                                                                                                 FILED
                                                                                         COURT OF APPEAL"
                                                                                               DIVISION -II

                                                                                        2015 JUL 10 AM 9: °4 7

                                                                                        STATE OF WASHINGTON

                                                                                         BY       J20.

                                                                                                  Ir UTY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II


 STATE OF WASHINGTON,                                                                No. 46101 -3 -II


                                    Respondent,


          V.




 IRVING B. LYLE,                                                              PUBLISHED OPINION




         JOHANSON, C. J. —        Irving B. Lyle appeals the legal financial obligations ( LFOs) the trial

court   imposed   following    his bench trial      conviction. for     failure to   register as a sex offender.   He


argues that the trial court failed to make an individualized determination on his present and future


ability to pay before       imposing     the LFOs.         He further argues that defense counsel provided


ineffective    assistance   by failing   to   object   to the LFOs.      We hold that ( 1) because Lyle failed to


challenge his. LFOs and was sentenced after we issued State v. Blazina, 174 Wn. App. 906, 301

P. 3d 492 ( 2013),   remanded,     182 Wn.2d 827, 344 P. 3d 680 ( 2015), he has waived this issue, and


 2) Lyle' s ineffective assistance of counsel claim fails because the record does not establish that


defense counsel' s failure to object was prejudicial. Accordingly, we affirm.

                                                          FACTS


         Following a bench trial, the trial court convicted Lyle of failure to register as a sex offender.

At the March 14, 2014 sentencing              hearing,   the State   requested various   LFOs.
No. 46101 -3 -II



        During the course of the sentencing hearing, in the context of discussing his request for an

exceptional sentence downward, Lyle presented some evidence about his financial situation, his


alleged disabilities, and his work history prior to his arrest. But the defense never mentioned any

LFOs or discussed Lyle' s present or future ability to pay LFOs.

        The State argued against the exceptional sentence downward and asserted that Lyle' s


claims about any disability or having been a prisoner of war were unsubstantiated. But the State

never discussed Lyle' s present or future ability to pay LFOs.

        The trial court denied Lyle' s request for an exceptional sentence after acknowledging that

Lyle' s character witness had trusted Lyle to work on his property but noting that Lyle had not

presented   any documentation supporting his      other claims.   The trial court sentenced Lyle to 44


months of total confinement. Although the trial court mentioned it was imposing the LFOs, it did

not say anything about Lyle' s current or future ability to pay those LFOs.

        The only mention of Lyle' s ability to pay the LFOs was in a boilerplate section of Lyle' s

judgment and sentence, which stated,


        ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS.                              The court has
        considered the total amount owing, the defendant' s past, present and future ability
        to pay legal financial obligations, including the defendant' s financial resources and
        the likelihood that the defendant'   s   status will change.   The court finds that the
        defendant has the ability or likely future ability to pay the legal financial obligations
        imposed herein.


Clerk' s Papers at 20.


        Lyle appeals the LFOs.




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No. 46101 -3 -II



                                                    ANALYSIS


                                               I. LFO ISSUE WAIVED


           Lyle argues that the trial court failed to make an individualized determination on his ability

to pay before imposing the LFOs. The State argues that this issue is not ripe for review until the

State attempts to enforce the LFOs, that the issue was not preserved for appeal, and that the trial


court properly considered Lyle' s ability to pay.

           Our Supreme Court recently rejected the State' s ripeness argument in Blazina, 182 Wn.2d

at 833 n. L Accordingly, the fact that the State may not yet be attempting to collect Lyle' s LFOs

does not preclude our review of this issue.


           But Lyle did not challenge the trial court' s imposition of LFOs at his sentencing, so he may

not   do   so on appeal.    Blazina, 174 Wn.     App.   at   911. Our decision in Blazina, issued before Lyle' s


March 14, 2014 sentencing, provided notice that the failure to object to LFOs during sentencing

waives a related claim of error on appeal.'             174 Wn.    App.   at   911.   As our Supreme Court noted,




1 The dissent argues that our limiting review of unpreserved errors to those cases in which the
sentencing was held before our 2013 Blazina decision is inappropriate because we had in other
cases refused to address challenges to LFOs based on the ability to pay because the issue was not
ripe for review. Dissent at 7 ( citing State v. Lundy, 176 Wn. App. 96, 108, 308 P.3d 755 ( 2013)).
The dissent asserts that the use of the ripeness doctrine could have 'suggested to counsel that it
would be futile to object to the imposition of LFOs at trial. We disagree because a timely objection
would not be futile.
           The   ripeness   doctrine   addresses   only   when a court can review an       issue— it is not relevant

to whether an issue was properly preserved for review. See Lee v. Oregon, 107 F. 3d 1382, 1387-
88 ( 9th Cir. 1997) ("[ T] he ripeness doctrine can be specifically understood ` as involving the
question of when may a party seek preenforcement review."' ( quoting Erwin Chemerinsky,

Federal Jurisdiction § 2. 4       at   100 ( 1989))).   Even if the issue were to become ripe at a later date,
the defendant could not raise the issue unless it had been properly preserved at trial or review was
allowed under RAP 2. 5( a).


                                                              3
No. 46101 -3 -II



an appellate court may use its discretion to reach unpreserved claims of error. Blazina, 182 Wn.2d

at 830. We decline to exercise such discretion here.

                                  11. NO INEFFECTIVE ASSISTANCE OF COUNSEL,


          Lyle further argues that defense counsel provided ineffective assistance of counsel by

failing to challenge the LFOs. Based on this record, we disagree.

          We review an ineffective assistance claim de novo, beginning with a strong presumption

that trial counsel' s performance was adequate and reasonable. Strickland v. Washington, 466 U.S.


668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Grier, 171 Wn.2d 17, 33, 246 P. 3d


1260 ( 2011).     To prevail on an ineffective assistance of counsel claim, the appellant must show


both deficient performance and resulting prejudice; failure to show either prong defeats this claim.

State v. McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002).


          Lyle is correct that defense counsel did not challenge the LFOs based on Lyle' s current or


future ability to pay. Because the sentencing hearing was after we issued our opinion in Blazina,

counsel should have been aware that to preserve any issue related to the LFOs he was required to

object. Thus, Lyle has arguably shown deficient performance, and we must next examine whether

this deficient performance was prejudicial.


          To   show prejudice,     Lyle   must establish, "   based on the record developed in the trial court,


that the result of the proceeding would have been different but for counsel' s deficient

representation."     State   v.   McFarland, 127 Wn. 2d 322, 337, 899 P. 2d 1251 ( 1995).        Although the


record contains some information about Lyle' s financial status, he fails to show prejudice on this


record.




                                                          0
No. 46101 -3 -II



        Lyle presented some evidence relevant to his financial situation during the sentencing

hearing. But this information was presented in the context of Lyle' s request for an exceptional

sentence downward, not to provide evidence related to Lyle' s current or future ability to pay.

These facts suggest that Lyle may be disabled but that he was able to do at least some work as

evidenced     by   the fact he had been working for    several months   before the sentencing. The trial


court stated that many of Lyle' s assertions were unsupported and there are no additional facts in

the record, such as whether Lyle has additional debt, which would allow us to determine whether


the trial   court would   have imposed fewer   or no   LFOs if defense   counsel   had   objected.   Because


Lyle must establish prejudice on this record and the record is not sufficient for us to determine


whether there is a reasonable probability that the trial court' s decision would have been different,

his ineffective assistance of counsel claim fails.2

        Accordingly, we affirm Lyle' s sentence.




                                                           DdA—
                                                              N SbK, C. J.
 I concur:




 SUTTON, J.




2 We note that Lyle may be able to petition for remission of his LFOs under RCW 10. 0 1. 160( 4).
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No. 46101 -3 -II




         BJORGEN, J. (      dissenting) — In State v. Blazina, 182 Wn.2d 827, 830, 833- 34, 344 P. 3d

680 ( 2015), our Supreme Court exercised its discretion under RAP 2. 5 to decide whether trial


courts must make an individualized inquiry into a defendant' s current and future ability to pay

before   imposing discretionary legal         financial   obligations ( LFOs) under      RCW 10. 0 1. 160( 3).   The


court reached this issue, even though the defendant had not raised it at sentencing, because it

found that the pernicious consequences of "broken LFO systems" on indigent defendants

 demand" that it reach the issue, even though it was not raised in the trial court. Blazina, 182


Wn.2d at 833- 34.


         Before us, Lyle raises the same issue in the same posture: he, too, is an indigent who


failed to raise the issue below. The same effects of the LFO system that led the Supreme Court


to reach the issue in Blazina face Lyle as much as they faced Blazina. If those consequences

demanded that the Supreme Court reach the issue in Blazina, they surely demand the same of us

here.


         As the majority points out, the Supreme Court ii i-Blazina held that this court properly

exercised its discretion to decline review when we issued our Blazina decision in 2013. Blazina,


182 Wn.2d at 833- 34. The doctrinal tectonics, however, have shifted -since our decision in


Blazina. In that decision we followed the well trampled path of declining to reach issues for the

first time on appeal if they did not fall within the exceptions of RAP 2. 5. Now, the Supreme

Court has concluded that the hazards of our LFO system demand consideration of this same


issue,   even   if not   raised   below. As   an   indigent, Lyle   confronts   those   same   hazards. Although
No. 46101 -3 -II



our declining of review in 2013 was a sound exercise of discretion then, it is on much shakier

grounds now, after the Supreme Court has spoken.


          In addition, the Supreme Court' s holding that we properly declined review in Blazina in

2013 came at the close of its demonstration that Ford and its progeny do not create a right to

review unpreserved LFO errors. Blazina, 182 Wn.2d at 833- 34. Thus, this holding cannot serve

as a license to continue to decline review of the same issue, when the Supreme Court has also


made clear that these same circumstances demand the exercise of discretion to review.


          Finally, the majority argues that any need to review unpreserved errors cannot extend to

sentencing proceedings held after our Blazina decision in 2013, since that decision categorically

required such errors to be raised at sentencing. However, during the interval between our

Blazina decision and that of the Supreme Court, the law was also clear that a challenge to LFOs


based on ability to pay was not generally " ripe for review until the State attempts to curtail a

defendant'   s   liberty by   enforcing them."      State v. Lundy, 176 Wn. App. 96, 107- 08, 308 P. 3d 755

 2013);   see also   State    v.   Baldwin, 63 Wn.    App.   303, 310, 818 P. 2d 1116 ( 1991), amended, 837


P. 2d 646 ( 1992),    and    State   v.   Blank, 131 Wn.2d 230, 242, 930 P. 2d 1213 ( 1997). The central


rationale behind this rule was that only at enforcement could the ability to pay be meaningfully

weighed. See, e. g., Blank, 131 Wn.2d at 242. The case law deviated from this rule in the face of

circumstances such as those presented in State v. Bertrand, 165 Wn. App. 393, 405, 267 P. 3d

511 ( 2011), where a disabled defendant was ordered to commence payment of LFOs within 60


days of entry ofjudgment and sentence while still incarcerated.




3 State v. Ford, 137 Wn.2d 472, 973 P. 2d 452 ( 1999).
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No. 46101 -3 -II



        During the interval between the two Blazina decisions, RCW 10. 01. 160( 3) was also in

effect, stating 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.


The case law, however, has interpreted this provision to be subject to Lundy' s ripeness

restriction. See State v. Thomas, 185 Wn. App. 1058, 2015 WL 728245, at * 6 ( 2015).

        Thus, between the two Blazina decisions the law took the pose of a Janus, telling parties

both that they must raise the issue of ability to pay LFOs at sentencing and that it would be futile

to do so. This contradiction is not relieved by holding that a defendant must raise the issue at

sentencing, even though he may not know until some distant enforcement stage whether he

actually has a meaningful challenge. With this equivocation in the law after our Blazina

decision, that decision should not serve as the threshold beyond which this error cannot be raised


for the first time on appeal. Only with the Supreme Court' s Blazina decision is that threshold

crossed.




        For these reasons, I would hold that Lyle is not barred from raising his challenge to LFOs

for the first time on appeal.



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