308 P.3d 755
Wash. Ct. App.2013Background
- In 2010 Lundy was convicted of possession of a stolen motor vehicle, unlawful issuance of bank checks, and bail jumping; the trial court imposed a 70‑month exceptional sentence and legal financial obligations (LFOs).
- On appeal this court affirmed convictions but remanded for clarification of the statutory basis for the exceptional sentence; resentencing reaffirmed the 70‑month term and reduced the jury fee.
- The resentence left Lundy with $1,947.82 in LFOs: $554.52 restitution, $500 victim assessment, $100 DNA fee, $200 criminal filing fee (mandatory), and $593.30 in discretionary court costs (witness costs and jury fee).
- The judgment included boilerplate language finding Lundy has the present or likely future ability to pay LFOs; Lundy did not object at sentencing on ability‑to‑pay grounds.
- Lundy challenged the court’s ability‑to‑pay finding for discretionary costs, relied on State v. Bertrand, and argued remand to strike the finding was required; he also raised an appearance‑of‑fairness claim about resentencing.
Issues
| Issue | Plaintiff's Argument (Lundy) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Validity of mandatory LFOs | Mandatory LFOs should be subject to ability‑to‑pay scrutiny | Legislature mandates restitution, victim assessment, DNA and filing fees irrespective of ability to pay | Mandatory LFOs valid; ability‑to‑pay finding on them is surplusage |
| Imposition of discretionary court costs without explicit findings | Trial court lacked adequate evidence Lundy can now or will in future pay discretionary costs; Bertrand requires remand | Record (past high earnings, plan for rehabilitation, age, lack of disability, spouse intended to pay) supports likely future ability to pay; low burden on State | Court affirmed: record supports finding Lundy has present/likely future ability to pay $593.30 in discretionary costs |
| Applicability of Bertrand | Bertrand requires remand where record shows no likelihood indigency will end (disabled defendant) | Bertrand is distinguishable — Lundy has no disability and evidence indicates future earning potential | Bertrand distinguishable; remand not required |
| Ripeness of challenge to LFO order | Order imposing LFOs should be reviewable now | Challenges to enforcement‑type LFO orders are not ripe until State seeks to enforce or limit liberty | Challenge to LFO order on hardship grounds is not ripe because State has not attempted collection |
Key Cases Cited
- State v. Curry, 118 Wn.2d 911 (Wash. 1992) (sets constitutional framework and seven Curry factors for assessing costs/fees and ability to pay)
- State v. Bertrand, 165 Wn. App. 393 (Wash. Ct. App. 2011) (remand where record showed defendant’s disability made future payment unlikely)
- State v. Baldwin, 63 Wn. App. 303 (Wash. Ct. App. 1991) (presentence report may supply factual basis for future ability to pay if unobjected to)
- State v. Kuster, 175 Wn. App. 420 (Wash. Ct. App. 2013) (mandatory nature of certain LFOs; ability to pay not considered for some statutorily required obligations)
- State v. Blazina, 174 Wn. App. 906 (Wash. Ct. App. 2013) (approach on preservation and reviewability of ability‑to‑pay findings)
- State v. Lundy, 162 Wn. App. 865 (Wash. Ct. App. 2011) (prior opinion affirming convictions and remanding for sentencing clarification)