STATE OF WASHINGTON, Rеspondent, v. NICHOLAS PETER BLAZINA, Petitioner. STATE OF WASHINGTON, Respondent, v. MAURICIO TERRENCE PAIGE-COLTER, Petitioner.
No. 89028-5 (consol. w/No. 89109-5)
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MAR 12 2015
MADSEN, C.J.
En Banc
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MADSEN, C.J.—At sentencing, judges ordered Nicholas Blazina and Mauricio Paige-Colter to pay discretionary legal financial obligations (LFOs) under
Although a defendant has the obligation to properly preserve a claim of error, an appellate court may use its discretion to reach unpreserved claims of error consistent with RAP 2.5. In this case, we hold that the Court of Appeals did not err in declining to reach the merits. However, exercising our own RAP 2.5 discretion, we reach the merits and hold that a trial сourt has a statutory obligation to make an individualized inquiry into a defendant‘s current and future ability to pay before the court imposes LFOs. Because the trial judges failed to make this inquiry, we remand to the trial courts for new sentence hearings.
FACTS
A. State v. Blazina
A jury convicted Blazina of one count of second degree assault, and the trial court sentenced him to 20 months in prison. The State also recommended that the court impose a $500 victim penalty assessment, $200 filing fee, $100 DNA (deoxyribonucleic acid) sample fee, $400 for the Pierce County Department of Assigned Counsel, and $2,087.87 in extradition costs. Blazina did not object, and the trial court accepted the State‘s recommendation. The trial court, however, did not examine Blazina‘s ability to pay the discretionary fees on the record. Instead, Blazina‘s judgment and sentence included the following boilerplate language:
2.5 ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS The court has сonsidered the total amount owing, the defend[ant]‘s past, present and future ability to pay legal financial obligations, including the defendant‘s financial resources and the likelihood that the defendant‘s status will change. The court finds that the defendant has the ability or likely future ability to pay the legal financial obligations imposed herein.
RCW 9.94A.753
Clerk‘s Papers at 29.
Blazina appealed and argued that the trial court erred when it found him able to pay his LFOs. The Court of Apрeals declined to consider this claim because Blazina “did not object at his sentencing hearing to the finding of his current or likely future ability to pay these obligations.” State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492 (2013). We granted review. State v. Blazina, 178 Wn. App. 1010, 311 P.3d 27 (2013).
B. State v. Paige-Colter
The State charged Paige-Colter with one count of first degree assault and one count of first degree unlawful possession of a firearm. A jury convicted Paige-Colter as charged. The trial court imposed the State‘s recommended 360-month sentence of confinement. The State also recommended that the court “impose . . . standard legal financial obligations, $500 crime victim penalty assessment, $200 filing fee, $100 fee for the DNA sample, $1,500 Department of Assigned Counsel recoupment . . . [,and] restitution by later order.” Paige-Colter Verbatim Report of Proceedings (Paige-Colter VRP) (Dec. 9, 2011) at 6. Paige-Colter made no objection. The trial court accepted the State‘s recommendation without examining Paigе-Colter‘s ability to pay these fees on the record. Paige-Colter‘s judgment and sentence included boilerplate language stating the court considered his ability to pay the imposed legal fees.
Paige-Colter appealed and argued that the trial court erred when it imposed discretionary LFOs without first making an individualized inquiry into his ability to pay. The Court of Appeals concluded that Paige-Colter waived these claims by not objecting bеlow. State v. Paige-Colter, noted at 175 Wn. App. 1010, 2013 WL 2444604, at *1. We granted review on this issue and consolidated the case with Blazina. State v. Paige-Colter, 178 Wn.2d 1018, 312 P.3d 650 (2013).
ANALYSIS
A defendant who makes no objection to the imposition of discretionary LFOs at sentencing is not automatically entitled to review.1 It is well settled that an “appellate court may refuse to review any claim of error which was not raised in the trial court.” RAP 2.5(a). This rule exists to give the trial court an opportunity to correct the error and to give the opposing pаrty an opportunity to respond. State v. Davis, 175 Wn.2d 287, 344, 290 P.3d 43 (2012), cert. denied, ___ U.S. ___, 134 S. Ct. 62, 187 L. Ed. 2d 51 (2013). The text of RAP 2.5(a) clearly delineates three exceptions that allow an appeal as a matter of right. See RAP 2.5(a).2
Blazina and Paige-Colter do not argue that one of the RAP 2.5(a) exceptions applies. Instead, they cite State v. Ford, 137 Wn.2d 472, 477-78, 973 P.2d 452 (1999)
Unpreserved LFO errors do not command review as a mattеr of right under Ford and its progeny. As stated in Ford and reiterated in our subsequent cases, concern about sentence conformity motivated our decision to allow review of sentencing errors raised for the first time on appeal. See Ford, 137 Wn.2d at 478. We did not want to “‘permit[] widely varying sentences to stand for no reason other than the failure of counsel to register a proper objection in the trial court.‘” Id. (quoting State v. Paine, 69 Wn. App. 873, 884, 850 P.2d 1369 (1993)). Errors in calculating offender scores and the imposition of vague community custody requirements create this sort of sentencing error and properly fall within this narrow category. See State v. Mendoza, 165 Wn.2d 913, 919-20, 205 P.3d 113 (2009) (prior convictions for sentencing range calculation); Ford, 137 Wn.2d at 475-78 (classification of out of state convictions for offender score calculation); State v. Bahl, 164 Wn.2d 739, 743-45, 193 P.3d 678 (2008) (community custody conditions of sentence). We thought it justifiable to review these challenges
But allowing challenges to discretionary LFO orders would not promote sentencing uniformity in the same way. The trial court must decide to impose LFOs and must consider the defendant‘s current or future ability to pay those LFOs based on the particular facts of the defendant‘s case. See
Although the Court of Appeals properly declined discretionary review, RAP 2.5(a) governs the review of issues not raised in the trial court for all appellate courts, including this one. While appellate courts normally decline to review issues raised for the first time on appeal, see Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 844 (2005), RAP 2.5(a) grants appellate courts discrеtion to accept review of claimed errors not appealed as a matter of right.3 State v. Russell, 171 Wn.2d 118, 122, 249 P.3d 604 (2011). Each
At a national level, organizations have chronicled problems associated with LFOs imposed against indigent defendants. These problems include increased difficulty in reentering society, the doubtful recoupment of money by the government, and inequities in administration. In 2010, the American Civil Liberties Union issued a report that chronicled the problems associated with LFOs in five states—including Washington—and recommended reforms to state and to local officials. AM. CIVIL LIBERTIES UNION, IN FOR A PENNY: THE RISE OF AMERICA‘S NEW DEBTORS’ PRISONS (2010) (ACLU), available at https://www.aclu.org/files/assets/InForAPenny_web.pdf. That same year, the Brennan Centеr for Justice at New York University School of Law published a report outlining the problems with criminal debt, most notably the impediment it creates to reentry and rehabilitation. ALICIA BANNON, MITALI NAGRECHA & REBEKAH DILLER, BRENNAN CTR. FOR JUSTICE, CRIMINAL JUSTICE DEBT: A BARRIER TO REENTRY (2010), available at http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf. Two years later, the Brennan Center followed up with “A Toolkit for Action” that proposed five specific reforms to combat the problems caused by inequitable LFO systems. ROOPAL PATEL & MEGHNA PHILIP, BRENNAN CTR. FOR JUSTICE, CRIMINAL JUSTICE DEBT: A TOOLKIT FOR ACTION (2012), availablе at http://www.brennancenter.org/sites/default/files/legacy/publications/Criminal%20Justice%20Debt%20Background%20for%20web.pdf. As part of its second
Washington has contributed its own voice to this national conversation. In 2008, the Washington State Minority and Justice Commission issued a report that assessed the problems with the LFO systеm in Washington. KATHERINE A. BECKETT, ALEXES M. HARRIS & HEATHER EVANS, WASH. STATE MINORITY & JUSTICE COMM‘N, THE ASSESSMENT AND CONSEQUENCES OF LEGAL FINANCIAL OBLIGATIONS IN WASHINGTON STATE (2008) (WASH. STATE MINORITY & JUSTICE COMM‘N), available at http://www.courts.wa.gov/committee/pdf/2008LFO_report.pdf. This conversation remains important to our state and to our court system.
As amici4 and the above-referenced reports point out, Washington‘s LFO system carries problematic consequences. To begin with, LFOs accrue interest at a rate of 12 percent and may also accumulate collection fees when they are not paid on time.
Moreover, the state cannot collect money from defendants who cannot pay, which obviates one of the reasons for courts to impose LFOs. See
Significant disparities also exist in the administration of LFOs in Washington. For example, drug-related offenses, offenses resulting in trial, Latino defendants, and male defendants all receive disproportionately high LFO penalties. Id. at 28-29. Additionally, counties with smaller populations, higher violent crime rates, and smaller proportions of their budget spent on law and justice assess higher LFO penalties than other Washington counties. Id.
Blazina and Paige-Colter argue that, in order to impose discretionary LFOs under
As a general rule, we treat the word “shall” as presumptively imperative—we presume it creates a duty rather than confers discretion. State v. Bartholomew, 104 Wn.2d 844, 848, 710 P.2d 196 (1985). Here, the statute follows this general rule. Because the legislature used the word “may” 11 times and the word “shall” eight times in
Practically speaking, this imperative under
Courts should also look to the comment in court rule GR 34 for guidance. This rule allows a person to obtain a waiver of filing fees and surcharges on the basis of indigent status, and the comment to the rule lists ways that a person may prove indigent status. GR 34. For example, under the rule, courts must find a person indigent if the person establishes that he or she receives assistanсe from a needs-based, means-tested assistance program, such as Social Security or food stamps. Id. (comment listing facts that prove indigent status). In addition, courts must find a person indigent if his or her household income falls below 125 percent of the federal poverty guideline. Id. Although the ways to establish indigent status remain nonexhaustive, see id., if someone does meet the GR 34 standard for indigency, courts should seriously question that person‘s ability to pay LFOs.
CONCLUSION
At sentencing, judges ordered Blazina and Paige-Colter to pay LFOs under
We hold that
Madsen, C.J.
WE CONCUR:
State v. Blazina; State v. Paige-Colter
No. 89028-5
FAIRHURST, J. (concurring in the result)
FAIRHURST, J. (concurring in the result)—I agree with the majority that
I disagree with how the majority applies RAP 2.5(a). RAP 2.5(a) contains three exceptions on which unpreserved errors can be raised for the first time on appeal. While the majority does not indicate which of the three exceptions it is applying to reаch the merits, it is likely attempting to use RAP 2.5(a)(3), “manifest error affecting a constitutional right.”1 However, the majority fails to apply the three part test from State v. O‘Hara, 167 Wn.2d 91, 98-100, 217 P.3d 756 (2009), that established what an appellant must demonstrate for an appellate court to reach an unpreserved error under RAP 2.5(a)(3).
Here, the error is not constitutional in nature and thus the unpreserved error cannot be reached under a RAP 2.5(a)(3) analysis. In analyzing the asserted constitutional interest, we do not assume the alleged error is of constitutional magnitude but instead look at the asserted claim and assess whether, if correct, it implicates a сonstitutional interest as compared to another form of trial error. Id.
The trial court judges in Blazina and Paige-Colter did not inquire into the defendants’ ability to pay LFOs, which violates
The court shall not order a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will imposе.
Failing to determine a defendant‘s ability to pay LFOs violates the statute but does not implicate a constitutional right.
Although the unpreserved error does not meet the RAP 2.5(a)(3) standard from O‘Hara, I would hold that this error can be reached by applying RAP 1.2(a),
The consequences of the State‘s LFO system are concerning, and addressing where courts are falling short of the statute will promote justice. In State v. Aho, 137 Wn.2d 736, 740-41, 975 P.2d 512 (1999), we held that the supreme court “has the authority to determine whether a matter is properly before the court, to perform those acts which are proper to secure fair and orderly review, and to waive the rules of appellate procedure when necessary ‘to serve the ends of justice.‘” (quoting RAP 1.2(c)). I agree with the majority that
For the foregoing reasons, I concur in the result only.
Fairhurst, J.
Stephens, J.