State of Washington v. Larry Allen Powell ( 2020 )

FILED
MARCH 5, 2020
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. 36400-3-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
LARRY ALLEN POWELL, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Larry Powell, a persistent offender serving a
mandatory life sentence, appeals after the trial court granted his request to waive interest
on his legal financial obligations (LFOs). We conclude his claims of error are not
reviewable.
FACTS
In 2011, a jury found Larry Powell guilty of first degree robbery and second degree
assault. The trial court thereafter sentenced Powell as a persistent offender to life in
prison without the possibility of parole. As part of the sentence, the trial court imposed
$600 in mandatory LFOs.
Powell appealed and this court affirmed. State v. Powell, 172 Wn. App. 455, 290
P.3d 353 (2012). This court imposed appellate costs against Powell and ordered Powell
to pay $27.67 to the prosecutor’s office, and $3,500.71 to the Office of Public Defense.
Powell later filed two unsuccessful personal restraint petitions (PRPs). This court
No. 36400-3-III
State v. Powell
imposed appellate costs against Powell in the amount of $226.00 for the first PRP and $0
for the second PRP.
On August 21, 2018, Powell filed a motion to waive interest on his LFOs. He
asserted he had no income and accrual of interest was causing him mental anguish. The
trial court initially determined it would waive interest once the principal amounts were
paid. But it later entered an order waiving “pending interest” and interest “accru[ing]
after this order.” Clerk’s Papers at 39-40.
Despite getting what he requested, Powell appealed.
ANALYSIS
Powell first contends the trial court abused its discretion by denying his request for
relief from nonrestitution LFOs. The State responds that Powell did not request this
relief, so he is not entitled to it on appeal. RAP 2.5(a). We agree.
Powell alternatively contends the June 7, 2018 amendment to former
RCW 10.73.160(4) (2015) violates equal protection because it treats persons serving life
without the possibility of parole differently than persons who are released from total
confinement. RCW 10.73.160(4) permits a person, who is not in contumacious default in
the payment of LFOs, to petition a court for remission of LFOs at any time “after release
from total confinement.” Id.2
No. 36400-3-III
State v. Powell
The June 2018 amendments to the LFO statutes, including RCW 10.73.160, apply
prospectively to cases pending on direct review at the time of the amendments. State v.
Ramirez, 191 Wn.2d 732, 749-50, 426 P.3d 714 (2018). Powell's direct appeal ended in
2012, several years before the 2018 LFO amendments.
A person has standing to urge the unconstitutionality of a statute only if the person
is harmfully affected by the particular feature of the statute alleged to be unconstitutional.
State v. Rowe, 60 Wn.2d 797, 799, 376 P.2d 446 (1962). Even ifwe were to declare
RCW 10. 73 .160( 4) unconstitutional and broaden its benefits to incarcerated persons,
Powell would gain no benefit because his direct appeal was concluded years before the
effective date of the statute. Because Powell is not harmed by the particular feature of the
statute he claims is unconstitutional, he lacks standing to challenge it.
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.
1
Lawrence-B~rrey, C.J.
WE CONCUR:
Fearing, J.
3