State v. Duncan

180 Wash.App. 245

327 P.3d 699

STATE of Washington, Respondent,

v.Chad Edward DUNCAN, Appellant.

No. 29916–3–III.

Court of Appeals of Washington, Division 3.

March 25, 2014.

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

James Patrick Hagarty, Yakima County Prosecuting Attorney's Off, Yakima, WA, David Brian Trefry, Yakima County Prosecutors Office, Spokane, WA, for Respondents.

SIDDOWAY, J.

¶ 1 Chad Duncan appeals his conviction of six counts of assault, each subject to a firearm enhancement, and unlawful possession of a firearm. He assigns error to the trial court's denial of his motion to suppress evidence of a handgun and shell casings found in his car at the time of his arrest and to the trial court's finding that he had the current or future ability to pay legal financial obligations (LFOs). He also assigns error to the trial court's sentence of community custody, which the State concedes was unsupported. He alleges additional errors in a pro se statement of additional grounds.

¶ 2 In the published portion of this opinion, we address his challenge to the trial court's finding that he had the current or future ability to pay LFOs. Because a sentencing court will seldom find that there is no likelihood that an offender will ever be able to pay LFOs and an offender has good strategic reasons for waiving the issue at the sentencing hearing, we will not consider the issue for the first time on appeal.

¶ 3 In the unpublished remainder of the opinion, we accept the State's concession that the court lacked authority to impose a term of community custody for Mr. Duncan's conviction of unlawful possession of a firearm but find no other error. We affirm Mr. Duncan's conviction and remand the matter to the trial court solely for the purpose of striking the term of community custody.

FACTS RELEVANT TO IMPOSITION OF DISCRETIONARY LFOS

¶ 4 Mr. Duncan was charged with six counts of assault and one count of unlawful possession of a firearm and was found guilty following a jury trial in March 2011.

¶ 5 At the time of sentencing, the proposed judgment and sentence prepared by the State and presented to the court included the following restitution, costs, and assessments, some of which are mandated by statute and others of which are discretionary:

$1,235.54

Restitution

$ 500.00

Crime penalty assessment

$ 200.00

Criminal filing fee

$ 600.00

Court appointed attorney recoupment

$ 100.00

DNA (deoxyribonucleic acid) collection fee

$ 20.00

Sheriff service fee

$ 250.00

Jury fee

Clerk's Papers (CP) at 181.

¶ 6 Boilerplate findings within the judgment and sentence that was completed and entered by the court included a finding that Mr. Duncan had the present or future ability to pay the financial obligations imposed. They also included findings that Mr. Duncan had the means to pay for the costs of incarceration (not to exceed certain maximum amounts) and the means to pay any costs of medical care incurred by the county.

¶ 7 The parties' presentations at the sentencing hearing dealt primarily with whether the court should impose a sentence at the high or low end of the standard range, whether the sentences on the six assaults should ran consecutively, and with Mr. Duncan's mother's plea for lenient sentencing. Neither party made any presentation of evidence or argument directly addressing Mr. Duncan's ability to pay. The only fact addressed that had a bearing, indirectly, on his ability to pay was the lengthy sentence (effectively a life sentence) being imposed by the court. In reviewing the judgment and sentence with the parties, the court observed, “He has $2905 and some change to pay if he's released,” and that “[c]ost of incarceration, cost of medical care will be imposed.” Report of Proceedings (RP) at 992. Mr. Duncan did not object to the costs imposed or to the court's findings.

ANALYSIS OF LFO ISSUE

¶ 8 For the first time on appeal, Mr. Duncan contends that the record does not support the trial court's findings that he has the current or future ability to pay discretionaryLFOs, including incarceration and medical costs. See In re Pers. Restraint of Pierce, 173 Wash.2d 372, 379, 268 P.3d 907 (2011) (holding that “costs of incarceration” imposed by RCW 9.94A.760(2) fall within the broad definition of “legal financial obligation”); RCW 70.48.130(4) (authorizing sentencing courts to order offenders to repay all or part of medical costs incurred during confinement as part of a judgment and sentence). He asks that we remand his judgment and sentence to the trial court with instructions to strike the objectionable findings as was done in State v. Bertrand, 165 Wash.App. 393, 267 P.3d 511 (2011).

¶ 9 The convergence of three factors has contributed to the recurrent raising in appeals of this and other challenges to discretionary LFOs imposed by trial courts.

¶ 10 First is a statutory requirement that trial courts take some account of a defendant's ability to pay the obligations in the future. RCW 10.01.160(3) provides that a trial court “shall not order a defendant to pay costs unless the defendant is or will be able to pay them.” RCW 9.94A.760(2) provides that the trial court may require an offender to pay costs of incarceration “[i]f the court determines that the offender, at the time of sentencing, has the means to pay.” No formal or specific findings of ability to pay are required to be made by the trial court. State v. Curry, 118 Wash.2d 911, 916, 829 P.2d 166 (1992). Still, RCW 10.01.160(3) provides that “the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.” (Emphasis added.) Curry observes that, while not required to make findings, “[t]he court is directed to consider ability to pay.” 118 Wash.2d at 916, 829 P.2d 166 (emphasis added).

¶ 11 Second is the apparent and unsurprising fact that many defendants do not make an effort at sentencing to suggest to the sentencing court that they are, and will remain, unproductive. “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.” State v, Lundy, 176 Wash.App. 96, 106, 308 P.3d 755 (2013). As Lundy observes, it has been deemed met by a single reference in a presentence report to the defendant describing himself as “ ‘employable.’ ” Id. (internal quotation marks omitted) (quoting State v. Baldwin, 63 Wash.App. 303, 311, 818 P.2d 1116, 837 P.2d 646 (1991)). Indeed, “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.” Id. at 99, 308 P.3d 755. Sentencing is a context in which most defendants are motivated to portray themselves in a more positive light.

¶ 12 Not only is it unhelpful for a defendant to portray himself or herself as irretrievably indigent at the time of sentencing, a defendant who will truly never be able to pay is not left without protection from collection or punishment. After costs are imposed, a defendant who is not in contumacious default may petition the sentencing court for remission of the payment of all or part of them. RCW 10.01.160(4). Due process precludes the jailing of an offender for failure to pay a fine if the offender's failure to pay was due to his or her indigence; while the burden is on the offender to show that his nonpayment is not willful, “due process still imposes a duty on the court to inquire into the offender's ability to pay ... at ‘the point of collection and when sanctions are sought for nonpayment.’ ” State v. Nason, 168 Wash.2d 936, 945, 233 P.3d 848 (2010) (citation omitted) (quoting State v. Blank, 131 Wash.2d 230, 242, 930 P.2d 1213 (1997)). Given more important issues at stake in a sentencing hearing, many defendants will consciously and prudently choose not to argue at the time of sentencing that they will be perpetually unemployed and indigent.

¶ 13 The third converging factor is boilerplate findings included in some uniform judgment and sentence forms, which, under CrR 7.2(d) are to be prescribed by the Administrator for the Courts in conjunction with the Supreme Court Pattern Forms Committee. Although perhaps no longer the case,¹ judgmentand sentence forms have often included boilerplate findings of ability to pay. We have been presented in many appeals with such boilerplate findings that bear no relation to any evidence or argument presented to the sentencing judge. The boilerplate findings in Mr. Duncan's judgment and sentence to which he objects are:

2.7 Financial Ability: The Court has considered the total amount owing, the defendant's past, present, and future ability to pay legal financial obligations, including the defendant's financial resources and the likelihood that the defendant's status will change. The Court finds that the defendant has the present ability or likely future ability to pay the financial obligations imposed herein. RCW 9.94A.753.

....

4.D.4 Costs of Incarceration: In addition to the above costs, the court finds that the defendant has the means to pay for the costs of incarceration, in prison at a rate of $50.00 per day of incarceration or in the Yakima County Jail at the actual rate of incarceration but not to exceed $100.00 per day of incarceration (the rate in 2011 is $79.75 per day), and orders the defendant to pay such costs at the statutory rate as assessed by the Clerk. Such costs are payable only after restitution costs, assessments and fines listed above are paid. RCW 9.94A.760(2).

4.D.5 Costs of Medical Care: In addition to the above costs, the court finds that the defendant has the means to pay for any costs of medical care incurred by Yakima County on behalf of the defendant, and orders the defendant to pay such medical costs as assessed by the Clerk. Such costs are payable only after restitution costs, assessments and fines listed above are paid. RCW...