State v. Mathers

• Decision Date: 10 May 2016
• Docket Number: No. 47523–5–II.,47523–5–II.
• Citation: 193 Wash.App. 913,376 P.3d 1163
• Parties: STATE of Washington, Respondent, v. Andrew Patrick MATHERS, Appellant.
• Court: Washington Court of Appeals

193 Wash.App. 913

376 P.3d 1163

STATE of Washington, Respondent

v.Andrew Patrick MATHERS, Appellant.

No. 47523–5–II.

Court of Appeals of Washington, Division 2.

May 10, 2016.

David L. Donnan, Washington Appellate Project, Seattle, WA, for Appellant.

Ryan Paul Jurvakainen, Cowlitz County Prosecutor's Office, Kelso, WA, for Respondent.

MELNICK

, J.

¶ 1 To an indigent defendant saddled with legal financial obligations (LFOs), it does not matter if the LFOs are labeled mandatory or discretionary. The effects on the indigent defendant remain the same. 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.

¶ 2 Andrew Mathers appeals from the trial court's imposition of mandatory LFOs. He argues that the trial court's failure to inquire into his particular ability to pay a $100 deoxyribonucleic acid (DNA) fee and a $500 Victim Penalty Assessment (VPA) fee constituted error, violated equal protection, and violated due process. We affirm the trial court.¹

FACTS

¶ 3 After the State amended Mathers's original charge to theft in the second degree, Mathers entered a plea of guilty. At sentencing Mathers cited to Blazina² and objected to the imposition of LFOs. The trial court imposed $64.99 in restitution. The court also imposed a $100 DNA fee and a $500 VPA fee. The court waived all other LFOs. Mathers appeals.

ANALYSIS

I. Applicable Law

¶ 4 “The sentencing court's authority to impose court costs and fees is statutory.” State v. Cawyer, 182 Wash.App. 610, 619, 330 P.3d 219 (2014)

; RCW 10.01.160(3). DNA³ and VPA⁴ fees are authorized by the legislature. A trial court may impose attorney fees and other costs on a convicted defendant if he or she is able to pay, or will be able to pay. RCW 10.01.160(3) ; State v. Eisenman, 62 Wash.App. 640, 644, 810 P.2d 55, 817 P.2d 867 (1991).

¶ 5 The DNA collection fee statute states,

Every sentence imposed for a crime specified in RCW 43.43.754

must include a fee of one hundred dollars. The fee is a court-ordered [LFO] as defined in RCW 9.94A.030 and other applicable law. For a sentence imposed under chapter 9.94A RCW, the fee is payable by the offender after payment of all other [LFOs] included in the sentence has been completed.

RCW 43.43.7541

(emphasis added).

¶ 6 The VPA statute 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.

RCW 7.68.035(1)(a)

(emphasis added).

II. The Mandatory Nature of DNA and VPA Fees

¶ 7 Mathers argues the trial court mistakenly believed it was required to impose DNA and VPA fees without regard to Mathers's indigence. Mathers contends the DNA and the VPA statutes should be read together with RCW 10.01.160

. He also argues that failure to consider his ability to pay violates the plain language of RCW 10.01.160(3) and the purpose of the Sentencing Reform Act of 1981.⁵ We disagree.

A. Legislative Intent

¶ 8 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. See In re Postsentence Review of Smith, 139 Wash.App. 600, 605, 161 P.3d 483 (2007)

. 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 DNA or VPA fees. 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); State v. Clark, 191 Wash.App. 369, 374, 362 P.3d 309 (2015) (victim assessment, filing fee, and DNA collection fee are mandatory obligations not subject to defendant's ability to pay); see also State v. Lundy, 176 Wash.App. 96, 102, 308 P.3d 755 (2013)

; State v. Kuster, 175 Wash.App. 420, 424, 306 P.3d 1022 (2013) ; State v. Thompson, 153 Wash.App. 325, 336, 223 P.3d 1165 (2009)

; State v. Williams, 65 Wash.App. 456, 460, 828 P.2d 1158, 840 P.2d 902 (1992).

¶ 9 Washington courts consistently treat the DNA and the VPA statutes as separate and distinct from the discretionary LFO statute and the restitution statute. However, Mathers argues that when the legislature intends to revoke the court's discretion, it explicitly evinces its intent. For support, he cites the restitution statute which says, “The court may not reduce the total amount of restitution ordered because the offender may lack the ability to pay the total amount.” RCW 9.94A.753(4)

. Mathers contends that the absence of such obligatory language in the DNA and the VPA statutes shows the legislature's intent to grant courts discretion.

¶ 10 While it is true that canons of statutory interpretation direct that where the legislature uses different language within a provision, a different intent is indicated, see State v. Conover, 183 Wash.2d 706, 712–13, 355 P.3d 1093 (2015)

, Mathers's application of this principle to the present case is flawed. First, Mathers cites Conover, 183 Wash.2d at 712–13, 355 P.3d 1093, for the principle that “the legislature's choice of different language in different provisions indicates different legislative intent.” Br. of Appellant at 7–8 (emphasis added). However, in Conover, the court interpreted one statute by comparing differing language in sections of that same statute. 183 Wash.2d at 712–13, 355 P.3d 1093. The appropriate use of this interpretive tool is to compare the language within the same provision, or between amended versions of the same statute, but not between entirely different statutes. See

In re Parentage of K.R.P., 160 Wash.App. 215, 223, 247 P.3d 491 (2011) (“ ‘Where a provision contains both the words “shall” and “may,” it is presumed that the lawmaker intended to distinguish between them.’ ”) (Quoting Scannell v. City of Seattle,

97 Wash.2d 701, 704, 648 P.2d 435 (1982) ); see also

State v. Roberts, 117 Wash.2d 576, 585–86, 817 P.2d 855 (1991) (comparing the current and prior version of the same statute to define an ambiguous term).

¶ 11 Additionally, the legislature has given Washington courts no reasons to presume the restitution statute should be directly compared to discretionary court fees and costs statutes. In fact, “[t]he legislature's amendments to the restitution statute demonstrate that the legislature has consistently sought to ensure that victims of crimes are made whole after suffering losses caused by offenders and to increase offender accountability.” State v. Gonzalez, 168 Wash.2d 256, 265, 226 P.3d 131 (2010)

. The restitution statute is intended to be both punitive and compensatory. State v. Kinneman, 155 Wash.2d 272, 279–80, 119 P.3d 350 (2005).

¶ 12 The legislative intent behind the restitution statute is separate and distinct from its intent regarding the DNA and the VPA statutes. The DNA fee “serves to fund the collection of samples and the maintenance and operation of DNA databases” and does not have a punitive purpose. State v. Brewster, 152 Wash.App. 856, 860, 218 P.3d 249 (2009)

. The VPA fee is also not punitive in nature. See

State v. Humphrey, 139 Wash.2d 53, 62, 983 P.2d 1118 (1999) (an amendment to the VPA statute did not apply retroactively because it created a new liability, not a new penalty).

¶ 13 Mathers also acknowledges that the legislature did amend the DNA fee statute to remove consideration of “hardship.” Br. of Appellant at 8 n. 7. He argues, however, that the legislature did not include language explicitly removing discretion. “In 2002 the legislature enacted a statute requiring courts to impose a $100 DNA collection fee with every sentence imposed under chapter 9.94A RCW for certain specified crimes, ‘unless the court finds that imposing the fee would result in undue hardship on the offender.’ ” Thompson, 153 Wash.App. at 336, 223 P.3d 1165

(quoting former RCW 43.43.7541 (2002)). The legislature amended the language in 2008 to state only, “Every sentence ... must include a fee of [$100].” Thompson, 153 Wash.App. at 336, 223 P.3d 1165

(quoting former RCW 43.43.7541 (2008)⁶ ). Given the legislative history, there does not appear to be support for the importance Mathers places on the lack of express language removing discretion.

¶ 14 We disagree with Mathers's argument that the legislature clearly intended trial courts to have discretion when imposing DNA and VPA fees.

B. Case Law Precedent

¶ 15 Next, Mathers argues the Washington Supreme Court in State v. Blazina, 182 Wash.2d 827, 344 P.3d 680 (2015)

, “repeatedly described its holding as applying to ‘LFOs,’ not just to a particular cost.” Br. of Appellant at 8. Mathers asserts Blazina clearly implicates that the DNA and the VPA statutes should be read in conjunction with RCW 10.01.160. However, this interpretation is overbroad. Although Blazina involved the appeal of LFOs including DNA and VPA fees, the court only reviewed discretionary LFOs. 182 Wash.2d at 831, 344 P.3d 680. The court listed all the LFOs imposed in Blazina's case but then stated, “The trial court, however, did not examine Blazina's ability to pay the discretionary fees on the record.” Blazina, 182 Wash.2d at 831, 344 P.3d 680 (emphasis added). It also stated, “A defendant who makes no objection to the imposition of discretionary LFOs at sentencing is not automatically entitled to review.” Blazina, 182 Wash.2d at 832, 344 P.3d 680 (emphasis added). Throughout the opinion, the court made clear that it was reviewing only discretionary LFOs. Blazina, 182 Wash.2d at 834–35, 837–38, 344 P.3d 680.

¶ 16 Mathers also argues that the Washington Supreme Court has never held that DNA fees are...