       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 75238-3-1
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MICHAEL STADDEN WILLIAMS,                         UNPUBLISHED OPINION                     cr>     :.-' ~n -
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       Leach, J. — Michael S. Williams appeals the trial court's imposition of££)                  g<

legal financial obligations (LFOs) as part of his judgment and sentence.            He

challenges the trial court's authority to convert a $1,000 mandatory drug fine into

assessments of $500 to the Clallam County Drug Court and $500 to the drug

enforcement fund of Olympic Peninsula Narcotics Enforcement Team (OPNET)

without an enabling statute. Also, he challenges a discretionary LFO, claiming

that the trial court did not inquire sufficiently into his present or future ability to

pay.


       The State concedes that the trial court had no authority to convert a

mandatory drug fine into assessments to the drug court and OPNET. The State

contends that Williams did not properly object to the discretionary LFO and thus

may not raise the issue on appeal. Because this court has discretion to review

an issue raised for the first time on appeal under RAP 2.5(a), and consistent with

State v. Blazina.1 we review this challenge. We conclude that the trial court did


            182 Wn.2d 827, 344 P.3d 680 (2015).
No. 75238-3-1 / 2




not sufficiently inquire into Williams's present or future ability to pay as required

by statute. We reverse and remand for resentencing consistent with this opinion.



                                      Background

       Williams stole food from a Walmart store.            When loss prevention

personnel confronted him in the store's parking lot, he threw the items back in the

store, pushed past the Walmart personnel, and ran. Police found him, arrested

him, and, at the police station, discovered a glass vial containing heroin in his

pocket. The State charged Williams with assault in the fourth degree, theft in the

third degree, and possession of a controlled substance. The State moved to

dismiss the assault and theft charges, and Williams pleaded guilty to possession.

The State recommended LFOs, including a $1,000 drug fine reflected in the

statement on plea of guilty.

       At Williams's    sentencing,    the trial   court asked    about Williams's

employment status.      The trial court imposed LFOs and a 30-day sentence

converted into a 240-hour community service obligation. The LFOs included a

$500 victim assessment, a $200 criminal filing fee, a $500 court-appointed

attorney recoupment fee, a $100 DNA (deoxyribonucleic acid) fee, and

assessments of $500 to the drug court and $500 to OPNET. The trial court did

not include the $1,000 drug fine recommended by the State.            The court set

monthly payments at $40.
No. 75238-3-1 / 3




         Williams objected to the assessments to the drug court and OPNET.

Counsel asked the trial court if it had made a finding that Williams was indigent

and if it had waived the $1,000 drug fine. The trial court responded that it was

not waiving the drug fine but was instead splitting the $1,000 drug fine between

the drug court and OPNET. It acknowledged that it had no statutory basis to do

so but noted that this practice was common.

         Williams appeals.

                                      Analysis

         Williams first asks this court to vacate the assessments for the drug court

and OPNET.        A court may impose LFOs only where statute permits.2 RCW

9.94A.760(1) generally authorizes a court to impose LFOs as part of a felony

sentence. And RCW 9.94A.030(31) permits the trial court to impose LFOs for

county or interlocal drug funds.    But this fee can be imposed only for a drug-

related crime and commensurate with the costs of investigation.3

         The State concedes that the trial court had no authority to order

contributions to the drug court and OPNET.           But it argues that Williams's

sentence must be corrected by vacating the two improper assessments and then

imposing a $1,000 drug fine required by statute.

         RCW 69.50.430(1) requires that "[ejvery adult offender convicted of a

felony    violation   of RCW... 69.50.4013... must       be fined   one thousand



         2 State v. Hathaway. 161 Wn. App. 634, 653, 251 P.3d 253 (2011).
         3 State v. Hunter. 102 Wn. App. 630, 640, 9 P.3d 872 (2000).
No. 75238-3-1 / 4




dollars.... [ujnless the court finds the adult offender to be indigent." A court

must impose this mandatory LFO unless it finds that the defendant is indigent.4

Thus, on remand, the trial court must vacate the two improper assessments and

determine if Williams is indigent.      If he is not, it must impose the mandatory

$1,000 drug fine required by statute.

       Williams next challenges the discretionary LFO imposed by the trial court.

He claims that the trial court failed to properly assess his present or future ability

to pay this LFO as required by statute.

       The State argues that under RAP 2.5(a), Williams's failure to object to this

LFO prevents him from raising this issue on appeal.          That rule states, "The

appellate court may refuse to review any claim of error which was not raised in

the trial court." But an appellate court may review an issue raised for the first

time on appeal.5    Here, we exercise our discretion to review Williams's claim

consistent with Blazina, which "found ample and increasing evidence that

unpayable LFOs 'imposed against indigent defendants' imposed significant

burdens on offenders and our community."6

       The State correctly notes that the trial court has no discretion about

imposing LFOs required by statute,7 such as the $500 victim assessment fee,8


       4 State v. Mayer, 120 Wn. App. 720, 725-26, 86 P.3d 217 (2004).
       5 Blazina. 182 Wn.2d at 834-35.
       6 State v. Duncan. 185 Wn.2d 430, 437              P.3d       (2016) (quoting
Blazina. 182 Wn.2d at 835).
      7 See State v. Shelton, No. 72848-2-I, 2016 WL 3461164, at *4 (Wash. Ct.
App. June 20, 2016).
      8RCW7.68.035(1)(a).
No. 75238-3-1 / 5




the $200 criminal filing fee,9 and the $100 DNA collection fee.10 Thus, the only

LFO Williams may challenge is the discretionary $500 court-appointed attorney

recoupment fee authorized by RCW 9.94A.760.11

       RCW 10.01.160(3) requires a trial court to inquire into a defendant's

current and future ability to pay discretionary LFOs:

       The 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.

This provision requires the trial court to

       do more than sign a judgment and sentence with boilerplate
       language stating that it engaged in the required inquiry. The record
       must reflect that the trial court made an individualized inquiry into
       the defendant's current and future ability to pay. Within this inquiry,
       the court must also consider important factors, as amici suggest,
       such as incarceration and a defendant's other debts, including
       restitution, when determining a defendant's ability to pay.[12]

       Here, the trial court asked Williams about where and how long he had

been employed. Williams responded that he worked for a plumbing business,

had been there several months, and was seeking a training card to help him get

an apprenticeship.

       Williams argues that the trial court made an insufficient inquiry because it

did not ask how much money Williams expected to make, his other expenses


       9RCW36.18.020(2)(h).
       10 RCW 43.43.7541.
        11 See State v. Malone. 193 Wn. App. 762, 764,     P.3d      (2016)
(listed the court-appointed attorney recoupment as a discretionary financial
obligation).
       12 Blazina, 182 Wn.2d at 838.
No. 75238-3-1 / 6




and debt obligations, if he had savings, or other relevant questions. Nor did the

trial court check the box in section 2.5 of its judgment and sentence, confirming

that it had reviewed Williams's present and future ability to pay.        Without any

inquiry into Williams's debt obligations, as specifically required by Blazina. the

trial court did not make an adequate, individualized inquiry into Williams's present

and future ability to pay discretionary LFOs. It thus failed to comply with RCW

10.01.160(3).

                                      Conclusion


       Because the trial court improperly imposed an assessment on Williams of

$500 to the drug court and $500 to OPNET, we remand for the court to vacate

these assessments and determine if Williams is indigent.         It shall also properly

inquire into Williams's present and future ability to pay the discretionary LFO.

After doing this, the trial court shall sentence Williams consistent with its findings.

       We reverse and remand for sentencing consistent with this opinion.




                                                      JLJ?S y
WE CONCUR:




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