State of Washington v. Casey Russell Robertson ( 2015 )


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  •                                                                            FILED
    DEC 1,2015
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF     WASHINGTON~                     )
    )         No. 31353-1-111
    Respondent~             )
    )
    v.                                     )
    )
    CASEY R. ROBERTSON,                          )         UNPlJBLISHED OPINION
    )
    Appellant.              )
    KORSMO, J.      Casey Robertson appeals the court's decision to impose legal
    financial obligations (LFOs) after a jury found him guilty of vehicular assault. Since
    there are at most $200 of discretionary LFOs involved in this case and the trial court
    conducted an inquiry into Mr. Robertson's ability to pay, we decline to exercise our
    discretion to review this unpreserved issue. The judgment is affirmed.
    FACTS
    Mr. Robertson was sentenced December 12,2012. Both parties briefed the
    financial obligation question prior to sentencing. The State requested the court assess a
    $2,500 dollar fine, attorney fees, court costs, the crime victim assessment, and a DNA
    fee. Clerk's Papers (CP) at 36. Mr. Robertson requested work release, noting that his
    fiance was pregnant, and that he would soon be a father. Specifically, he argued: "It is
    anticipated that Robertson will have to work to support himself, the baby, and the mother.
    No. 31353-1-III
    State v. Robertson
    It is anticipated that Robertson will qualify for work release." CP at 39. The defense
    brief does not otherwise comment on the proposed LFOs.
    During the sentencing hearing, the court and counsel discussed the imposition of
    the fine and the LFOs. In discussing the proposed fine, counsel for Mr. Robertson argued
    against it, noting that "the $500 penalty assessment and the other court costs get up to 8
    or $900, typically," which "is a lot for a gentleman who is not working." Report of
    Proceedings (RP) at 251. Mr. Robertson's counsel also spoke of Mr. Robertson's work
    prospects: "He is trying to get ajob. He's a member of the union." Jd. Counsel also
    noted that Mr. Robertson has been unable to make payments on the $600 he owes for his
    past felony conviction from 2007. RP at 252.
    Mr. Robertson himself spoke at his sentencing hearing. He indicated that he now
    has assistance through TANF.l RP at 255. In discussing his work prospects, the
    following exchange occurred between him and the court:
    THE DEFENDANT: ... Work is hard right now through the union.
    Apparently I'm on call. I'm supposed to get some sort of work not
    tomorrow, but some time [sic] next month. They said it's supposed to pick
    up at the beginning of 2013. I have been going to Work First program 32
    hours a week. If I don't get called back for the union, I can definitely find
    some sort of work. I do have a lot of work history. I've done a lot of work
    in my time, I've lived all over, I do have a lot of experience in work.
    That's basically all I have.
    I  TANF stands for Temporary Assistance for Needy Families, and provides
    benefits for pregnant woman and parents, who are in need of financial assistance.
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    No. 31353-1-111
    State v. Robertson
    THE COURT: But you are not actually working, I gather.
    THE DEFENDANT: Currently no, I am not working. I was laid off.
    A lot of people got laid off the day I got laid off.
    RP at 255-256. The court ultimately rejected work release and sentenced Mr. Robertson
    to nine months in jail. The court also ordered he pay the following LFOs: a $500 victim
    assessment fee, a $100 DNA collection fee, and $200 in "court costs." RP at 260; CP at
    47. The court waived attorney fees. RP at 260. The court ordered the defendant pay $25
    a month toward the LFOs beginning on August 5,2013.
    The written judgment and sentence contains the LFOs discussed above. In the line
    where the court listed the amount for "court costs," the court referenced the following
    statutes: "RCW 9.94A.760, 9.94A.505, 10.01, .160[sic], 10.46.190." CP at 47. The
    court did not reference RCW 36.18.020, nor did it break down the court costs further. CP
    at 47. With regard to ability to pay, the judgment and sentence included the following
    language:
    Legal Financial Obligations/Restitntion. The court has considered the
    total amount owing, the defendant's past, present and future ability to pay
    legal financial obligations, including the defendant's financial resources
    and the likelihood that the defendant's status will change.          CRCW
    10.01.160). The court makes the following specific findings.
    CP at 44. The court did not list specific findings. Mr. Robertson did not object to the
    imposition of the LFOs.
    Mr. Robertson timely appealed to this court. Our commissioner granted his motion
    to stay the appeal pending the Washington Supreme Court's decision in State v. Blazina,
    3
    No. 31353-1-111
    State v. Robertson
    
    182 Wn.2d 827
    , 
    344 P.3d 680
     (2015). After that decision issued, Mr. Robertson filed a
    supplemental brief. A panel of this court considered the matter without oral argument.
    ANALYSIS
    Mr. Robertson argues that we should consider his argument and that, if we do, we
    should reverse the LFO award. The parties and the trial court gave the matter
    consideration at sentencing. In light of the small amount of discretionary LFOs imposed,
    if any at all, we decline to consider the issue.
    Appellate courts review a decision on whether to impose LFOs for abuse of
    discretion. State v. Baldwin, 
    63 Wn. App. 303
    , 312, 
    818 P.2d 1116
     (1991). Discretion is
    abused when it is exercised on untenable grounds or for untenable reasons. State ex rei.
    Carroll v. Junker, 
    79 Wn.2d 12
    ,26,
    482 P.2d 775
     (1971). The trial court's factual
    determination concerning a defendant's resources and ability to pay is reviewed under the
    "clearly erroneous" standard. State v. Bertrand, 
    165 Wn. App. 393
    ,403-404,
    267 P.3d 511
     (2011); Baldwin, 63 Wn. App. at 312.
    RCW 10.01.160(3) states:
    The court shall not order a defendant to pay costs unless the defendant
    is or will be able to pay them. In determining the amount and method of
    payment of costs, the court shall take account of the financial resources of the
    defendant and the nature of the burden that payment of costs will impose.
    The statutory inquiry is required only for discretionary LFOs. State v. Lundy, 176 Wn.
    App.96, 102, 
    308 P.3d 755
     (2013) (mandatory fees, which include victim restitution,
    4
    No. 31353-1-III
    State v. Robertson
    victim assessments, DNA fees, and criminal filing fees, operate without the court's
    discretion by legislative design); State v. Kuster, 
    175 Wn. App. 420
    , 424, 
    306 P.3d 1022
    (2013) (victim assessment and DNA collection fee mandatory). Trial courts are not
    required to enter formal, specific findings. Lundy, 176 Wn. App. at 105.
    In Blazina, our court concluded that the LFO issue is not one that can be presented
    for the first time on appeal because this aspect of sentencing is not one that demands
    uniformity. Blazina, 
    182 Wn.2d at 830
    . To that end, the appellate courts retain
    discretion whether or not to consider the issue initially on appeal. 
    Id.
     The Blazina court
    then decided to exercise its discretion in favor of accepting review due to the nationwide
    importance of the general issue concerning LFOs and to provide guidance to our trial
    courts. 
    Id.
     The court noted that trial judges have a statutory obligation to consider RCW
    10.01.160(3) at sentencing and make an individualized determination of the defendant's
    ability to pay discretionary LFOs. 
    Id. at 837
    .
    With these considerations in mind, we now tum to the LFOs imposed in this case.
    The victim assessment and DNA fee are mandatory LFOs not subject to RCW
    10.01.160(3). Kuster, 175 Wn. App. at 424. The remaining $200 in "court costs" is
    ambiguous. In light of its waiver of the attorney fees requested and its decision not to
    impose a fine, the court may have intended to assess the criminal filing fee, RCW
    36. 18.020(2)(h), another mandatory fee. Id. at 425. However, the judgment and sentence
    form expressly cites to four other statutes without referencing the filing fee statute.
    5
    No. 31353-1-111
    State v. Robertson
    This court faced the exact same factual situation in Kuster. There the court also
    imposed $800 in LFOs, with all of them being mandatory other than the same ambiguous
    "court costs" assessment of $200. There we stated:
    Given the likelihood that the $200 imposed in costs was a mandatory fee
    and the ample protection for Mr. Kuster's constitutional rights that exist if
    and when the State takes action to collect the LFOs, we decline to consider
    this assignment of error further.
    Id. at 426.
    We conclude, as in Kuster, that we will not exercise our discretion to hear this
    Issue. The issue was discussed in the briefing and at sentencing and the court was
    informed of what it needed to consider. In light of the defendant's failure to object to the
    court's finding of ability to pay, we will not consider the issue under the facts of this case.
    Affirmed.
    A majority of the panel has determined this opinion will not be printed in the
    Washington Appellate Reports, but it will be filed for public record pursuant to RCW
    2.06.040.
    WE CONCUR:
    Fearmg, J.                                         Lawrence-Berrey, J.
    6
    

Document Info

Docket Number: 31353-1

Filed Date: 12/1/2015

Precedential Status: Non-Precedential

Modified Date: 12/1/2015