood 	II), 	was 	vacated 	and
remanded by Trueblood v. Wash. State Dep't of Soc. & Health Servs., 822 F.3d
1037 (9th Cir. 2016). On remand, the court modified its injunction to 14 days.
Trueblood v. Wash. State Dep't of Soc. & Health Servs., No. C14-1178-MJP,
2016 WL 4268933, at *1 (W.D. Wash. Aug. 15, 2016).
11 Trueblood II, 101 F. Supp. 3d at 1023-24.

No. 76027-1-1/6
dismissed 	criminal 	charges 	or 	proposed 	that 	such 	a 	remedy 	would 	be
appropriate. 	The delay criminal defendants face in gaining access to mental
health treatment troubles this court. 	But Clark cites no authority to show that the
remedy for this failure is dismissal of criminal charges. 	We decline to create this
remedy for the substantive due process violation Clark alleges.
Speedy Trial
Clark also claims the trial court erred when it denied his two motions to
dismiss for speedy trial violations under CrR 3.3.12 	An appellate court reviews
the trial court's application of CrR 3.3 de novo.13 	Generally, a defendant who is
in custody must be brought to trial within 60 days of arraignment.14 "A charge not
brought to trial within the time limit determined under [CrR 3.3] shall be dismissed
with prejudice."15 	However, CrR 3.3(e)(1) expressly excludes from the 60-day
calculation "[a]ll proceedings relating to the competency of a defendant to stand
trial 	on 	the 	pending 	charge, 	beginning 	on 	the 	date 	when 	the 	competency
examination is ordered and terminating when the court enters a written order
finding the defendant to be competent."
Clark 	contends 	that 	when 	governmental 	mismanagement 	delays 	a
competency examination, the court should not exclude that delay because it is
12 Clark also claims the delay violated his Sixth Amendment speedy trial
rights. 	He cites to the federal and state constitutions but provides no argument
or other authority to support his claim. 	We therefore consider only his CrR 3.3
argument.
13 State v. Kindsvoqel, 149 Wn.2d 477, 480, 69 P.3d 870 (2003).
14 CrR 3.3(b)(1)(i), (c)(1).
15 CrR 3.3(h).

No. 76027-1-1/7
not a proceeding relating to his competency to stand trial. 	But CrR 3.3(e)(1)
plainly excludes the time between the order for a competency examination and
the order finding the defendant competent. 	Here, the excluded period began on
August 19, 2014, when the trial court ordered a competency examination and
ended when the court entered an order finding Clark was competent to stand trial
on March 5, 2015. 	Thus, following CrR 3.3(e)(1), the trial court properly excluded
this 	period from 	its time for trial 	calculation. 	Further, 	"[tjolling is 	necessary
because neither side can go forward with trial preparation until the defendant is
found competent to proceed. 	The court gives this particular tolling provision
broad 	scope 	precisely 	because the evaluation 	process 	is 	unpredictable 	and
beyond the court's control."16 	Regardless of any alleged mismanagement, while
competency proceedings were ongoing, the time for trial was properly tolled
because neither party was able to 	prepare for trial. 	The trial court correctly
denied Clark's motions to dismiss for CrR 3.3 violations.
Governmental Misconduct
Clark also contends, relying on CrR 8.3(b), that the trial court should have
dismissed his charges for governmental misconduct. 	An appellate court reviews
a trial court's CrR 8.3 decision for abuse of discretion.17
The court, in the furtherance of justice, after notice and hearing,
may dismiss any criminal prosecution due to arbitrary action or
governmental misconduct when there has been prejudice to the
16 State v. Harris, 122 Wn. App. 498, 505, 94 P.3d 379 (2004).
17 State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997).

No. 76027-1-1/8
rights of the accused which materially affect the accused's right to a
fair trial. 	The court shall set forth its reasons in a written order.[181
A trial court may dismiss charges under CrR 8.3(b) only when the defendant
shows, by a preponderance of the evidence, arbitrary action or governmental
misconduct and 	actual 	prejudice affecting 	his 	right 	to 	a 	fair trial.19 	The
"governmental misconduct need not be of an evil or dishonest nature; simple
mismanagement is sufficient."20 	But "the requirement for a showing of prejudice
under 	[CrR] 8.3(b) 	is 	not 	satisfied 	merely 	by 	expense, 	inconvenience, 	or
additional delay within the speedy trial period; the misconduct must interfere with
the defendant's ability to present his case."21
Clark asserts that he established mismanagement and prejudice under
Trueblood I. 	But the conclusions Trueblood I draws do not show governmental
misconduct prejudiced Clark's defense. 	Trueblood I lists a number of examples
of how incarceration can prove harmful to people with serious mental illness.22
But Trueblood I focuses on the liberty interests of pretrial detainees and does not
mention 	any 	prejudice to a similarly situated defendant's ability to present a
defense.23 	Thus, Trueblood I does not help Clark establish prejudice. 	Clark
does not independently explain how governmental misconduct prejudiced 	his
right to a fair trial or explain how he meets the test for dismissal under CrR
18 CrR 8.3(b).
19 State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
20 State v. Blackwell. 120 Wn.2d 822, 831, 845 P.2d 1017 (1993).
21 City of Kent v. Sandhu, 159 Wn. App. 836, 841, 247 P.3d 454 (2011)
(citing State v. Chichester, 141 Wn. App. 446, 457, 170 P.3d 583 (2007)).
22 Trueblood I, 73 F. Supp. 3d at 1316-17.
23 Trueblood I, 73 F. Supp. 3d at 1316-17.
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No. 76027-1-1/9
8.3(b). 	We conclude that the trial court did not abuse its discretion in denying
dismissal of Clark's criminal charges based on CrR 8.3(b).
Ineffective Assistance of Counsel
Clark claims that trial counsel provided ineffective assistance in two ways:
(1) by failing to pursue a diminished capacity defense and (2) by asking a witness
about prior assaults.
Claims of ineffective assistance present mixed questions of law and fact,
which we review de novo.24 We examine the entire record to decide whether the
appellant received effective representation and a fair trial.25 	To succeed on his
ineffective assistance claim, Clark must show that his attorney's performance fell
below 	an 	objective 	standard 	of 	reasonableness 	and 	that 	this 	deficient
performance prejudiced him.26 	We give defense counsel's performance a great
deal of deference and employ a strong presumption of reasonableness.27 	The
reasonableness inquiry requires the defendant to show the absence of legitimate
strategic or tactical reasons for the challenged conduct.28 	Because, as explained
below, Clark does not show his counsel's performance fell below an objective
standard of reasonableness, his ineffective assistance claim fails.
24 In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610
(2001).
25 State v. Hicks. 163 Wn.2d 477, 486, 181 P.3d 831 (2008) (quoting State
v. Ciskie. 110 Wn.2d 263, 284, 751 P.2d 1165 (1988)).
26Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
27 State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).
28 State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).

No. 76027-1-1/10
Diminished Capacity Defense
First, we address Clark's claim that his counsel was ineffective for failing
to 	pursue a 	diminished 	capacity defense. 	Diminished 	capacity is 	a 	mental
condition that impairs the defendant's ability to form the necessary mental state
to 	satisfy 	the 	elements 	of 	the 	crime 	charged.29 	Either 	specific 	intent 	or
knowledge are elements of each of Clark's charges.30 Therefore, Clark claims, a
successful diminished capacity defense would have negated the mental state
elements of his charged crimes.
We must first decide whether the evidence entitled Clark to a diminished
capacity instruction. 	In order to support a 	diminished capacity defense, the
record must include substantial evidence of a mental condition and that evidence
must 	"logically 	and 	reasonably 	connect[ 	] 	the 	defendant's 	alleged 	mental
condition with the inability to possess the required level of culpability to commit
the crime charged."31 	"It is not enough that a defendant may be diagnosed as
suffering from a particular mental disorder. 	The diagnosis must, under the facts
of the case, be capable of forensic application."32
While the record shows that Clark had some history of mental illness and
drug use, it does not show that he did not form the required mental state. 	No
expert 	testified 	about 	Clark's 	mental 	state 	at 	the 	time 	of 	the 	crime. 	A
29 Harris. 122 Wn. App. at 506.
30 RCW 9A.36.011 (assault); RCW 9A.46.020 (felony harassment); RCW
9A.40.040 (unlawful imprisonment).
31 State v. Griffin. 100 Wn.2d 417, 419, 670 P.2d 265 (1983).
32 State v. Atsbeha. 142 Wn.2d 904, 921, 16 P.3d 626 (2001).
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No. 76027-1-1/11
psychological 	report 	prepared 	in connection with 	his 	competency evaluation
mentions a history of mental health problems and drug abuse. 	But this report
does not draw any connection to Clark's mental state when he assaulted Epps.
Similarly, Epps testified that Clark had likely been using drugs that day and had a
"shocked" look on his face after the attack. 	But her testimony does not show that
Clark did not intend to act or did not know what he was doing. 	The record does
not contain substantial evidence that a 	mental condition prevented him from
forming a culpable mental state. 	He is, therefore, not entitled to a diminished
capacity instruction.
We distinguish the cases Clark relies on. 	In State v. Thomas33 and State
v. Tilton.34 the defendants had introduced evidence that alcohol or drug use had
caused them to black out when the crime had taken place. 	Clark, by contrast,
presents no similar evidence to show how any mental illness or drug use affected
his mind at the time of the crime.
While evidence exists to show that Clark suffered from 	some mental
illness and used drugs, he does not present any evidence that illness or drug use
prevented him from 	being able to form the required mental state. 	Therefore,
Clark does not show he was entitled to a diminished capacity defense, he fails to
33 109 Wn.2d 222, 225, 743 P.2d 816 (1987).
34 149 Wn.2d 775, 784-85, 72 P.3d 735 (2003). 	Tilton is also procedurally
distinguishable. 	Due to an incomplete record, the court was unable to decide
whether the defendant was entitled to the defense and, therefore, ordered a new
trial. 	Tilton. 149 Wn.2d at 785.
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No. 76027-1-1/12
meet the first prong 	of Strickland v. Washington.35 and we conclude that his
counsel was not ineffective for failing to pursue the diminished capacity defense.
Prior Assaults
Next, we consider Clark's claim that his attorney was ineffective for asking
Epps about allegations of prior assaults. 	Clark claims that "no conceivable
legitimate 	tactic" 	justified 	introducing 	testimony 	that 	he 	claims 	is 	highly
prejudicial.36 	But as the record shows, defense counsel's questions about the
prior incidents were part of a strategy to challenge the admissibility of the incident
under ER 404(b).
Before 	trial, 	defense 	counsel 	and 	the 	trial 	court 	had 	the 	following
exchange about the admissibility of the incidents:
[DEFENSE COUNSEL]: 	... I think that maybe you should
hear her testimony and treat the testimony as an offer of proof
simultaneous since we don't have a jury here, because the first
thing you have to decide before admissibility is whether or not, by
preponderance, the prior acts occurred, and then whether or not it's
more probative than prejudicial. 	But—and the reason I'm raising
that is because there was an incident in June of 2014 where the
police got called but the reports that I've been given of the incident
say that she told police at that time that nothing had happened, and
so 	I'd prefer the Court wait 	on 	that ruling, 	allow 	her to 	testify,
knowing I'm objecting, until you've heard the testimony, and then—
THE COURT: 	I'll continue to reserve.
[DEFENSE COUNSEL]: —essentially have an offer of proof.
THE COURT: I'll continue to reserve under that framework.
35 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
36 Grier, 171 Wn.2d at 33.
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No. 76027-1-1/13
At trial, defense counsel questioned 	Epps about her statement to the police
regarding an alleged assault.
Q. 	Do you remember telling the police that nothing had
happened?
A. 	I do.
Q. 	Is that true?
A. 	No.
Q. 	Wasn't true?
A. 	No.
The 	case 	proceeded 	as 	a 	bench 	trial, 	and 	the 	court 	heard 	Epps's
testimony as substantive evidence and, at the same time, as an offer of proof.
The court had agreed to consider Epps's testimony in this 	manner and could
distinguish between the two purposes for which it was offered. 	As the record
shows, defense counsel thought Epps's testimony about the prior assaults was
likely to 	lead 	to 	a favorable 	ruling on 	their admissibility. 	Because defense
counsel had a tactical reason for questioning the witness about prior assaults, he
was not ineffective for doing so.
LFOs
Clark asserts that the trial court should not have imposed 	LFOs after
determining that he could not pay. 	The State contends that Clark waived the
issue on appeal when he failed to object to the imposition of LFOs by the trial
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No. 76027-1-1/14
court. 	"Unpreserved LFO errors do not command review as a matter of right."37
But under RAP 2.5(a), we exercise our discretion to consider the issue.38
The trial court imposed only mandatory fees, the $500 crime victim penalty
assessment, the $200 criminal filing fee, and the $100 DNA testing fee.39 	Based
on 	Clark's declaration of indigency, 	the court declined to 	impose additional,
nonmandatory LFOs. 	In general, mandatory LFOs must be imposed regardless
of the defendant's ability to pay.40 	However, "RCW 9.94A.777(1) requires that a
trial court determine whether a 	defendant who suffers from 	a 	mental 	health
condition 	has 	the 	ability 	to 	pay 	any 	LFOs, 	mandatory 	or 	discretionary."41
RCW9.94A.777(1) states that "[b]efore imposing any legal financial obligations
upon 	a 	defendant 	who 	suffers 	from 	a 	mental 	health 	condition, 	other than
restitution or the victim penalty assessment under RCW 7.68.035, a judge must
first 	determine that the defendant. . . has the 	means to 	pay such additional
sums." 	(Emphasis added.)
The State concedes, and we agree, that remand is appropriate because
the trial court did not consider Clark's current ability to pay mandatory fees. 	We
remand for consideration only of Clark's ability to pay the criminal filing fee and
the DNA testing fee.
37 State v. Blazina. 182 Wn.2d 827, 833, 344 P.3d 680 (2015).
38 See Blazina. 182 Wn.2d at 834.
39 RCW 7.68.035(1 )(a) (victim assessment); RCW 36.18.020(2)(h) (filing
fee); RCW 43.43.7541 (DNA testing fee); State v. Lundv. 176 Wn. App. 96, 102-
03, 308 P.3d 755 (2013).
40 Lundv. 176 Wn. App. at 102-03.
41 State v. Tedder. 194 Wn. App. 753, 756, 378 P.3d 246 (2016).
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No. 76027-1-1/15
CONCLUSION
Clark does not show that dismissal of charges is the proper remedy for the
substantive 	due 	process 	violation 	he 	alleges. 	We 	decline 	to 	vacate 	his
convictions on that basis. 	As for his speedy trial claim, under the plain language
of CrR 3.3, Clark was timely brought to trial. Clark's claim under CrR 8.3(b) also
fails because he does not show that any governmental misconduct prejudiced his
case. 	Finally, Clark fails to show that his counsel was not effective. 	For these
reasons, we affirm Clark's conviction.
We find, 	however, 	that the trial court should 	have considered Clark's
ability to pay the criminal filing fee and the DNA testing fee. 	We remand the case
for consideration of Clark's ability to pay those LFOs.
WE CONCUR:
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-15-