court gavel

SPOKANE - The conviction of a man for possession of a controlled substance-heroin has been upheld by the state Court of Appeals for Division 3.

The court, in an unpublished opinion filed July 9, sent Blake Andrew Zahn’s case back to Okanogan County Superior Court for “appropriate inquiries” into Zahn’s financial circumstances. Imposition of legal financial obligations against Zahn were reversed.

Zahn was arrested Sept. 25, 2017, and booked into the Okanogan County Jail. After he was in jail, corrections officers found what they suspected was heroin on him.

He was read his Miranda warning and admitted he brought the item into the jail, said court records. He was charged with possession of a controlled substance other than marijuana.

At his arraignment, defense counsel thought there was a settlement agreement, but Zahn told counsel he wished to represent himself. Judge Henry A. Rawson questioned Zahn, who said he didn’t feel he could fully trust his attorney.

Arraignment was continued one week to consider a settlement offer from the state.

The next week, Zahn told the court he was saving money to hire an attorney. He was granted another one-week continuance.

When he appeared in court again, he told the court he appointed a “special master” to his case, said court records. The court questioned the qualifications of the special master, because the court had not received a notice of appearance.

The court obtained credible information that the purported attorney was not an attorney, and told Zahn the special master could not represent him. Zahn asked the court to proceed, court records said.

He was informed of the charge against him, the elements of the charge and the maximum penalties involved. Zahn said he understood. Rawson also told him he had the right to a lawyer and if he could not afford one, one would be appointed at public expense, court records said.

He insisted he had represented himself before, was familiar with the rules of evidence and court procedure, and was the only person he trusted. The trial court advised him against his choice.

After Zahn failed to file an omnibus application prior to his first omnibus hearing, Rawson offered to appoint stand-by counsel. Zahn denied the offer. He was arrested later on a bench warrant for failure to appear in court and still had not filed the omnibus application, court records said.

At trial, the state’s witnesses presented “overwhelming evidence of Zahn’s guilt,” said the appeals court.

Zahn did not present any evidence.

The jury returned a guilty verdict. The next day, Zahn was sentenced to three months in prison and 12 months of community custody. The court imposed mandatory legal financial obligations totaling $2,210.50.

According to court records, Zahn was asked about his employment over the past three years. He said he was working and expected to working after he was released from jail. The court found he had the ability to pay.

On appeal, Zahn argued the trial court unconstitutionally forced him to proceed without an attorney, the state impermissibly commented on his constitutional right to remain silent, the trial court commented on evidence that relieved the state of its burden to prove all elements of the crime beyond a reasonable doubt, and the trial court did not make adequate inquiry into his ability to pay.

The appeals court sided with Zahn only on the question of imposition of legal financial obligations, although it found some merit to some of the other arguments but not enough to merit reversing the conviction.

“First, the trial court must determine if Zahn was ‘indigent,’ as defined by (state law) at the time of his original sentencing,” said the appeals court “If he was, we direct the court to strike all discretionary (legal financial obligations) in accordance with (state law) and the criminal filing fee” in accordance with state law.

If the trial court finds Zahn was not indigent, it has to conduct an adequate inquiry as defined in a previous case, State v. Blazina. It also must consider whether to impose a DNA collection fee.

“If the state believes that Zahn has not had his DNA collected - despite his multiple prior felony convictions - it must present evidence at resentencing to substantiate its belief,” said the appeals court.

The appeals court opinion was written by Judge Robert Lawrence-Berrey, with Laurel Siddoway and George Fearing concurring.

Zahn represented on appeal by Kate Huber of the Washington Appellate Project, Seattle. The state was represented by Okanogan County Prosecutor Arian Noma and Deputy Prosecutor David Stevens.

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