State Of Washington v. Spencer D. Grant , 196 Wash. App. 644 ( 2016 )

Filed
Washington State
Court of Appeals
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
Division Two
DIVISION II November 10, 2016
STATE OF WASHINGTON, No. 46734-8-II
Respondent,
PUBLISHED OPINION
v.
SPENCER GRANT,
Appellant.
BJORGEN, C.J. — Spencer Grant moves to modify the commissioner’s ruling awarding
appellate costs to the State. He argues (1) that his challenge to appellate costs is timely raised in
a motion to modify the commissioner’s ruling, and (2) that assuming his challenge is timely, we
should waive imposition of appellate costs in his case. We hold that Grant’s challenge to
appellate costs following his objection to the cost bill is timely, and we waive Grant’s appellate
costs because of his continued indigent status. Accordingly, we grant the motion to modify the
commissioner’s ruling and waive imposition of appellate costs against Grant.
FACTS
In an unpublished opinion, we affirmed Grant’s convictions for failure to register as a sex
offender and for bail jumping. State v. Grant, noted at 192 Wash. App. 1067 (2016). After our
decision was filed, the State submitted a cost bill for appellate costs pursuant to RAP 14.4 and
RCW 10.73.160. Grant filed an objection to the State’s cost bill under RAP 14.5. The
commissioner awarded appellate costs to the State as the prevailing party, reasoning that he had
no discretion to waive costs under RAP 14.2 in light of Division One’s opinion in State v.
Sinclair, 192 Wash. App. 380, 367 P.3d 612, review denied, 185 Wash. 2d 1034 (2016). Grant filed a
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motion to modify the commissioner’s order under RAP 17.7, and we referred the motion to a
panel of judges for decision.
ANALYSIS
I. APPELLATE COSTS MAY BE CHALLENGED IN A MOTION TO MODIFY THE COMMISSIONER’S
AWARD FOLLOWING AN OBJECTION TO THE COST BILL
Grant argues that his motion to modify the commissioner’s ruling following his objection
to the State’s cost bill is a timely and appropriate means to challenge imposition of appellate
costs. We agree.
1. Standard of Review/Legal Principles
Under RCW 10.73.160(1), appellate courts “‘may require an adult offender convicted of
an offense to pay appellate costs.’” Sinclair, 192 Wash. App. at 385 (emphasis in original)
(quoting RCW 10.73.160(1)). The statute provides that appellate costs “shall be requested in
accordance with . . . Title 14 of the rules of appellate procedure.” RCW 10.73.160(3). RAP
14.2, in turn, states that, “[a] commissioner or clerk of the appellate court will award costs to the
party that substantially prevails on review, unless the appellate court directs otherwise in its
decision terminating review.” (Emphasis added.) We review a commissioner’s ruling on a
motion to modify de novo. State v. Vazquez, 95 Wash. App. 12, 15, 972 P.2d 109 (1999).
2. Sinclair and RAP 14.2
Grant argues that we should permit a non-prevailing appellant to raise objections to
appellate costs in a motion to modify a commissioner’s ruling after filing an objection to the cost
bill. In his ruling on the cost bill, the commissioner, following Division One’s opinion in
Sinclair, 192 Wash. App. 380, stated that he lacked discretion to modify or reduce an indigent
offender’s appellate costs under RAP 14.2. In Sinclair, the defendant lost on appeal and filed a
motion for reconsideration opposing the State’s cost bill. Id. at 386-87. The Sinclair court held
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that a party may properly raise a challenge to appellate costs in either its appellate brief or a
motion for reconsideration. Id. at 385-87, 389-90. The court declined to rely solely on RCW
10.73.160(4) as a means to challenge appellate costs, which would require an offender to seek
remission of costs from the trial court. Id. at 388. The Sinclair court reasoned that because
RCW 10.73.160(1) vests discretion to impose appellate costs in the appellate courts, those courts
should not refrain from or delegate the exercise of that discretion. Id. at 389-90.
While the Sinclair opinion clarified that an appellate court may consider a challenge to
appellate costs if raised in briefing or a motion for reconsideration, the opinion did not make
those methods the exclusive means of raising the issue of appellate costs. To the contrary, the
court expressly declined to consider “whether the appellate court has discretion to deny or
substantially reduce an award of costs when asked to do so by a motion to modify a
commissioner’s award of costs under RAP 14.2.” Id. at 390 n.2. Similarly, even though the
court opined that a rule change requiring the State to brief a request for costs would not be
unduly burdensome, the court also noted that “[t]he State is not obliged to request an award of
costs in its appellate briefs.” Id. at 385. These elements of its analysis show that Sinclair did not
hold that appellate briefing and reconsideration were the exclusive vehicles for opposing an
award of appellate costs.
On the other hand, RAP 14.2 states that
[a] commissioner or clerk of the appellate court will award costs to the party that
substantially prevails on review, unless the appellate court directs otherwise in its
decision terminating review.
From this text, one could reasonably interpret RAP 14.2 strictly, to mean that in the absence of
direction to the contrary in the appellate court decision, appellate costs must be awarded to the
prevailing party. Just as reasonably, though, one could infer that this provision is limited to its
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express subject, actions by the clerk or commissioner, because it says nothing about the
modification of those decisions.
By arguing that his motion to modify is timely, Grant implicitly asks us to adopt a liberal
construction of RAP 14.2. In interpreting court rules, as with statutes, “we strive to determine
and carry out the drafter’s intent.” State v. Stump, 185 Wash. 2d 454, 460, 374 P.3d 89 (2016)
(citations omitted). “We determine that intent by examining the rule’s plain language not in
isolation but in context, considering related provisions, and in light of the statutory or rule-
making scheme as a whole.” Id. Furthermore, our Supreme Court has noted that “RAP 14.2 is
not the exclusive means for dealing with all situations resulting in an affirmance of a trial court
decision,” and that “[t]he RAPs are instead designed to allocate appellate costs in a fair and
equitable manner depending on the realities of the case.” Id. at 461. Finally, we may invoke
RAP 1.2(c) to waive or alter the provisions of the rules of appellate procedure in order to serve
the ends of justice.
The strict interpretation of RAP 14.2 would require a defendant to object to appellate
costs either in briefing, before even knowing which party prevails, or on reconsideration, when
the defendant may or may not know if the State is requesting costs. Only with the
commissioner’s decision is there an order imposing costs on a defendant who did not prevail on
appeal.1 That, then, is a fair, logical, and appropriate time to require a defendant to challenge
those costs, although a defendant may continue to properly raise the issue of appellate costs in
briefing or a motion for reconsideration consistently with Sinclair.2
1
Both a motion for reconsideration and an objection to cost bill generally must be filed within 20
days of the decision terminating review. RAP 12.4, 14.4, 14.5.
2
A new proposed amendment to RAP 14.2 is anticipated from the Supreme Court.
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Our Supreme Court has acknowledged the difficult issues surrounding the assignment of
costs to indigent defendants. In State v. Blazina, the court catalogued the potential impediments
to meaningful post-incarceration reintegration caused by burdening indigent defendants with
costs that will only swell with interest under a low payment plan. 182 Wash. 2d 827, 344 P.3d 680
(2015). The court explained that indigent offenders are disproportionately weighed down by
legal costs compared to wealthier offenders, who are less likely to fall behind on payments and
become subject to additional interest and fees. Id. at 836. Once encumbered by legal costs, an
indigent offender is likely to encounter problems securing employment, housing, or financing
because background checks will indicate an active court record for unpaid costs. Id. at 837.
These difficulties are similar to, if not the same as, the difficulties implicated in Grant’s
challenge.
As already noted, a motion to modify is generally the first opportunity to challenge an
award of appellate costs after the award has been made. That timing, along with the problems
caused by levying court costs on the indigent, the limited holding of Sinclair, and the legislative
intent that the appellate court exercise discretion over imposing appellate costs, all counsel that
RAP 14.2 should be read to allow Grant to challenge appellate costs for the first time in his
motion to modify the commissioner’s ruling where he has previously filed an objection to the
cost bill.
In addition, we have authority to determine “costs in all cases after the filing of a
decision terminating review.” RAP 14.1(a) (emphasis added). To the extent that a
commissioner ruling on costs may be appealed to the appellate court under RAP 17.7, we thus
retain ultimate discretion as to the imposition of costs, consistent with the legislative intent of
RCW 10.73.160(1). For all of these reasons, we hold that Grant’s challenge to appellate costs in
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a motion to modify a commissioner’s ruling after having filed an objection to the cost bill is
timely.
II. APPELLATE COSTS ARE WAIVED
Grant argues that we should decline to impose appellate costs in his case. We agree.
Under RCW 10.73.160(1), we have broad discretion whether to grant or deny appellate
costs to the prevailing party. State v. Nolan, 141 Wash. 2d 620, 626, 8 P.3d 300 (2000). We retain
discretion to determine appellate costs after the decision terminating review. RAP 14.1(a).
Grant requests that we exercise that discretion to waive his appellate costs.
Ability to pay is an important consideration in the discretionary imposition of appellate
costs, although it is not the only relevant factor. Sinclair, 192 Wash. App. at 389. In the context of
trial court legal financial obligations (LFOs), our Supreme Court has recognized that if one
meets the GR 34 standards for indigency, courts should seriously question that person’s ability to
pay LFOs. Blazina, 182 Wash. 2d at 839. Once indigency is established, the RAPs establish a
presumption of continued indigency throughout review. Sinclair, 192 Wash. App. at 393.
Specifically, RAP 15.2(f) states that:
[a] party and counsel for the party who has been granted an order of
indigency must bring to the attention of the trial court any significant
improvement during review in the financial condition of the party. The appellate
court will give a party the benefits of an order of indigency throughout the review
unless the trial court finds the party’s financial condition has improved to the
extent that the party is no longer indigent.
Grant received appointed counsel in the trial court and was found indigent at the end of
his trial. In considering appellate costs, Sinclair held, as a general matter, that “the imposition of
costs against indigent defendants raises problems that are well documented in Blazina-e.g.,
‘increased difficulty in reentering society, the doubtful recoupment of money by the government,
and inequities in administration.’” 192 Wash. App. at 391 (quoting Blazina, 182 Wash. 2d at 835).
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With Grant’s presumed continued indigency, the imposition of appellate costs would threaten
these same evils. Therefore, we elect to exercise our discretion and decline to impose appellate
costs on Grant.
CONCLUSION
Grant’s motion to modify the commissioner’s ruling is granted. His motion to modify,
filed after having objected to the cost bill,3 was timely, and we decline to require Grant to pay
appellate costs.
BJORGEN, C.J.
We concur:
JOHANSON, J.
LEE, J.
3
We do not decide whether Grant’s challenge would have been timely in the absence of an
objection to the cost bill.
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