                                                                      Filed
                                                                Washington State
                                                                Court of Appeals
              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Division Two

                                           DIVISION II                                      May 24, 2016

 STATE OF WASHINGTON,                                                 No. 46775-5-II

                                Respondent,
                                                               UNPUBLISHED OPINION
         v.

 JAMES BROWN, JR.,

                                Appellant.

       BJORGEN, C.J. — A jury returned verdicts finding James Brown guilty of second degree

assault and fourth degree assault. The jury also returned special verdicts finding that Brown

committed the second degree assault while armed with a deadly weapon and that he committed

the fourth degree assault against a member of his family or household. Brown appeals his

convictions and resulting sentence, asserting that (1) the prosecutor committed misconduct by

asking him to comment on the credibility of witnesses, (2) his defense counsel was ineffective

for (i) failing to object to the prosecutor’s questions asking him to comment on the credibility of

witnesses, (ii) failing to object to the prosecutor’s question implying that he had an obligation to

speak with police, and (iii) failing to object to witness testimony that Brown contends

commented on his credibility, (3) the trial court violated his right to appointed counsel by failing

to inquire into the breakdown of the attorney-client relationship, and (4) the trial court erred at

sentencing by ordering him to pay discretionary legal financial obligations (LFOs) without first

inquiring into his ability to pay those obligations.

       We affirm Brown’s conviction, reverse the imposition of discretionary LFOs, and remand

for the trial court to make an individualized inquiry into Brown’s ability to pay before imposing
No. 46775-5-II


any discretionary LFOs, consistently with State v. Blazina, 182 Wn.2d 827, 839, 344 P.3d 680

(2015) and former RCW 10.01.160(3) (2010).

                                                  FACTS

          In 2014, Brown and Naomi Oligario were in a dating relationship and had an 8-year-old

daughter in common. Oligario also had three older children, including her 17-year-old son, RJ.1

On June 25, 2014, Brown went to Oligario’s home to drop off the couple’s daughter.2 Oligario

believed that Brown had been drinking alcohol while he was out with their daughter, and she

asked Brown to speak with her outside of the house. Oligario gave Brown a sandwich that she

had made for him, and the two went outside to talk. After Brown and Oligario began arguing,

Brown threw the sandwich at Oligario’s face. In response, Oligario pushed Brown. While

pushing Brown, Oligario slipped and fell to the ground. Oligario then called out for RJ.

          RJ ran outside and began arguing with Brown. Brown grabbed a pickaxe and, according

to RJ and Oligario, ran toward RJ and swung the pickaxe at him. Oligario grabbed Brown’s legs

and bit him, causing Brown to lose control of the pickaxe. Brown and RJ continued to argue,

and Brown grabbed a wooden cross. When Brown approached RJ while holding the wooden

cross, Oligario put Brown in a choke hold until he calmed down. Police arrived and, after

speaking with the parties, arrested Brown. The State thereafter charged Brown with second

degree assault with a deadly weapon sentence enhancement and fourth degree assault with a

domestic violence sentence enhancement.

          The following exchange took place before trial:



1
    This opinion uses the juvenile victim’s initials to protect his interest in privacy.
2
 According to Oligario, Brown had been living at the house until a couple weeks earlier but
moved away after a previous altercation with her. According to Brown, he was residing at the
home at the time of the incident.
                                                     2
No. 46775-5-II


                 [Defense counsel]: Your Honor, I want to mention to the court, Mr. Brown
         says that I did not call witnesses for him at this time. I want to allow him a chance
         to speak to the court if he wants to about that.
                 [Brown]: I do have witnesses. He didn’t bring it to my attention and let
         them know how I wanted to go back in because he was there when everything was
         going on. And I was wondering why he didn’t come and question me about it, how
         to get in touch with him. He never did do that to me. So I was wondering why I
         ain’t got to [sic] witnesses up here and going to trial, everything is so fast. I don’t
         know what’s going on here. I’m just popping up and going to trial. I ain’t got no
         understanding about nothing about what’s going on here.
                 [Trial court]: Okay. Well, Mr. Brown, I’ll let you bring that up with
         [defense counsel]. You can discuss whether or not you want to call a witness. We
         can re-address that if it looks like you’re going to want to be calling a witness.
         [Defense counsel] can discuss that with you. And we can address whether or not
         there’s any issues created by that.
                 At this point, that’s between the two of you to discuss and to work out.
                 [Brown]: Okay.
                 [Trial court]: But Mr. Brown, you’ve had a number of court appearances
         where this date has been told to you as your court date. In fact, you had a date not
         too long ago where the State asked to continue the trial date where you objected
         wanting your trial to go forward, and the court allowed the continuance. So this
         shouldn’t be too much of a surprise to you that you’re up for trial today.
                 [Brown]: Okay.

Report of Proceedings (RP) at 12-13.

         The following day, the trial court held a CrR 3.5 hearing to determine the admissibility of

Brown’s statements to the police. At the conclusion of the CrR 3.5 hearing defense counsel

conceded, and the trial court found, that Brown’s pre-Miranda3 statements to police were made

voluntarily in a noncustodial setting. The trial court thus concluded that Brown’s statements to

police were admissible at trial.4 After the trial court ruled on the admissibility of Brown’s

statements, defense counsel stated to the trial court:

                 My investigator actually was able to track down the witness Mr. Brown was
         referring to. His name is Harold J. Jones. From what I just spoke to my investigator
         about, the report he’ll be filing with me, we will not be calling Mr. Jones as a


3
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4
 Brown does not assign error to the findings of fact and conclusions of law entered following the
CrR 3.5 hearing.
                                                   3
No. 46775-5-II


        witness for the defense. I’ve explained this to Mr. Brown and made my reason
        clear to him. I wanted to put that on the record.

RP at 38. Brown did not raise any issue with his defense counsel’s decision not to call his

requested witness and did not raise any other issue with his counsel’s representation throughout

the course of the trial.

        At trial the State called Oligario and RJ, who testified consistently with the facts as stated

above. The State also called Kitsap County Sheriff’s deputies Victor Cleere and Mark Gundrum.

Both deputies testified that they did not immediately start making arrests at the scene because

they needed to speak with the parties to investigate whether a crime had occurred. Regarding his

interactions with Brown, Cleere testified as follows:

        [Cleere]:          Basically Mr. Brown was, I would say, semi-cooperative. He
                           seemed to be a little bit worked up. I was asking him what was
                           going on. He was telling me that they had tussled, but he wouldn’t
                           be specific about what was happening. Basically had to ask him
                           numerous times, you know, what had happened, trying to get a
                           chronological story of what was going on. And I wasn’t really
                           getting a straight story from him. The story was changing quite a
                           bit.
        [State]:           What do you mean, the story was changing?
        [Cleere]:          I asked him, you know: Did they fight? He said, “Well, I didn’t hit
                           her.” “Did you push her?” “Well, no, she fell down.” I asked what
                           the fight was about. At first it was about [RJ] disrespecting him, and
                           then later it turned into something about driving the daughter while
                           he was intoxicated, things like that. The story just kept moving
                           around, it just wasn’t . . .
        [State]:           Were you interested in getting his side of what happened?
        [Cleere]:          Yeah, I wanted to know from his side what had happened. You
                           know, obviously there was some sort of dispute there, and I just
                           wanted to get his story, which wasn’t forthcoming.
        ....
        [State]:           And what did he say about the pickaxe?
        [Cleere]:          I believe he said that [RJ] was coming after him and he picked it up
                           to protect himself.
        [State]:           So at that point, did you want to know some of the details?
        [Cleere]:          Right, yeah. I wanted to know why would he want to protect himself
                           from [RJ], why was [RJ] coming after him. There wasn’t much to



                                                     4
No. 46775-5-II


                      go on. The story obviously had a lot of holes in it. It didn’t make a
                      lot of sense to me.
       [State]:       Did you try to get details out of him?
       [Cleere]:      Yes, I did.
       [State]:       How long do you think you talked to him?
       [Cleere]:      Several minutes.
       [State]:       How many times do you think you asked him specifically what
                      happened?
       [Cleere]:      At least 12 times.
       [State]:       Did he seem to understand the questions?
       [Cleere]:      Yes. He seemed to understand the questions. He was talking to me.
                      He was talking about a lot of stuff. But, I mean, he was not getting
                      specific about what happened between him and the female and her
                      son, which is [RJ]. He just, basically he would minimize it, say that
                      they tussled. That doesn’t really specifically tell me what happened.

RP at 133-35. Gundrum similarly testified about his interactions with Brown, stating that Brown

was “vague” and “ambiguous” about the incident. RP at 145-46.

       Brown testified in his defense. Brown admitted to throwing a sandwich at Oligario’s

face. Brown also admitted to picking up a pickaxe, but claimed that he did so in self-defense. In

claiming self-defense, Brown did not testify that RJ had used, attempted to use, or threatened to

use force against him. Instead, Brown testified that he grabbed the pickaxe at the moment that

Oligario called out for RJ and RJ came running out of the house. Brown stated that he feared for

his life when RJ came running out of the house because RJ was “quick and strong.” RP at 161.

Brown also stated that he knew RJ “was going to be ready to do something” because that is how

a son would act “[w]hen a parent calls for help.” RP at 168. Brown denied that he had swung

the pickaxe at RJ, stating that Oligario caused him to drop the pickaxe shortly after he had

grabbed it.

       The following exchange took place during the State’s cross-examination of Brown:

       [State]:       And you’ve had good relationships with [Oligario and RJ], right?
       [Brown]:       Yes.
                      ....



                                                 5
No. 46775-5-II


       [State]: .      Were you surprised they were willing to talk to the police and
                       surprised they were willing to come in and testify?
       [Brown]:        You know, like I said, [Oligario], she is a very nice person and she
                       [is] truthful about what she do. She’s trying to raise her kids like
                       that. I wouldn’t put it out that she wasn’t going to come and speak
                       up. That’s the way she is. She was raised like that to tell the truth
                       and have her kids tell the truth. That’s what I admire about her.
       [State]:        Knowing that that’s what she does, she tries to tell the truth, you
                       must be upset that she would make up a story and [RJ] would make
                       up stories about what happened that night.
       [Brown]:        You know something, I can look at something and you ask me how
                       did it—how did it go? I couldn’t tell you just exactly how—I can
                       be looking at something, I can see you make a move, I couldn’t even
                       do the same way you do, you know what I’m saying? I know
                       everybody’s story is not going to meet up, but it’s going to be close.
                       I know they going to say what they want to say, and I’m going to
                       say it the way I saw it.
       [State]:        Right, So different people see a situation, everybody is going to
                       describe it a little different.
                       ....
       [State]:        Would you agree with me your story of what happened that night is
                       dramatically different from what everybody else described?
       [Brown]:        It’s not dramatically different. It’s related to what was going on,
                       you know what I’m saying? They—they didn’t put everything out
                       there because they want to maybe shut out things. I put it right out
                       there what was all about. Maybe she didn’t want to come up and
                       say my son might be disrespecting me, this and that. She might not
                       want to bring that up.

RP at 200-02. Defense counsel did not object to this line of questioning.

       The jury returned verdicts finding Brown guilty of second degree assault and fourth

degree assault, and it returned special verdicts finding Brown committed the second degree

assault while armed with a deadly weapon and committed the fourth degree assault against a

member of his family or household.

       Prior to his sentencing hearing, Brown filed a letter with the trial court that requested an

“immediate appeal” based on his defense counsel’s ineffective assistance. CP at 99. Brown’s

letter stated that his defense counsel failed to defend him at trial and failed to call his requested

witness to testify. Brown’s letter further requested a sentence at the bottom range, a new trial, or

                                                   6
No. 46775-5-II


a plea to a lesser charge. Brown’s letter did not request that the trial court appoint him substitute

counsel to represent him at his sentencing hearing.

       At the sentencing hearing, the trial court addressed Brown’s letter, stating that his defense

counsel had filed a notice of appeal, that it appeared to the court that defense counsel was a good

advocate, and that it would deny Brown’s request to set aside the jury’s verdict. The sentencing

court thereafter imposed a standard range sentence based on Brown’s offender score of 6. The

sentencing court also imposed LFOs, to which Brown did not object. Brown appeals his

convictions and sentence.

                                            ANALYSIS

                                 I. PROSECUTORIAL MISCONDUCT

       Brown first asserts that his convictions must be reversed based on the prosecutor’s

misconduct in asking him to comment on Oligario’s and RJ’s credibility. We disagree.

       A defendant claiming prosecutorial misconduct must show both improper conduct and

resulting prejudice. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). Prejudice exists

when there is a substantial likelihood that the misconduct affected the verdict. State v.

McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Because Brown did not object at trial to the

prosecutor’s conduct that he complains of on appeal, he must further demonstrate that the

misconduct was “so flagrant and ill-intentioned that it evinces an enduring and resulting

prejudice” that was incurable by a jury instruction. State v. Stenson, 132 Wn.2d 668, 719, 940

P.2d 1239 (1997).

       Here the State concedes that the prosecutor committed misconduct by asking Brown

whether he was upset that Oligario and RJ “would make up stories about what happened that

night.” RP at 201. We accept the State’s concession. See State v. Ramos, 164 Wn. App. 327,



                                                  7
No. 46775-5-II


334, 263 P.3d 1268 (2011) (A prosecutor commits misconduct by asking a defendant whether

another witness is lying.). However, the State contends, and we agree, that Brown has failed to

make the required showing that the prosecutor’s misconduct was so flagrant and ill-intentioned

that the resulting prejudice was incurable by a jury instruction.

       Unprompted by any improper questioning by the State, Brown testified that Oligario was

a “truthful” person and that she had raised her children to “tell the truth.” RP at 200-01. Having

already testified that Oligario was truthful and that she had raised RJ to be truthful, any prejudice

resulting from the prosecutor’s follow-up questions to Brown regarding Oligario’s and RJ’s

credibility was minimal and could have been cured with a jury instruction. Accordingly, Brown

has not shown reversible error based on the prosecutor’s misconduct. Stenson, 132 Wn.2d at

719.

                             II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Next, Brown asserts that his defense counsel was ineffective for (1) failing to object to

the State’s questions asking him to comment on Oligario’s and RJ’s credibility, (2) failing to

object to the State’s question that implied he had an obligation to speak with police, and (3)

failing to object to portions of Cleere’s and Dundrum’s testimony that he contends improperly

commented on his credibility. We disagree.

       To prevail on an ineffective assistance of counsel claim, Brown must show both that (1)

counsel’s performance was deficient and (2) the deficient performance prejudiced him.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.

Brockob, 159 Wn.2d 311, 344-45, 150 P.3d 59 (2006). Performance is deficient if, after

considering all the circumstances, it falls below an objective standard of reasonableness. State v.

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Prejudice results if there is a



                                                  8
No. 46775-5-II


reasonable probability that the outcome of the trial would have been different had defense

counsel not rendered deficient performance. State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260

(2011), cert. denied, 135 S. Ct. 153 (2014). We strongly presume that counsel is effective and

Brown must show the absence of any legitimate strategic or tactical reason supporting defense

counsel’s actions. McFarland, 127 Wn.2d at 336-37. To rebut this presumption, Brown bears

the heavy burden of “establishing the absence of any ‘conceivable legitimate tactic explaining

counsel’s performance.’” Grier, 171 Wn.2d at 42 (quoting State v. Reichenbach, 153 Wn.2d

126, 130, 101 P.3d 80 (2004)).

A.     Brown’s Testimony

       1. Credibility

       Brown first asserts that defense counsel was ineffective for failing to object to the State’s

questions asking him to comment on Oligario’s and RJ’s credibility. However, as discussed

above, Brown’s initial testimony regarding Oligario’s and RJ’s tendencies to be truthful was not

prompted by any improper questioning by the State. Thus, it is conceivable that defense counsel

chose not to object to the State’s follow-up questions to allow Brown to explain why their

account of the events differed from his account. Defense counsel’s decision not to object

permitted the jury to hear Brown’s explanation that Oligario and RJ may have perceived the

event differently than he had. Had defense counsel objected to the State’s follow-up questions,

the jury may have been left only with Brown’s testimony that Oligario was truthful and had

raised RJ to be the same. Accordingly, we hold that defense counsel had a legitimate tactical

reason for not objecting to the State’s questioning, which defeats Brown’s ineffective assistance

of counsel claim. Grier, 171 Wn.2d at 42.




                                                 9
No. 46775-5-II


       2. Right to Silence

       Next, Brown asserts that his defense counsel was ineffective for failing to object to the

State’s question, “So when the deputies came to you, you knew all you had to do was tell the

truth,” which he contends improperly asked him to comment on his Fifth Amendment right to

silence. RP at 193; U.S. CONST. amend. V. We disagree.

       A comment on the right to silence occurs when evidence of the defendant’s silence is

used to the State’s advantage as either substantive evidence of guilt or to suggest to the jury that

the silence was an admission of guilt. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996).

“The use of pre-arrest silence as substantive evidence of guilt implicates the Fifth Amendment

and is not merely an evidentiary issue.” State v. Easter, 130 Wn.2d 228, 235, 922 P.2d 1285

(1996). However, if the defendant testifies at trial and claims self-defense, the State may use a

defendant’s pre-arrest silence to impeach the defendant’s self-defense claim. State v. Burke, 163

Wn.2d 204, 213, 217, 181 P.3d 1 (2008) (citing Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct.

2124, 65 L. Ed. 2d 86 (1980)).

       Here, Brown did not exercise his right to pre-arrest silence, and he testified at trial that

his conduct against RJ was taken in self-defense. Accordingly, when viewed in context, the

State’s question to Brown did not ask him to comment on exercising his right to silence when

police officers spoke to him but, rather, asked him to explain why he did not assert the same self-

defense claim to which he had just testified at trial when he chose to speak with police officers

on the day of the incident. Moreover, even assuming for the sake of argument that the State’s

question asked Brown to comment on his pre-arrest silence, such use of Brown’s silence was

permissible as impeachment evidence under Burke. 163 Wn.2d at 217. At most, the State’s

question was designed to impeach Brown’s self-defense claim to show how the claim had



                                                 10
No. 46775-5-II


evolved over time and was not designed to elicit substantive evidence of his guilt. Accordingly,

Brown cannot demonstrate that his defense counsel performed deficiently for failing to object to

the State’s question. Therefore, Brown’s claim of ineffective assistance on this ground cannot

succeed.

B.     Cleere’s and Dundrum’s Testimony

       Next, Brown asserts that defense counsel was ineffective for failing to object to portions

of Cleere’s and Dundrum’s testimony, which testimony Brown contends included improper

comments on his credibility. Again, we disagree.

       Generally, witnesses are not permitted to testify about their opinions of the defendant’s

credibility. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). Impermissible opinion

testimony about the defendant’s credibility “unfairly prejudices the defendant because it invades

the exclusive province of the jury to make an independent determination of the relevant facts.”

State v. Rafay, 168 Wn. App. 734, 805, 285 P.3d 83 (2012) (citing State v. Kirkman, 159 Wn.2d

918, 927, 155 P.3d 125 (2007)). “Testimony from a law enforcement officer regarding the

veracity of another witness may be especially prejudicial because an officer’s testimony often

carries a special aura of reliability.” Kirkman, 159 Wn.2d at 928. However, testimony based on

“direct knowledge of facts at issue” rather than on “one’s belief or idea” does not constitute

opinion testimony. Demery, 144 Wn.2d at 760 (internal quotation marks omitted). Additionally,

“testimony that is not a direct comment on the defendant’s guilt or on the veracity of a witness, is

otherwise helpful to the jury, and is based on inferences from the evidence is not improper

opinion testimony.” City of Seattle v. Heatly, 70 Wn. App. 573, 578, 854 P.2d 658 (1993).

       Here, neither Cleere nor Dundrum testified as to their opinions regarding Brown’s

credibility. Instead, they merely stated their observations of Brown’s responses to their



                                                11
No. 46775-5-II


questions about what had transpired between him, RJ, and Oligario. There was nothing improper

about this testimony because it was based on the officers’ direct observations of Brown’s

conduct in answering their questions at the scene and, thus, did not invade the province of the

jury to determine whether Brown was a credible witness.

                         III. DISSATISFACTION WITH APPOINTED COUNSEL

       Next, Brown asserts that the trial court abused its discretion by failing to adequately inquire

about the breakdown of his relationship with defense counsel. We disagree.

       Indigent defendants have a Sixth Amendment right to appointed counsel at all critical

stages of a criminal prosecution. State v. Harell, 80 Wn. App. 802, 804, 911 P.2d 1034 (1996).

Sentencing is a critical stage of a criminal prosecution. State v. Robinson, 153 Wn.2d 689, 694,

107 P.3d 90 (2005). A defendant wishing to discharge his appointed counsel must make a timely

motion to do so upon proper grounds. State v. Cross, 156 Wn.2d 580, 606, 132 P.3d 80 (2006).

Trial strategy, including the decision to call witnesses, is a matter within the discretion of counsel.

Cross, 156 Wn.2d at 606-07; State v. Jones, 33 Wn. App. 865, 872, 658 P.2d 1262 (1983). Thus,

a defendant’s disagreement with counsel over the decision to call or not to call a witness generally

does not create a conflict raising Sixth Amendment concerns. Cross, 156 Wn.2d at 609.

       Brown did not file any motion to discharge his counsel or to have substitute counsel

appointed. Absent such a motion, Brown cannot demonstrate that the trial court abused its

discretion by failing to inquire into his alleged conflict with counsel. Further, because Brown’s

issue with his defense counsel concerned only counsel’s decision not to call a witness, a matter

of trial strategy, he did not present any valid basis for the trial court to appoint new counsel.

Accordingly, Brown’s argument on this issue lacks merit.




                                                  12
No. 46775-5-II


                                  IV. LEGAL FINANCIAL OBLIGATIONS

          Finally, Brown asserts for the first time on appeal that the trial court erred by imposing

LFOs without first considering whether he had the present or likely future ability to pay the

LFOs as required under Blazina, 182 Wn.2d 827. In State v. Lyle, 188 Wn. App. 848, 850, 355

P.3d 327 (2015),5 remanded, 365 P.3d 1263 (2016), the majority opinion held that a defendant

sentenced after we issued our decision in Blazina, 174 Wn. App. 906, 301 P.3d 492 (2013),

remanded, 182 Wn.2d 827 (2015), waives this challenge by not raising it in the trial court.

          Brown did not challenge the trial court’s preprinted finding that he had the ability pay

LFOs at his October 10, 2014 sentencing hearing that occurred after our decision in Blazina.

Under the majority opinion in Lyle, Brown’s failure to challenge the trial court’s LFO finding

would generally result in his waiver of the issue on appeal. However, in light of our Supreme

Court’s recent order granting the petition for review in Lyle, 365 P.3d 1263, and remanding to

the trial court on the LFO issue presented there, we elect to exercise our discretion whether to

reach challenges to discretionary6 LFO’s when not raised in the trial court.

          Here, there was no discussion of Brown’s ability to pay discretionary LFOs at his

sentencing hearing. The State, however, points to Brown’s statement at sentencing that he

“work[s] hard” and to his request for a low-end sentence so that he “can get back out to my work




5
    Bjorgen, A.C.J., dissented.

6 Brown challenges both discretionary and mandatory LFOs, relying solely on Blazina and
former RCW 10.01.160(3), the statute on which Blazina rests. Blazina, however, only addressed
discretionary LFOs in imposing its requirement for an individualized determination of ability to
pay. 182 Wn.2d at 832, 837. Therefore, Brown’s argument that his mandatory LFOs are subject
to the requirement of an individualized determination fails. In addition, we held in State v.
Mathers, No. 47523-5-II (Wash. Ct. App. May 10, 2016) that mandatory LFOs imposed for the
deoxyribonucleic acid (DNA) fee and the Victim Penalty Assessment (VPA) fee are not subject
to the requirement of an individualized determination.
                                                   13
No. 46775-5-II


and deal with my [nine] kids,” as support for a finding that he has the ability to pay the imposed

LFOs. RP (Oct. 10, 2014) at 7-8. Brown’s statement that he “work[s] hard,” while suggesting

that he has been employed in the past and is likely employable, does not reveal Brown’s past or

potential future income or his necessary living expenses. RP (Oct. 10, 2014) at 7. Accordingly,

we cannot conclude on these statements alone that the trial court had a sufficient factual basis to

impose discretionary LFOs absent the individualized inquiry required in Blazina.

       The trial court found Brown indigent at the conclusion of the proceeding. Although a

trial court’s indigency finding does not necessarily show an inability to pay in all situations, our

Supreme Court recognized in Blazina that if a defendant meets the GR 34 standard for indigency,

“courts should seriously question that person’s ability to pay LFOs.” Blazina, 182 Wn.2d at 839.

At the least, this recognition shows that the need for an individualized inquiry into ability to pay

is heightened under Blazina when the defendant is indigent. In Blazina the court remanded for

an individualized determination, even though the defendants had not objected below, because it

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

“demand” that it reach the issue. 182 Wn.2d at 830, 833-34. Those same consequences face

Brown, another indigent defendant. Although his present indigency does not necessarily mean

that Brown is or will be unable to pay his LFOs, it does mean under Blazina that the trial court

must assess his ability to pay in the individualized manner the Supreme Court requires. The trial

court failed to make that individualized determination. Accordingly, we exercise our discretion

and remand to the trial court for reconsideration of the discretionary LFOs consistently with

former RCW 10.01.160(2)-(3) and Blazina, 182 Wn.2d at 838-39.




                                                 14
No. 46775-5-II


                                        V. APPELLATE COSTS

        Brown filed a supplemental brief contending that if the State substantially prevails in this

appeal, we should decline to impose appellate costs on him because he is indigent and is serving

a substantial sentence. The State responded that it does not intend to file a cost bill in this

matter, regardless of the outcome. Holding the State to its representation, Brown’s challenge to

appellate costs is moot and need not be considered.

                                              CONCLUSION

        We affirm Brown’s conviction, reverse the imposition of discretionary LFOs, and remand

for the trial court to make an individualized inquiry into Brown’s ability to pay before imposing

any discretionary LFOs, consistently with Blazina, 182 Wn.2d at 839 and former RCW

10.01.160(2)-(3).

        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.



                                                       BJORGEN, C.J.
 We concur:



 MELNICK, J.




 SUTTON, J.




                                                  15
