State v. Catling

• Decision Date: 15 March 2018
• Docket Number: No. 34852-1-III,34852-1-III
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jason M. CATLING, Appellant.

413 P.3d 27

STATE of Washington, Respondent,

v.Jason M. CATLING, Appellant.

No. 34852-1-III

Court of Appeals of Washington, Division 3.

FILED MARCH 15, 2018

Thomas Michael Kummerow, Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Ave. Ste. 701, Seattle, WA, 98101-3647, for Appellant.

Brian Clayton O'brien, Gretchen Eileen Verhoef, Spokane Co. Pros. Atty., 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent.

PUBLISHED OPINION

Korsmo, J.

¶ 1 Jason Catling challenges mandatory legal financial obligations (LFOs) imposed following his conviction for delivering a controlled substance, heroin, arguing both that (1) no LFOs should have been imposed because his sole legal source of income is Social Security disability and (2) the superior court should have held a hearing to determine if his mental health condition required waiver of some mandatory LFOs even though he never requested a hearing. We conclude that (1) although the LFO order remains valid, the judgment and sentence must be modified to specify that repayment cannot be made from the proceeds of Social Security disability payments and (2) the failure to raise the mental health argument to the trial court precludes our review of that claim.

FACTS

¶ 2 Mr. Catling was charged in the Spokane County Superior Court with two counts of delivery of heroin resulting from sales of the drug to a police informant over a three month period. An agreement was reached and Mr. Catling pleaded guilty to one charge; the second count was dismissed. The parties jointly asked the court to impose a residential drug offender sentencing alternative (DOSA) sentence.

¶ 3 The ensuing evaluation recommended treatment. The trial court agreed and imposed the suspended 24–month residential DOSA sentence requested by the parties at the sentencing hearing held September 23, 2016. Discussion then ensued concerning LFO payments. Defense counsel told the court about a decision issued a day earlier, City of Richland v. Wakefield, 186 Wash.2d 596, 380 P.3d 459 (2016). He argued that although Wakefield only involved discretionary LFOs, its reasoning that federal law prohibited attachment of social security payments should also apply to mandatory LFOs and they should not be assessed against his client. Mr. Catling, age 36, told the court that he had been receiving the disability payments for about 10 years. His mother told the court that the payments had been received for more than 10 years. When asked about her son's condition, she described it as "based mostly on medical, but also some mental issues." Report of Proceedings (Sept. 23, 2016) (RP) at 9. She told the court that he had been born with his bladder turned inside out and that multiple surgeries to address the problem had caused her son pain and prevented him from working.

¶ 4 Not having read Wakefield, the court took the matter under advisement. By order entered the following Monday, the court imposed mandatory LFOs totaling $800—a $500 victim penalty assessment, a $200 filing fee, and a $100 DNA fee, payable at the sum of $25 per month. Clerk's Papers (CP) at 35. Two weeks later the defendant sought reconsideration of the LFOs on the basis of Wakefield. The motion reiterated counsel's sentencing argument that Wakefield 's reasoning should prevent imposition of any LFOs. The court denied reconsideration.

¶ 5 Mr. Catling timely appealed to this court, raising two challenges to the LFO rulings. A panel heard oral argument on the matter.

ANALYSIS

¶ 6 Mr. Catling alleges that LFOs cannot be imposed against him nor collected from him because his sole source of income is a nonattachable federal disability payment. He also argues that the court erred in not considering whether his mental disability

required remission of some of his LFOs under RCW 9.94A.777. We consider those contentions in the order listed.

Mandatory LFOs and Disability Income

¶ 7 Mr. Catling argues that mandatory LFOs are invalid under the supremacy clause for those, such as himself, whose only legal source of income is Social Security disability. We disagree with his contention that mandatory LFOs cannot be imposed in his case, but we agree that the federal anti-attachment statute precludes a court from collecting LFO payments where the sole source of income is social security.

¶ 8 The constitution does not limit the ability of the states to impose financial obligations on convicted offenders; it only prohibits the enforced collection of financial obligations from those who cannot pay them. Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed. 2d 642 (1974) ; State v. Blank, 131 Wash.2d 230, 237–38, 930 P.2d 1213 (1997) ; State v. Curry, 118 Wash.2d 911, 915–16, 829 P.2d 166 (1992) ; State v. Barklind, 87 Wash.2d 814, 817–18, 557 P.2d 314 (1976). Thus, ability to pay is not considered when imposing mandatory costs and need only be considered at the time of collection. State v. Lundy, 176 Wash. App. 96, 102–09, 308 P.3d 755 (2013). However, Washington has long directed trial judges to consider a defendant's ability to pay prior to imposing discretionary court costs at sentencing. RCW 10.01.160(3). A motion to remit costs requires that trial courts adjudge the offender's current or future ability to pay those costs, but punishment for failure to pay can only be imposed if the refusal is willful. Blank, 131 Wash.2d at 241–42, 930 P.2d 1213.

¶ 9 The social security anti-attachment statute at issue here provides:

The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

42 U.S.C. § 407(a) (emphasis added).

¶ 10 The italicized language sets forth the basic premise of the statute—neither current nor future social security payments are subject to seizure by any process of law. The underscored language ("other legal process") is key to appellant's argument. That language was authoritatively construed by the United States Supreme Court in an earlier case arising from this state. Wash. State Dep't of Soc. & Health Srvs. v. Guardianship Estate of Danny Keffeler, 537 U.S. 371, 123 S.Ct. 1017, 154 L.Ed. 2d 972 (2003).

¶ 11 At issue in Keffeler was the State's practice of using Social Security benefits paid to children in foster care. The foster children contended that the State's use of the money for foster care expenses was invalid under § 407(a) as an "other legal process." 537 U.S. at 383–84, 123 S.Ct. 1017. The court disagreed, stating:

Thus, "other legal process" should be understood to be process much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability.

Id. at 385, 123 S.Ct. 1017. In other words, "other legal process" involves some means of transfer akin to garnishment or attachment.

¶ 12 Wakefield applied this understanding of "other legal process" to discretionary LFOs imposed against a homeless offender whose sole income consisted of Social Security disability payments. 186 Wash.2d at 599, 380 P.3d 459. The trial court had directed that she pay $15 a month from her social security. Id. at 609, 380 P.3d 459. The court overturned the monthly payment, concluding its analysis of the "other legal process" language:

Accordingly, we hold that federal law prohibits courts from ordering defendants to pay LFOs if the person's only source of income is social security disability.

Id. The court directed that Ms. Wakefield's remission motion be granted. Id. at 611, 380 P.3d 459.

¶ 13 The application of § 407(a) to an existing financial obligation also was at issue in a case cited by Wakefield, In re Lampart, 306 Mich. App. 226, 856 N.W.2d 192 (2014).

There a mother was directed to make restitution for her juvenile son, who had committed arson. 856 N.W.2d at 194. Two years later, the mother suffered a heart attack, became unable to work, and started receiving Social Security disability payments. Id. Two years after the heart attack, the court conducted a hearing concerning her finances and reduced the payments by $100 per month due to the change in circumstances, while also ruling that enforcing the restitution order did not violate 42 U.S.C. § 407(a). Id. at 194–95. The following year, the mother challenged the restitution order by filing for relief from judgment, arguing that enforced collection of the restitution order violated § 407(a). Id. at 195. The trial court denied the motion, concluding that enforcement of the restitution order did not constitute "other legal process" under § 407(a). Id.

¶ 14 On appeal, the mother contended that (1) the Social Security benefits were exempt and could not be used to repay the obligation and (2) the restitution order should be canceled due to the fact that her sole income was the Social Security disability payment. Id. 196. Applying Keffeler, the appellate court agreed with her first contention. The court concluded that a judicial mechanism was being used to attempt to transfer the Social Security benefits away from the recipient in order to satisfy a debt. When the contempt power is used to enforce the payment, it is an "other legal process" akin to attachment. Id. at 198–200.

¶ 15 The court then turned to the question of whether or not the restitution obligation should have been stricken. Noting that disability income is not a need-based¹ benefit, the court nonetheless cautioned that disability proceeds were still not attachable due to § 407(a). Id. at 202–03. However, the mother was not exempt from having to account for other income or assets that might...