State Of Washington v. D'yani Allen ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 73840-2-1 <^c:
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Respondent, g"'T'| p •,-
v. UNPUBLISHED OPINION
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DYANI R. ALLEN,
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Appellant. FILED: September 26, 2016
Schindler, J. — Dyani R. Allen pleaded guilty in juvenile court to robbery in the
second degree and possession of a stolen vehicle. Allen challenges imposition of
restitution, the victim penalty assessment, and the statutory minimum fine for
possession of a stolen vehicle. We affirm.
The State charged 16-year-old Dyani R. Allen with robbery in the second degree
and possession of a stolen vehicle. The State alleged Allen and two other individuals
participated in an armed carjacking on April 13, 2015 and Allen was arrested while
driving the stolen vehicle on April 14, 2015. Allen entered a guilty plea to both charges.
Allen stipulated she had an offender score of 1. Allen agreed to "pay restitution in full to
all victims" in an amount to be determined at a later date.1
1 Emphasis in original
No. 73840-2-1/2
At the disposition hearing, the juvenile court entered an order imposing the $100
victim penalty assessment under former RCW 7.68.035(1 )(b) (2011),2 the minimum
statutory fine of $400 under former RCW 13.40.308(2)(b) (2009)3 for possession of a
stolen vehicle, and restitution under RCW 13.40.190(1 )(a) in an amount to be
determined at a later hearing. The court ordered that "[a]ll financial obligations will be
paid at 50% of earnings while at JRA[4] with the first payment of $5 due 30 days after
release."
Before the restitution hearing, Allen filed a motion opposing the imposition of "all
LFOs,[5] including restitution and other mandatory LFOs." The court rejected Allen's
argument that State v. Blazina, 182 Wash. 2d 827, 344 P.3d 680 (2015), required the court
to consider her current and future ability to pay the mandatory legal financial obligations
but nonetheless was "perfectly happy to make an individualized finding." The court
found that Allen "not only has the capability, but was ordered to pay 50% of her. . .
earnings while at JRA to restitution, to . . . financial obligations." The court stated, "I
cannot find that she has no future ability to pay, because she's only sixteen. And, she
certainly has the ability to pay some now from where she is." The court entered an
order denying the motion to "eliminate or reduce non-discretionary LFO's" and ruled that
"any individual inquiry is not yet ripe before the Court." The court continued the
restitution hearing until after the effective date of the amendments to RCW
13.40.190(1 )(f) that allowed the court to divide the total amount of restitution equally
2 Laws of 2011, ch. 336, § 246.
3 Laws of 2009, ch. 454, § 4.
4 Juvenile Rehabilitation Administration.
5 Legal financial obligations.
No. 73840-2-1/3
rather than impose joint and several lability for the full amount.6 The court entered an
order to pay restitution of $1,757.93, one-third of the full restitution amount. Allen
appeals.
Allen relies on Blazina to argue the juvenile court erred in imposing restitution,
the victim penalty assessment, and the statutory minimum fine for possession of a
stolen vehicle without considering her ability to pay. Blazina does not support Allen's
argument. The court in Blazina did not address imposition of mandatory fees. The
court held RCW 10.01.160(3) requires the sentencing court to make an individualized
inquiry into a defendant's ability to pay discretionary legal financial obligations. Blazina,
182 Wash. 2d at 837-38.
The imposition of restitution, the victim penalty assessment, and the statutory
minimum fine for possession of a stolen vehicle are mandatory. RCW 13.40.190(1)(a)
states, "In its dispositional order, the court shall require the respondent to make
restitution to any persons who have suffered loss or damage as a result of the offense
committed by the respondent."7 See also State v. A.M.R., 147 Wash. 2d 91, 96, 51 P.3d
790 (2002) ("Restitution is mandatory for juvenile offenses."). Former RCW
7.68.035(1 )(b) states that "[wjhen any juvenile is adjudicated of any offense in any
juvenile offense disposition under Title 13 RCW,. . . there shall be imposed upon the
6The legislature amended RCW 13.40.190(1 )(f) in 2015. Lawsof 2015, ch. 265, § 6. As
amended, RCW 13.40.190(1)(f) states:
If the respondent participated in the crimewith another person or other persons, the court
may either order joint and several restitution or may divide restitution equally among the
respondents. In determining whether restitution should be joint and several or equally
divided, the court shall consider the interest and circumstances of the victim or victims,
the circumstances of the respondents, and the interest of justice.
7 Emphasis added.
No. 73840-2-1/4
juvenile offender a penalty assessment."8 The assessment "shall be one hundred
dollars for each case or cause of action that includes one or more adjudications for a
felony." Former RCW 7.68.035(1 )(b).9
The legislature established mandatory minimum sentences for juveniles
adjudicated of possession of a stolen vehicle and a mandatory $400 fine. Laws of
2007, ch. 199, § 15. Former RCW 13.40.308(2) provides, in pertinent part:
If a respondent is adjudicated of. . . possession of a stolen vehicle as
defined under RCW 9A.56.068, the court shall impose the following
minimum sentence, in addition to any restitution the court may order
payable to the victim:
(b) Juveniles with a prior criminal history score of three-quarters to
one and one-half points shall be sentenced to a standard range sentence
that includes no less than six months of community supervision, no less
than ten days of detention, ninety hours of community restitution, and a
four hundred dollar fine.[10]
Unlike discretionary legal financial obligations, the legislature unequivocally
requires imposition of mandatory legal financial obligations without regard to finding the
ability to pay. State v. Shelton, No. 72848-2, 2016 WL 3461164, at *6 (Wash. Ct. App.
June 20, 2016): see State v. Lundv, 176 Wash. App. 96, 102, 308 P.3d 755 (2013).
For the first time on appeal, Allen asserts imposition of restitution, the victim
penalty assessment, and the statutory minimum fine for possession of a stolen vehicle
without considering her ability to pay violates equal protection and substantive due
process. Because nothing in the record indicates the State has attempted to enforce
the mandatory financial obligations or impose sanctions for failure to pay, Allen's
8 Emphasis added.
9 Emphasis added.
10 Emphasis added.
No. 73840-2-1/5
constitutional challenge is not ripe for judicial review and is not a manifest constitutional
error subject to review under RAP 2.5(a)(3). Shelton, 2016 WL 3461164, at *6-*7.
Allen also relies on GR 34 to argue the court erred in imposing the mandatory
legal financial obligations without considering her ability to pay. In State v. Mathers, 193
Wash. App. 913, 923-24, P.3d (2016), we considered and rejected the same
argument.
We affirm entry of the order of disposition.
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WE CONCUR:
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