                                                                             FILED
                                                                          APRIL 14, 2016
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                            )
                                                )         No. 32253-0-111
                      Respondent,               )
                                                )
       v.                                       )
                                                )
TRAVIS MICHAEL CLIETT,                          )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )


       SIDDOWAY, J. -For the first time on appeal, Travis Cliett challenges certain legal

financial obligations (LFOs) imposed when he was sentenced for first degree robbery,

attempted first degree robbery, second degree unlawful possession of a firearm, and

second degree burglary. And in a pro se statement of additional grounds, he raises four

grounds for review, one of which is inconsequential but nonetheless erroneous, and will

require resentencing.

       Because we remand for resentencing, we exercise our discretion to review Mr.

Cliett's contention that the trial court failed to consider his ability to pay discretionary

LFOs. The court's consideration on the record was insufficiently individualized under

our Supreme Court's subsequent decision in State v. Blazina, 182 Wn.2d 827, 344 P.3d
No. 32253-0-III
State v. Cliett


680 (2015). On remand, Mr. Cliett's ability to pay should receive a more particularized

review, whether or not the finding changes. We otherwise affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       A jury found Travis Cliett guilty of first degree robbery, attempted first degree

robbery, second degree unlawful possession of a firearm, and second degree burglary.

At sentencing, then 23-year-old Mr. Cliett, his mother, and a chaplain all spoke to his

seven-year battle with drug abuse, the sobriety he had attained while incarcerated, and the

faith based program that Mr. Cliett told the court "I've been living for the past year[,]

practicing a structured life that the program teaches." Report of Proceedings (RP) at 8.

He presented letters of recommendation, certificates earned while incarcerated, and

concluded by telling the court:

       I want to accept responsibility and express heartfelt remorse to the
       individuals that I've been-that have been affected by my actions. I have
       no objections to my punishment as society sees fit. I'll be proactive in my
       incarceration and use this as a learning experience, and opportunity to
       better myself.

RP at 10. His lawyer asked the court to consider a sentence somewhere between the low

end and the middle of the sentencing range based on "what we've seen today and what

we've seen him do within the last two years of his life." RP at 8.




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State v. Cliett


       In imposing Mr. Cliett's sentence, the trial court imposed $1,400 in LFOs. Of that

amount, $800 comprised mandatory fees, including a $100 DNA 1 collection fee assessed

under RCW 43.43.7541. A discretionary cost of $600 was assessed under RCW

9.94A.760 for the recoupment of attorney fees incurred by the county in providing Mr.

Cliett's legal defense. The court also ordered Mr. Cliett to pay the costs of incarceration,

not to exceed $2,500, and any costs of medical care incurred by the county on his behalf

while incarcerated.

       The judgment and sentence included a boilerplate finding that Mr. Cliett "is an

adult and is not disabled and therefore has the ability or likely future ability to pay the

legal financial obligations imposed herein." Clerk's Papers (CP) at 55. The court also

stated on the record, "I do make the observation, Mr. Cliett does appear to be capable of

working and thus has the ability to pay." RP at 10.

       Neither Mr. Cliett nor his lawyer raised any objection at sentencing to the DNA

fee or discretionary costs. He appeals.

                                          ANALYSIS

       Mr. Cliett now challenges the trial court's imposition of the $600 assessed to cover

the costs of his court appointed lawyer and its findings that he has the means to pay

incarceration and medical costs. He argues that the findings and costs were entered and



       1
           Deoxyribonucleic acid.

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No. 32253-0-III
State v. Cliett


imposed in violation ofRCW 10.01.160(3). He also argues that the court's imposition of

the $100 DNA fee violates his right to substantive due process. We address the assigned

errors in turn.

                        I. Asserted violation of RCW 10.01.160(3)

       As a preliminary matter, we consider whether to accept review of Mr. Cliett's

contention that the trial court failed to comply with RCW 10.01.160(3 ), since Mr. Cliett

made no objection to the finding that he was able to pay the costs imposed at the time of

sentencing and thereby failed to preserve a claim of error. RAP 2.5(a); Blazina, 182

Wn.2d at 833 ("[u]npreserved LFO errors do not command review as a matter of right").

"[A] defendant has the obligation to properly preserve a claim of error" and "appellate

courts normally decline to review issues raised for the first time on appeal." Id. at 830,

834. The rationale for refusing to review an issue raised for the first time on appeal is

well settled: issue preservation helps promote judicial economy by ensuring "that the trial

court has the opportunity to correct any errors, thereby avoiding unnecessary appeals."

State v. Robinson, 171 Wn.2d 292, 304-05, 253 P.3d 84 (2011) (citing State v. Scott, 110

Wn.2d 682, 685, 757 P.2d 492 (1988)).

       Mr. Cliett unquestionably waived his right to appeal the trial court's finding and

imposition of discretionary LFOs but we enjoy discretion to make an exception to the

general requirement of issue preservation. In this case, since we must remand for




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No. 32253-0-III
State v. Cliett


correction of an excessive sentence imposed on the attempted first degree robbery count

(discussed hereafter) we exercise our discretion to review the LFO issue.

       RCW 10.01.160(3) provides that "[t]he 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." The legislature "intended each judge to conduct a case-by-case analysis and

arrive at an LFO order appropriate to the individual defendant's circumstances." Blazina,

182 Wn.2d at 834. In order to comply with the statute, an individualized inquiry must be

made on the record. Id. at 838. The inquiry must include the court's consideration of

"important factors ... such as incarceration and a defendant's other debts, including

restitution, when determining a defendant's ability to pay." Id.

       In sentencing Mr. Cliett, the trial court's consideration of Mr. Cliett's

circumstances was individualized, but was too conclusory in light of the Supreme Court's

subsequent guidance in Blazina. In resentencing Mr. Cliett, the trial court should engage

in the required individualized inquiry.

                       II. Substantive due process and the DNA fee

       Mr. Cliett next argues that the mandatory imposition of the DNA collection fee

provided by RCW 43.43.7541 violates substantive due process as applied to him. This

argument is also raised for the first time on appeal, but unlike Mr. Cliett's LFO challenge,

he does not ask us to exercise discretion to consider it. Presumably he contends, as have

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No. 32253-0-111
State v. Cliett


other defendants raising this issue on appeal, that the error is "manifest error affecting a

constitutional right," which is an exception from RAP 2.5(a)'s requirement of issue

preservation. RAP 2.5(a)(3).

       To qualify for the exception provided by RAP 2.5(a)(3), an appellant must

demonstrate "(l) the error is manifest, and (2) the error is truly of constitutional

dimension." State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). An error will be

considered manifest when there is actual prejudice, meaning a plausible showing by the

appellant that the asserted error had practical and identifiable consequences in the trial.

State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103 (2015) (citing State v. Gordon, 172

Wn.2d 671, 676, 260 P.3d 884 (2011)). "[T]he focus of the. actual prejudice [inquiry]

must be on whether the error is so obvious on the record that the error warrants appellate

review." O'Hara, 167 Wn.2d at 99-100.

       RCW 43.43.7541 requires every felony sentence imposed upon an adult to include

a $100 DNA fee. The funds are applied toward state and local costs of maintaining a

DNA database that facilitates future criminal identification, which Mr. Cliett admits is a

legitimate state interest. Br. of Appellant at 16. He contends, however, that the

legislation cannot survive even the most deferential "rational basis" review if it is applied

to individuals who cannot afford to pay the fee. Id. at 15-17. He contends that he is such

an individual.




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No. 32253-0-111
State v. Cliett


       It is well settled that a state may not invidiously discriminate against, or arbitrarily

punish, indigent defendants for their failure to pay fines they cannot pay. State v.

Johnson, 179 Wn.2d 534, 552, 315 P .3d 1090 (citing Bearden v. Georgia, 461 U.S. 660,

665, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983)), cert. denied, 135 S. Ct. 139 (2014). The

implications of Mr. Cliett's argument-that we find a substantive due process violation

whenever an otherwise rational law is applied to someone who cannot afford to comply

with it-are, frankly, staggering. 2 So far, however, we have refused to entertain a



       2
        The United States Supreme Court discussed such an argument in the taxation
context in Stewart Dry Goods Co. v. Lewis, 294 U.S. 550, 561-63, 55 S. Ct. 525, 79 L.
Ed. 2d 1054 (1935):
      [T]he appellees tell us that, if and when the load becomes too heavy upon
      any taxpayer, he may with confidence invoke the Fourteenth
      Amendment. ...
             To condemn a levy on the sole ground that it is excessive would be
      to usurp a power vested not in the courts but in the legislature and to
      exercise the usurped power arbitrarily by substituting our conceptions of
      public policy for those of the legislative body. In Veazie Bank v. Fenno,
      [75 U.S. (8 Wall.) 533, 19 L. Ed. 482 (1869)], a tax often per cent. on the
      notes of state banks was upheld although it "drove out of existence every
      State bank of circulation within a year or two after its passage." See Loan
      Association v. Topeka, [87 U.S. (20 Wall.)] 655, 663, 664[, 22 L. Ed. 455
      (1875)]. In Knowlton v. Moore, 178 U.S. 41 [, 20 S. Ct. 747, 44 L. Ed. 969
      (1900) ], in sustaining an excise tax this court said, "if a lawful tax can be
      defeated because the power which is manifested by its imposition may
      when further exercised by destructive, it would follow that every lawful tax
      would become unlawful, and therefore no taxation whatever could be
      levied." [178 U.S. at 60]. See, also, [A.] Magnano Company v. Hamilton,
      292 U.S. 40[, 54 S. Ct. 599, 78 L. Ed. 1109 (1934)]; Fox v. Standard Oil
      Co. [ofN.J., 294 U.S. 87, 55 S. Ct. 333, 79 L. Ed. 780 (1935)]. Once the
      lawfulness of the method of levying the tax is affirmed, the judicial

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No. 32253-0-111
State v. Cliett


substantive due process challenge to the DNA fine on a threshold basis: no challenger to

date has presented a record on appeal that is sufficient to review the argument. E.g., State

v. Stoddard, 192 Wn. App. 222, 228-29, 366 P.3d 474 (2016); cf Johnson, 179 Wn.2d at

551-52 (limiting standing to challenge license suspension for nonpayment of child

support to the constitutionally indigent).

       The record contains no information that Mr. Cliett lacks funds to pay a $100 fee;

he directs us to only his statutory indigence for purposes of court appointment of

appellate counsel. Evidence of his statutory indigence is unhelpful because the cost of

appellate representation in a criminal matter "exponentially exceeds $100." Id. Mr.

Cliett has failed to show manifest error and we decline to exercise discretion to review

his substantive due process challenge.

                      STATEMENT OF ADDITIONAL GROUNDS

       In a prose statement of additional grounds (SAG), Mr. Cliett raises four: (1) that

his convictions for attempted first degree robbery and second degree unlawful possession

of a firearm should have been treated as the same criminal conduct; (2) that his

conviction for attempted first degree robbery is a class B felony, yet he was sentenced as

if it were a class A felony; (3) that he received an excessive sentence for his conviction




       function ceases. He deludes himself by a false hope who supposes that, if
       this court shall at some future time conclude the burden of the exaction has
       become inordinately oppressive, it can interdict the tax.

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No. 32253-0-111
State v. Cliett


for second degree unlawful possession of a firearm; and (4) that he received ineffective

assistance of counsel. We address his contentions in turn. 3

      Same criminal conduct. If two current offenses encompass the same criminal

conduct, they count as one point in calculating a defendant's offender score. RCW

9.94A.589(1)(a). Two crimes are considered the same criminal conduct only if they

involve the same time and place, the same victim, and the same criminal intent. Id. If

one of these elements is missing, the offenses must be counted individually toward the

offender score. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).

      Mr. Cliett's convictions for attempted first degree robbery and second degree

unlawful possession of a firearm did not constitute the same criminal conduct for

sentencing purposes because the victim of the two crimes differ. The victim of the

offense of unlawful possession of a firearm was the general public, while the victim of

the attempted robbery was the property owner from whom Mr. Cliett attempted to steal.

See Haddock, 141 Wn.2d at 110-11 (the general public is the victim of the crime of

unlawful possession of a firearm); State v. Webb, 112 Wn. App. 618, 624, 50 P.3d 654

(2002).




       3 At our request, the State filed supplemental briefing to address the claimed error
in sentencing for count two. In its submission, the State volunteered that Mr. Cliett might
have been sentenced in error to 18 months' community custody on that count. We find
no error in the community custody sentence.

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No. 32253-0-111
State v. Cliett


       Statutory maximum for attempted first degree robbery. First degree robbery is a

class A felony. RCW 9A.56.200(2). An attempt to commit a class A felony is a class B

felony unless otherwise specified. RCW 9A.28.020(3)(a), (b). Because RCW

9A.28.020(3)(a) does not specify that attempted first degree robbery is a class A felony, it

is a class B felony. RCW 9A.28.020(3)(b). As Mr. Cliett points out, the statutory

maximum for a class B felony is 10 years (120 months). RCW 9A.20.02l(b). While the

court noted the correct maximum term elsewhere in the judgment and sentence, its order

on confinement included a sentence of 128.25 months for the attempted robbery count.

While the error has no practical effect (Mr. Cliett's base sentence for the first degree

robbery count, which runs concurrently, is 171 months), it is an error. Mr. Cliett is

entitled to have it corrected.

       Statutory maximum for second degree unlawful possession of a firearm. Mr.

Cliett's third ground states, "Count 3. Statutory max is 60 months." SAG at 2. The third

count reflected in the judgment-second degree unlawful possession of a firearm-is a

class C felony. RCW 9.41.040(2)(b). The maximum term of confinement for a class C

felony is five years (60 months). RCW 9A.20.02l(c). While the judgment and sentence

as presented to the trial court identified the high end of the standard range for this count

as 68 months, a manual notation was made to the order on confinement, correcting the




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No. 32253-0-111
State v. Cliett


term of confinement imposed on count three to "60" months. CP at 55. A correction to

the sentencing data section (2.5) may be made at the time of resentencing.

       Ineffective assistance of counsel. Finally, Mr. Cliett asserts that he received

ineffective assistance of counsel because his trial lawyer ( 1) was unaware of the status of

proceedings associated with Mr. Cliett's codefendant, (2) missed court dates because of

health problems, and (3) "had a grudge against [him]." SAG at 2.

       A successful ineffective assistance of counsel claim requires the defendant to

show that counsel's performance was deficient and that the defendant was prejudiced by

the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984). "Prejudice" for this purpose is the "reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome." Id. at 694. We need not consider both prongs of Strickland (deficient

performance and prejudice) if a petitioner fails one. Id. at 697.

       Mr. Cliett fails to articulate any respect in which he was prejudiced by the acts or

omissions about which he complains. His challenge fails without the need to consider

whether his lawyer's representation was deficient.

       We remand for further proceedings consistent with this opinion.

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




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No. 32253-0-111
State v. Cliett




Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                                   'azdhw% .{f
                                                 Siddoway, J.

WE CONCUR:




                                            12
