                                                                         FILED 

                                                                     DECEMBER 1,2015 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division II I 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )         No. 32583-1-111
                     Respondent,             )
                                             )
      v.                                     )
                                             )
MARIANO DIAZ-FARIAS,                         )         PUBLISHED OPINION
                                             )
                     Appellant.              )

       SIDDOWAY, C.J. - Under RCW 10.01.160, a court may impose costs on a

convicted criminal defendant at the time of sentencing, with "costs" for this purpose

being "limited to expenses specially incurred by the state in prosecuting the defendant" or

for other limited purposes not relevant here. RCW 10.01.160(2). "They cannot include

expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in

connection with the maintenance and operation of government agencies that must be

made by the public irrespective of specific violations oflaw." Id.

      Mariano Diaz-Farias pleaded guilty to first degree assault on the day his jury trial

was to have begun. A principal issue in this appeal are legal financial obligations (LFOs)

imposed on him for the county's costs of a jury, a court reporter, and a court appointed
No. 32583-1-111
State v. Diaz-Farias


interpreter-expenses that he argues either fall within the cost reimbursement exceptions

for "expenses inherent in providing a constitutionally guaranteed jury trial" or were

required by other state laws to be borne by the county.

       Consistent with cases construing the Oregon statute on which RCW 10.01.160 is

based, we hold that the cost reimbursement exception for "expenses inherent in providing

a constitutionally guaranteed jury trial" applies to juror costs, but not to expenses

incurred in protecting other constitutional rights of a defendant at trial; and that statutes

requiring the county to bear certain expenses in the first instance do not conflict with

RC W 10.01.160' s authorization to require a convicted defendant to reimburse "costs ...

incurred by the state."

       Nonetheless, we follow State v. Marintorres, 93 Wn. App. 442, 969 P.2d 501

(1999), which holds that RCW 2.43.040(4)'s authorization to tax costs of interpreters to

non-English speaking criminal defendants violates equal protection. Id. at 450. We also

direct the trial court on remand to identifY the nature of the court reporter cost included as

an LFO so that the parties may address whether it is a cost specially incurred by the

prosecution or one that must be made by the public irrespective of specific violations of

law.

       Finally, because a remand for resentencing on the LFOs is required, we exercise

our discretion to review Mr. Diaz-Farias's unpreserved argument that the sentencing

court failed to engage in an individualized inquiry into his present or future ability to pay

                                               2

No. 32583-1-III
State v. Diaz-Farias


the LFOs. We accept the State's concession that ability to pay was not examined on the

record by the sentencing court and order that that be done on remand.

                       FACTS AND PROCEDURAL BACKGROUND

       Mariano Diaz-Farias pleaded guilty to one count of first-degree assault, entering

his plea the morning his criminal trial was set to begin.

       At sentencing, after announcing that it would sentence Mr. Diaz-Farias to the 93

months recommended by the State, the court said it was increasing the costs requested by

the State by $2,200, "in recognition of the court reporter costs, the juror costs and the

interpreter costs incurred in anticipation ofthe trial date which could not be recouped."

Report of Proceedings (RP) at 22. The court's decision to include the additional costs

was sua sponte, and the record does not reveal what part of the $2,200 reflected "court

reporter costs," ')uror costs" or "interpreter costs," or what supported the component

amounts. Other than that change, the court signed the judgment and sentence proposed

by the State.

       In addition to the court's handwritten addition of "$2,200" as "other court costs,"

the court's judgment and sentence reflected the following LFOs that had been proposed

and included by the State: a $500 victim assessment, a $200 criminal filing fee, a $140

sheriff service fee, a $125 crime lab fee, and a $100 DNAI collection fee. Before



       I   Deoxyribonucleic acid.

                                              3

No. 32583-1-III
State v. Diaz-Farias


including the $2,200 as "other court costs" and signing the judgment and sentence, the

court did not inquire into Mr. Diaz-Farias's present or future ability to pay the

discretionary LFOs.

       At no time during the sentencing hearing did Mr. Diaz-Farias object to the LFOs.

He nonetheless timely appealed, challenging only the imposition ofLFOs.

                                        ANALYSIS

       For the first time on appeal, Mr. Diaz-Farias raises several challenges to the LFOs

imposed by the sentencing court as exceeding the sentencing court's authority under

RCW 10.01.160 and other statutes. He also contends that because the sentencing court

failed to inquire into his present or future ability to pay the discretionary costs imposed,

we must remand for resentencing. 2

       The State responds that because Mr. Diaz-Farias failed to raise any of his

objections in the trial court, we should apply the general rule that we will not consider

errors raised for the first time on appeal. RAP 2.5(a). By reply, Mr. Diaz-Farias

concedes that following State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), the trial

court's failure to engage in an individualized inquiry does not require us to reverse, but

he argues that we should exercise our discretion to review the alleged error.



        2 Mr. Diaz-Farias concedes that $800 of the LFOs (the $500 victim assessment
fee, the $200 criminal filing fee, and the $100 DNA collection fee) were mandatory. Br.
of Appellant at 2 n.l.

                                              4
No. 32583-1-111
State v. Diaz-Farias


       We first review the sentencing court's authority to impose costs, next address the

application of RAP 2.5(a) to challenges to LFOs that are not raised in the trial court, and

finally-having concluded that some of Mr. Diaz-Farias's challenges are to sentencing

errors that may be raised for the first time on appeal and exercising our discretion to

review others-we turn to his arguments of error.

           1. 	 The statutory authority and obligation ofthe sentencing court to
                                     consider and impose costs

       It is a well settled proposition that at common law, costs (as such) in criminal

cases were unknown, so that liability for costs arises only from statutory enactment.

Annot., Items ofcosts ofprosecution for which defendant may be held, 65 A.L.R.2d 854

(collecting cases); State v. Buchanan, 78 Wn. App. 648, 651, 898 P.2d 862 (1995). In

Washington, RCW 9.94A.760(1) provides that

       [w]henever a person is convicted in superior court, the court may order the
       payment of a legal financial obligation as part of the sentence. The court
       must on either the judgment and sentence or on a subsequent order to pay,
       designate the total amount of a legal financial obligation and segregate this
       amount among the separate assessments made for restitution, costs, fines,
       and other assessments required by law.

       "Legal financial obligation" is generally defined by RCW 9.94A.030(31) as

meaning

       a sum of money that is ordered by a superior court of the state of
       Washington for legal financial obligations which may include restitution to
       the victim, statutorily imposed crime victims' compensation fees as
       assessed pursuant to RCW 7.68.035, court costs, county or interlocal drug
       funds, court-appointed attorneys' fees, and costs of defense, fines, and any

                                             5

No. 32583-1-111
State v. Diaz-Farias


      other financial obligation that is assessed to the offender as a result of a
      felony conviction.

      RCW 10.01.160, which provides that "[t]he court may require a defendant to pay

costs," RCW 10.01.160(1), describes the scope and limitations on the type of costs that

can be imposed:

      Costs shall be limited to expenses specially incurred by the state in
      prosecuting the defendant or in administering the deferred prosecution
      program under chapter 10.05 RCW or pretrial supervision. They cannot
      include expenses inherent in providing a constitutionally guaranteed jury
      trial or expenditures in connection with the maintenance and operation of
      government agencies that must be made by the public irrespective of
      specific violations of law.

RCW 10.01.160(2). Elsewhere, the statute provides that

      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.

RCW 10.01.160(3). Ifa trial court determines at some time after the sentence has been

imposed that the costs will impose a manifest hardship on the defendant or his family, the

court "may remit all or part of the amount due in costs, or modify the method of

payment." RCW 10.01.160(4).

      These statutory provisions satisfy the requirements of a constitutional cost and fee

recovery regime. State v. Curry, 118 Wn.2d 911,915-16,829 P.2d 166 (1992).




                                             6

Ii 
   No. 32583-1- III
I      State v. Diaz-Farias


               II.    Some ofMr. Diaz-Farias's challenges are to sentencing error that
                      may be raisedfor the first time on appeal; we exercise discretion to
                                                consider others.

              In Mr. Diaz-Farias's opening brief, he argued that where a sentencing court fails to

       comply with the requirement of RCW 10.01.160(3) that it "take account of the financial

       resources of the defendant and the nature of the burden that payment of costs will

       impose," the result is an illegal or erroneous sentence that may be challenged for the first

       time on appeal. Br. of Appellant at 8 (citing State v. Ford, 137 Wn.2d 472,477,973 P.2d

       452 (1999)).

              In Blazina, our Supreme Court held that "[ u]npreserved LFO errors do not

       command review as a matter of right under Ford and its progeny," explaining that in

       those cases, it was a concern about sentence conformity that motivated its decision to

       allow review of a "narrow category" of cases in which errors, if permitted to stand,

       "would create inconsistent sentences for the same crime" and result in some defendants

       receiving "unjust punishment simply because his or her attorney failed to object."

       Blazina, 182 Wn.2d at 833-34. "[A]llowing challenges to discretionary LFO orders

       would not promote sentencing uniformity in the same way," and where such an error is

       unique to a defendant's circumstances, an appellate court ~'properly exercise[s] its

       discretion to [deny] review." Id. at 834.

              Mr. Diaz-Farias raises the same "failure to consider financial ability to pay"

       challenge that Blazina holds does not command review as a matter of right. But he also

                                                    7

No. 32583-I-III
State v. Diaz-Farias


challenges whether the sentencing court exceeded its statutory authority by burdening

him with some costs that no criminal defendant is intended to bear. Sentencing errors

appropriate for review for the first time on appeal include errors in calculating offender

scores and errors in the imposition of community custody requirements. See id at 833-34

(citing State v. Mendoza, 165 Wn.2d 913,919-20,205 P.3d 113 (2009); Ford, 137 Wn.2d

at 475-78; State v. Bahl, 164 Wn.2d 739, 743-45, 193 P.3d 678 (2008». Review of these

types of error is appropriate because "the error, if permitted to stand, would create

inconsistent sentences for the same crime ... and some defendants would receive unjust

punishment simply because his or her attorney failed to object." Id at 834. We conclude

that Mr. Diaz-Farias's assignments of error to costs he contends are not authorized by

statute under any circumstances are sentencing errors of the sort that can be raised for the

first time on appeal.

       Because judicial economy will be served by remanding all of the LFO issues if we

remand some, we review all of Mr. Diaz-Farias's assignments of error.

             Ill.   Mr. Diaz-Farias's challenges to costs imposed sua sponte

                A. The statutory cost reimbursement exception for expenses
               "inherent in providing a constitutionally guaranteed jury trial"

       Mr. Diaz-Farias argues that juror costs, court reporter costs, and the expense of a

Spanish-speaking interpreter are all expenses "inherent in providing a constitutionally

guaranteed jury trial" that cannot be included in an award of costs under RCW


                                              8

No. 32583-1-111
State v. Diaz-Farias


10.01.160(2). No reported Washington decision has construed the prohibition on

imposing such expenses or attempted to reconcile it with the legislature's provision

elsewhere that some constitutionally required expenditures by the State can be imposed

on criminal defendants. As noted earlier, for example, RCW 9.94A.030(31) defines legal

financial obligations as including "court-appointed attorneys' fees" and "costs of

defense," both of which are not directly associated withjury trial, but are associated with

other constitutional rights that serve to protect a defendant at trial. Washington decisions

have long recognized that the cost of a court-appointed lawyer for an indigent defendant

is one that can be imposed under RCW 10.01.160. E.g., State v. Eisenman, 62 Wn. App.

640,644,810 P.2d 55 (1991).

       The closest examination ofRCW 10.01.160 has been by Division Two of our

court in Utter v. State, 140 Wn. App. 293, 165 P.3d 399 (2007). In that differently-

postured case, the State sought to recover state hospital costs incurred in evaluating and

treating a defendant who was possibly incompetent to stand trial. Since RCW

10.01.160(1) provides that most costs can be recovered only from defendants who are

convicted, the defense urged the court to find that the evaluation and treatment expenses

provided by the hospital were "specially incurred by the state in prosecuting the

defendant," that RCW 10.01.160 was the controlling statute, and that the expenses could

not be recovered from Utter, who was ultimately found incompetent to stand trial and

was never convicted. The State urged the court to apply a different statute, which

                                              9

No. 32583-1-111
State v. Diaz-Farias


generally authorized the State to recover treatment expenses from patients treated in State

hospitals. 3

        Division Two observed that no Washington cases had construed pertinent

language in RCW 10.01.160, but it observed that "because our legislature adopted RCW

10.01.160 from former ORS 161.665, we consider Oregon's construction and

interpretation of former ORS 161.665 as authoritative." Utter, 140 Wn. App. at 309

(citing State v. Earls, 51 Wn. App. 192, 197,752 P.2d 402 (1988), disapproved on other

grounds by Curry, 118 Wn.2d at 915).

       A year before the 1976 adoption of the legislation now codified in part at RCW

10.01.160, our own Supreme Court had invalidated a probation condition requiring a

criminal defendant to reimburse the State for court-appointed attorney fees, pointing out

that while Oregon had enacted requirements for the repayment of court appointed

attorney fees that survived constitutional challenge in the United States Supreme Court,

Washington had no such statute. State v. Hess, 86 Wn.2d 51, 53-54, 541 P.2d 1222

(1975) (citing State v. Fuller, 417 U.S. 40, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974». The

next year, the Washington legislation adopted cost reimbursement legislation identical to



       3 The legislature responded to the Utter decision in 2008 by amending RCW
10.01.160 to provide that its limitations only apply to the State's recovery of "direct costs
relating to evaluating and reporting to the court, prosecutor, or defense counsel regarding
a defendant's competency to stand trial." LAWS OF 2008, ch. 318, § 2, codified as RCW
10.01.160(5),

                                             10 

No. 32583-1-111
State v.   l)iaz-~arias



Oregon's 1971 statute. The Washington attorney general has relied on Oregon case law

in responding to at least two requests for guidance on which costs can be imposed on a

defendant under RCW 10.01.160. 1976 Op. Att'y Gen. No. 14, at 2-3, 1976 WL 168498;

 1978 Op. Att'y Gen. No.4, at 4-6, 1978 WL 23884.

           Utter recognized that it was unclear whether the cost reimbursement exception for

~~expenses    inherent in providing a constitutionally guaranteed jury trial" was broad

enough to extend to a defendant's constitutional right to appear and defend in person, but

. the court concluded that it had not been called on to decide that issue. 140 Wn. App. at

311. It noted that the breadth of the cost reimbursement exception had been addressed in

Oregon v.     ~erman-Velasco,   333 Or. 422, 41 P.3d 404 (2002).

       The Oregon Supreme Court was called on in ~erman-Velasco to determine

whether the cost reimbursement exception for "expenses inherent in providing a

constitutionally guaranteed jury trial" encompasses only those expenses directly

associated with a jury trial, or expenses associated with all other constitutional rights that

serve to protect a defendant at trial. 41 P.3d at 442. A sentencing court had imposed the

prosecution's witness fees on the defendant, who contended that because he had a

constitutional right to meet witnesses against him "face to face" under article I, section 12

of the Oregon Constitution and a confrontation right under the Sixth Amendment to the

United States Constitution, the witness fees were expenses inherent in providing a

constitutionally guaranteed jury trial.

                                               11 

No. 32583-1-III
State v. Diaz-Farias


       The Oregon court concluded that the defendant's argument for such a broad

reading of the exception failed at the first level of analysis: reading the exception in

context. The statute contemplated that defendants could be required to reimburse the

State for the cost of court-appointed counsel, the right to which, "like the right to meet

witnesses face to face, serves to protect a criminal defendant during trial." Id. at 415. It

was thus "apparent that the legislature ... did not intend [the] exception to apply to

expenses associated with all constitutional rights that protect a defendant at trial." Id.

(emphasis in original).

       The Oregon court also considered the legislative history and case law construing

the Michigan cost reimbursement provision on which its own statute was based. It

discussed People v. Hope, 297 Mich. 115,297 N.W. 206 (1941), in which the Michigan

Supreme Court had reversed that part of a cost order that imposed juror costs on a

convicted defendant, but had affirmed the imposition of witness fees. Ferman-Velasco,

41 PJd at 415 (citing 297 Mich. at 118-19). It concluded that Michigan case law

       supports the conclusion that, in using the phrase "expenses inherent in
       providing a constitutionally guaranteed jury trial" . .. the Oregon
       Legislature intended to encompass only expenses relating to a defendant's
       jury trial itself, not expenses associated with other constitutional rights that
       apply at the time of trial.

Id. at 416 (emphasis in original).

       Both the Oregon and Michigan cases are persuasive authority that the "juror

costs" that the sentencing court imposed on Mr. Diaz-Farias are the type of expense that

                                              12 

No. 32583-1-111
State v. Diaz-Farias


the exception was intended to exempt from assessment on a criminal defendant under

RCW lO.01.160(2). And see 1976 Op. Att'y Gen. No. 14, at 4 (the statute "plainly

excludes such costs as compensation ofjurors even though specially incurred"). Notably,

after the Attorney General concluded in 1978 4 that RCW 10.01.160 was irreconcilable

with preexisting RCW 10.46.190 (authorizing sentencing courts to assess a fixed "juror

fee" against a criminal defendant) and that the 1976 legislation impliedly repealed the

earlier statute, the legislature amended RCW 10.01.160 to explicitly provide that the jury

fee provided by RCW 10.46.190 can be imposed as a cost. See LAWS OF 1987, ch. 363,

§1 at 1381.

       We agree with Mr. Diaz-Farias that the $250 statutory jury fee provided by RCW

lO.46.190 is the only jury-related cost that may be imposed under RCW 10.01.160(2),

given its express prohibition on imposing expenses inherent in providing a jury trial. In

resentencing Mr. Diaz-Farias as to costs, the court may not impose any other jury-related

expense.

       The Oregon and Michigan cases are also persuasive authority that court reporter

costs and interpreter costs are not included within the cost reimbursement exception for




      4    1978 Op. Att'y Gen. No.4, at 4-6.




                                               13 

No. 32583-1-III
State v. Diaz-Farias


expenses inherent in providing a jury trial. We need not consider further whether these

expenses were associated with other constitutional rights. 5

                B. Statutory provisions for court reporters and interpreters

       Mr. Diaz-Farias next contends that the sentencing court erred in imposing court

reporter and interpreter costs because both court reporter and interpreter expenses are

addressed by state laws requiring that counties cover those costs.

       Addressing court reporter expense, he points out that superior court judges in

larger counties are required by statute to appoint a county court reporter who will be paid

out of county funds. RCW 2.32.180; RCW 2.32.210 (a reporter's compensation "shall be

paid out of the current expense fund of the county or counties where court is held"). In

smaller counties, such as Adams County where Mr. Diaz-Farias was convicted, ajudge

may appoint a reporter ifhe or she determines that a reporter is necessary. RCW

2.32.220. Adams County Local Rule 14 provided at the time of Mr. Diaz-Farias's

sentencing that "[i]n criminal matters, all pre-trial motions and appearances will be

recorded electronically, and the Court will arrange for a court reporter to be in attendance




       5 Mr. Diaz-Farias argues that court reporters are constitutionally required, relying
on article 4, section 11 of the Washington Constitution, which provides that superior
courts are to be "courts of record." State v. Gonzales-Morales, 138 Wn.2d 374, 379, 979
P.2d 826 (1999) addresses the constitutional right of a defendant in a criminal case to
have an interpreter.

                                             14
No. 32583-1-III
State v. Diaz-Farias


for criminal trials at the expense of Adams County." Former ADAMS COUNTY SUPER.

CT. R. 14(C) (1992), readopted as ADAMS COUNTY SUPER. CT. R. 12(C).

       Addressing interpreter expense, Mr. Diaz-Farias points out that RCW 2.43.040(2)

provides that "'in all legal proceedings in which a non-English speaking person is a

party ... including criminal proceedings ... the cost of providing the interpreter shall be

borne by the governmental party initiating the legal proceedings."

       A statute requiring a county to bear an expense in the first instance is not

inconsistent with a statute providing that reimbursement of the county's expense can be

ordered by a sentencing court. Indeed, the only expenses with which RCW 10.01.160 is

concerned are "expenses ... incurred by the state."

       This issue, too, was addressed in the Oregon Supreme Court's decision in Ferman-

Velasco. There, the defendant argued that because a statute required counties to pay

witness fees in grand jury and criminal proceedings, such fees could not then be imposed

on a criminal defendant under ORS 161.655. The court disagreed and held that state law

could require counties to pay expenses of prosecution as they became due to third parties

without conflicting with ORS 161.655's authorization to sentencing courts to impose

responsibility for such expenses on a convicted criminal defendant. 41 P.3d at 440. It

reasoned that "the fact that ORS 161.65 5( 1) speaks to costs already' incurred' suggests,

as the state contends here, that that statute authorizes a trial court to order a convicted




                                              15 

No. 32583-1-111
State v. Diaz-Farias


defendant to provide reimbursement for certain prosecution expenses (such as witness

fees) already paid." Id.

       Washington's statute providing for county payment of court reporter expense

explicitly contemplates county payment in the first instance, followed by possible

taxation and reimbursement as costs. While Mr. Diaz-Farias points out that RCW

2.43.040(2) provides that the cost of providing an interpreter for a non-English speaking

person is borne by the governmental body initiating the prosecution, he ignores the fact

that subsection (4) of the same statute provides, "The cost of providing the interpreter is a

taxable cost of any proceeding in which costs ordinarily are taxed."

       Although not pointed out by Mr. Diaz-Farias, however, we cannot ignore the fact

that the provision under which he could be taxed with an interpreter cost has been

declared unconstitutional as applied to a criminal defendant. In Marintorres, supra, the

defendant successfully challenged an assessment of the costs of his Spanish-speaking

interpreter under RCW 2.43.040(4) and 10.01.160(2) on equal protection grounds. 93

Wn. App. at 451-52. He pointed out that chapter 2.42 RCW, which deals with providing

interpreters for hearing impaired parties, requires the county to appoint and pay for a

qualified interpreter without any provision that the expense of the interpreter is a taxable

cost. This court agreed that there was a violation of equal protection, reasoning that this

distinction in the treatment of hearing-impaired and non-English speaking criminal

defendants could not satisfY even "rational basis" review. Id. at 451. Since neither

                                             16 

No. 32583-1-111
State v. Diaz-Farias


chapter 2.42 nor 2.43 of the RCW has been amended in response to Marintorres, we rule

that in resentencing Mr. Diaz-Farias as to legal financial obligations, the court may not

impose any expense of an interpreter.

       A final issue remaining as to the cost imposed for a court reporter is whether it

qualifies as a cost "specially incurred by the state in prosecuting the defendant" or

whether it is excluded from recovery as an "expenditure[] in connection with the ...

operation of [a] government agenc[y] that must be made by the public irrespective of

specific violations of law." RCW 10.01.160(2). We found no decision holding that any

expense incurred in operating a court is a cost "specially incurred by the state in

prosecuting the defendant." Oregon cases have held that costs specially incurred by

police and prosecutors cannot include "the regular salaries of law enforcement officers

involved in an investigation and the ordinary overhead expenses of maintaining a police

agency ... principally because they are incurred irrespective of specific violations of

law." State v. Heston, 74 Or. App. 631, 634, 704 P.2d 541, 542 (1985); accord State v.

Wilson, 193 Or. App. 506,510,92 P.3d 729, 731 (2004) (Department of Corrections did

not incur expense other than the regular salaries of employees, hence no cost could be

assessed against the defendant). Given the dearth of information as to the nature of the

court reporter expense included by the sentencing court in the $2,200 in "other court

costs," we order the court on remand to identifY the nature of the expense so that the




                                             17 

No. 32583-1-II1
State v. Diaz-Farias


parties may advance legal arguments as to whether it is or is not a cost that may be

imposed.

            IV.    Mr. Diaz-Farias's challenges to costs included in the State's
                                   proposed judgment

        Mr. Diaz-Farias's remaining challenges are to matters of which he had advance

notice yet did not address in the trial court. We exercise our discretion to review them

since we are otherwise remanding for resentencing on the sole issue of the LFOs.

                                   A. Crime Lab Fee of $125

        Mr. Diaz-Farias argues that the sentencing court erred when it imposed a crime lab

analysis fee of$125. The fee was assessed under RCW 43.43.690, which provides in

part:

        When an adult offender has been adjudged guilty of violating any criminal
        statute of this state and a crime laboratory analysis was performed by a
        state crime laboratory, in addition to any other disposition, penalty, or fine
        imposed, the court shall levy a crime laboratory analysis fee of one hundred
        dollars for each offense for which the person was convicted.

RCW 43.43.690(1). Mr. Diaz-Farias argues that under the plain language of the statute,

the fine is to be levied only if "a crime laboratory analysis was performed by a state

crime laboratory" and points out that the State failed to present any evidence that a




                                              18 

No. 32583-1-111
State v. Diaz-Farias


laboratory analysis was ever performed. 6 Alternatively, he argues that the fee, even if

appropriate, should have been in the statutorily-required amount of $1 00, not $125.

Since we are remanding for review of other LFO issues, we direct the sentencing court to

reconsider this fee.

                B. Failure to engage in individualized review of ability to pay

       Mr. Diaz-Farias's final argument is that under RCW 10.01.160(3), "[t]he court

shall not order a defendant to pay costs unless the defendant is or will be able to pay

them." RCW 10.01.160(3). "The record must reflect that the trial court made an

individualized inquiry into the defendant's current and future ability to pay." Blazina,

182 Wn.2d at 838. He argues that no individualized inquiry was made.

       The State agrees that the sentencing court did not examine Mr. Diaz-Farias'

present or future ability to pay LFOs on the record. It concedes error in the event we

exercise our discretion to review the issue. Br. of Resp't at 2-3. Again, since we are

remanding for review of other LFO issues, we direct the sentencing court to engage in the

individualized inquiry into the defendant's current and future ability to pay that is

required by RCW 10.01.160(3).



       6 During the sentencing hearing, the prosecutor mentioned "ballistics" in a context
unrelated to the legal financial obligations it had proposed. Report of Proceedings at 14
("And ballistics bore out that only one weapon was fired in this altercation and it in fact
was the defendant's weapon.") But no evidence or argument supported the State's
request that the court levy the fee.

                                             19
No. 32583-1-III
State v. Diaz-Farias


       We reverse the discretionary LFOs imposed by section 4.3 of the judgment and

sentence and remand for resentencing solely with respect to those LFOs, consistent with

this opinion.



                                             ;;Jt fJ.L;w.~ . ~~
                                            Siddoway, C.J.

WE CONCUR:




                                           20 

