                                                                            FILED 

                                                                          NOV 19,2015 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 32928-3-III
                      Respondent,             )
                                              )
       v.                                     )
                                              )
JOSHUA JAMES CLARK,                           )          OPINION PUBLISHED IN PART
                                              )
                      Appellant.              )

       KORSMO, J. -    Joshua Clark challenges the timeliness of his trial for possession of

a stolen motor vehicle and the court's imposition of legal financial obligations.

Addressing the latter issue in the published portion of this opinion, we conclude that a

fine is not a "court cost" that is subject to challenge initially on appeal. The conviction

and judgment are affirmed.

                                          FACTS

       Mr. Clark was charged with possessing a stolen vehicle that he previously had

owned. The vehicle had been impounded in late 2013 and eventually sold after it went

unclaimed at the impound lot. The new owner reported the vehicle stolen three months

after purchase. Two months after that report, the vehicle was seen in Mr. Clark's

backyard. A complaint was filed and a summons issued.
No. 32928-3-III
State v. Clark


       The original July 28, 2014 arraignment was continued to August 4,2014, at

defense request. Clerk's Papers (CP) at 11. Mr. Clark was arraigned on August 4, and

trial was scheduled for October 9, 2014; the ninetieth day from arraignment was

determined to be November 3, 2014. CP at 14,24. Mr. Clark remained out of custody

on this charge. Defense counsel on September 22, 2014, sought and successfully

obtained a continuance of the trial to October 23, 2014 in order to attend a prescheduled

event in Burien. Mr. Clark did not personally agree to the continuance. Report of

Proceedings (RP) at 9-10. Trial could not be held on October 23, however, as another

case with higher time for trial priority proceeded to trial instead of Mr. Clark. His case

was rescheduled to November 6.

       The case proceeded to jury trial as scheduled on November 6 and concluded that

same day. Mr. Clark offered no defense and the jury convicted him as charged.

Sentencing was held four days later; by that time Mr. Clark was in jail after having been

convicted and sentenced to nearly three years in prison on another offense.) A primary

consideration at sentencing was whether this sentence would be served concurrently with

the other file. With respect to the legal financial obligations, the prosecutor asked for



        ) According to Mr. Clark's pro se statement of additional grounds, he was in
custody on the other case pending that trial and remained in custody throughout both
trials. Nothing in the record of this case confirms or dispels that allegation, although his
statement would explain why no bail was required in this case. The summons issued in
this case was sent to Mr. Clark's residence in East Wenatchee.

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No. 32928-3-III
State v. Clark


"standard fines and fees" plus witness costs, totaling $1,846.62. RP at 37. Defense

counsel's only mention of financial obligations was to request that payments be made at

the rate of $25 per month upon release from custody "since he has the other payment in

the other trial." RP at 40.

       The trial court imposed the requested financial payments, including a $500 fine

pursuant to RCW 9A.20.021. The court also ordered a 38-month prison sentence to be

served consecutively to the earlier offense. Mr. Clark then timely appealed to this court.

                                        ANALYSIS

       The sole issue we address in this portion of the opinion is Mr. Clark's contention

that we should exercise our discretion to consider his legal financial obligation challenge.

We address that argument first, before turning to his time for trial and statement of

additional grounds (SAG) arguments in the unpublished portion of this opinion.

       Legal Financial Obligations

       Mr. Clark's request that we consider his legal financial obligations (LFOs)

argument in this appeal initially presents the question of whether the $500 fine imposed

by the trial court is a "court cost" that could be reviewed in this court's discretion. We

conclude that it is not a court cost and do not review his LFO challenge.

       Initially, we note some of the basic principles governing this topic. Appellate

courts review a decision on whether to impose LFOs for abuse of discretion. State v.

Baldwin, 63 Wn. App. 303, 312,818 P.2d 1116 (1991). Discretion is abused when it is

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No. 32928-3-III
State v. Clark


exercised on untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker,

79 Wn.2d 12,26,482 P.2d 775 (1971). The trial court's factual determination

concerning a defendant's resources and ability to pay is reviewed under the "clearly

erroneous" standard. State v. Bertrand, 165 Wn. App. 393,403-04,267 P.3d 511 (2011);

Baldwin, 63 Wn. App. at 312.

       Even the most casual reader of Washington appellate cases cannot but have

noticed that LFO challenges present the most frequent issue raised to this court in the past

several years. Since 1976, RCW 10.01.160(3) has provided:

       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.

See LAWS OF 1975-76 2nd Ex. Sess, ch. 96, § 1. Despite this longstanding requirement,

the topic of the defendant's ability to pay is seldom voluntarily raised at sentencing even

though the defendant should have incentive to discuss the issue and is the best, and often

only, source of the information the trial court needs to comply with the legislative

command.

       The statutory inquiry is required only for discretionary LFOs. State v. Lundy, 176

Wn. App. 96, 102,308 P.3d 755 (2013) (mandatory fees, which include victim




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No. 32928-3-II1
State v. Clark


restitution, victim assessments, DNA2 fees, and criminal filing fees, operate without the

court's discretion by legislative design); State v. Kuster, 17S Wn. App. 420, 424, 306

PJd 1022 (2013) (victim assessment and DNA collection fee mandatory). Trial courts

are not required to enter formal, specific findings. Lundy, 176 Wn. App. at lOS.

       After the three divisions of this court had concluded that LFO decisions

unchallenged in the trial court could not be raised initially on appeal due to RAP

2.S( a)(3), the Washington Supreme Court addressed the topic in State v. Blazina, 182

Wn.2d 827, 344 P Jd 680 (20 IS). There the court agreed that the LFO issue is not one

that can be presented for the first time on appeal because this aspect of sentencing is not

one that demands uniformity. Id. at 830. To that end, the appellate courts retain

discretion whether or not to consider the issue initially on appeal. Id. The Blazina court

then decided to exercise its discretion in favor of accepting review due to the nationwide

importance of the general issue concerning LFOs and to provide guidance to our trial

courts. Id. at 830. The court noted that trial judges have a statutory obligation to

consider RCW 10.01.160(3) at sentencing and make an individualized determination of

the defendant's ability to pay discretionary LFOs. Id. at 837.

       With these considerations in mind, we now turn to the LFOs imposed in this case.

The trial court ordered that Mr. Clark pay a $SOO crime victim's assessment, a $200 filing



       2 Deoxyribonucleic acid.

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No. 32928-3-III
State v. Clark


fee, $46.62 in witness costs, $400 for his appointed counsel, a $100 DNA collection fee,

a $500 fine, and $100 for "financial collection costs." CP at 125-126. These assessments

total $1,846.62. The $800 ordered for the victim assessment, filing fee, and DNA

collection fee are mandatory obligations not subject to RCW 10.61-.160(3). Lundy, 176

Wn. App. at 102. The "witness costs," appointed counsel, and "financial collection

costs" are discretionary assessments that total $546.62.

       The remaining question is how to categorize the $500 fine imposed pursuant to the

authority granted by RCW 9A.20.021 (authorizing maximum fines for each class of

crimes).3 Washington long has recognized fines and costs 4 as representing different




      3 Class A felonies are subject to a $50,000 maximum fine; class B felonies to a
$20,000 fine; class C felonies to a $10,000 fine; gross misdemeanors to a $5,000 fine;
misdemeanors are subject to a $1,000 maximum fine. RCW 9A.20.021.
       4 See,e.g., Bergman v. State, 187 Wash. 622,625,60 P.2d 699 (1936); Foster v.
Territory, 1 Wash. 411, 25 P. 459 (1890). In Bergman, the court was considering whether
the State could seek judgment against marital property for costs imposed against the
defendant husband. 187 Wash. at 623-624. In considering precedent from another state
regarding a similar issue for a fine the court recognized the distinction between fines and
costs:
      A fine is a sum of money exacted, as a pecuniary punishment, from a
      person gUilty of an offense, while costs are but statutory allowances to a
      party for his expenses incurred in an action. The former is, in its nature at
      least, a penalty, while the latter approaches more nearly a civil debt.
Id. at 625. In Foster, a court assessed a $500 fine and $20 in costs at sentencing. 1 Wash.
at 412. The defendant argued on appeal that this essentially amounted to a $520 fine in
violation of the $500 statutory maximum. Id. at 414. The court rejected this argument
noting that fines and costs are distinct in the code. Id.

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No. 32928-3-III
State v. Clark


obligations. For instance, the definition of "legal financial obligation" under the

Sentencing Reform Act

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

RCW 9.94A.030(30). This definition distinguishes among different types of costs, other

financial obligations, and fines.

       The term "costs" is generally defined in the first two sentences of RCW

10.01.160(2):

       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.

The statute then goes on to list a series of "costs" that mayor may not be imposed,

including: warrant service costs, jury fees, costs of administering deferred prosecution or

pretrial supervision, and incarceration costs. Id. The very next provision of the rule

declares that a court "shall not order a defendant to pay costs unless the defendant is or

will be able to pay them" and requires trial judges to conduct inquiries concerning the




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No. 32928-3-III
State v. Clark


defendant's financial circumstances. RCW 10.01.160(3). This was the provision at issue

in Blazina.

       The decision to impose a fine pursuant to RCW 9A.20.021 appears 5 to be

discretionary with the trial court. E.g., State v. Young, 83 Wn.2d 937, 941, 523 P .2d 934

(1974); State v. Newton, 29 Wash. 373, 382, 70 Pac. 31 (1902); 13 FERGUSON,

WASHINGTON PRACTICE, CRIMINAL PRACTICE AND PROCEDURE, § 4813 at 376 (2004).

However, the fact that imposing a fine under this general statute is a discretionary act

does not make the fine a discretionary "cost" within the meaning ofRCW 10.01.160(3).

The definition of "costs" in RCW 10.01.160(2) does not include "fines." Accordingly,

we hold that a fine is not a court cost subject to the strictures ofRCW 10.01.160(3) and

the trial court is not required to conduct an inquiry into the defendant's ability to pay.

Therefore, a previously unchallenged fine is not subject to review initially on appeal.

RAP 2.5(a). Nonetheless, we strongly urge trial judges to consider the defendant's ability

to pay before imposing fines. The barriers that LFOs impose on an offender's

reintegration to society are well documented in Blazina and should not be imposed lightly

merely because the legislature has not dictated that judges conduct the same inquiry

required for discretionary costs. Moreover, conducting such an inquiry may protect a

timely challenged decision to impose a fine by establishing a tenable basis for the fine.


       5But, see City o/Seattle v. Fuller, 177 Wn.2d 263,278,300 P.3d 340 (2013)
(suggesting that either fine or imprisonment mandatory under RCW 9A.20.020).

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No. 32928-3-II1
State v. Clark


       The remaining discretionary costs subject to challenge under Blazina amount to

$546.62. We exercise the discretion recognized in that decision and decline to consider

Mr. Clark's LFO argument despite the fact the LFO discussion at sentencing may be the

sparsest record we have reviewed. The record suggests that the understated LFO

discussion was by design. The critical issue for Mr. Clark was whether his sentences

would run concurrently or consecutively, so counsel understandably directed his attention

to that issue. When given the opportunity to address the LFOs, counsel simply asked that

a minimal monthly amount be imposed given the LFOs in the other case. Since the

sentencing in the other matter had been shortly before this case, it appears that Mr.

Clark's financial situation may have been more fully discussed on that occasion. But,

even if it was not, counsel had the opportunity to make an argument if he desired to do

so. On balance, this does not appear to be a situation that calls for us to exercise our

discretion to review the matter more fully.

       The judgment is affirmed.

       A majority of the panel having determined that only the foregoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder

having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it

is so ordered.




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No. 32928-3-III
State v. Clark


       Time for Trial

       Mr. Clark, through his counsel and also pro se in his SAG, takes issue with the

timeliness of his trial under CrR 3.3. The trial was timely under the rule.

       In its most basic terms, CrR 3.3 requires trial within 60 days of arraignment if the

defendant is held in custody on the pending charge(s) or 90 days if the defendant is not in

custody on the pending charge. CrR 3.3(b), (c)( 1). The same time periods apply if a new

commencement date is required for any of several reasons listed in CrR 3.3(c)(2).

       A timely written objection to a trial date scheduled outside the requirements of the

rule must be brought to the court's attention by motion or the defendant loses the

opportunity to object. CrR 3.3(d). Various factors also act to exclude time from the 60­

or 90-day trial period, including proceedings on unrelated charges and continuances. CrR

3.3(e)(2), (3). Whenever any period oftime is excluded, there is a 30-day minimum

period of time within which to bring a case to trial. CrR 3.3(b)(5). Finally, even if the

trial period passes without trial, a five day cure period may be invoked. CrR 3.3(g).

       With these principles in mind, Mr. Clark's time for trial argument fails on

numerous grounds. He was not in custody for this charge, making the 90-day period

applicable to his case. First, our record contains no written objections and no motion

challenging any trial date. Thus, he has waived any claimed violation of the rule. CrR

3.3(d)( 4). Second, the continuance at defense request on September 22 resulted in an

excluded period oftime from that date to the new trial date of October 23, adding 31 days

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No. 32928-3-III
State v. Clark


to the time for trial period. Thus, the November 3 expiration date for the 90-day period

recognized at arraignment was moved back to December 4,2014. His trial was held on

November 6. He was accorded a timely trial under CrR 3.3.

       The time for trial argument is without merit.

       Statement ofAdditional Grounds

       Mr. Clark's pro se SAG raised four issues, one of which was a time for trial claim

we addressed in conjunction with his counsel's related argument. The three remaining

contentions involve whether the defense had time to inspect the stolen car, whether he

received reasonable representation from trial counsel, and whether evidence of Mr.

Clark's prior contacts with the police was improperly admitted.

       The car inspection and the representation of counsel are not issues that we can

consider further because the record does not contain sufficient information to resolve

them. For instance, we note that an order was entered permitting defense inspection of

the vehicle. Nothing about that matter came up thereafter. We do not know if an

inspection was made or not. The record likewise does not reflect any further defense

concerns about the matter. There is no basis for finding error.

       With respect to counsel, Mr. Clark complains that his attorney did not supply him

with information he requested. The record likewise is silent on this issue. Mr. Clark also

does not argue how his trial was somehow prejudiced by this alleged failure of counsel.

Again, we have no basis for finding error. If Mr. Clark wants to develop this issue with

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No. 32928-3-III
State v. Clark


further evidence, his remedy is to file a personal restraint petition. State v. McFarland,

127 Wn.2d 322,337-38,899 P.2d 1251 (1995).

       The final contention involves testimony from Douglas County Deputy Sheriff

Dean Schlaman near the conclusion of trial. The SAG contends that the deputy testified

about matters that he also testified to in the first trial. Here he testified without objection

that he had seen Mr. Clark in possession of the vehicle on November 27, 2013. This date

was before the car was impounded and sold. The information was relevant to establish

Mr. Clark's former control over the vehicle. No testimony was developed concerning the

nature of the former incident. We see nothing prejudicial in this testimony. More

importantly, the failure to object to the testimony waives any claim of error. State v.

Guloy, 104 Wn.2d 412,421, 705 P.2d 1182 (1985). This claim is without merit.

       None of the grounds presented in the SAG establish prejudicial error.

Accordingly, the conviction is affirmed.




WE CONCUR: 




  ;j;'dkw , 

    Siddoway, C.J. 't1fJ       I




                                              12 

