State v. Rowley
| Decision Date | 19 January 2023 |
| Docket Number | 38281-8-III |
| Parties | STATE OF WASHINGTON, Respondent, v. ELIJAH E. ROWLEY, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Elijah Rowley appeals the imposition of a $500 crime victim penalty assessment as a result of his conviction for failing to register as a sex offender. We affirm.
Mr Rowley was convicted at a bench trial of failing to register as a sex offender. At sentencing, the State requested a sentence of 32 days in custody with all but two days suspended. The State also recommended the court waive discretionary legal financial obligations (LFOs), but impose the mandatory $500 crime victim penalty assessment (VPA). The State asked the court to establish a payment schedule of $35 per month.
The court's sentencing colloquy with Mr. Rowley focused on Mr. Rowley's financial circumstances. Mr. Rowley stated he was unemployed and did not have any income, but he had a variety of past work experiences including recent work at the Ponderosa Motel. Mr. Rowley also commented that he lived with an 83-year old woman for whom he provided assistive care. Mr. Rowley did not specify whether he had any expenses relating to this circumstance.
The trial court imposed 10 days of jail time, no community custody and the mandatory $500 VPA. All other LFOs were waived based on Mr. Rowley's indigence. The court ordered Mr. Rowley to make payments toward the VPA of $35 per month, but deferred payments for approximately two and one-half months to allow Mr. Rowley time to find employment.
At no point during sentencing did Mr. Rowley object to imposition of the VPA.
After sentencing, Mr. Rowley filed a motion and supporting declaration for an order of indigence on appeal. In the declaration, Mr. Rowley represented he was unemployed, had no assets, was $700 in debt, and had earned $500 in the last year,[1]and that he had two dependent children.
Mr. Rowley has filed a timely appeal.
Mr. Rowley's sole issue on appeal is the constitutionality of the $500 VPA as required by RCW 7.68.035(1)(a). Mr. Rowley contends imposition of the $500 VPA in his case violates the excessive fines clause of the Washington Constitution. The State does not argue Mr. Rowley has waived his constitutional challenge by failing to raise this issue in the trial court. See RAP 2.5(a). We therefore review Mr. Rowley's constitutional challenge de novo. See City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004).
Both the state and federal constitutions prohibit imposition of excessive fines. Wash. Const. art. I, § 14; U.S. Const. amend. VIII. To trigger an excessive fine protection, "a sanction must be a 'fine' and it must be 'excessive.'" City of Seattle v. Long, 198 Wn.2d 136, 162, 493 P.3d 94 (2021).
Because the "excessive" prong is dispositive in this case, we focus our attention on the second element of the constitutional test. A key component of this prong is consideration of the defendant's ability to pay. Id. at 168-73.[2] To meet constitutional scrutiny, a fine must not be so oppressive as to deprive an individual of "their ability to live." Id. at 172. However, the mere imposition of a fine does not raise this threat. It is the collection of the fine that matters. In State v. Curry, our Supreme Court held that the time for assessing a constitutional challenge to a defendant's ability to pay is at the point of collection, not when the obligation is initially imposed. 118 Wn.2d 911, 917-18, 829 P.2d 166 (1992).[3]
Mr. Rowley claims Curry is inapposite because it involved equal protection and due process challenges, not an excessive fines claim. We disagree with this assessment. "Curry's reasoning is vague; it does not state precisely what constitutional arguments it took into account." State v. Tatum, 23 Wn.App. 2d 123, 130, 514 P.3d 763, review denied, ___Wn.2d ___, 520 P.3d 977 (2022). The Supreme Court's concern in Curry was the constitutionality of the VPA "in light of indigent defendants' potential inability to pay." Id. We therefore read Curry as applicable to an excessive fines claim, at least to the extent the claim is rooted in a defendant's inability to pay.
Given this is an appeal from a judgment and sentence, the record on review cannot and does not reflect an attempt to collect Mr. Rowley's $500 VPA. It is therefore impossible to discern whether future $35 monthly payments will pose a hardship to Mr. Rowley's livelihood. Mr. Rowley has worked in the past and it appears he may have minimal expenses given his role as a caregiver to an elderly woman. Furthermore, the $500 VPA is not subject to accrual of interest. RCW 10.82.090. Whether Mr. Rowley will be able to pay the $500 VPA and still meet his other living expenses is not something that can yet be discerned. In light of the analysis dictated by Curry, we cannot conclude the $500 VPA is constitutionally excessive. See Tatum, 23 Wn.App. 2d at 130-31 ().
Our holding denying Mr. Rowley's constitutional challenge to the VPA should not be read as a declaration that the VPA constitutes sound public policy. Our court decides questions of law, not policy. Especially as an intermediate appellate court that generally lacks amicus input, we are not in a position to assess the various interests implicated by imposition of mandatory financial obligations such as the VPA. In recent years, the Washington Legislature has been responsive to ameliorating hardships posed by imposition of LFOs on indigent defendants. See Laws of 2022, ch. 260, § 3; Laws of 2018, ch. 269. Further LFO reform to include an assessment of the VPA may be pursued through the legislature, but this court is not in a position to provide a remedy.
The judgment and sentence is affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
A Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement. Magna Carta, 9 Hen. III, ch. 14 (1225).
The issue on appeal illustrates the American justice system's unrelenting determination to punish no matter the cost and our penal regime's halfhearted effort to facilitate financial rehabilitation of offenders. Elijah Rowley challenges the $500 victim penalty assessment, imposed on him under RCW 7.68.035. Rowley contends that, because of his indigency, the assessment contravenes the excessive fines clause of article I, section 14 of the Washington Constitution. Rowley asks this court to remand with instructions to strike or reduce the victim penalty assessment.
I agree with Elijah Rowley and would strike the victim penalty assessment in his judgment and sentence. I dissent from the majority opinion.
Because a court evaluates the excessiveness of a fine in part based on the severity of the crime, I review the facts of Elijah Rowley's crime. At age 19, Rowley pled guilty to third degree rape. His plea to rape demanded that he register as a sex offender. On November 25, 2020, Rowley, on his release from jail, went to live with his girlfriend. He registered the girlfriend's address as his abode with the county sheriff's office.
On January 25, 2021, a court entered a no-contact order that prevented Elijah Rowley from further contact with his girlfriend. Rowley went to temporarily reside in a hotel. He informed his community custody officer of the hotel's address, but failed to inform the sheriff's office. According to Rowley, he did not know he needed to inform both the community custody officer and the sheriff of a change in address. For the next two months, Rowley weekly reported to his community custody officer.
On February 22, 2021, a police officer spotted Rowley ambling through a parking lot, and the officer told Rowley he needed to register any new address with the sheriff's office. On February 23, Rowley notified the sheriff's office of his new address. When he later procured permanent housing, Rowley notified both the sheriff's office and his community custody officer of his new residential address.
The State charged Elijah Rowley with failing to register as a sex offender between January 25 and February 22, 2021. Because of Rowley's indigency, the superior court appointed counsel at public expense. After a bench trial, the court found Rowley guilty of the charge.
During sentencing, Elijah Rowley commented that he was currently unemployed but looking for work. Four employers had employed him over the last three years. He voluntarily left his last employment one to two weeks earlier. He presently lived with an elderly woman for whom he provided care. The sentencing court never inquired about income or expenses related to this housing.
The superior court sentenced Elijah Rowley to ten days in jail. Because of Rowley's indigency, the superior court waived all discretionary legal financial obligations. The court imposed the mandatory $500 victim penalty assessment payable at $35 per month. Rowley did not then contend the assessment violated any constitutional clause.
When filing this appeal, Elijah Rowley filed a financial declaration in support of appointment of counsel on appeal. In the declaration, Rowley averred that he earned $500 during the last year, lacked any assets, and owed $700. He supported two children. The superior court entered an order allowing Rowley to appeal at public expense.
Elijah Rowley challenges the constitutionality of RCW 7.68.035 which declares in...
To continue reading
Request your trial