State v. Blazina

• Decision Date: 12 March 2015
• Docket Number: 89109–5.,Nos. 89028–5,s. 89028–5
• Citation: 344 P.3d 680,182 Wash.2d 827
• Parties: STATE of Washington, Respondent, v. Nicholas Peter BLAZINA, Petitioner. State of Washington, Respondent, v. Mauricio Terrence Paige–Colter, Petitioner.
• Court: Washington Supreme Court

182 Wash.2d 827

344 P.3d 680

STATE of Washington, Respondent

v.Nicholas Peter BLAZINA, Petitioner.

State of Washington, Respondent

v.Mauricio Terrence Paige–Colter, Petitioner.

Nos. 89028–5

89109–5.

Supreme Court of Washington, En Banc.

March 12, 2015.

Jennifer L. Dobson, Attorney at Law, Dana M. Nelson, Jared Berkeley Steed, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.

Thomas Charles Roberts, Melody M. Crick, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.

Travis Stearns, Washington Appellate Project, Seattle, WA, amicus counsel for Washington Defender Association.

Sarah A. Dunne, Vanessa Torres Hernandez, ACLU of Washington Foundation, Nancy Lynn Talner, Attorney at Law, Seattle, WA, amicus counsel for Aclu.

Nicholas Brian Allen, Attorney at Law, Seattle, WA, amicus counsel for Columbia Legal Services.

Julie Johnson Schaffer, Spokane, WA, amicus counsel for Center for Justice.

Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.

Opinion

MADSEN, C.J.

¶ 1 At sentencing, judges ordered Nicholas Blazina and Mauricio Paige–Colter to pay discretionary legal financial obligations (LFOs) under RCW 10.01.160(3). The records do not show that the trial judges considered either defendant's ability to pay before imposing the LFOs. Neither defendant objected at the time. For the first time on appeal, however, both argued that a trial judge must make an individualized inquiry into a defendant's ability to pay and that the judges' failure to make this inquiry warranted resentencing. Citing RAP 2.5, the Court of Appeals declined to reach the issue because the defendants failed to object at sentencing and thus failed to preserve the issue for appeal.

¶ 2 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 court 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

¶ 3 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 considered 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.

¶ 4 Blazina appealed and argued that the trial court erred when it found him able to pay his LFOs. The Court of Appeals 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 Wash.App. 906, 911, 301 P.3d 492 (2013). We granted review. State v. Blazina, 178 Wash.2d 1010, 311 P.3d 27 (2013).

B. State v. Paige–Colter

¶ 5 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 Paige–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.

¶ 6 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 below. State v. Paige–Colter, noted at 175 Wash.App. 1010, 2013 WL 2444604, at *1. We granted review on this issue and consolidated the case with Blazina. State v. Paige–Colter, 178 Wash.2d 1018, 312 P.3d 650 (2013).

ANALYSIS

¶ 7 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 party an opportunity to respond. State v. Davis, 175 Wash.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

¶ 8 Blazina and Paige–Colter do not argue that one of the RAP 2.5(a) exceptions applies. Instead, they cite State v. Ford, 137 Wash.2d 472, 477–78, 973 P.2d 452 (1999) and argue that “it is well established that illegal or erroneous sentences may be challenged for the first time on appeal,” suggesting that they may challenge unpreserved LFO errors on appeal as a matter of right. Suppl. Br. of Pet'r (Blazina) at 3. In State v. Jones, 182 Wash.2d 1, 338 P.3d 278 (2014), a recent unanimous decision by this court, we said that Ford held unpreserved sentencing errors “may be raised for the first time upon appeal because sentencing can implicate fundamental principles of due process if the sentence is based on information that is false, lacks a minimum indicia of reliability, or is unsupported in the record.” Jones, 182 Wash.2d at 6, 338 P.3d 278. However, we find the exception created by Ford does not apply in this case.

¶ 9 Unpreserved LFO errors do not command review as a matter 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 Wash.2d at 478, 973 P.2d 452. 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 Wash.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 Wash.2d 913, 919–20, 205 P.3d 113 (2009) (prior convictions for sentencing range calculation); Ford, 137 Wash.2d at 475–78, 973 P.2d 452 (classification of out of state convictions for offender score calculation); State v. Bahl, 164 Wash.2d 739, 743–45, 193 P.3d 678 (2008) (community custody conditions of sentence). We thought it justifiable to review these challenges raised for the first time on appeal because the error, if permitted to stand, would create inconsistent sentences for the same crime and because some defendants would receive unjust punishment simply because his or her attorney failed to object.

¶ 10 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 RCW 10.01.160(3). The legislature did not intend LFO orders to be uniform among cases of similar crimes. Rather, it intended each judge to conduct a case-by-case analysis and arrive at an LFO order appropriate to the individual defendant's circumstances. Though the statute mandates that a trial judge consider the defendant's ability to pay and, here, the trial judges erred by failing to consider, this error will not taint sentencing for similar crimes in the future. The error is unique to these defendants' circumstances, and the Court of Appeals properly exercised its discretion to decline review.

¶ 11 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 Wash.2d 33, 39, 123 P.3d 844 (2005), RAP 2.5(a) grants appellate courts discretion to accept review of claimed errors not appealed as a matter of right.³ State v. Russell, 171 Wash.2d 118, 122, 249 P.3d 604 (2011). Each appellate court must make its own decision to accept discretionary review. National and local cries for reform of broken LFO systems demand that this court exercise its RAP 2.5(a) discretion and reach the merits of this case.

¶ 12 At a...