State v. Lundy

• Decision Date: 13 August 2013
• Docket Number: No. 42886–5–II.,42886–5–II.
• Citation: 308 P.3d 755,176 Wash.App. 96
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. John Matthew LUNDY, Appellant.

176 Wash.App. 96

308 P.3d 755

STATE of Washington, Respondent,

v.John Matthew LUNDY, Appellant.

No. 42886–5–II.

Court of Appeals of Washington, Division 2.

Aug. 13, 2013.

Thomas Edward Doyle, Attorney at Law, Hansville, WA, for Appellant.

Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.

QUINN–BRINTNALL, J.

[176 Wash.App. 99]¶ 1 John Lundy appeals his judgment and sentence entered on remand, arguing that inadequate evidence supports the trial court's finding that he has the current or likely future ability to pay legal financial obligations and, under this court's decision in State v. Bertrand, 165 Wash.App. 393, 405, 267 P.3d 511 (2011), review denied,175 Wash.2d 1014, 287 P.3d 10 (2012), remand is appropriate to strike the trial court's ability to pay finding. Because a trial court is prohibited from imposing legal financial obligations only when it appears from the record that there is no likelihood that the defendant's indigency will end, a situation markedly different from Lundy's, the record here supports the finding that Lundy has the present or likely future ability to pay discretionary legal financial obligations. In addition, a trial court need not analyze whether a defendant has the ability to pay mandatory legal obligations, Bertrand is clearly distinguishable, and nothing in the record suggests that the State has yet to enforce the order establishing Lundy's mandatory and discretionary legal financial obligations (rendering any challenge to the order unripe). Accordingly, we affirm.

FACTS

¶ 2 In 2010, a jury found Lundy guilty of possession of a stolen motor vehicle, two counts of unlawful issuance of bank checks or drafts, and two counts of bail jumping. RCW 9A.56.140(1), .060; RCW 9A.76.170(1). At sentencing, the trial court imposed an exceptional sentence of 70 months in light of Lundy's “long history of lawbreaking that simply goes beyond what is contemplated in a standard range calculation” and because Lundy's high offender score left some of the crimes for which he was convicted unpunished. Report of Proceedings (RP) (Feb. 4, 2010) at 21.

¶ 3 The trial court also imposed $2,697.82 in legal financial obligations. Neither party expressly discussed Lundy's future ability to pay legal financial obligations, but the record contains the following: (1) Lundy told the trial court that before succumbing to drug addiction, he had made over $100,000 annually; (2) he hoped to return to the community as a productive citizen after addiction treatment; and (3) he anticipated that his wife would be at the sentencing hearing to pay all of the fees.¹

¶ 4 Lundy appealed his judgment and sentence and, in a part published opinion, we affirmed his convictions. State v. Lundy, 162 Wash.App. 865, 256 P.3d 466 (2011). But because the record was unclear as to whether the trial court relied on RCW 9.94A.535(2)(b) or (c) in imposing the exceptional sentence, we remanded to the trial court for reconsideration of the exceptional sentence.²

¶ 5 On remand for resentencing, both parties acknowledged that the trial court's previous exceptional sentence analysis related to RCW 9.94A.535(2)(c) and that any reference to RCW 9.94A.535(2)(b) in the judgment and sentence was a scrivener's error. The State asked the trial court to resentence Lundy to the same exceptional sentence as before but reduce the $1,000 jury assessment fee to $250; Lundy's counsel agreed with this recommendation. Accordingly, at resentencing, the trial court imposed a 70–month exceptional sentence but reduced the jury fee assessment by $750.

¶ 6 This left Lundy responsible for the following fees:

Victim Restitution: $554.52

Victim Assessment: $500.00

Court Costs: $793.30

Deoxyribonucleic acid (DNA) Fee: $100.00

Total: $1,947.82

Lundy timely appeals the imposition of these legal financial obligations.

DISCUSSION.

Legal Financial Obligations

¶ 7 Lundy argues that insufficient evidence supports the trial court's finding that he has the current or likely future ability to pay legal financial obligations and, under this court's decision in Bertrand, remand is appropriate to strike the trial court's ability to pay finding.³ We disagree because evidence in the record suggests that Lundy has or will have the future ability to pay $1,947.82 in legal financial obligations, including the $593.30 of these obligations involving discretionary court costs, Bertrand is distinguishable, and any challenge to the order establishing Lundy's mandatory and discretionary legal financial obligations is not yet ripe.

A. Mandatory Legal Financial Obligations

¶ 8 As a preliminary matter, we note that Lundy does not distinguish between mandatory and discretionary legal financial obligations. This is an important distinction because for mandatory legal financial obligations, the legislature has divested courts of the discretion to consider a defendant's ability to pay when imposing these obligations. For victim restitution, victim assessments, DNA fees, and criminal filing fees, the legislature has directed expressly that a defendant's ability to pay should not be taken into account. See, e.g., State v. Kuster, No. 30548–1–III, 2013 WL 3498241 (Wash.Ct.App., July 11, 2013). And our courts have held that these mandatory obligations are constitutional so long as “there are sufficient safeguards in the current sentencing scheme to preventimprisonment of indigent defendants.” ⁴State v. Curry, 118 Wash.2d 911, 918, 829 P.2d 166 (1992) (emphasis added).

¶ 9 RCW 9.94A.753(4) and (5) dictate that “[r]estitution shall be ordered whenever the offender is convicted of an offense which results in ... damage to or loss of property” and “[t]he court may not reduce the total amount of restitution ordered because the offender may lack the ability to pay the total amount.” Thus, the $554.52 in restitution Lundy owed is mandatory. Additionally, a $500 victim assessment is required by RCW 7.68.035(1)(a), a $100 DNA collection fee is required by RCW 43.43.7541, and a $200 criminal filing fee is required by RCW 36.18.020(2)(h), irrespective of the defendant's ability to pay. See State v. Curry, 62 Wash.App. 676, 680–81, 814 P.2d 1252 (1991), aff'd,118 Wash.2d 911, 829 P.2d 166;State v. Thompson, 153 Wash.App. 325, 336, 223 P.3d 1165 (2009). Because the legislature has mandated imposition of these legal financial obligations, the trial court's “finding” of a defendant's current or likely future ability to pay them is surplusage.

B. Discretionary Court Costs and Fees

¶ 10 Unlike mandatory obligations, if a court intends on imposing discretionary legal financial obligations as a sentencing condition, such as court costs and fees, it must consider the defendant's present or likely future ability to pay. As the Washington Supreme Court explained in Curry, the “salient features of a constitutionally permissiblecosts and fees structure” must meet the following 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.

118 Wash.2d at 915–16, 829 P.2d 166.

¶ 11 RCW 10.01.160, the statute codifying Washington's court costs and fee structure, meets the Curry requirements. RCW 10.01.160(3) provides that

[t]he 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 impose.

And RCW 10.01.160(4) allows the trial court to modify the monetary portion of a sentence and reduce the costs imposed when payment will impose a manifest hardship on the defendant or his family.⁵ Thus, unlike other portions of the judgment and sentence, these discretionary legal financial obligations are subject to revision and are not final.

[176 Wash.App. 105]¶ 12 Neither RCW 10.01.160 “nor the constitution requires a trial court to enter formal, specific findings regarding a defendant's ability to pay [discretionary] court costs.” Curry, 118 Wash.2d at 916, 829 P.2d 166. But if an unnecessary finding is made,⁶ perhaps through inclusion of boilerplate language in the judgment and sentence, we review it under the clearly erroneous standard.⁷Bertrand, 165 Wash.App. at 404 n. 13, 267 P.3d 511 (quoting State v. Baldwin, 63 Wash.App. 303, 312, 818 P.2d 1116, 837 P.2d 646 (1991)).⁸ “A finding of fact is clearly erroneous when, although there is some evidence to support it, review of all of the evidence leads to a ‘definite and firm conviction that a mistake has been committed.’ ” Schryvers v. Coulee Cmty. Hosp., 138 Wash.App. 648, 654, 158 P.3d 113 (2007) (quoting Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000)).

¶ 13 The State's burden for establishing whether a defendant has the present or likely future ability to pay discretionary legal financial obligations is a low one. In Baldwin, for instance, this burden was met by a single sentence in a presentence report that the defendant did not object to:

The presentence report contained the following statement, “Mr. Baldwin describes himself as employable, and should be held accountable for legal financial obligations normally associated with this offense.” Baldwin made no objection to this assertion at the time of sentencing.... [I]nformation...