                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         October 2, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 50288-7-II
                                                                   consolidated with
                               Respondent,                         Nos. 50295-0-II
                                                                        50298-4-II
        v.                                                              50305-1-II

 TOMAS MARCO KEEN,                                           UNPUBLISHED OPINION

                               Appellant.


       MAXA, C.J. – Tomas Keen appeals an order denying his motions to terminate legal

financial obligations (LFOs) imposed as part of his sentences for four prior convictions. The

superior court ruled that the motions were untimely.

       We reverse in part the superior court’s order denying Keen’s motions to terminate his

LFOs. We remand for the superior court to consider Keen’s motions regarding discretionary

LFOs, but not regarding mandatory LFOs or restitution. And we hold that at the time of the

motions, the trial court was not required to waive accrued interest on LFOs or restitution.

                                             FACTS

       In 2007, Keen was convicted of second degree burglary and first degree theft. The

sentencing court imposed $800 in mandatory LFOs (crime victim assessment, criminal filing fee,

DNA collection fee), $1048 in discretionary LFOs (incarceration fee, sheriff’s service fee, court

appointed counsel), and $75,000 in restitution.
No. 50288-7-II / 50295-0-II, 50298-4-II, 50305-1-II


       Also in 2007, Keen was convicted of third degree assault. The sentencing court imposed

$700 in mandatory LFOs (crime victim assessment, criminal filing fee), $150 in discretionary

LFOs (incarceration fee), and $5,000 in restitution.

       In 2009, Keen was convicted of possession of a stolen firearm. The sentencing court

imposed $800 in mandatory LFOs (crime victim assessment, criminal filing fee, DNA collection

fee) and $1,040 in discretionary LFOs (incarceration fee, sheriff’s service fee, court appointed

counsel).

       In 2010, Keen was convicted of first degree assault with a firearm enhancement, first

degree unlawful possession of a firearm, and two counts of possession of a stolen vehicle. The

sentencing court imposed $800 in mandatory LFOs (crime victim assessment, criminal filing fee,

DNA collection fee) and $1,323.69 in discretionary LFOs (incarceration fee, crime lab fee, court

appointed attorney fee).

       Over the years, a significant amount of interest accrued on these financial obligations. In

April 2015, Keen filed motions to terminate accrued interest on LFOs for each of his four

sentences. The superior court denied these motions. Keen sought discretionary review of these

orders, but this court denied review in February 2016.

       In August, Keen filed separate motions to terminate his LFOs for each of his four

sentences. Keen claimed that his LFOs were creating a manifest hardship because the

Department of Corrections policy prevents him from transferring his incarceration to the

Netherlands (where his family lives) until his obligations are paid, he will be incarcerated until

2030, and his family does not have the financial means to pay his LFOs. The superior court




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No. 50288-7-II / 50295-0-II, 50298-4-II, 50305-1-II


denied these motions in a combined order “[b]ased on the lapse of time since sentencing.”

Clerk’s Papers at 68.

       Keen sought discretionary review of the superior court’s order denying his motions to

terminate his LFOs, which a commissioner of this court granted.

                                           ANALYSIS

A.     IMPOSITION OF LFOS

       Initially, Keen argues that the sentencing courts for his four convictions erred in imposing

LFOs without first determining his ability to pay. He also asserts in a statement of additional

grounds (SAG) that his 2010 judgment and sentence is void on its face because the sentencing

court imposed discretionary costs without checking the box stating that he had the ability to pay.

       We decline to address these claims. The imposition of LFOs as part of Keen’s sentences

is beyond the scope of review, as this court accepted discretionary review of only the trial court’s

order denying Keen’s motions to terminate his LFOs.

B.     MOTIONS TO TERMINATE LFOS

       Keen argues that the superior court erred when it denied his motions to terminate LFOs

as untimely. The State concedes that the court should have considered Keen’s motion regarding

discretionary LFOs, but not regarding mandatory LFOs or restitution. We agree with the State.

       1.   Discretionary LFOs

       RCW 10.01.160(1) states that a sentencing court may require a defendant to pay “costs.”

Under RCW 10.01.160(2), “costs” are “limited to expenses specially incurred by the state in

prosecuting the defendant or in administering the deferred prosecution program . . . or pretrial




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No. 50288-7-II / 50295-0-II, 50298-4-II, 50305-1-II


supervision.” These costs include what are commonly referred to as discretionary LFOs. See In

re Pers. Restraint of Wolf, 196 Wn. App. 496, 511, 384 P.3d 591 (2016).

          Former RCW 10.01.160(4) (2015) allowed for the remission of costs imposed under

RCW 10.01.160(1):

          A defendant who has been ordered to pay costs and who is not in contumacious
          default in the payment thereof may at any time petition the sentencing court for
          remission of the payment of costs or of any unpaid portion thereof.

As this court has noted, under the former version of RCW 10.01.160(4) a defendant could file a

petition to remit costs at any time.1 State v. Shirts, 195 Wn. App. 849, 858-59, 381 P.3d 1223

(2016).

          Here, it is uncontested that Keen had been ordered to pay discretionary LFOs that

qualified as costs under RCW 10.01.160(1) and there was no evidence that he was in

contumacious default. Under former RCW 10.01.160(4), Keen was allowed to file a motion to

remit his discretionary LFOs at any time. Therefore, the superior court erred when it denied

Keen’s motions to remit discretionary LFOs as untimely without addressing the merits of his

claims.

          2.   Mandatory LFOs

          The crime victim assessment, criminal filing fee, and DNA fee that the sentencing courts

imposed on Keen were mandatory LFOs. State v. Clark, 191 Wn. App. 369, 374, 362 P.3d 309

(2015). As noted above, former RCW 10.01.160(4) applies only to “costs” imposed under RCW

10.01.160(1). The victim penalty assessment, criminal filing fee, and DNA fee do not fall within



1
 In 2018, the legislature amended RCW 10.01.160(4) to provide that a defendant may file a
motion to remit costs only after release from total confinement. LAWS OF 2018, ch. 269 § 6(4).


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No. 50288-7-II / 50295-0-II, 50298-4-II, 50305-1-II


the definition of “costs” under RCW 10.01.160(2) because they were not expenses specially

incurred in prosecuting Keen. See State v. Sorrell, 2 Wn. App. 2d 156, 179-80, 408 P.3d 1100

(2018). Therefore, a motion to remit costs under RCW 10.01.160(4) does not apply to

mandatory LFOs.2 Sorrell, 2 Wn. App. 2d at 179-80.

       The superior court did not deny Keen’s motions on the basis that RCW 10.01.160(4) does

not authorize a court to remit mandatory LFOs, but we can affirm on any grounds supported by

the record. State v. Streepy, 199 Wn. App. 487, 500, 400 P.3d 339, review denied, 189 Wn.2d

1025 (2017). Accordingly, we affirm the superior court’s denial of Keen’s motions to the extent

they pertained to mandatory LFOs.

       3.   Restitution

       Under RCW 9.94A.753(5)3, “[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”

absent extraordinary circumstances. See also RCW 9.94A.505(8) (stating that the court “shall

order restitution” in a felony sentence). Based on this language, restitution generally is

mandatory. State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013). And like mandatory

LFOs, restitution does not fall within the definition of “costs” under RCW 10.01.160(2) and

therefore is not subject to remission under RCW 10.01.160(4).



2
 In City of Richland v. Wakefield, the Supreme Court held that the district court erred in not
applying the RCW 10.01.160(4) standard for remission of LFOs. 186 Wn.2d 596, 605-06, 380
P.3d 459 (2016). But in that case, the offender specifically challenged only discretionary LFOs,
not nondiscretionary LFOs. Id. at 601.
3
  RCW 9.94A.753 was amended in 2018. Because those amendments do not materially affect
the statutory language relied on by this court, we do not include the word “former” before this
statute.


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No. 50288-7-II / 50295-0-II, 50298-4-II, 50305-1-II


       RCW 9.94A.753(4) states that the portion of a sentence concerning restitution may be

modified as to amount while the offender remains under the court’s jurisdiction. But that

subsection 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.” RCW 9.94A.753(4). And

Keen does not argue that he is entitled to a reduction of his restitution obligation under RCW

9.94A.753(4).

       Instead, Keen relies on City of Richland v. Wakefield, which held that “federal law

prohibits courts from ordering defendants to pay LFOs if the person’s only source of income is

social security disability.” 186 Wn.2d 596, 609, 380 P.3d 459 (2016). Keen claims that his

restitution should be remitted if he can show that he is eligible for social security disability

payments. But Wakefield involved a petition to remit only discretionary LFOs, not restitution.

Id. at 601. Therefore, Wakefield did not hold that restitution was subject to remission based on

eligibility for social security disability. And Keen presents no other authority for the proposition

that the superior court was required to remit his restitution obligation.

       There was no basis for the superior court to remit Keen’s restitution obligation. Again,

the superior court did not deny Keen’s motions on this basis, but we can affirm on any grounds

supported by the record. Streepy, 199 Wn. App. at 500. Accordingly, we affirm the superior

court’s denial of Keen’s motions to the extent they pertained to restitution.

C.     WAIVER OF ACCRUED INTEREST

       In his SAG, Keen asserts that the superior court should have waived accrued interest on

his financial obligations under RCW 10.82.090. We disagree.




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No. 50288-7-II / 50295-0-II, 50298-4-II, 50305-1-II


       Former RCW 10.82.090(2) (2015) allowed a superior court to reduce or waive the

interest on LFOs under certain circumstances on motion by the offender. However, the court had

this authority only “following the offender’s release from total confinement.” Former RCW

10.82.090(2).

       In 2018, the legislature amended RCW 10.82.090(1) to provide, “As of the effective date

of this section, no interest shall accrue on nonrestitution legal financial obligations.” The

effective date of the amendment was June 7, 2018. LAWS OF 2018, ch. 269, § 1(1). Further, the

current version of RCW 10.82.090(2)(a) now provides that the court may waive interest on LFOs

that are not restitution that “accrued prior to the effective date of this section.” But this waiver

still can occur only on the offender’s motion “following the offender’s release from total

confinement.” RCW 10.82.090(2).

       Regarding restitution interest, a court may reduce interest on the restitution portion of

LFOs only if the principal has been paid in full. Former RCW 10.82.090(2)(b).

       Here, at the time of his motion Keen had not been released from total confinement, and

he had not paid in full the principal of his restitution. Therefore, the superior court did not err in

declining to waive the accrued interest on Keen’s LFOs and restitution. If Keen later can show

that he has been released from total confinement, he can request waiver of interest on his

nonrestitution obligations at that time. If he later can show that he has paid the principal of his

restitution obligations, he can move at that time to waive interest on them.

                                           CONCLUSION

       We reverse in part the superior court’s order denying Keen’s motion to terminate his

LFOs. We remand for the superior court to consider remitting Keen’s discretionary LFOs, but



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No. 50288-7-II / 50295-0-II, 50298-4-II, 50305-1-II


not his mandatory LFOs or restitution. And we hold that the trial court was not required to

waive accrued interest on LFOs or restitution.

        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.


 We concur:



 BJORGEN, J.



 LEE, J.




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