                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           May 29, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 50738-2-II

                Appellant/Cross-Respondent,
                                                              UNPUBLISHED OPINION
        v.

 KATRINA MEGAN LACY,

                Respondent/Cross-Appellant.


       MAXA, C.J. – The State appeals the trial court’s order waiving Katrina Lacy’s restitution

and mandatory legal financial obligations (LFOs) because she was indigent. Lacy cross-appeals

the trial court’s refusal to waive the interest that had accrued on the restitution and mandatory

LFOs. While this appeal was pending, the legislature in 2018 enacted amendments to several

statutes addressing LFOs and interest on those obligations.

       We hold that (1) RCW 9.94A.753 establishes that the trial court did not have the

authority to waive Lacy’s restitution obligation because of her inability to pay; (2) the 2018

amendments to LFO statutes apply prospectively to this appeal of a motion to waive LFOs and

related interest; (3) the crime victim penalty assessment imposed on Lacy cannot be waived

under the 2018 amendments to RCW 9.94A.6333(3)(f); (4) the trial court has the authority under

the 2018 amendments to RCW 9.94A.6333(3)(f) to waive the DNA collection fee imposed on

Lacy because she is indigent and her failure to pay the fee was not willful; (5) we do not address
No. 50738-2-II


Lacy’s argument that attempting to collect restitution and the crime victim penalty assessment

when she is indigent violates due process or equal protection because waiver of those obligations

would not be the remedy even if she established constitutional violations; and (6) interest on

restitution cannot be waived under RCW 10.82.090(2)(b) but interest on nonrestitution LFOs

must be waived under the 2018 amendments to RCW 10.82.090(2)(b).1

       Accordingly, we affirm the trial court’s waiver of Lacy’s DNA collection fee and the trial

court’s refusal to waive accrued interest on restitution, but we reverse the trial court’s waiver of

the crime victim penalty assessment and restitution and refusal to waive interest on

nonrestitution LFOs. We remand for the trial court to vacate the order waiving the crime victim

penalty assessment and restitution and to strike any accrued interest on nonrestitution LFOs.

                                              FACTS

       In 2010, Lacy pleaded guilty to one count of second degree burglary. The sentencing

court imposed $580.52 in restitution and three mandatory LFOs: a $500 crime victim penalty

assessment, a $100 DNA collection fee, and a $200 criminal filing fee. The judgment and

sentence stated that Lacy was required to make payments of not less than $30 per month

beginning two months later.

       In 2011 and again in 2013, the Pierce County Clerk assigned Lacy’s restitution and LFO

obligations plus accrued interest to AllianceOne Receivables Management, Inc. (AllianceOne), a

debt collection agency. In November 2013, AllianceOne obtained a writ of garnishment for a



1
  The State initially appealed the trial court’s waiver of the criminal filing fee imposed on Lacy
but withdrew that appeal in light of the 2018 amendment to RCW 36.18.020(2)(h), which
precludes the imposition of such a fee on an indigent defendant. Therefore, we do not address
the previously mandatory criminal filing fee.


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No. 50738-2-II


continuing lien on Lacy’s earnings. In 2014, AllianceOne garnished Lacy’s wages and received

a payment that was applied to the restitution obligation. In 2014, AllianceOne also obtained a

judgment against Lacy for $268.62 in garnishment costs.

          In May 2017, Lacy filed a motion to remit or revoke all her LFOs and to waive all

restitution and nonrestitution interest. In support, Lacy submitted a declaration establishing that

she was indigent under GR 34 even though she was employed. She stated that she owed

$14,866.34 in LFOs to various courts.2 Finally, she stated that her housing voucher would expire

in 2020 and that the existence of outstanding debts would make it more difficult for her to obtain

affordable housing.

          As of June 2017, $283.51 of the restitution and all of the mandatory LFOs imposed in

this case remained outstanding. Total accrued interest on these obligations was $1,522.61,

including $324.71 of interest on the restitution portion.

          The trial court issued a letter ruling regarding Lacy’s motion. The court found that Lacy

was indigent, and that her violation of the sentencing conditions was not willful. The court ruled

that it had authority under RCW 9.94B.040(3)(d) to modify a previous order regarding payment

of LFOs. The court ordered that Lacy’s judgment and sentence be modified to waive, remit

and/or revoke all mandatory LFOs, which apparently included restitution. But the court denied

Lacy’s request to waive accrued interest.3




2
    The record is unclear whether this amount included interest.
3
    The trial court also waived discretionary LFOs, but the State does not appeal that ruling.



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No. 50738-2-II


       The State appeals the trial court’s waiver of restitution and certain mandatory LFOs, and

Lacy cross-appeals the trial court’s failure to waive accrued interest.

                                            ANALYSIS

A.     WAIVER OF RESTITUTION AND MANDATORY LFOS

       The State argues that the trial court lacked statutory authority to waive Lacy’s restitution

and mandatory LFOs. Lacy argues that the trial court had such authority under various statutory

provisions.4 She also argues that if the trial court had no authority to waive these obligations,

attempting to collect restitution and LFOs when she could not pay them would violate the due

process and equal protection provisions of the United States Constitution. The 2018

amendments to various LFO statutes now address the trial court’s authority regarding waiver of

certain mandatory LFOs.

       We hold that the trial court erred in waiving the restitution and the crime victim penalty

assessment but not in waiving the mandatory DNA collection fee. And we decline to address

Lacy’s constitutional claims.

       1.    Standard of Review

       This case involves the trial court’s authority to waive restitution, mandatory LFOs, and

related interest. Whether a trial court has authority to issue an order is a question of law that we

review de novo. State v. Soto, 177 Wn. App. 706, 713, 309 P.3d 596 (2013).




4
 An offender may file a motion for remission of discretionary LFOs under RCW 10.01.160(4).
However, RCW 10.01.160(4) applies only to “costs,” and mandatory LFOs do not qualify as
costs. State v. Sorrell, 2 Wn. App. 2d 156, 179-80, 408 P.3d 1100 (2018).


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No. 50738-2-II


        2.   Authority to Waive Restitution

        Under RCW 9.94A.753(5)5, “[r]estitution shall be ordered whenever the offender is

convicted of an offense which results in injury to any person or damage to or loss of property.”

(Emphasis added.) The sentencing court imposed restitution on Lacy pursuant to this statute.

        RCW 9.94A.753(4) states that restitution “may be modified as to amount, terms, and

conditions” while the offender remains under the sentencing court’s jurisdiction. However,

RCW 9.94A.753(4) also expressly states, “The court may not reduce the total amount of

restitution ordered because the offender may lack the ability to pay the total amount.”

        Here, the sole basis for the trial court’s revocation of restitution was Lacy’s indigence.

Therefore, the court’s order violated RCW 9.94A.753(4).

        Lacy notes that RCW 9.94A.753(4) prohibits revocation of restitution only if the offender

cannot pay the total amount, and she claims that RCW 9.94A.753(4) is inapplicable here because

she cannot pay any amount. But this distinction makes no sense. RCW 9.94A.753(4)

unambiguously prohibits a trial court from reducing ordered restitution based on the offender’s

inability to pay.

        We hold that the trial court did not have authority under RCW 9.94A.753(4) to waive

Lacy’s restitution and therefore that the trial court erred in waiving restitution.

        3.   Authority to Waive Nonrestitution Mandatory LFOs

        At the time of sentencing in 2010, specific statutes required the sentencing court to

impose certain mandatory LFOs as part of Lacy’s sentence: (1) a $500 crime victim penalty



5
 RCW 9.94A.753 was amended in 2018, but those amendments are not material here.
Therefore, we cite to the current version of the statute.


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No. 50738-2-II


assessment, former RCW 7.68.035(1)(a) (2009); and (2) a $100 DNA collection fee, former

RCW 43.43.7541 (2008). Neither of those statutes required that the sentencing court consider

the defendant’s ability to pay these fees. See State v. Seward, 196 Wn. App. 579, 587, 384 P.3d

620 (2016), review denied, 188 Wn.2d 1015 (2017).

             a.   Prospective Application of 2018 Amendments

       In 2018, the legislature amended RCW 9.94A.6333(3)(f), which now authorizes a court

to waive LFOs if the offender is indigent and the prior failure to pay was not willful. However,

the 2018 amendments to RCW 9.94A.6333(3)(f) expressly prohibit revoking the crime victim

penalty assessment imposed under RCW 7.68.035.

       Regarding the trial court’s authority to impose LFOs, the Supreme Court in State v.

Ramirez held that the 2018 amendments to the LFO statute apply prospectively to cases that

were pending on direct appeal from the judgment and sentence when the amendments took

effect. 191 Wn.2d 732, 747-49, 426 P.3d 714 (2018). A statutory amendment applies

prospectively when the precipitating event for application of the statute occurs after its effective

date. Id. at 749. The court held that the precipitating event for the imposition of LFOs was the

termination of the defendant’s case. Id. Therefore, the 2018 amendments applied to Ramirez’s

case because the case was pending on direct appeal and was not yet final. Id.

       This case involves the trial court’s authority to waive mandatory LFOs (and related

interest) in response to Lacy’s motion to waive. The precipitating event for the waiver of LFOs

is when the trial court’s ruling on a waiver motion becomes final. Here, the State’s direct appeal

and Lacy’s cross-appeal were pending and the case was not yet final when the 2018 amendments




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No. 50738-2-II


to the LFO statutes took effect. Therefore, we hold that the 2018 amendments apply

prospectively to Lacy’s motion to waive mandatory LFOs and related interest.

             b.   Crime Victim Penalty Assessment

       Under the current version of RCW 9.94A.6333(3)(f), the trial court does not have

authority to waive the crime victim penalty assessment. Therefore, we reverse the trial court’s

waiver of the crime victim penalty assessment imposed on Lacy.

             c.   DNA Collection Fee

       The current version of RCW 43.43.7541, the statute authorizing the DNA collection fee,

does not state that the trial court may waive the fee for indigent offenders. However, the current

version of RCW 9.94A.6333(3)(f) states:

       If an offender fails to pay legal financial obligations as a requirement of a sentence
       the following provisions apply:
       ....

       (f) If the court finds that the violation was not willful, the court may, and if the court
       finds that the defendant is indigent as defined in RCW 10.101.010(3)(a) through
       (c), the court shall modify the terms of payment of the legal financial obligations,
       reduce or waive nonrestitution legal financial obligations, or convert nonrestitution
       legal financial obligations to community restitution hours.

(Emphasis added.)

       This statute expressly authorizes the trial court to waive an imposed fee if the offender is

indigent and the prior failure to pay was not willful. Here, the trial court found that Lacy was

indigent and that her failure to pay was not willful.

       The State argues that former RCW 9.94A.6333 (2015) applies only if the offender was

subjected to a violation hearing. However, the current version of RCW 9.94A.6333(3) does not

state that its terms apply only in the context of a violation hearing and in fact does not even



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No. 50738-2-II


reference a violation hearing. Instead, the statute expressly applies when “an offender fails to

pay legal financial obligations.” RCW 9.94A.6333(3). Here, the State does not dispute that

Lacy failed to pay her mandatory LFOs.

        The State also argues that because there was no violation hearing, there was no finding

regarding willfulness. But the trial court expressly found that Lacy’s nonpayment was not

willful.6

        This court in State v. Conway held that former RCW 9.94A.6333 (2008) did not authorize

a trial court to remit mandatory LFOs. ___ Wn. App. 2d ___, 438 P.3d 1235, 1240 (2019).

Conway is inapplicable here because we apply the current version of RCW 9.94A.6333(3),

which expressly authorizes a trial court to reduce or waive nonrestitution mandatory LFOs if an

indigent offender fails to pay those LFOs and the failure is not willful.

        Therefore, we affirm the trial court’s waiver of the DNA collection fee imposed on Lacy

under the current version of RCW 9.94A.6333(3)(f).7

        4.   Due Process and Equal Protection Claims

        Lacy argues that we can affirm the trial court’s waiver of restitution and the crime victim

penalty assessment on other grounds because attempting to collect those obligations when she


6
 RCW 9.94A.6333(3) does not expressly authorize an offender to file a motion to waive
mandatory LFOs. However, the State does not argue that Lacy did not have authority to file her
motion. Therefore, we do not address this issue.
7
 The trial court apparently relied on former RCW 9.94B.040(3)(d) (2002) as authority to revoke
Lacy’s mandatory LFOs. But RCW 9.94B.010(1) expressly states that chapter 9.94B RCW is
applicable only to crimes committed before July 1, 2000. And the Supreme Court in State v.
Bigsby confirmed that RCW 9.94B.040 only applies to crimes committed before July 1, 2000.
189 Wn.2d 210, 214-21, 399 P.3d 540 (2017). Therefore, we do not rely on this statute.
However, we can affirm the trial court on any basis supported by the record. State v. Streepy,
199 Wn. App. 487, 500, 400 P.3d 339, review denied, 189 Wn.2d 1025 (2017).


                                                 8
No. 50738-2-II


could not pay them violates the due process and equal protections provisions of the United States

Constitution. We decline to address this argument.

       Lacy does not challenge the trial court’s imposition of restitution and the crime victim

penalty assessment in her judgment and sentence. She argues that the attempted collection of

these obligations is unconstitutional. The State acknowledges that a trial court may have

authority to stop the unconstitutional collection of LFOs.

       However, Lacy did not request that the trial court stop collection activities, only that the

restitution obligation and the crime victim penalty assessment be waived. The remedy for an

unconstitutional enforcement activity would seem to be an order precluding that activity, not an

order waiving the validly imposed restitution and crime victim penalty assessment.

       We decline to consider Lacy’s constitutional claims because even if we were to agree

with those claims, the appropriate remedy would not be what the trial court ordered – waiver of

restitution and the crime victim penalty assessment.

B.     WAIVER OF INTEREST

       Former RCW 10.82.090(2) (2015) allowed an offender, upon the offender’s release from

total confinement, to file a motion to reduce or waive interest on LFOs. The trial court declined

to waive the interest that had accrued on Lacy’s restitution and mandatory LFOs based on the

language of the former statute. But applying the 2018 amendments to RCW 10.82.090, we hold

that although Lacy’s restitution interest cannot be waived under the facts here, her nonrestitution

LFO interest must be waived.8


8
 Lacy also argues that RCW 10.82.090 violates the due process and equal protection provisions
of the United States Constitution regarding the collection of restitution interest. We decline to



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No. 50738-2-II


       Former RCW 10.82.090(2)(b) allowed the trial court to reduce interest on the restitution

portion of LFOs only if the offender had paid the principal in full. That requirement remains

unchanged after the 2018 amendments. Lacy has not yet paid her restitution obligation in full.

Therefore, the trial court did not err in refusing to waive the interest on Lacy’s restitution

obligation at this time.

       Former RCW 10.82.090(1) required that interest accrue on all LFOs imposed in the

judgment and sentence. Former RCW 10.82.090(2)(c) allowed the trial court to reduce or waive

interest on nonrestitution LFOs if the offender “has personally made a good faith effort to pay”

and “the interest accrual is causing significant hardship.” Former RCW 10.82.090(2)(a) also

required the trial court to waive interest on nonrestitution LFOs that accrued during the term of

total confinement upon a showing of hardship.

       In 2018, the legislature amended RCW 10.82.090(2)(a), which now states that the trial

court shall waive nonrestitution interest that had accrued before June 7, 2018. In addition, RCW

10.82.090(1) now provides that no interest will accrue on nonrestitution LFOs after June 7, 2018.

As we concluded above, these amendments apply prospectively to Lacy’s motion to waive

interest. Therefore, all interest on Lacy’s nonrestitution LFO obligations must be waived.

                                          CONCLUSION

       We affirm the trial court’s waiver of Lacy’s DNA collection fee and the trial court’s

refusal to waive accrued interest on restitution, but we reverse the trial court’s waiver of the

crime victim penalty assessment and restitution and refusal to waive interest on nonrestitution



address this argument for the same reason that we declined to address the same argument
regarding the restitution obligation.


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No. 50738-2-II


LFOs. We remand for the trial court to vacate the order waiving the crime victim penalty

assessment and restitution and to strike any accrued interest on nonrestitution LFOs.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, C.J.


 I concur:



 GLASGOW, J.




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No. 50738-2-II


          WORSWICK, J. (concurring) — I concur in the result. I write separately only to express

frustration with the legal financial obligation (LFO) statutory scheme, which creates unnecessary

uncertainty for the parties and the courts.

          This court strives to determine and implement the legislature’s intent when interpreting

statutes. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). We avoid reading

statutes in a manner “that produces absurd results because we presume that the legislature does

not intend absurd results.” State v. Novick, 196 Wn. App. 513, 522, 384 P.3d 252 (2016). But

avoiding absurd results is nearly impossible when navigating Washington’s enigmatic labyrinth

of LFO statutes.

          The majority opinion expertly winds its way through no fewer than 10 statutes and

former statutes across 3 statutory chapters, to arrive at its conclusions.9 One conclusion is that

although a trial court is required to impose mandatory LFOs, regardless of whether the defendant

is indigent, State v. Catling, __Wn. 2d __, 438 P.3d 1174, 1177 (2019), the trial court is also

required to reduce or waive the same mandatory LFOs when the defendant fails to pay them.

Majority at 8. I cannot fault the majority for reaching this result, although the legislative reasons

for requiring a court to impose a “mandatory” LFO only to then require the trial court to reduce

or waive that same LFO 31 days later escapes me.

          Moreover, RCW 9.94A.6333(3) gives no procedures for defendants or the trial courts to

follow to trigger such a review of LFOs. The majority rightfully does not address this issue, as it

was not raised in the briefs, but the practical aspects of implementing the statute’s provisions

remain unknown at this time.


9
    The statutes discussed in the majority are but a fraction of the statutes applicable to LFOs.


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No. 50738-2-II


        Katrina Lacy’s commendable attempt to manage her LFOs demonstrates the uncertainty

created by the statutes. First, the statutes are unclear as to when and how (or if) an offender can

proactively seek modification of certain LFOs. Second, interpreting the statutes necessarily

produces, if not an absurd result, certainly a curious one regarding mandatory LFOs. The current

statutory scheme results in undue burdens and unnecessary confusion affecting the parties as

well as the trial courts.



                                                      _____________________________
                                                               Worswick, J.




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