State v. Duncan

• Decision Date: 28 April 2016
• Docket Number: No. 90188–1.,90188–1.
• Citation: 185 Wash.2d 430,374 P.3d 83
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Chad Edward DUNCAN, Petitioner.

185 Wash.2d 430

374 P.3d 83

STATE of Washington, Respondent

v.Chad Edward DUNCAN, Petitioner.

No. 90188–1.

Supreme Court of Washington, En Banc.

Argued Nov. 17, 2015.

Decided April 28, 2016.

Susan Marie Gasch, Gasch Law Office, Spokane, WA, for Petitioner.

David Brian Trefry, Yakima County Prosecutors Office, Spokane, WA, Tamara Ann Hanlon, Yakima County Prosecuting Attorney's Off., Yakima, WA, for Respondent.

Gregory J. Wong, Pacifica Law Group LLP, Sarah A. Dunne, U.S. Department of Education, Vanessa Torres Hernandez, ACLU of Washington, Seattle, WA, for amicus counsel for Aclu.

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, for amicus counsel for Washington Association of Prosecuting Attorneys.

Shelley Anne Williams, Attorney General Office, Criminal Justice–Criminal Litigation Unit Atty. General, Attorney at Law, Seattle, WA, amicus counsel for Washington State Patrol.

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

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

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for amicus counsel for Washington Association of Criminal Defense Lawyers.

Ann E. Benson, WA Defenders Assoc., Cindy Arends Elsberry, Washington Defender Association, Seattle, WA, for amicus counsel for Washington Defender Association.

GONZÁLEZ, J.

This case presents two questions: (1) whether Chad Duncan can challenge the legal financial obligations (LFOs) imposed by the trial court for the first time on appeal and (2) whether the police properly searched his car for a gun after a drive-by shooting. We answer yes to both questions, affirm Duncan's conviction, and remand for resentencing with proper consideration of his ability to pay LFOs.

Facts

¶ 2 A little after midnight in Yakima one summer night in 2009, someone in a car shot into a home, grazing Kyle Mullins' head. Other people in the home called 911 for medical assistance and to report the shooting. Callers described the car as white and possibly a Subaru or Impala. Officers were dispatched and stopped Duncan's white Ford Taurus. Officers removed Duncan and his two passengers from the car at gunpoint, ordered them to the ground, handcuffed them, and put them in separate police cars. Without a warrant, officers opened the doors and found shell casings on the floor and a gun between the front passenger seat and the door. One officer removed the gun and placed it into an evidence bag in his own patrol car. The passengers told the police that Duncan had fired from the car and tossed the gun on the front floorboards. After the car was towed to a police annex, police obtained a warrant and made a more thorough search.

¶ 3 Duncan was charged with six counts of first degree assault and one count of unlawful possession of a firearm. Duncan moved to suppress the evidence and confessions that flowed from the traffic stop on several grounds, including that the police had insufficient grounds to stop him and that their initial warrantless search of his car was improper. At the pretrial suppression hearing, held a year and a half after the events of that summer night, the judge found that the stop was justified and that the search was reasonable, and denied the motion.

¶ 4 The jury returned guilty verdicts on all charges and found by special verdicts that Duncan was armed with a firearm. The judge sentenced Duncan to 1,159 months of incarceration, the top of the standard range. Duncan's projected release date is March 26, 2099. Mot. & Affidavit To Suppl. R., Ex. A at 12. With no discussion and over no objection, the trial judge ordered Duncan to pay $2,905.54 in restitution, costs, assessments, and fines; $50 per day toward the cost of incarceration for the duration of his prison sentence; and the costs of his medical care. The State acknowledges that there was no inquiry into Duncan's ability to pay at sentencing. Am. Br. of Resp't at 24. Assuming Duncan does not accrue good time and incurs no medical expenses, amici calculates that the principal alone of his LFOs will be nearly two million dollars. Amici Curiae Br. of ACLU¹ of Wash. et al. at 1. This does not include any appellate costs that may be imposed under RCW 10.73.160(1)

.

¶ 5 For the first time on appeal, Duncan challenged the trial court's imposition of the LFOs on the grounds that the record did not support a finding he had or would have any likelihood of being able to pay them. Br. of Appellant at 26–27. Despite the State's suggestion that the matter be remanded for a hearing on Duncan's ability to pay, the Court of Appeals concluded “that ability to pay LFOs is not an issue that defendants overlook—it is one they reasonably waive” and declined to consider it. State v. Duncan, 180 Wash.App. 245, 253, 327 P.3d 699 (2014)

. The Court of Appeals did not consider whether Duncan himself had reasonably waived a challenge to the LFOs. See

id. It largely affirmed. Id. at 247, 327 P.3d 699.²

¶ 6 We stayed consideration of Duncan's petition for review pending our decision in State v. Blazina, 182 Wash.2d 827, 344 P.3d 680 (2015)

. Order to Stay, State v. Duncan, No. 90188–1 (Wash. July 9, 2014). After a mandate was issued in Blazina, we granted review. State v. Duncan, 183 Wash.2d 1013, 353 P.3d 641 (2015).

Analysis

I. LFOs

¶ 7 The imposition and collection of LFOs have constitutional implications and are subject to constitutional limitations. State v. Barklind, 87 Wash.2d 814, 817, 557 P.2d 314 (1976)

(citing Fuller v. Oregon, 417 U.S. 40, 44–47, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974) ). A constitutionally permissible system that requires defendants to pay court ordered LFOs must meet seven requirements:

“1. Repayment must not be mandatory;

“2. Repayment may be imposed only on convicted defendants;

“3. Repayment may only be ordered if the defendant is or will be able to pay;

“4. The financial resources of the defendant must be taken into account;

“5. A repayment obligation may not be imposed if it appears there is no likelihood the defendant's indigency will end;

“6. The convicted person must be permitted to petition the court for remission of the payment of costs or any unpaid portion;

“7. The convicted person cannot be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court order or a failure to make a good faith effort to make repayment.”

State v. Curry, 118 Wash.2d 911, 915–16, 829 P.2d 166 (1992)

(quoting State v. Eisenman, 62 Wash.App. 640, 644 n. 10, 810 P.2d 55, 817 P.2d 867 (1991) (citing Barklind, 87 Wash.2d at 814, 557 P.2d 314 )).³ The constitution does not require that the trial court enter formal findings, though of course it is a good practice and helpful on review. See id. at 915–16, 829 P.2d 166

(quoting Eisenman, 62 Wash.App. at 644 n. 10, 810 P.2d 55, 817 P.2d 867). Had Duncan objected at trial to the LFOs sought by the State, the trial court would have been obligated to consider his present and future ability to pay before imposing the LFOs. Id.

¶ 8 However, Duncan did not object at trial, and thus the first question we must decide is whether we should reach the issue. We recently noted that “a party generally waives the right to appeal an error unless there is an objection at trial.” State v. Kalebaugh, 183 Wash.2d 578, 583, 355 P.3d 253 (2015)

(citing RAP 2.5(a) ). But while appellate courts “may refuse to review any claim of error which was not raised in the trial court,” they are not required to, RAP 2.5(a). Recently, in Blazina, we chose to exercise “our own RAP 2.5 discretion [to] 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.” 182 Wash.2d at 830, 344 P.3d 680.

¶ 9 We reached this issue in Blazina because we found ample and increasing evidence that unpayable LFOs “imposed against indigent defendants” imposed significant burdens on offenders and our community, including “increased difficulty in reentering society, the doubtful recoupment of money by the government, and inequities in administration.” Id. at 835–87, 344 P.3d 680

(citing extensive sources). Given that, and given the fact that the trial courts had not made an individualized inquiry into the defendants' ability to pay before imposing the LFOs, we remanded to the trial court for new sentencing hearings. Id. at 839, 344 P.3d 680.

¶ 10 Consistent with our opinion in Blazina and our other cases decided since then, we remand to the trial court for resentencing with proper consideration of Duncan's ability to pay LFOs. See id. at 830, 344 P.3d 680

; see also

State v. Marks, 185 Wash.2d 143, 368 P.3d 485 (2016) ; State v. Licon, noted at 184 Wash.2d 1010, 359 P.3d 791 (2015) ; State v. Leonard, 184 Wash.2d 505, 358 P.3d 1167 (2015) (per curiam); State v. Vansycle, noted at 183 Wash.2d 1013, 353 P.3d 634 (2015) ; State v. Cole, 183 Wash.2d 1013, 353 P.3d 634 (2015).

II. Warrantless Protective Sweep

¶ 11 We turn now to whether the warrantless search of Duncan's vehicle was lawful. Briefly, after Duncan's car was stopped and its three occupants were handcuffed in the back of separate police cars, the police “walked up to make sure there was no other occupants hiding in the vehicle.” 1 CD Proceedings (Feb. 14, 2011) at 71. No one else was found, but one officer testified that he could see a gun on the floorboards. Id. at 72. Another testified that he saw shell casings and decided to search the car in order “to make sure we weren't going to [be] towing a car with a handgun inside that could possibly discharge.” Id.

¶ 12 Duncan unsuccessfully moved to suppress the gun, shell casings, and passenger statements that flowed from the stop. However, without the benefit of State v. Snapp, 174 Wash.2d 177, 275 P.3d 289 (2012)

, the judge found the search and seizure was justified to find...