State Of Washington v. Stephanie Keen ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
August 29, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49055-2-II
Respondent,
v.
STEPHANIE RAENE KEEN, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Stephanie Raene Keen appeals her bench trial conviction for unlawful
possession of a controlled substance (methamphetamine) and the trial court’s imposition of
discretionary legal financial obligations (LFOs). She argues that the trial court erred when it
denied her motion to suppress the search of her purse and that the trial court failed to adequately
inquire into her ability to pay the discretionary LFOs.1 We hold that the trial court did not err
when it concluded that the search of Keen’s purse was lawful under State v. Brock2 and affirm
Keen’s conviction. But we reverse the LFOs imposed and remand to the trial court for
1
Keen also requests that we decline to impose appellate costs. Under RAP 14.2, a commissioner
or clerk of this court has the ability to determine whether appellate costs should be imposed based
on the appellant’s ability to pay and prior determinations regarding indigency. Accordingly, a
commissioner of this court will consider whether to award appellate costs if the State files a cost
bill and the defendant objects to it.
2
State v. Brock, 184 Wn.2d 148, 355 P.3d 1118 (2015).
1
No. 49055-2-II
reconsideration of discretionary LFOs consistent with our Supreme Court’s opinion in State v.
Blazina.3
FACTS
I. BACKGROUND FACTS4
On September 26, 2015, Keen called law enforcement from a gas station and reported that
a man was chasing and shooting at her. Officer Tracy Murphy responded to the call. En route,
Officer Murphy was advised that shortly before Keen called, a Lewis County deputy sheriff had
dropped Keen off near the gas station and that she had been delusional at that time.
When Officer Murphy arrived at the gas station, the cashier told him that she had helped
Keen call 911 and that Keen had then locked herself in the men’s restroom. Officer Murphy
knocked on the restroom door and identified himself, but Keen refused to open the locked door.
When Officer Murphy tried to unlock the door, Keen held the lock shut from the inside. Officer
Murphy was eventually able to unlock the door and, despite Keen’s efforts, force his way into the
restroom.
Once inside the restroom, Officer Murphy found Keen alone. Keen’s purse was six inches
away from her, between her and the wall. Officer Murphy did not observe Keen wearing the purse,
but he believed the purse was hers because she was the only other person in the men’s restroom.
3
State v. Blazina, 182 Wn.2d 827, 838-39, 344 P.3d 680 (2015).
4
The background facts are based on the trial court’s unchallenged findings of fact from the
CrR 3.6 hearing, which are verities on appeal. State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038(1999) (quoting State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997)).
2
No. 49055-2-II
Officer Murphy ordered Keen to the ground, handcuffed her, and arrested her for
obstructing a law enforcement officer. Officer Murphy put Keen in the back seat of his patrol car
and placed her water bottle and purse on top of the car’s trunk. The officer then searched the purse
and found a baggie containing methamphetamine.
After discovering the methamphetamine, Officer Murphy believed that Keen was under
the influence of methamphetamine rather than suffering from mental health issues, and he advised
Keen that she was under arrest for possession of methamphetamine. Medical aid confirmed that
Keen did not need medical assistance, and Officer Murphy took her to the Lewis County Jail and
booked her for unlawful possession of methamphetamine.
II. PROCEDURE
A. DENIAL OF MOTION TO SUPPRESS
The State charged Keen with unlawful possession of a controlled substance
(methamphetamine). Keen moved to suppress the evidence found during the search of her purse.
Keen argued, inter alia, that (1) the search was not a lawful search incident to arrest because
the purse was not in her actual, physical possession when she was arrested, (2) the search was not
a lawful search incident to arrest because the real reason for the search was to search for evidence
of a crime, and (3) the search was not a lawful “weapons frisk” because there were no specific and
articulable facts supporting a reasonable belief that she was armed and dangerous. Clerk’s Papers
(CP) at 8-9. The State responded that the search was either a valid community caretaking search,
a lawful search for weapons, or a lawful search incident to arrest.
During the suppression hearing, Officer Murphy testified that he had removed the purse
from the restroom when he took Keen to his patrol car because he “assumed it was her property”
3
No. 49055-2-II
since she was the only one in the restroom with the purse and it was a men’s restroom. Report of
Proceedings (RP) (Feb. 3, 2016) at 14. He further testified that he had intended to take the purse
to the jail with Keen because it was “her property.” RP (Feb. 3, 2016) at 14. And he asserted that
when he searched the purse he “was looking for weapons” and for her identification, which he
needed “to positively identify her.” RP (Feb. 3, 3016) at 14.
Officer Murphy admitted, however, that when he first arrested Keen, he had initially
intended to take her to the hospital to determine whether she was having mental health issues or
whether her behavior was drug related before taking her to jail. He testified,
My plan was to transport her to the hospital for a mental health evaluation.
If the mental health professional deemed that she was a danger and was going to be
committed for the 72-hour hold, then she would have been referred for obstructing.
If the mental health professional said no, she’s fine, it’s not a mental issue, it just
makes sure that my case for the obstructing is going to be—you know, that won’t
be an issue down the road.
RP (Feb. 3, 2016) at 15. But after he found the methamphetamine in her purse and spoke to the
medical aid people who had responded to the scene, he determined that he could take her straight
to jail.
The trial court denied the motion to suppress and issued written findings of fact and
conclusions of law. In addition to the facts set out above, the trial court found:
1.30 Officer Murphy searched the purse because he was going to take the purse
with [Keen] to the hospital for a mental health check and then on to the jail
to be booked for obstructing a law enforcement officer if she was not put on
a 72-hour civil commitment hold.
CP at 23.
The trial court also entered the following conclusions of law:
4
No. 49055-2-II
2.2 Officer Murphy had probable cause to believe that [Keen] was committing
the crime of obstructing a law enforcement officer (RCW 9A.76.023).
2.3 Officer Murphy’s arrest of [Keen] was lawful and supported by probable
cause.
2.4 The purse was in [Keen’s] actual possession at the time of the arrest.
2.5 Under [Brock], personal items that will go to the jail with the arrested person
are in the arrestee’s possession.
2.6 Because the purse was in [Keen’s] possession at the time of the arrest and
was to be transported with [Keen] to the jail, Officer Murphy had lawful
authority to search the purse incident to that arrest.
2.7 Brock is a change in the law, in this respect, from the prior ruling in State v.
Byrd, 178 Wn.2d 611[, 310 P.3d 793] (2013). Brock is controlling under
the circumstances presented to the court in this matter.
2.8 The search of the purse was lawful and the items found, including without
limitation the methamphetamine, are admissible.
CP at 24.
B. BENCH TRIAL ON STIPULATED FACTS AND SENTENCING
Keen subsequently waived her right to a jury trial, and the case proceeded to a bench trial
based on stipulated facts. The trial court found Keen guilty as charged.
At sentencing, the State requested the following LFOs: (1) a $500 victim assessment fee,
(2) a $200 criminal filing fee, (3) $1,200 in court appointed attorney fees, (4) a $1,000 fine, (5) a
$100 crime lab fee, (6) a $100 DNA collection fee, and (7) $1,000 in “jail costs.” RP (May 25,
2016) at 4. Defense counsel discussed Keen’s substance abuse and possible mental health issues,
noted she had been in treatment, and acknowledged that Keen had several driving while under the
influence (DUI) arrests and two DUI convictions in 2016. The trial court then directly questioned
Keen about her ability to “work and earn an income.” RP (May 25, 2016) at 7.
5
No. 49055-2-II
Keen stated that she was not currently working and that she had attempted to apply for
Social Security benefits but had recently decided not to pursue benefits. When the trial court asked
her if she anticipated returning to work, she responded, “Absolutely.” RP (May 25, 2016) at 7.
Defense counsel stated that he thought Keen would be “able to pay,” and requested that the trial
court require $25 per month payments. RP (May 25, 2016) at 7.
The trial court sentenced Keen under the “first-time offender” waiver and found that Keen
had a chemical dependency that contributed to the commission of the offense. RP (May 25, 2016)
at 8. It imposed 10 days of jail time with credit for 3 days of time served, and 12 months of
community custody.
The trial court also imposed a total of $2,800 in LFOs and fines. This included: (1) a $500
victim assessment fee, (2) a $200 criminal filing fee, (3) $900 in court appointed attorney fees, (4)
a $1,000 fine, (5) a $100 crime lab fee, and (6) at $100 DNA collection fee. It specifically declined
to impose the “jail fee” or the full amount of attorney fees that the State had requested. RP (May
25, 2016) at 9. The court set the monthly payments at $25 a month, with the payments starting 90
days from the sentencing date. On the judgment and sentence, the trial court checked the box
stating that it had inquired into Keen’s ability to pay the LFOs and that it had determined she had
the ability to pay the LFOs.
Keen appeals her conviction and the discretionary LFOs.5
5
Keen sought review at public expense. The trial court granted the request.
6
No. 49055-2-II
ANALYSIS
Keen argues that the trial court erred when it denied her motion to suppress and that the
trial court failed to make an adequate inquiry into her ability to pay before imposing discretionary
LFOs. We affirm the conviction, but we reverse the LFOs imposed and remand to the trial court
for reconsideration of discretionary LFOs.
I. DENIAL OF SUPPRESSION MOTION
Keen challenges the trial court’s denial of her suppression motion. She argues that (1)
substantial evidence does not support the trial court’s finding of fact 1.30, (2) the trial court erred
when it concluded that she had actual possession of the purse under Brock, and (3) the trial court
erred when it concluded that the search was a lawful search under Brock and Byrd.6 We hold that
finding of fact 1.30 is supported by substantial evidence. We further hold that although the trial
court erred when it concluded that Keen was in actual possession of her purse at the time of her
arrest, the search of the purse was still a lawful search of Keen’s person incident to arrest under
Brock because the facts establish that she had actual possession of the purse immediately preceding
her arrest.
A. STANDARD OF REVIEW
When reviewing the trial court’s denial of a CrR 3.6 suppression motion, we determine
whether substantial evidence supports the challenged findings of fact and whether the findings of
fact support the conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
6
Keen also argues that, assuming that the search was unlawful under Brock, the facts did not
establish issues of officer safety or destruction of evidence. Because we hold that the search was
lawful under Brock, we do not reach this issue.
7
No. 49055-2-II
“Evidence is substantial when it is enough ‘to persuade a fair-minded person of the truth of the
stated premise.’” Garvin, 166 Wn.2d at 249 (quoting State v. Reid, 98 Wn. App. 152, 156, 988
P.2d 1038 (1999)). We consider unchallenged findings of fact verities on appeal. Reid, 98 Wn.
App. at 156. We review de novo the trial court’s conclusions of law pertaining to the suppression
of evidence. Garvin, 166 Wn.2d at 249.
B. FINDING OF FACT 1.30
Keen argues that substantial evidence does not support the trial court’s finding of fact
1.30, which states:
Officer Murphy searched the purse because he was going to take the purse with
[Keen] to the hospital for a mental health check and then on to the jail to be booked
for obstructing a law enforcement officer if she was not put on a 72-hour civil
commitment hold.
CP 23. We disagree.
Officer Murphy testified that he intended to transport the purse to the jail with Keen
because “[i]t was her property.” RP (Feb. 3, 2016) at 14. He also testified that (1) his initial plan
was to first transport Keen to the hospital for a mental health evaluation, (2) if she was deemed to
have mental health issues and was placed on a 72-hour hold, he would have referred charges to the
prosecutor’s office, and (3) if she was not deemed to have mental health issues, he would have
taken Keen and her belongings to the jail to book her for obstructing a law enforcement officer.
And he testified that he searched the purse prior to departing with Keen to ensure that there were
no weapons in the purse and to locate identification. This testimony shows that Officer Murphy
searched the purse because he was intending to transport it with Keen to the hospital and he needed
8
No. 49055-2-II
to ensure it was safe to transport, and there was no evidence to the contrary. This evidence supports
finding of fact 1.30 and Keen’s argument fails.
C. CONCLUSIONS OF LAW
Keen next argues that the trial court erred when it concluded that the purse search was a
lawful search incident to arrest under Brock and Byrd because Keen was not in actual possession
of the purse at, or immediately preceding, the time of her arrest. We disagree.
1. Legal Principles
Both the Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington State Constitution prohibit warrantless searches unless one of the narrow exceptions
to the warrant requirement applies. State v. Rooney, 190 Wn. App. 653, 658, 360 P.2d 913 (2015),
review denied, 185 Wn.2d 1032 (2016). The State has the burden of establishing by clear and
convincing evidence that an exception to the warrant requirement applies. Rooney, 190 Wn. App.
at 658-59.
One exception to the warrant requirement is a search incident to arrest. Brock, 184 Wn.2d
at 154. There are “two analytically distinct concepts” encompassed by this exception. Byrd, 178
Wn.2d at 617 (citing United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d
427 (1973)). “The first of these propositions is that ‘a search may be made of the area within the
control of the arrestee.’” Byrd, 178 Wn.2d at 617 (quoting Robinson, 414 U.S. at 224). “[T]he
second proposition of the search incident to arrest” allows for searches “‘of the person of the
arrestee by virtue of the lawful arrest.’” Byrd, 178 Wn.2d at 617 (quoting Robinson, 414 U.S. at
224) (emphasis omitted).
9
No. 49055-2-II
Unlike the first proposition, a search of the person of the arrestee need not be justified by
concern that the arrestee could access the article to obtain a weapon or destroy evidence. Byrd,
178 Wn.2d at 617-18. Instead, “searches of an arrestee’s person, including articles of the person
such as clothing or personal effects, require ‘no additional justification’ beyond the validity of
custodial arrest.” Byrd, 178 Wn.2d at 617-18 (quoting Robinson, 414 U.S. at 235). “The authority
to search an arrestee’s person and personal effects flows from the authority of a custodial arrest
itself.” Byrd, 178 Wn.2d at 618 (citing Robinson, 414 U.S. at 232). “Washington law has long
recognized the validity of searching a defendant and the property immediately within his or her
control without a warrant in the process of making an arrest.” State v. Ellison, 172 Wn. App. 710,
719, 291 P.3d 921 (2013).
2. Byrd and Brock
In recent years, our Supreme Court applied the search of a person exception to the warrant
requirement in Byrd and Brock. In Byrd, Byrd was arrested for possession of stolen property after
a police officer confirmed that the car she was riding in had stolen license plates. Byrd, 178 Wn.2d
at 615. At the time of her arrest, she was sitting in the front passenger seat with her purse in her
lap. Byrd, 178 Wn.2d at 615. Before removing Byrd from the car, an officer took Byrd’s purse
from her lap and placed it on the ground nearby. Byrd, 178 Wn.2d at 615. After placing Byrd in
a patrol car, the officer searched the purse and discovered methamphetamine. Byrd, 178 Wn.2d at
615. The trial court suppressed the evidence from the purse. Byrd, 178 Wn.2d at 615-616.
Our Supreme Court held that the search of a person exception extends to personal property
“immediately associated” with the arrestee’s person and concluded that the purse in question was
immediately associated with Byrd’s person at the time of arrest. Byrd, 178 Wn.2d at 621, 623.
10
No. 49055-2-II
The court noted that the exception did not apply to all “articles within the arrestee’s reach but not
actually in his possession.” Byrd, 178 Wn.2d at 623. Instead, the exception applied to “only those
personal articles in the arrestee’s actual and exclusive possession at or immediately preceding the
time of arrest.” Byrd, 178 Wn.2d at 623 (emphasis added). The court limited such searches “only
to articles ‘in such immediate physical relation to the one arrested as to be in a fair sense a
projection of his person.’” Byrd, 178 Wn.2d at 623 (quoting United States v. Rabinowitz, 339 U.S.
56, 78, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurther, dissenting), overruled by Chimel v.
California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)).
More recently, in Brock, our Supreme Court examined the scope of the language
“immediately preceding arrest.” Brock, 184 Wn.2d at 154. In Brock, officers searched the
backpack that Brock had been carrying when the officers approached him in a public park. Brock,
184 Wn.2d at 151. During their investigation, the officers took the backpack from Brock for safety
purposes and put it in the passenger seat of a patrol vehicle. Brock, 184 Wn.2d at 151-52. After
discovering that Brock was providing false information, the officers arrested him and searched the
backpack. Brock, 184 Wn.2d at 152.
Our Supreme Court held that the backpack was part of Brock’s “person” at the time of the
arrest even though he was not wearing it when he was formally arrested. Brock, 184 Wn.2d at
158-59. In reaching this conclusion, the court noted that the underlying justification for an item
being considered “part of the person” is that “there are presumptive safety and evidence
preservation concerns associated with police taking custody of those personal items immediately
associated with the arrestee, which will necessarily travel with the arrestee to jail.” Brock, 184
Wn.2d at 155. The court explained:
11
No. 49055-2-II
When the personal item is taken into custody as a part of the arrestee’s person, the
arrestee’s ability to reach the item during the arrest and search becomes irrelevant.
Rather, the safety and evidence preservation exigencies that justify this “time of
arrest” distinction stem from the safety concerns associated with the officer having
to secure those articles of clothing, purses, backpacks, and even luggage, that will
travel with the arrestee into custody. Because those items are part of the person,
we recognize the practical reality that the officer seizes those items during the
arrest. From that custodial authority flows the officer’s authority to search for
weapons, contraband, and destructible evidence.
Brock, 184 Wn.2d at 156.
The court then further concluded that the lapse of time between Brock’s actual, physical
possession of the backpack and his arrest was not the determinative factor as to whether he had
the backpack in his actual possession immediately preceding his arrest. Brock, 184 Wn.2d at 158-
59. The court explained:
Although we must draw these exceptions to the warrant requirement narrowly, we
do not draw them arbitrarily; the exception must track its underlying justification. .
. . [W]e draw the line of “immediately preceding” with that focus. The proper
inquiry is whether possession so immediately precedes arrest that the item is still
functionally a part of the arrestee’s person. Put simply, personal items that will go
to jail with the arrestee are considered in the arrestee’s “possession” and are
within the scope of the officer’s authority to search.
Brock, 184 Wn.2d at 158 (emphasis added).
The court continued:
Under these circumstances, the lapse of time had little practical effect on Brock’s
relationship to his backpack. . . . Once the arrest process had begun, the passage of
time prior to the arrest did not render it any less a part of Brock’s arrested person.
Brock, 184 Wn.2d at 159. Thus, Brock clarified that the arrestee need not be in actual, physical
possession at the time of the arrest for the search of the person rule to apply and established a test
12
No. 49055-2-II
for determining whether an item was in an arrestee’s actual possession immediately preceding the
arrest.
3. Valid Search Incident to Arrest
Here, the trial court concluded that the purse was in Keen’s actual possession at the time
of her arrest. We agree with Keen that this conclusion of law is not supported by the trial court’s
findings. Actual possession means having physical custody of the item in question. State v. Jones,
146 Wn.2d 328, 333, 45 P.3d 1062 (2002). At the time of her arrest, Keen was next to, but was
not in physical custody of the purse. Thus, the trial court’s conclusion on this issue, and any
additional conclusion flowing from this conclusion, were incorrect.
But we may affirm the trial court on any ground supported by the record. State v. Smith,
165 Wn. App. 296, 308, 266 P.3d 250 (2011), aff’d 177 Wn.2d 533 (2013) (citing State v. Costich,
152 Wn.2d 463, 477, 98 P.3d 795 (2004)). Although the trial court erred when it concluded that
Keen was in actual possession of the purse at the time of her arrest, the search would still be proper
if Keen was in actual possession of the purse immediately preceding her arrest.
Brock requires that the possession of the personal item in question must “so immediately
precede[ ] arrest that the item is still functionally a part of the arrestee’s person.” Brock, 184
Wn.2d at 158. The Brock court further clarified that “[p]ut simply, personal items that will go to
jail with the arrestee are considered in the arrestee’s ‘possession’ and are within the scope of the
officer’s authority to search.” Brock, 184 Wn.2d at 158.
13
No. 49055-2-II
Here, there was circumstantial evidence that Keen had actually possessed the purse
immediately before her arrest.7 She was found within inches of the purse inside an otherwise
empty men’s restroom, where one does not normally expect to find a purse. These facts would be
sufficient to allow the trial court to find that Keen brought the purse into the restroom and, thus,
had been in actual possession of the purse immediately before her arrest. These facts, plus Keen’s
immediate proximity to the purse, support the conclusion that the purse was still functionally a
part of Keen’s person. Thus, the State has shown that the search was proper under Brock,8 and the
trial court did not err when it denied Keen’s motion to suppress.
II. LFOS
Keen further argues that the trial court erred when it imposed discretionary LFOs without
first making an adequate inquiry into her ability to pay. She raises this issue for the first time on
appeal.
Subject to exceptions not applicable here, we may decline to review issues raised for the
first time on appeal. RAP 2.5(a). However, we may also exercise our discretion to reach Blazina-
based challenges to discretionary LFOs for the first time on appeal. Blazina, 182 Wn.2d at 835.
Here, we choose to exercise our discretion to review Keen’s discretionary LFOs.
7
To the extent Keen is arguing that the officer had to observe Keen in actual possession of the
purse before the search of the person exception applies, we disagree. Although the officers in Byrd
and Brock observed the arrestees in actual possession of the items later searched, neither case states
that actual possession immediately before the arrest cannot also been established by circumstantial
evidence. See Brock, 184 Wn.2d at 151-52; Byrd, 178 Wn.2d at 615. Nor does Keen cite to any
authority requiring that the officer observe the actual possession.
8
In light of this holding, we do not address Keen’s argument that the trial court improperly
“broadened” Brock to allow for the search of constructively possessed personal property. See Br.
of Appellant at 19.
14
No. 49055-2-II
We review a decision to impose discretionary LFOs for an abuse of discretion. State v.
Clark, 191 Wn. App. 369, 372, 362 P.3d 309 (2015). A trial court abuses its discretion when its
decision is based on untenable grounds or untenable reasons. Clark, 191 Wn. App. at 372.
Before imposing discretionary LFOs, the trial court must conduct an individualized inquiry
into the defendant’s present and future ability to pay LFOs. RCW 10.01.160(3); Blazina, 182
Wn.2d at 837-38. The trial court’s inquiry should consider other “important factors” such as
incarceration and the defendant’s other debts, including restitution. Blazina, 182 Wn.2d at 838.
If a trial court fails to make a proper inquiry, it is basing its decision to impose LFOs on untenable
grounds.
Although the trial court questioned Keen about her intent to return to work and whether
she could afford to pay a small monthly amount, the trial court did little more. Blazina requires a
more thorough inquiry. Blazina, 182 Wn.2d at 838. Additionally, Keen had also stated that she
was not currently employed, that she had previously been seeking benefits, and that the court had
previously found her indigent, circumstances also indicating the need for further inquiry. Although
Keen’s counsel agreed she could pay $25 a month, the trial court never inquired as to what impact
this payment would have on Keen. There was nothing in the record explaining why Keen had
been seeking benefits, when she had last worked, what kind of work she was able to do, how much
income she expected to earn when she returned to work, the likelihood of her finding a job, her
expenses, her debt load, or how her substance abuse issues and treatment might potentially impact
her employability and expenses.
Under Blazina, the trial court’s inquiry in this situation was inadequate and, thus, the trial
court abused its discretion in imposing discretionary LFOs based on this record.
15
No. 49055-2-II
Accordingly, we affirm Keen’s conviction, but we reverse the discretionary LFO’s and
remand for reconsideration of the discretionary LFOs consistent with our Supreme Court’s opinion
in Blazina.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
I concur:
BJORGEN, C.J.
16
No. 49055-2-II
MELNICK, J. (dissent) — I respectfully disagree with the majority’s holding that the trial
court abused its discretion by imposing discretionary legal financial obligations (LFOs) on
Stephanie Raene Keen.
At Keen’s sentencing hearing the State made specific recommendations to the court
regarding many facets of the sentence, including LFOs. Keen also made recommendations. The
court inquired about Keen’s ability to pay LFOs.
Keen was currently in the third phase of a court-ordered two year intensive outpatient
treatment program. The court asked her, “Is there any physical or emotional or other reason why
you can’t work and earn an income? Do you work?” Report of Proceedings (RP) (May 25, 2016)
at 7.
Keen responded that she had been pursuing Social Security benefits but decided against it.
She absolutely intended on going to back to work once this criminal case resolved itself. Keen’s
lawyer made the following representation to the court, “So we’d ask for—I think she’s able to pay
and we’d ask for $25 month.” RP (May 25, 2016) at 7.
After considering all of the information, the court found Keen had the ability to work. It
based this finding on Keen’s statements and her attorney’s representations. The court then
imposed mandatory and discretionary LFOs; however, it did not impose all of the discretionary
fees requested by the State.
We “review a decision on whether to impose LFOs for abuse of discretion.” State v. Clark,
191 Wn. App. 369, 372, 362 P.3d 309 (2015). “Discretion is abused when it is exercised on
untenable grounds or for untenable reasons.” Clark, 191 Wn. App. at 372. “The trial court's
factual determination concerning a defendant's resources and ability to pay is reviewed under the
17
No. 49055-2-II
‘clearly erroneous’ standard.” Clark, 191 Wn. App. at 372 (quoting State v. Bertrand, 165 Wn.
App. 393, 403-04, 267 P.3d 511 (2011)).
“A trial court abuses its discretion when its decision ‘is manifestly unreasonable or based
on untenable grounds or reasons.’” Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668-69, 230 P.3d
583 (2010) (quoting State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d (1997)). “A trial court's
decision is manifestly unreasonable if it ‘adopts a view that no reasonable person would take.’”
Salas, 168 Wn.2d at 669 (quoting In re Pers. Restraint of Duncan, 167 Wn.2d 398, 402-03, 219
P.3d 666 (2009)). “‘A decision is based on untenable grounds or for untenable reasons if the trial
court applies the wrong legal standard or relies on unsupported facts.’” Salas, 168 Wn.2d at 669(quoting Duncan, 167 Wn.2d at 402-03).
I disagree that the trial judge adopted a view that no reasonable person would take. Keen
told the trial judge she could work and she would do so after this case resolved itself. Keen’s
lawyer affirmatively said Keen could make $25 monthly payments. In taking into account the
facts, the admissions, and the statements, the trial court exercised its discretion and did not impose
all of the discretionary fees the State requested. I respectfully disagree with the majority’s holding
that the trial court abused its discretion in imposing discretionary LFOs.
MELNICK, J.
18