State v. Conway, 50032-9-II

• Citation: 438 P.3d 1235
• Decision Date: 09 April 2019
• Docket Number: No. 50032-9-II,50032-9-II
• Parties: STATE of Washington, Respondent, v. Karen Ann CONWAY, Appellant.
• Court: Court of Appeals of Washington

438 P.3d 1235

STATE of Washington, Respondent,

v.Karen Ann CONWAY, Appellant.

No. 50032-9-II

Court of Appeals of Washington, Division 2.

Filed April 9, 2019

Timothy John Murphy, Northwest Justice Project, 500 W 8th Street, Suite 275, Vancouver, WA, 98660-3086, for Appellant.

Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.

PUBLISHED OPINION

Sutton, J.¶1 Karen Ann Conway appeals a superior court commissioner’s¹ order denying her motion to remit mandatory legal financial obligations (LFOs) and her motion to reconsider.² She argues that (1) the superior court has broad authority to remit mandatory LFOs under three statutes and its inherent authority, (2) we should extend the holding in Fuller v. Oregon³ to mandatory LFOs, (3) the Clark County Court Clerk’s office took enforcement action against her without conducting an inquiry into her ability to pay under State v. Blank,⁴ (4) the superior court’s findings of fact 1, 5, and 6 are clearly erroneous, and (5) the superior court’s failure to remit the mandatory LFOs violates her equal protection and substantive due process rights. Conway requests that we vacate the superior court’s orders and remand for entry of an order striking the victim penalty assessment fee and the criminal filing fee. We reject all of her arguments and affirm.

FACTS

¶2 In March 2007, Conway pleaded guilty in the Clark County Superior Court to one count of maintaining a dwelling for controlled substances. The superior court sentenced her and ordered her to pay various LFOs, including two mandatory LFOs: a $ 500 victim penalty assessment fee (VPA) under former RCW 7.68.035 (2000) and a $ 200 criminal filing fee under former RCW 9.94A.505 (2002).

¶3 Conway, who was receiving Supplemental Security Income (SSI) due to a disability, made some, but not all, of the ordered payments toward the judgment and sentence. The Clark County Superior Court’s Collections Unit periodically sent Conway notices to appear for a payment review and either make a payment or explain why she could not do so. These notices stated that if she failed to pay or appear, she could be placed in custody. At one point, the clerk’s office e-mailed Conway, explaining that she would be required to provide an annual letter to verify her SSI status.

¶4 In 2016, Conway filed a motion to remit all LFOs except the VPA fee and the criminal filing fee based on her indigency and SSI status. The superior court conducted a hearing and entered written findings of fact and conclusions of law. The court found that Conway was indigent and had been on SSI for 27 years.

¶5 In its order, the superior court remitted the balance of interest owing, the criminal fine, the court appointed attorney fee, the deoxyribonucleic acid (DNA) fee (which was discretionary at the time), the crime lab fee, the drug fund fee, and the balance of collection fees. As to the two remaining mandatory LFOs, the VPA fee and the criminal filing fee, the court ruled that Conway owed a balance of $ 493.55 for the VPA fee and $ 197.41 for the criminal filing fee, but it ordered that "the court cannot require her to pay on the remaining mandatory LFOs at this time." Clerk’s Papers (CP) at 378.

¶6 Conway filed a motion to reconsider in December 2016, arguing for the first time that the imposition of the two mandatory LFOs violated her equal protection and substantive due process rights. The superior court denied the motion and entered the following additional relevant findings:

1. ... [T]he Clark County Clerk’s office did not unlawfully collect statutorily authorized collection fees and that the [c]ourt has no authority to direct the [c]ounty [c]lerk as to application of payments received from Ms. Conway.

....

5. ... [T]his [c]ourt can conceive of circumstances wherein Ms. Conway may be able to pay the fees and assessments in the future.

6. ... The [c]ourt finds that there has never been enforcement in Ms. Conway’s case. Ms. Conway has never been brought to court on a [m]otion for nonpayment. Sanctions have never been sought or imposed against her for nonpayment. The [c]ourt declines to find, as requested by Ms. Conway, that the State/Clark County Clerk’s office was on notice and therefore required to conduct an inquiry regarding payment of LFO’s when Ms. Conway was brought to court on probation violations unrelated to LFO’s. Again, no enforcement sanctions were sought against Ms. Conway to trigger a Blank inquiry.

CP at 399-400.

¶7 Conway appeals both orders; a commissioner of this court granted discretionary review.

ANALYSIS

I. LEGAL PRINCIPLES

¶8 Our court has recognized that the effects on an indigent defendant remain the same whether the LFOs are mandatory or discretionary. State v. Mathers , 193 Wash. App. 913, 916, 376 P.3d 1163 (2016). "However, until there are legislative amendments or Supreme Court changes in precedent, we must recognize these distinctions and adhere to the principles of stare decisis ." Mathers , 193 Wash. App. at 916, 376 P.3d 1163. The court’s authority to impose LFOs is statutory. Mathers , 193 Wash. App. at 917, 376 P.3d 1163 (citing RCW 10.01.160(3) ). The legislature has authorized the courts to impose a VPA fee and a criminal filing fee as mandatory LFOs.

¶9 The VPA fee is authorized under former RCW 7.68.035(1)(a) (2000) which states:

When any person is found guilty in any superior court of having committed a crime ... there shall be imposed by the court upon such convicted person a penalty assessment. The assessment shall be in addition to any other penalty or fine imposed by law and shall be five hundred dollars for each case or cause of action that includes one or more convictions of a felony or gross misdemeanor and two hundred fifty dollars for any case or cause of action that includes convictions of only one or more misdemeanors.

(Emphasis added).

¶10 The criminal filing fee is authorized under former RCW 36.18.020(2)(h) (2005) which states:

Upon conviction or plea of guilty, upon failure to prosecute an appeal from a court of limited jurisdiction as provided by law, or upon affirmance of a conviction by a court of limited jurisdiction, a defendant in a criminal case shall be liable for a fee of two hundred dollars.

(Emphasis added).

II. LEGISLATIVE INTENT

¶11 Washington courts have consistently held that a trial court need not consider a defendant’s past, present, or future ability to pay when it imposes either the VPA fee or the criminal filing fee. See State v. Curry, 118 Wash.2d 911, 917-18, 829 P.2d 166 (1992) (VPA fees are mandatory notwithstanding defendant’s ability to pay); see also State v. Clark, 191 Wash. App. 369, 374, 362 P.3d 309 (2015) (VPA fees and criminal filing fees are mandatory obligations not subject to a defendant’s ability to pay); State v. Lundy, 176 Wash. App. 96, 102, 308 P.3d 755 (2013) ; State v. Kuster, 175 Wash. App. 420, 424-25, 306 P.3d 1022 (2013) ; State v. Thompson, 153 Wash. App. 325, 337, 223 P.3d 1165 (2009) ; State v. Williams, 65 Wash. App. 456, 460, 828 P.2d 1158, 840 P.2d 902 (1992).

¶12 "Washington courts consistently treat the [mandatory LFO] statutes as separate and distinct from the discretionary LFO statute and the restitution statute." Mathers , 193 Wash. App. at 919, 376 P.3d 1163. "Where the legislature has had time to correct a court’s interpretation of a statute and has not done so, we presume the legislature approves of our interpretation." Mathers , 193 Wash. App. at 918, 376 P.3d 1163.

III. AUTHORITY TO REMIT MANDATORY LFOS

A. STATUTORY AUTHORITY TO REMIT MANDATORY LFOS

¶13 Conway argues that the superior court has discretion and broad statutory authority to remit the mandatory LFOs at issue and erred by refusing to do so. She cites former RCW 9.94A.6333 (2008), former RCW 9.94A.634 (2002)⁵ , and former RCW 10.01.180(4) (2010). We disagree because none of the statutes Conway cites authorize the superior court to remit the mandatory LFOs. Thus, her claim fails.

¶14 "Statutory interpretation is a question of law that we review de novo." State v. Van Noy , 3 Wash. App. 2d 494, 497, 416 P.3d 751 (2018). The primary goal of statutory interpretation is to determine and give effect to the legislature’s intent. Van Noy , 3 Wash. App. 2d at 498, 416 P.3d 751. To determine the legislature’s intent, we first look to the plain language of the statute, consider the language of the provisions in question, and determine how the provisions fit within the context of the statute and the statutory scheme as a whole. Van Noy , 3 Wash. App. 2d at 498, 416 P.3d 751. We attempt to harmonize the provisions within a statute so that no portion is rendered superfluous or meaningless. State v. LaPointe , 1 Wash. App. 2d 261, 269, 404 P.3d 610 (2017). "If the plain language of the statute is unambiguous, then [our] inquiry is at an end." State v. Armendariz , 160 Wash.2d 106, 110, 156 P.3d 201 (2007).

¶15 Former RCW 9.94A.6333 states,

(2) If an offender fails to comply with any of the conditions or requirements of a sentence the following provisions apply:

....

(d) If the court finds that the violation was not willful, the court may modify its previous order regarding payment of legal financial obligations and regarding community restitution obligations[.]

¶16 Former RCW 9.94A.634 states,

(3) If an offender fails to comply with any of the requirements or conditions of a sentence the following provisions apply:

....

(d) If the court finds that the violation was not willful, the court may modify its previous order regarding payment of legal financial obligations and regarding community restitution obligations.

¶17 Former RCW 10.01.180(4) states that "[i]f it appears to the satisfaction of the court that the default in the payment of a fine or costs is not contempt, the court may enter an order allowing the defendant additional time for payment, reducing the amount thereof or of each installment or revoking the fine or costs or the unpaid portion thereof in whole or in part."

¶18 None of these...