State Of Washington, V. Leon Caril, Ii

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 85252-3-I

Respondent,

DIVISION ONE

v.

ORDER GRANTING MOTION

LEON CARIL, II, FOR RECONSIDERATION IN

PART AND DENYING IN PART

Appellant. AND WITHDRAWING AND

SUBSTITUTING OPINION

Appellant filed a motion for reconsideration on October 14, 2023. After

review of the motion, a panel of this court has determined that the motion for

reconsideration should be granted only as to the legal financial obligations and

application of the statutory factors regarding interest, and should be denied as to

the remaining issues presented. The court has further determined that the opinion

filed September 23, 2024 should be withdrawn and a substitute opinion filed.

Now, therefore, it is hereby

ORDERED that the motion for reconsideration is granted in part and denied

in part; and it is further

ORDERED that the opinion filed September 23, 2024 shall be withdrawn

and a substitute opinion filed.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 85252-3-I

Respondent,

DIVISION ONE

v.

UNPUBLISHED OPINION

LEON CARIL, II,

Appellant.

HAZELRIGG, A.C.J. — Leon Caril appeals from his resentencing after remand

from this court. He asserts that his remote appearance at the hearing violated due

process and specifically that he was denied the right to be present and to confidentially

confer with counsel. He further challenges the factual basis for the calculation of his

offender score and the court’s imposition of the victim penalty assessment (VPA) and

interest on restitution in light of the court’s finding of indigency. With the exception of

the legal financial obligations, Caril fails to demonstrate error. We affirm the sentence,

but remand for the trial court to strike the VPA and apply the statutory factors regarding

the imposition of interest on restitution.

FACTS

The State charged Caril with murder in the second degree—intentional

murder—with an allegation that he committed the crime with a deadly weapon based

on the stabbing death of Andrew Pimenthal in June 2017. The State filed an amended

information roughly a year and a half later that added a separate charge of murder in

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the first degree—premeditation—also with a deadly weapon enhancement (Count 1)

and changed the murder in the second degree charge from intentional to felony

murder, maintaining the deadly weapon enhancement (Count 2). 1 Caril has a history

of mental illness and was diagnosed with paranoid schizophrenia in 2010, 2011, 2012,

2015, and 2016. During the pretrial phase of the case, the superior court found Caril

was not competent to stand trial and committed him to Western State Hospital for a

90-day restoration period. After restoration, the superior court deemed Caril

competent to proceed to trial and a jury eventually convicted him of the lesser included

crime of murder in the second degree—intentional murder on Count 1 and as charged

on Count 2 of murder in the second degree—felony murder. The jury also found by

special verdicts that both crimes were committed with a deadly weapon for purposes

of sentencing enhancement. The trial court vacated count 2 on double jeopardy

grounds at sentencing. Based on his criminal history, which included prior convictions

for most serious or “strike” offenses, the court found that Caril was a persistent

offender and sentenced him to a mandatory term of life in prison without the possibility

of parole. Caril timely appealed and this court affirmed his conviction, but remanded

for a de novo resentencing due to changes in the law.

On March 20, 2023, in preparation for resentencing, Caril’s trial counsel

informed the court and prosecutor via e-mail that Caril wished to participate in the

hearing through Zoom.2 Later in that same e-mail thread, Caril’s counsel and the

court bailiff discussed the necessary accommodations for a remote appearance,

1 Additional facts are set out in the opinion from Caril’s first direct appeal, State v. Caril, 23

Wn. App. 2d 416, 515 P.3d 1036 (2022), review denied, 200 Wn.2d 1025, cert. denied sub nom.

Caril v. Washington, 144 S. Ct. 125 (2023).

2 Zoom is an internet-based videoconferencing platform.

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including fingerprinting procedures for the judgment and sentence (J&S). 3 The next

day, Caril’s counsel also contacted the Department of Corrections (DOC) and

submitted a request for a virtual hearing.

During this time, from March 17 to April 5, Caril sent seven letters to the trial

court and prosecutor. In these letters, Caril expressed dissatisfaction with his counsel,

stating his attorney was not negotiating sentencing strategies with him or complying

with amendments to applicable law. While Caril’s letters presented a number of his

beliefs about the status of his conviction and incarceration, he never expressed a wish

to appear in person at his resentencing hearing or made any statements in these

letters that contradicted his attorney’s assertion to the court and prosecutor about his

request to appear remotely at the hearing. When Caril appeared via Zoom for

resentencing, the judge did not advise him of any procedures for privately conferring

with counsel during the hearing, but did invite Caril to address the court. While the

camera angle in the courtroom initially prevented Caril from seeing the prosecutor

during her opening statement, when the judge noticed this on the screen, the camera

was adjusted; this temporary minor technical issue did not impact Caril’s ability to

participate at his resentencing hearing. He did not ask for the opportunity to speak

privately with his counsel or express any concerns about his ability to do so. Instead,

he spoke at length about issues that, while very important to him, were ultimately

unrelated to the resentencing. The court explicitly corrected Caril’s mistaken belief

that his juvenile convictions were included in his offender score.

3 The prosecutor was also included in the entirety of this e-mail communication, but did not

participate in the discussion about the logistics of Caril’s remote appearance.

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The State recommended a sentence at the high end of Caril’s sentencing

range. Caril’s attorney sought an exceptional sentence below the standard range

based both on his contention that Caril’s mental health crisis at the time of murder

affected his conduct and having presented a failed mental health defense at trial.

Defense counsel further argued that the court should impose a low end sentence if it

rejected his request for an exceptional downward departure. The trial court rejected

both defense requests and sentenced Caril to a total term of 384 months in prison; a

standard range sentence of 360 months for count 1 followed by a consecutive term of

24 months for the deadly weapon enhancement and 36 months of community custody

supervision upon release from prison. The court found Caril was indigent, but

nonetheless imposed the $500 VPA and ordered him to pay interest on the restitution

award.

Caril was given another opportunity to address the trial court after the sentence

was pronounced and did so, but again did not request an opportunity to confer with

counsel and only spoke about juvenile convictions that were not part of his offender

score calculation.

Caril timely appealed.

ANALYSIS

Caril presents a number of challenges to his resentencing, asserting violations

of his constitutional rights, that the trial court failed to hold the State to its burden to

prove his criminal history for purposes of calculating his offender score, and the

improper imposition of certain legal financial obligations despite the court’s finding of

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indigency. Caril also thrice submitted a pro se statement of additional grounds for

review, presenting a wide variety of issues for our consideration.

I. Challenges To Remote Appearance at Resentencing Hearing

Caril raises several constitutional challenges to the manner by which the trial

court conducted his resentencing hearing and seeks remand for yet another

resentencing. However, he fails to demonstrate reversible error.

A. Right to Be Present

As a starting point, the record before us clearly establishes that Caril’s trial

counsel explicitly advised the court of his client’s request to appear remotely at the

resentencing and coordinated with the court to make the necessary arrangements.

Further, Caril did not object during the resentencing hearing to his remote

appearance, nor did he indicate a desire to be present in the courtroom. There is not

any allegation before us that this claim by trial counsel, as conveyed in the e-mail,

was inaccurate or later withdrawn by Caril, and there is no assertion of ineffective

assistance of counsel based on this communication by counsel on Caril’s behalf. Caril

further notes that he was not copied on the e-mail chain that his counsel initiated with

the court and DOC and only now says he did not consent to his remote appearance

at the hearing.

Criminal defendants have “a constitutional right to be present at sentencing,

including resentencing.” State v. Rupe, 108 Wn.2d 734, 743, 743 P.2d 210 (1987).

However, this right can be waived expressly or by the failure to object and trial courts

are “not required to probe into the issue of whether the defendant is voluntarily waiving

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the right to presence if no objection is made.” State v. Anderson, 19 Wn. App. 2d 556,

561, 497 P.3d 880 (2021), review denied, 199 Wn.2d 1004 (2022).

Here, not only did Caril not object to appearing remotely at resentencing, but

he explicitly requested a remote hearing through his counsel. Caril now asserts for

the first time, in his reply brief, that there was a breakdown in communication between

him and his attorney. However, to the extent he asserts that he was deprived of

counsel by the court’s failure to inquire into a possible breakdown in communication

between Caril and his public defender, we do not consider arguments raised for the

first time in reply. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,

828 P.2d 549 (1992).

Caril also contends that he did not know that he was waiving his right to an in-

person hearing, which expressly contradicts the assertion of his attorney. Caril did

mail several letters to the court and prosecutor wherein he expressed dissatisfaction

with his counsel, stating his attorney was “not negotiating any court strategies with

[him]” and “will not simply agree with legal reformed law already passed.” Among the

concerns Caril raised were his belief that he was due to be released from prison soon,

claims of a double jeopardy violation, and other matters unrelated to the resentencing

hearing. However, none of Caril’s letters contained a request to appear in person at

his resentencing hearing.

Caril fails to demonstrate that his counsel did not have authority to speak on

his behalf when he communicated Caril’s request to appear by Zoom for the

resentencing hearing to the court and prosecutor. Caril’s letters only establish that he

was concerned with the fact that his counsel could not “simply agree” with information

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No. 85252-3-I/7

regarding the “legal reformed law” or that his attorney refused to believe that he had

already signed release papers in DOC. Furthermore, he did not ask for the

opportunity to confer with his counsel, nor did he express any concerns about his

ability to speak with his counsel privately. Instead, when he addressed the court, he

spoke at length about his juvenile convictions, concerns about a violation of double

jeopardy, experience in prison, and readiness for release. The court interrupted Caril

once during his allocution to assure him that his juvenile convictions did not play a role

in determining his offender score for resentencing.

Division Three of this court recently addressed a similar challenge in Anderson.

Anderson averred that both his rights to be present and to counsel were violated when

he appeared for resentencing by video from prison. Anderson, 19 Wn. App. 2d at

561. However, on review, this court expressly noted that not all constitutional errors

are subject to the manifest constitutional error standard that allows a defendant to

present the issue for the first time on appeal and concluded that Anderson failed to

preserve the error because he did not object in the trial court. Id. at 561-62. While

we agree that sentencing is a critical stage of proceedings and the defendant has a

right to be present, we disagree that, as Caril suggests in briefing, established law

requires a particular colloquy or written waiver if the defendant wishes to appear

remotely. 4 Caril’s express request to appear remotely at his resentencing hearing

waived any challenge based on his right to appear in person.

4 Caril appears to conflate CrR 3.4(a), which permits a defendant’s appearance through

counsel only upon written waiver or by oral or written affirmation on the record of that desire, with

CrR 3.4(e)(2) that expressly allows remote appearance by the defendant “by agreement of the

parties, either in writing or on the record, and upon approval of the trial court judge pursuant to local

court rule.” Here, Caril’s attorney did not appear on his behalf under CrR 3.4(a), but rather Caril

appeared remotely pursuant to CrR 3.4(e)(2) and the latter rule does not require a written waiver

from the defendant. Caril offers no authority that his trial counsel’s assertion of his request via e-

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Woven throughout Caril’s argument on this issue is an additional claim that his

inability to confer with counsel effectively during the hearing deprived him of counsel.

He argues this was structural error that is not subject to harmless error analysis.

However, Anderson is instructive on this question as well. As a preliminary matter,

the court in Anderson reached this assignment of error after concluding that Anderson

had demonstrated that it was manifest constitutional error under RAP 2.5. Id. at 563-

64. This necessarily means that Anderson established that the error was manifest;

he was prejudiced by it. Division Three then proceeded to harmless error analysis,

expressly undercutting Caril’s assertion that such an error is structural. Id. at 564; see

also State v. Schlenker, No. 39499-9-III, slip op. at 30-31, (Wash. Ct. App. Aug. 15,

2024), https://www.courts.wa.gov/opinions/pdf/394999_%20ord.pdf. In Anderson,

the court determined that the State had carried its burden to prove that the violation

of Anderson’s right to counsel based on his inability to confer with his attorney was

harmless beyond a reasonable doubt because the trial court granted Anderson’s

sentencing requests. 19 Wn. App. 2d at 564.

Here, Caril presented questions about inclusion of his juvenile points, double

jeopardy, prison placement, and a number of other matters either already addressed

or not properly before the trial court. Defense counsel argued for an exceptional

sentence below the standard range based on Caril’s documented history of significant

mental health diagnoses and the failed diminished capacity defense presented at trial.

The court had either already addressed the issues Caril wanted it to consider,

particularly as to his offender score and concerns about a double jeopardy violation,

mail, and subsequent communication between the parties and court about the logistics, was not a

written agreement of the parties under CrR 3.4(e)(2).

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No. 85252-3-I/9

or was without the authority to provide relief, as was the case with his assertion that

he had already signed release paperwork at DOC. While the court did not impose a

sentence below the standard range, it did not include his juvenile convictions in

calculating Caril’s offender score, nor was he punished twice for the same criminal act

in violation of the constitutional prohibition on double jeopardy. Like Anderson, Caril

does not show what other relief the trial court may have granted if he had been able

to privately confer with counsel at sentencing. As such, any error in failing to expressly

provide for procedures for such confidential communication was harmless. 5 Caril has

failed to carry his burden on this challenge.

B. Right To Appear for Proceedings Free from Restraints

Next, Caril relies on State v. Luthi to assert that conducting a resentencing

hearing while he appeared remotely from prison constituted an unnecessary restraint

that violated due process. 3 Wn.3d 249, 549 P.3d 712 (2024). According to Caril,

videoconferencing from prison was “the same as appearing before the court with

unjustified restraints.” We disagree.

“A defendant’s right to appear in court free from unjustified restraints is well

established as a matter of federal and state due process law.” State v. Luthi, 3 Wn.3d

249, 256, 549 P.3d 712 (2024); see also State v. Jackson, 195 Wn.2d 841, 852, 467

P.3d 97 (2020). This right, however, can be limited if “‘some impelling necessity

demands the restraint.’” State v. Lundstrom, 6 Wn. App. 2d 388, 393, 429 P.3d 1116

5 We take this opportunity to reiterate to trial courts that CrR 3.4(e)(3) establishes the

standards for video appearances for hearings, which include the ability of a defendant to privately

confer with counsel. Best practices for judges conducting hearings where the defendant appears

remotely includes expressly setting out those procedures on the record and confirming

understanding by the parties.

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No. 85252-3-I/10

(2018) (quoting State v. Williams, 18 Wash. 47, 51, 50 P. 580 (1897); see also State

v. Damon, 144 Wn.2d 686, 690-91, 25 P.3d 418 (2001). Thus, before restraining a

defendant, “[a] trial court must engage in an individualized inquiry into the use of

restraints prior to every court appearance” and determine whether the restraints are

necessary. Jackson, 195 Wn.2d at 854; see also State v. Hartzog, 96 Wn.2d 383,

400, 635 P.2d 694 (1981).

Luthi involved a defendant who appeared in court for a probation violation

hearing while inside a cage-like holding cell within the jail courtroom in Cowlitz County.

3 Wn.3d at 251. In that case, Luthi’s appearance for her hearing from within the

secure cell was visible to the judge, the attorneys, and all courtroom observers, and it

was precisely that visibility that eroded her constitutionally protected presumption of

innocence. 3 Wn.3d at 264. Unlike the facts of Luthi, Caril appeared via Zoom from

prison at his own request as conveyed to the court by his counsel. On the contrary,

the record here reflects that Caril was waving his hand during the hearing in order to

draw the attention of the judge, which at least suggests that his hands were not

restrained. Caril does not provide any citations to the record to establish that he was

shackled, caged, or otherwise physically restrained during his resentencing hearing

beyond the fact that he was incarcerated. The extreme circumstances of Luthi are

distinct from those of Caril’s resentencing hearing and we have recently refused other

attempts to conflate physical restraint with video appearances in court.

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In a recent unpublished opinion of this court, State v. Martin, 6 the defendant

similarly argued that remote appearance from prison for resentencing constituted

impermissible shackling and relied on our Supreme Court’s opinion in Jackson. In

rejecting Martin’s contention, we stated the following:

The court’s analysis in Jackson began with a review of the

historical restrictions on shackling incarcerated individuals with irons,

chains, manacles, and bonds. [195 Wn.2d] at 850-51. Prior to 1722,

when prisoners were arraigned or entering a plea, they were not

shackled “‘unless there was evident danger of [their] escape,’” and by

the late 1800s, our Supreme Court expressly held that shackling

defendants was prohibited without an individualized determination of its

necessity. Id. at 851 (quoting Williams, 18 Wash. at 49). Despite this,

our Supreme Court noted, the practice of systematically restraining all

incarcerated defendants had continued in certain trial courts in our

state. Id. Looking beyond the problems of shackling within the

courtroom, the court then painted a vivid picture of the role that

shackling has played in the history of our country as a “means of control

and oppression”:

Shackles and restraints remain an image of the

transatlantic slave trade and the systematic abuse and

ownership of African persons that has endured long

beyond the end of slavery. Shackles and restraints also

represent the forced removal of Native people from their

homelands through the Trail of Tears and the slave labor

of Native people. We recognize that although these

atrocities occurred over a century ago, the systemic

control of persons of color remains in society, particularly

within the criminal justice system.

Id.

We are unmoved by the attempt here to conflate the uniquely

complex history of shackling with technological advances which allow

incarcerated people to attend court proceedings without having to

endure the physical and logistical hardships of the often byzantine

process of prison transport. The analysis in Jackson was clearly rooted

in the imagery and impact of restraints, bindings, and irons, which were

complicated by a history of violent colonial practices. Martin does not

even attempt to demonstrate which, if any, of these concerns are

present here to trigger the application of Jackson as controlling

authority. The record does not establish that Martin was bound,

6 No. 84175-1-I, slip op. (Wash. Ct. App. Oct. 9, 2023) (unpublished),

https://www.courts.wa.gov/opinions/pdf/841751.pdf. We cite this case pursuant to GR 14.1(c) as

necessary for a reasoned opinion.

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No. 85252-3-I/12

chained, handcuffed, or braced. He video conferenced into the court

proceedings from prison.

Martin, slip op. at 16-17 (one alteration in original). We adopt the reasoning articulated

in Martin as we remain unmoved by this attempt to apply the case law regarding

physical restraint to circumstances where the defendant requested remote

appearance by video. Caril has failed to carry his burden of establishing a due

process violation on this basis.

II. Proof of Prior Convictions for Calculation of Offender Score

The court determined that Caril’s sentencing range was 298-397 months

based on its calculation of his offender score as 10. After hearing from both the State

and defense, it imposed a standard range sentence of 360 months in prison, followed

by a mandatory consecutive term of 24 months in prison based on the deadly weapon

enhancement, for a total term of 384 months of incarceration. Caril argues that the

court erred by failing to reexamine the State’s proof of his offender score. He requests

a new sentencing hearing and claims that the sentencing court failed to hold the State

to its burden of proving Caril’s criminal history by a preponderance of the evidence

and did not review any documents proving the alleged criminal history. We disagree.

The State indeed bears the burden of proving a defendant’s criminal history by

a preponderance of the evidence. RCW 9.94A.500(1). At the original sentencing

hearing on January 29, 2021, the court made an explicit finding that the State had met

its burden to prove Caril’s prior convictions by a preponderance of the evidence. The

court stated:

Okay. So based on the preponderance of evidence standard

which is—I would apply at this stage of the proceedings, I am going to

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find that the State has established by a preponderance of the evidence

that the Exhibit No. 2, the known print card that was taken on November

20th, is the same person as the prints that are contained in Exhibits 4,

5, and 7. And again, that those match up, it is the same person, and

again that’s pursuant to the preponderance of the evidence standard.

The trial court reached this conclusion after the State presented certified copies of

Caril’s prior J&Ss. The State also provided fingerprint comparison evidence and

testimony, both of which, the court found, linked those convictions to Caril.

Additionally, Caril’s counsel expressly stated that he did not object to admission of

certified copies of Caril’s prior convictions as exhibits 4, 5, 6, and 7 as shown in the

trial transcript:

[State]: Four is a judgment and sentence, 97-C-08696-1.

The Court: Is that 4?

[State]: That’s No. 4. I think I’ll just list them and then I’ll offer them later

because I think [defense counsel] is going to object to all of them. No.

5 is a certified judgment and sentence, 98-1-00166-1, Snohomish

County. No. 6 is a certified docket from Everett Municipal Court, CR-

0049895. And Exhibit 7 is a certified judgment and sentence, 02-1-

0501504, Seattle.

[Defense counsel]: Did [c]ounsel say all of them were certified?

[State]: Yes.

[Defense counsel]: I have no objection if they’re certified documents.

The Court: Okay. So as far as 4, 5, 6, and 7 are concerned, those are admitted,

there is no objection.

Citing State v. Hunley, Caril obfuscates the issue by claiming that the court

violated his right to due process by resting the sentence after remand on the State’s

bare assertions about his criminal history. 175 Wn.2d 901, 915, 287 P.3d 584 (2012).

He properly asserts the State is not relieved of its burden to prove prior convictions

unless he “affirmatively acknowledged” the “facts and information” underlying his

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criminal history. Id. at 912-13. However, Caril’s challenge on this issue is premised

on his claims that the court did not calculate his offender score at the original

sentencing hearing when it found he was subject to the persistent offender

accountability act and that it did not reexamine the validity of the previously admitted

exhibits or require the State to produce evidence of his criminal history again at

resentencing.

The record clearly establishes, though, that both the accuracy and sufficiency

of the State’s proof of Caril’s criminal history was fully litigated during his original

sentencing before the same judge with the same defense attorney. Moreover, while

Caril’s attorney did not object to the admission of certified copies of Caril’s previous

J&Ss, prior to the State’s presentation of evidence of their foundation, defense

counsel did object to the admission of certain fingerprint cards that the State ultimately

used to connect the documentation of those convictions to Caril. In fact, the State

presented live testimony from an identification technician employed by the Seattle

Police Department for that purpose and Caril’s attorney raised a number of objections

during her direct examination by the State. He further engaged in extensive cross-

examination of the State’s witness and presented substantive argument that the State

had not carried its burden to prove Caril’s criminal history. Any claim now presented

on appeal that Caril’s history was not fully litigated in this case or that the State was

not held to its burden to prove that history by a preponderance of the evidence is

belied by the record. Caril provides no authority to support his assertion that the trial

court was required to re-examine and re-calculate his offender score at resentencing

after comprehensive re-litigation and renewed fact-finding.

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Caril further asserts that the court was obligated to determine whether his

juvenile convictions affected his offender score. Caril contends a third resentencing

is required because the court’s failure to conduct this specific inquiry left him without

the necessary assurances that invalid convictions, or convictions that should not be

scored, did not impact his sentence. This challenge, however, is futile. Caril’s juvenile

convictions were neither included nor referenced in calculating his offender score at

his resentencing as demonstrated by appendix B to his J&S which includes only

convictions for adult felonies:

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III. Finding of Indigency and Legal Financial Obligations

In light of the trial court’s finding of indigency, Caril challenges the imposition

of certain legal financial obligations (LFOs).

A. VPA

The legislature passed Engrossed Substitute House Bill 1169, which

amended the VPA statute effective July 1, 2023. See State v. Ellis, 27 Wn. App.

2d 1, 16, 530 P.3d 1048 (2023) (citing LAWS OF 2023, ch. 449). The statute now

prohibits courts from imposing costs on defendants found to be “indigent” as

defined by RCW 10.01.160(3), and requires the trial court to waive any costs

imposed before the effective date, on the defendant’s motion, if the defendant is

unable to pay. RCW 7.68.035(4), (5)(b). Although the amendments took effect

after Caril’s resentencing hearing, they apply prospectively to cases that are on

direct review. Ellis, 27 Wn. App. 2d at 16.

The parties agree that Caril is indigent but the State argues that the VPA is

not a “cost” within the meaning of RCW 10.01.160(3). The State is incorrect. We

remand for the trial court to strike the VPA from Caril’s J&S.

B. Interest on Restitution

Caril also asserts that the trial court erred when it imposed interest on

restitution, given both his indigency and history of mental health diagnoses. The

recent revisions to RCW 10.82.090(2) eliminate the mandatory imposition of

interest on restitution. LAWS OF 2022, ch. 260, § 12. The sentencing court now

has the discretion to waive interest based on factors such as indigency, mental

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illness, and homelessness. Id. The court may also consider any other relevant

information that may influence the decision to not impose interest on restitution in

the interest of justice. Id.

The State asserts that Caril’s contention is based on misreading of the

procedural history of the case with respect to the effective date of the amendment.

We disagree. Restitution interest was imposed on Caril in the J&S entered on April

7, 2023 and the amendment to RCW 10.82.090 took effect on January 1, 2023.

The State contends that Caril’s failure to object when the court did not appear to

apply the statutory amendments and consider the factors for the imposition of

interest on restitution, waived the issue for purposes of appeal. Our Supreme

Court clearly stated in State v. Blazina that unpreserved challenges to

discretionary LFOs are not reviewable as a matter of right under case law. 182

Wn.2d 827, 833-34, 344 P.3d 680 (2015). The amendment to the statute at issue

expressly made interest on restitution discretionary, but also affirmatively requires

the court to consider a number of factors prior to its imposition. The record

demonstrates that the trial court erred when it failed to properly apply RCW

10.82.090 before imposing interest on restitution and we have held that defendants

were entitled to relief even in cases where sentencing occurred and interest was

imposed prior to the effective date of the amendment. See State v. Schultz, 31

Wn. App. 2d 235, 256, 548 P.3d 559, review denied, 3 Wn.3d 1022 (2024); State

v. Reed, 28 Wn. App. 2d 779, 782, 538 P.3d 946 (2023), review denied, 2 Wn.3d

1035 (2024). Accordingly, we direct the court, upon remand to strike the VPA, to

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consider whether the imposition of interest on restitution is proper here after

reviewing the statutory factors regarding indigency and mental health diagnoses.

IV. Statement of Additional Grounds for Review

A defendant may provide a pro se statement of additional grounds (SAG)

for review. RAP 10.10(a). However, there are practical limitations to our review

of a SAG. For example, “an appellate court will not consider an argument made

in a [SAG] if it does not inform the court of the nature and occurrence of the alleged

errors.” State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008). “Although

reference to the record and citation to authorities are not necessary or required,

the appellate court will not consider an appellant’s SAG if it does not inform the

court of the nature and occurrence of alleged errors.” State v. Gauthier, 189 Wn.

App. 30, 43-44, 354 P.3d 900 (2015). “[I]ssues that involve facts or evidence not

in the record are properly raised through a personal restraint petition, not a

statement of additional grounds.” Calvin, 176 Wn. App. at 26. However, issues

addressed on direct appeal may not be renewed in a personal restraint petition,

unless certain specific requirements are met. See RAP 16.4(d); In re Pers.

Restraint of Haverty, 101 Wn.2d 498, 501-04, 681 P.2d 835 (1984).

Caril submitted his SAG three times, with each submission containing slight

differences. He raised a total of 27 additional grounds, spanning from alleged

miscalculation of his offender score and earned release date to requests for money

damages and challenges to prior arrests on other cases, with several duplicate or

overlapping requests for relief. We endeavor to address the claims as we

understand them.

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No. 85252-3-I/19

A. Calculation of Offender Score

Caril challenges the inclusion of his juvenile conviction and alleges

miscalculation of his offender score in SAG issues 12, 22, and 24. While Caril

clearly disagrees with the trial court’s calculation of his offender score, he has not

shown a sufficient basis to question its accuracy. He is not entitled to relief on

these issues.

B. Matters Outside Scope of Appeal

Caril raises a number of issues that are outside of the scope of the present

appeal. In SAG issues 13, 17, 19, and 21, he expressly requests investigation of

his juvenile arrests and convictions. Such matters are clearly beyond our limited

review of the resentencing hearing in this case. As a preliminary matter, the only

case before us on direct appeal is King County Superior Court No. 17-1-04489-6

SEA. Further, appellate courts “cannot reweigh the evidence on review.” State v.

Ramos, 187 Wn.2d 420, 453, 387 P.3d 650 (2017). It is worth reiterating here that

Caril’s juvenile convictions were not considered in the calculation of his offender

score in this case.

Caril separately challenges the imposition of LFOs in those juvenile cases

in SAG issue 13, asserting that he has paid thousands of dollars in interest, over

and above the fines themselves, from 1996 to 2023. Again, those cases are not

properly before this court. To the extent that this SAG issue is a request to remit

any remaining LFOs in those cases, that procedure is addressed in part G below.

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No. 85252-3-I/20

C. Issues Already Addressed in Previous Direct Appeal

In SAG issue 5, Caril challenges the evidence underlying his conviction.

However, his conviction was affirmed in his previous appeal; the only aspect of the

case that was reversed was the sentence. State v. Caril, 23 Wn. App. 2d 416,

436, 515 P.3d 1036, 1046 (2022), review denied, 200 Wn.2d 1025, cert. denied

sub nom. Caril v. Washington, 144 S. Ct. 125 (2023). Again, the only matter before

this court is the resentencing hearing. We do not consider renewed challenges to

the conviction that were addressed in a prior appeal. See State v. Clark, 143

Wn.2d 731, 745, 24 P.3d 1006 (2001) (“‘Where there has been a determination of

the applicable law in a prior appeal, the law of the case doctrine ordinarily

precludes redeciding the same legal issues in a subsequent appeal.’” (internal

quotation marks omitted) (quoting Folsom v. County of Spokane, 111 Wn.2d 256,

263, 759 P.2d 1196 (1988))).

D. Sentencing Requests

Caril additionally makes several requests that appear to relate to the terms

of the sentence that was imposed. In SAG issue 3, he requests assignment to a

work camp; in SAG issue 8, he seeks to substitute a portion of his prison time with

community custody; in SAG issue 9, he requests placement in a work release

program; in SAG issue 11, he requests placement in a mental health facility; and

in SAG issue 25, he asks for an extension of his term of community custody

supervision. As an appellate court, we are tasked with analyzing the legal propriety

of Caril’s resentencing; we do not have the authority to direct a sentencing court

to authorize alternatives to confinement like those sought here.

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No. 85252-3-I/21

E. Requests for Other Remedies Not Available from This Court

Caril also seeks other forms of relief that are not available on appeal. In

SAG issues 2, 7, 14, 20, and 26 he seeks immediate release from prison and

money damages for false imprisonment based on a number of claimed

irregularities from the purported inclusion of his juvenile convictions in the

calculation of his offender score to false imprisonment and scrivener’s errors.

Absent circumstances not present here, this court will not direct immediate release

from custody. See, e.g., RAP 16.15(b); In re Pers. Restraint of Pauley, 13 Wn.

App. 2d 292, 309, 466 P.3d 245, 254 (2020); Ruling Granting Rev., In re Pers.

Restraint of Williams, No. 99344-1, at 4-5 (Wash. Feb. 3, 2021). In SAG issue 27,

he requests assistance in filing a suit for damages against prior trial and appellate

counsel. There no right to counsel for purposes of filing a claim for money

damages against counsel or others as a result of a criminal conviction. “‘[T]he

Sixth Amendment right to counsel, while fundamental, is not a right without

limitation.’” State v. Afeworki, 189 Wn. App. 327, 330, 358 P.3d 1186 (2015)

(alteration in original) (internal quotation marks omitted) (quoting Bailey v.

Commonwealth, 38 Va. App. 794, 803, 568 S.E.2d 440 (2002)). In SAG issue 6,

he further requests that this state court order his transfer to a federal prison. Apart

from the inconsistency between this request and the one for immediate release,

the doctrine of separation of powers limits the authority of this court with regard to

conditions of incarceration, such as placement in particular facilities or programs,

and Caril cites no authority that would allow a state appellate court to direct a

federal prison to accept a person serving a sentence for a violation of state law.

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No. 85252-3-I/22

Caril also argues in SAG issue 16 that counsel failed to monitor his LFOs, but he

offers no authority that appointed counsel must track payment or collection efforts

on LFOs after their representation has concluded or on cases where they were not

appointed.

In SAG issue 1, Caril claims that his earned release date was miscalculated,

while in SAG issues 15 and 18, he seeks placement in mental health housing and

an evaluation for housing and placement purposes. Additionally, in SAG issue 23,

Caril requests consideration for work programs. These appear to be inquiries

better directed at DOC as they pertain to internal prison procedures or

determinations regarding housing or access to programs. Decisions by DOC

regarding access to resources like health care or programs may be reviewed by

personal restraint petition. See In re Pers. Restraint of Williams, 198 Wn.2d 342,

496 P.3d 289 (2021); RAP 16.4.

F. Unsupported or Unclear Claims

Caril additionally raises several issues that are either unclear, beyond the

scope of relief we can provide, or both. In SAG issue 4, Caril claims tribal

membership and appears to assert that he is entitled to “sovereign immunity” as a

result. Because this claim is not supported by credible evidence in the record, we

cannot review it. See RAP 10.10(c) (appellate court will not consider argument

made in a SAG if it does not inform court of nature and occurrence of alleged

errors). Additionally, in SAG issue 10, he argues that the interstate compact for

adult offender supervision (ICAOS)7 applies to him. However, ICAOS addresses

7 RCW 9.94A.745

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No. 85252-3-I/23

terms of supervision after release from prison, so it is unclear how this would apply

given Caril’s current custodial status. As presented, these issues are

impermissibly vague and do not provide a valid basis for the relief he seeks.

Accordingly, we decline to analyze them further.

G. Motion to Remit LFOs

Caril includes in his SAG a motion to remit certain LFOs. However, the

plain language of the statute that authorizes such a motion directs that it be made

in the trial court. RCW 10.01.160(4) states that a “defendant who has been

ordered to pay costs and who has not willfully failed to pay the obligation . . . may

at any time petition the sentencing court for remission of the payment of costs or

of any unpaid portion thereof.” (Emphasis added.) Accordingly, motions to remit

LFOs on any of Caril’s past convictions should be made in the corresponding

sentencing court.

We affirm in part, reverse in part and remand for the trial court to strike the

VPA and consider the statutory factors regarding the imposition of interest on

restitution.

WE CONCUR:

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