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State v. Ingram

Court of Appeals of Washington, Division 2

August 6, 2019

STATE OF WASHINGTON, Respondent,
v.
QURAN DAYMAN ALI INGRAM, Appellant.

          Sutton, J.

         Quran Dayman Ali Ingram appeals from his jury trial convictions for residential burglary (domestic violence) and violation of a domestic violence court order. He argues that the trial court erred when it imposed bail and denied him pretrial release based on personal recognizance and by ruling that the validity of a foreign protection order[1] is not an element of the offense of violation of a domestic violence court under RCW 26.50.110(1)(a).[2] In the published portion of this opinion, we hold that although the bail issue is moot, we reach the issue because it is a matter of public importance; the trial court was not required to enter findings; the trial court erred by imposing bail without first considering less restrictive alternatives and Ingram's financial resources; and the validity of the foreign protection order is not an element of the offense.

         In the unpublished portion of the opinion, we hold that remand for reevaluation of several legal financial obligations (LFOs) is required and do not reach Ingram's pro se ineffective assistance of counsel claim raised in his statement of additional grounds (SAG)[3] because that claim involves matters outside the appellate record. Accordingly, we affirm Ingram's convictions, but we remand for the trial court to reexamine the LFOs consistent with this opinion.

         FACTS

         I. Charges

         On November 30, 2016, Tiffany Ingram obtained a restraining order in Oregon (Oregon order), prohibiting her husband Ingram from entering or remaining in the area within 150 feet of her current or future residence. The Oregon order stated that the addresses of these locations were being withheld for safety reasons. In another section, the Oregon court struck additional language that stated, "Stay away from home on Rossiter, mother[']s on Alder, Sister[']s on Hood pl [sic] and Grandmother[']s on Riverview." Clerk's Papers (CP) at 56. Tiffany[4] provided the Oregon court with a "safe" "[r]esidence/[c]ontact [a]ddress," in Portland. CP at 61.

         On December 1, Tiffany, who had been staying with relatives in Oregon, returned to the home on Rossiter Lane that she and Ingram had shared, locked up the home, and turned off the lights. The next day, she drove past the home and saw that there were lights on inside. Tiffany called the police. The police found Ingram inside the home, and Ingram showed them a copy of the Oregon order. The police arrested Ingram.

         II. Pretrial and Trial Proceedings

         The State charged Ingram with residential burglary (domestic violence) and a gross misdemeanor violation of a domestic violence court order. Ingram pleaded not guilty to the charges.

         A. Risk Assessment and Bail Hearings

         Ingram was booked into jail on December 2. On December 4, based on the statement of probable cause, a judge certified that there was probable cause to arrest Ingram. A court date was set for December 5.

         In a December 4 risk assessment, the Clark County Corrections Release Unit assigned Ingram a "risk score" of four, which fell between a medium risk (three) and a high risk (five). The release unit's assessment noted that Ingram reported that (1) he had lived by himself in Vancouver, Washington, for the past two and a half years, (2) he had previously lived in Portland, Oregon, (3) he had no family in Clark County, (4) he had not provided any references, and (5) he was unemployed. The assessment further stated that Ingram (1) had a history of escape, (2) was currently on probation on an Oregon driving-related charge, (3) had a criminal history, (4) had prior failures to appear but no bail jump convictions, and (5) had mental health issues including anxiety and posttraumatic stress disorder and had received prior psychiatric treatment. Based on these facts and its risk assessment, the release unit recommended that Ingram be denied release "due to extensive criminal, [failure to appear], and escape record." CP at 3. On December 4, a judge[5] also issued an order of conditions for release on bail stating that Ingram was not subject to bail until a court hearing set for December 5.

         At Ingram's first appearance on December 5, the State requested $60, 000 bail. The State justified this request based on Ingram's prior convictions for unlawful possession of a firearm in 2007, second degree assault in 1997, second degree burglary in 1997, first degree escape in 1995, first degree robbery in 1994, and second degree robbery in 2001. The State also commented that Ingram had "six different cases [in Oregon] that have gone to warrant" and that he had "prior [failures to appear] on his cases." 1 Report of Proceedings (RP) at 5. Defense counsel, who had just been appointed to Ingram's case and had just received the statement of probable cause, requested $5, 000 bail after noting that the no contact order violation did not involve violence.

         The trial court[6] set bail at $60, 000 after commenting that when Tiffany applied for the restraining order, she had asserted that Ingram "had recently held a gun to her head." 1 RP at 6. The trial court also stated that it would reexamine bail at the next hearing. It does not appear that the trial court entered any written findings related to the bail decision following the December 5, 2016 hearing. At no point during the hearing did the trial court discuss any less restrictive alternatives to bail or Ingram's financial resources.

         On December 16, [7] Ingram was arraigned. He pleaded not guilty. Although the trial court[8]had stated at the December 5 hearing that it would reexamine bail at the next hearing, no one raised any bail issues.

         On December 21, before a different judge, [9] Ingram requested that the court grant him supervised release. After arguing that there was insufficient evidence to support the charges because the Oregon order was invalid, Ingram requested that the trial court amend the bail order and grant him supervised release because he did not "have the funds to bail out" and he had a legitimate challenge to the charges. 1 RP at 12. After hearing Ingram's criminal history and argument from the parties, the judge deferred this decision to the original trial court judge, effectively denying Ingram's request for supervised release.

         On December 28, before the first judge, [10] Ingram asked for a bail reduction based on his legal argument that the Oregon protection order was invalid. The trial court denied this request. The trial court commented that it had originally set bail based on "criminal history, failures to appear, and [the] likelihood of reappearance in court," and that nothing had changed in relation to those factors. 1 RP at 22. During this hearing, there was no discussion of Ingram's financial status or any less restrictive conditions of release other than release on recognizance.

         B. Validity of Oregon Order

         At various stages of the pretrial proceedings, the parties addressed whether the validity of the Oregon order could be raised before the jury. The trial court[11] ruled that Ingram could not "challenge the validity of the order in Oregon in a Washington criminal case" and that validity of the Oregon order was not an element of the offense. 1 RP at 103.

         C. Trial

         The State presented testimony from Tiffany and the officers who arrested Ingram. Ingram did not call any witnesses. The jury instructions for the violation of the court order did not require the jury to find that the Oregon order was valid.

         The jury found Ingram guilty of residential burglary and violation of a domestic violence court order. Ingram appeals.

         ANALYSIS

         I. Bail Issues

         Ingram contends that the trial court erred when it set his bail and refused to release him on his own recognizance and when it denied his renewed motions to reduce his bail requirement. Specifically, Ingram argues that the trial court (1) failed to enter oral or written findings, (2) failed to consider the factors required in CrR 3.2(c) and (e) and the record does not support findings under either subsection, (3) failed to consider less restrictive conditions of release or Ingram's financial resources before imposing the bail requirement, and (4) denied him effective assistance of counsel by not allowing appointed defense counsel time to prepare for the initial bail hearing.[12]

         A. Matter of Continuing and Substantial Public Interest

         We must first address whether this issue is moot. An issue is moot if we can no longer provide effective relief. State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995). We can no longer provide effective relief here because Ingram has been convicted and pretrial bail is no longer available to him.

         We may, however, consider a moot issue if it involves matters of continuing and substantial public interest. State v. Cruz, 189 Wn.2d 588, 598, 404 P.3d 70 (2017). In determining whether a case presents an issue of continuing and substantial public interest, we consider (1) the public or private nature of the issue, (2) whether guidance for public officers on the issue is desirable, and (3) the likelihood that the issue will recur. Cruz, 189 Wn.2d at 598. We also consider "'the likelihood that the issue will escape review because the facts of the controversy are short-lived.'" State v. Huckins, 5 Wn.App. 2d 457, 463, 426 P.3d 797 (2018) (internal quotation marks omitted) (quoting Westerman v. Cary, 125 Wn.2d 277, 286-87, 892 P.2d 1067 (1994)).

         As we have recognized before, the setting of bail is an issue of a public nature and "there is currently a dearth of cases" addressing bail issues. Huckins, 5 Wn.App. 2d at 463-64; see also State v. Barton, 181 Wn.2d 148, 152, 331 P.3d 50 (2014) (accepting review of moot bail case because it was a matter of continuing and substantial public interest). Deciding this case would provide a useful reminder to the trial courts of the requirements of setting bail and release conditions for criminal defendants-issues that are likely to recur. Furthermore, "given the time constraints inherent in criminal cases, the issue might otherwise evade appellate review." Huckins, 5 Wn.App. 2d at 464. Accordingly, we review Ingram's bail arguments on the merits because they present matters of continuing and substantial public interest.

         B. Findings

         Ingram argues that the trial court was required to make "specific findings under CrR 3.2(a)(1) or (2)" and that the court failed to comply with this requirement. Appellant's Opening Br. at 29. He suggests that the absence of specific findings demonstrates that the trial court ignored the presumption of release on personal recognizance pending trial. Ingram fails to establish that oral or written findings are required, but we review the record to determine if the trial court considered the relevant factors before determining whether release on personal recognizance was appropriate or whether bail was required.

         Whether oral or written findings are required is a question of law, which this court reviews de novo. State v. Hanson, 151 Wn.2d 783, 784-85, 91 P.3d 888 (2004). We apply canons of statutory interpretation when construing court rules. State v. Robinson, 153 Wn.2d 689, 692, 107 P.3d 90 (2005). The plain language of a court rule controls when it is unambiguous. Robinson, 153 Wn.2d at 693.

         CrR 3.2(a)[13] provides:

Any person, other than a person charged with a capital offense, shall at the preliminary appearance . . . be ordered released on the accused's personal recognizance pending trial unless:
(1) the court determines that such recognizance will not reasonably assure the accused's appearance, when required, or
(2) there is shown a likely danger that the accused:
(a) will commit a violent crime, or
(b) will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice.
. . . .
In making the determination herein, the court shall, on the available information, consider the relevant facts including, but not limited to, those in subsections (c) and (e) of [CrR 3.2].

(Emphasis added.) CrR 3.2(c) and (e) similarly require only that the trial court "consider" various factors and do not expressly require any oral or written findings.

         Although oral or written findings are helpful on appeal, unlike other rules that clearly require oral or written findings, [14] CrR 3.2 does not expressly require that the trial court enter any oral or written findings. CrR 3.2(a) requires only that the trial court (1) "determine[]" whether release on personal recognizance is insufficient to reasonably assure the defendant's appearance or protect against harm and (2) "consider" the relevant facts. And CrR 3.2(c) and (e) require the court only to "consider" the factors. Thus, CrR 3.2 itself does not require oral or written findings.[15]

         Nor does Ingram cite to any other authority that requires oral or written findings in this context. Although he cites State v. Rose, 146 Wn.App. 439, 191 P.3d 83 (2008), for his assertion that the trial court must "rebut the presumption of release by making the specific findings under CrR 3.2(a)(1) or (2), prior to imposing any conditions of release," Rose did not address whether findings were required and does not require oral or written findings. Appellant's Opening Br. at 29. In Rose, we merely examined the record to determine whether there was a "determination related to [the defendant's] unlikeliness to appear" and whether there was any evidence introduced "that would have supported a trial court finding that [the defendant] would be unlikely to appear." 146 Wn.App. at 450 (emphasis added).

         Because oral or written findings are not required by the rule, Ingram cites no authority requiring the entry of oral or written findings under CrR 3.2(a), and the trial court made oral findings at a subsequent hearing, Ingram's argument fails.

         C. Consideration of Factors and Support for Findings

         Ingram further argues that the record does not show that the trial court considered the required factors stated in CrR 3.2(c) and (e). In analyzing this issue, we examine the record to determine if the record supports a determination that Ingram would be unlikely to appear or that Ingram was a substantial danger. Rose, 146 Wn.App. at 446-47, 448-54. Here, the record supports both determinations.

         We review a trial court's determination of whether a defendant is likely to flee and whether a defendant is likely to pose a substantial danger to the community for abuse of discretion. State v. Smith, 84 Wn.2d 498, 505, 527 P.2d 674 (1974). A trial court abuses its discretion if its decision falls outside the range of acceptable choices, its decision is unsupported by the record, or the court applies an incorrect legal standard. State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013).

         CrR 3.2(c) provides:

In determining which conditions of release will reasonably assure the accused's appearance, the court shall, on the available information, consider the relevant ...

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