State Of Washington v. Geovanni Herrera-pelayo ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ] No. 73093-2-1
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Respondent, ) DIVISION ONE
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GEOVANNI HERRERA-PELAYO, UNPUBLISHED
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Appellant. ) FILED: Auqustl 2016
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Cox, J. - Geovanni Herrera-Pelayo appeals his judgment and sentence
for unlawful imprisonment, challenging the court's imposition of several legal
financial obligations. Because Herrera-Pelayo failed to object at sentencing and
does not raise manifest constitutional errors under RAP 2.5(a)(3), we decline to
address these arguments and affirm the court's judgment and sentence.
Herrera-Pelayo was convicted of unlawful imprisonment. The jury also
found by special verdict that he committed this crime against a member of his
family or household.
The trial court sentenced Herrera-Pelayo. As part of his sentence, the
court ordered him to pay certain legal financial obligations (LFOs). Herrera-
Pelayo did not object to the LFOs.
Herrera-Pelayo appeals.
No. 73093-2-1/2
LEGAL FINANCIAL OBLIGATIONS
Herrera-Pelayo argues that the trial court erred when it ordered him to pay
certain LFOs. We hold that he failed to preserve these arguments for appeal.
Some LFOs are mandatory while others are discretionary.1 Here, the
court imposed both mandatory and discretionary LFOs. The court ordered
Herrera-Pelayo to pay a $500.00 victim assessment fee, a $100.00 domestic
violence assessment fee, a $200.00 criminal filing fee, and a $100.00 DNA
collection fee, for a total of $900.00.
The victim assessment fee, criminal filing fee, and DNA collection fee are
mandatory LFOs.2 Only the domestic violence assessment fee is discretionary.3
Herrera-Pelayo argues that the criminal filing fee is also discretionary.
The plain language of the relevant statute shows otherwise.
RCW 36.18.020(2), the statute at issue, provides that the superior court
clerk "shall collect" certain fees. One of those fees is the criminal filing fee. It
states, in part, "Upon conviction or plea of guilty ... an adult defendant in a
criminal case shall be liable for a fee of two hundred dollars."4 The word "shall"
indicates that this fee is mandatory.5
1 Compare RCW 43.43.7541 with RCW 10.99.080.
2 RCW 43.43.7541; RCW 7.68.035; RCW 36.18.020(2)(h).
3 RCW 10.99.080.
4 RCW 36.18.020(2)(h) (emphasis added).
5 Goldmark v. McKenna. 172 Wash. 2d 568, 575, 259 P.3d 1095 (2011).
No. 73093-2-1/3
Herrera-Pelayo argues that the word "liable" is ambiguous. He argues
that this term can include a "'future possible or probable happening that may not
occur.'"6 Black's Law Dictionary does state that, when referring to a person,
"liable" can mean "subject to or likely to incur" a fine.7
In this context, it is clear that a convicted defendant is subject to the filing
fee. The criminal filing fee is one of the fees that the clerk "shall collect."8 This
mandatory language indicates that a convicted defendant is not merely likely to
incur the fee, but rather that the defendant is subject to the fee.
Herrera-Pelayo appeals the imposition of both the mandatory LFOs and
the discretionary domestic violence assessment fee. We address his
contentions, in turn.
Mandatory LFOs
Herrera-Pelayo argues that imposing mandatory LFOs on indigent
defendants violates substantive due process. He also argues that this is a
manifest constitutional issue that may be raised for the first time on appeal under
RAP 2.5(a)(3). We disagree.
In State v. Shelton,9 this court recently rejected similar arguments. This
court held that the alleged error was not manifest because the record
6 Reply Brief of Appellant at 3 (quoting Black's Law Dictionary 915 (6th
ed.1990)).
7 Black's Law Dictionary 1055 (10th ed. 2014) (emphasis added).
8 RCW 36.18.020(2).
9 No. 72848-2, 2016 WL 3461164 (Wash. Ct. App. June 20, 2016).
No. 73093-2-1/4
"contained] no information about [Shelton's] future ability to pay the mandatory
[LFO]."10 Similarly, the court held that Shelton's substantive due process claim
was not ripe for review until the State sought to enforce collection of the LFO.
Shelton's reasoning also applies to Herrera-Pelayo's case. The record
does not indicate that the State seeks to enforce collection of the mandatory
LFOs. And the record is not developed on his current or future ability to pay.
Discretionary LFOs
Herrera-Pelayo argues that the trial court imposed discretionary LFOs
without considering his present or future ability to pay. Because he raises this
argument for the first time on appeal, we decline to address it.
Under RCW 10.01.160(3), atrial court cannot order a defendant to pay
discretionary LFOs "unless the defendant is or will be able to pay them." Thus,
"The record must reflect that the trial court made an individualized inquiry into the
defendant's current and future ability to pay."11
But "A defendant who makes no objection to the imposition of
discretionary LFOs at sentencing is not automatically entitled to review."12 And
appellate courts generally decline to review issues raised for the first time on
appeal.13
10 Id at *7.
11 State v. Blazina, 182 Wash. 2d 827, 838, 344 P.3d 680 (2015).
12 jd at 832.
13 Id. at 834.
No. 73093-2-1/5
Here, Herrera-Pelayo did not object to the imposition of the domestic
violence assessment fee. And he fails to make a convincing showing why we
should reach this issue.
Herrera-Pelayo argues that this court should exercise its discretion to
reach the issue of discretionary LFOs because the supreme court has recently
done so.
This is unpersuasive. The supreme court noted that "[ejach appellate
court must make its own decision" whether to exercise its discretion to hear an
unpreserved issue.14 We do so here in declining to reach the issue.
We affirm the judgment and sentence.
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WE CONCUR:
*T?\»/Id. at 835.