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                                                                            FILED
                                                                         JULY 19, 2016
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




          COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON

    STATE OF WASHINGTON,                         )        No.   33552-6-111
                                                 )
                         Respondent,             )
                                                 )
                 v.                              )'       ORDER GRANTING MOTION
                                                 )        FOR RECONSIDERATION
    MAGDALENO CRUZ TELLEZ,                       )        AND WITHDRAWING THE
                                                 )        OPINION FILED MAY 5, 2016
                        Appellant.               )

          THE COURT has considered Appellant's motion for reconsideration and the

    answer thereto, and is of the opinion the motion should be granted. Therefore,

           IT IS ORDERED, the motion for reconsideration of this court's decision of May 5,

    2016, is hereby granted.

           IT IS FURTHER ORDERED, the court's opinion filed May 5, 2016, is hereby

    withdrawn and a new opinion will be filed this day.

          PANEL: Judges Pennell, Siddoway, Fearing

          BY A MAJORITY:



                                                 GEORGE 8. FEARING, Chief Judge
                                                                        FILED
                                                                     July 19, 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. 33552-6-111
                       Respondent,             )
                                               )
       v.                                      )
                                               )
MAGDALENO CRUZ TELLEZ,                         )         UNPUBLISHED OPINION
                                               )
                       Appellant.              )

       PENNELL, J. -    In June 2015, Magdaleno Cruz Tellez was convicted in a stipulated

facts trial before the Benton County Superior Court of violating a protective order, a

gross misdemeanor. On appeal, he challenges the superior court's imposition of

discretionary legal financial obligations (LFOs ). He contends ( 1) the trial court failed to

make an individualized determination of his present and future ability to pay, and (2) his

counsel provided ineffective assistance of counsel by failing to object to the LFOs.

Because Mr. Cruz Tellez did not raise the LFO issue before the trial court at sentencing,

we exercise our discretion under RAP 2.5(a) and decline to address this contention. We

also conclude Mr. Cruz Tellez does not establish ineffective assistance of counsel on this

record. Thus, we affirm.

                                           FACTS

       During the sentencing phase of Mr. Cruz Tellez's stipulated facts trial, the court

asked Mr. Cruz Tellez about his projected financial situation, and then imposed LFOs:
No. 33552-6-III
State v. Tellez


              THE COURT: I'll ask you, were you employed at the time you
       were arrested on this?
              THE DEFENDANT: Yes.
              THE COURT: What were you doing at that time?
              THE DEFENDANT: Forklift driver at Pasco Processing.
              THE COURT: Has anything changed to where you're physically or
       unable at this time to work?
              THE DEFENDANT: No. I have the opportunity. I'm ready to go
       back to work.
              THE COURT: All right then. Is there any other reason why you
       would not be able to pay legal-financial obligations associated with this
       judgment and sentence?
              THE DEFENDANT: No.
              THE COURT: Ok. So, I'll assess a $500.00 victim assessment,
       $860.00 in costs, a $100.00 domestic violence assessment.

Report of Proceedings at 10. Neither Mr. Cruz Tellez nor defense counsel objected.

       The trial court imposed mandatory fees of $500 for the victim assessment (RCW

7.68.035), $100 for the domestic violence penalty assessment (RCW 10.99.080) and $200

for the criminal filing fee, for a total of $800. See State v. Lundy, 176 Wn. App. 96, 102,

308 P.3d 755 (2013) (the criminal filing fee is mandatory). The trial court also imposed

discretionary fees of $60 for the sheriffs service fee and $600 for attorney fees, for a

total of $660. Upon Mr. Cruz Tellez's motion after trial, the trial court found he lacked

sufficient funds to seek an appeal, and entered an order of indigency granting him the

right to review at public expense.

                                DISCRETIONARY LFOs

       In March 2015, two months before Mr. Cruz Tellez was sentenced, the

Washington Supreme Court decided State v. Blazina, 182 Wn.2d 827, 344 P.3d 680

                                             2
No. 33552-6-111
State v. Tellez


(2015), which made clear that under RCW 10.01.160(3), 1 a sentencing court must make

an individualized inquiry on the record into the defendant's present and future ability to

pay LFOs. Blazina, 182 Wn.2d at 838. Citing Blazina, Mr. Cruz Tellez contends for the

first time on appeal that the trial court violated RCW 10.01.160(3) because it ordered him

to pay discretionary LFOs without considering his current or future ability to pay.

       Mr. Cruz Tellez did not challenge the LFOs or the sufficiency of the

individualized inquiry at his sentencing. Consequently, he is not automatically entitled to

review. Blazina, 182 Wn.2d at 832. RAP 2.5(a) grants appellate courts discretion

whether to review a defendant's LFO challenge raised for the first time on appeal. Id. at

833. Here, the sentencing court heeded Blazina and engaged in some individualized

inquiry. Because only the sufficiency of the inquiry could arguably be the basis for

appeal, we decline to review his unpreserved challenge.

                     INEFFECTIVE ASSISTANCE OF COUNSEL

       Mr. Cruz Tellez contends his trial counsel provided ineffective assistance of

counsel by failing to challenge the LFOs. Based on this record, we do not find

prejudicial error.




       1
        The provision states the 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). In its inquiry, the court
must take into account the defendant's financial resources and the burden of the costs.
Id.

                                             3
No. 33552-6-111
State v. Tellez


       Our review of ineffective assistance of counsel claims is de novo. State v.

Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prove ineffective assistance of

counsel, Mr. Cruz Tellez must show with a preponderance of the evidence that his trial

counsel's performance fell below an objective standard of reasonableness, and that this

deficiern;y actually prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-

88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-

35, 899 P.2d 1251 (1995). We will find prejudice ifit is reasonably probable that, but for

the deficient performance, the outcome of the trial would have been different.

McFarland, 127 Wn.2d at 335. Mr. Cruz Tellez fails to show either deficient

performance or prejudice.

       First, he does not show that trial counsel had any reason to object to the imposition

ofLFOs. As Blazina established, the trial court must make an individualized inquiry into

a defendant's current and future ability to pay. 182 Wn.2d at 83 8. Additionally, if the

defendant meets the GR 34 standard for indigency, a court "should seriously question that

person's ability to pay LFOs." See id. at 838-39 (under GR 34, the court must find a

person indigent ifhe or she receives assistance from a needs-based program or ifhe or

she has a household income below 125 percent of the federal poverty guideline). Here,

although Mr. Cruz Tellez apparently met the GR 34 standard for indigency, the

sentencing court's inquiry into his ability to pay was sufficient to establish that Mr. Cruz

Tellez thought he would be able to pay off his LFOs. Before imposing the LFOs, the

                                             4
J
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,;

i    No. 33552-6-III
i
I    State v. Tellez
1l
1
l    court asked whether he would be able to return to his work as a forklift driver and
'

'    allowed Mr. Cruz Tellez to give any other reasons why he would not be able to pay.

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     Under these circumstances, defense counsel reasonably did not object to the imposition
l    ofLFOs.
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1
1           Second, the record also suggests that any objection raised would have been
1
1
     unsuccessful. Mr. Cruz Tellez contends defense counsel should have informed the court

     that he had outstanding LFOs from other convictions totaling over $12,000. See

     Appellant's Br., Appendix 1. This information does not appear in the record and is not

     properly before this court on appeal. See State v. Grier, 171 Wn.2d 17, 29, 246 P.3d

     1260 (2011) (when ineffective assistance is raised on appeal, the court may consider only

     facts within the record). Moreover, even with knowledge of his other debts, Mr. Cruz

     Tellez assured the court he would be able to pay the LFOs associated with his judgment

     and sentence. He simply does not show that an objection raised by defense counsel likely

     would have changed the trial court's decision to impose the discretionary fees.

     Consequently, his claim of ineffective assistance of counsel fails.

            Based on the foregoing, we affirm the trial court. In addition, RCW 10.73.160(1)

     vests the appellate court with discretion to deny or approve a request for an award of

     costs. Under RAP 14.2, that discretion may be exercised in a decision terminating




                                                  5
No. 33552-6-111
State v. Tellez


review. Adopting State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612 (2016), we exercise

our discretion to not award costs to the State. Appellate costs will not be awarded. The

pending cost bill is stricken.

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

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

2.06.040.




I CONCUR:



Fear{,~,S-




                                             6
                                       No. 33552-6-111

       SIDDOWAY, J. (dissenting in part)-After the filing of the original opinion in this

matter, Magdaleno Cruz Tellez filed a motion for reconsideration in which, for the first

time, he asked this court to exercise its discretion under RAP 14.2 to deny the State an

award of costs as the prevailing party on appeal.

       A motion for reconsideration under RAP 12.4(c) is required to state with

particularity the points of law or fact which the moving party contends the court has

overlooked or misapprehended. This court could not possibly ])ave overlooked or

misapprehended any point of law or fact bearing on the State's right to request an award

of costs, because our discretion to deny costs was never mentioned or suggested by

anything in Mr. Cruz Tellez's briefing.

       In Nostrand v. Little, 58 Wn.2d 111,120,361 P.2d 551 (1961), our Supreme Court

stated, "This court has for many years adhered to its rule that it will not consider

questions presented to it for the first time in a petition for rehearing." The issue

presented for the first time following the court's decision terminating review in Nostrand

was whether the state Subversive Activities Act, chapter 9.81 RCW, requiring that public

employees take a noncommunist oath, violated due process because it made no provision

for a hearing at which a public employee could explain or defend his or her refusal to

sign the oath. Our high court entertained the issue only "as a matter of comity," because

the United States Supreme Court had asked that it do so. Id.
    1
    I




I              Nostrand cited State v. Hazzard, 76 Wash. 586, 137 P. 143 (1913) and cases cited

        therein for this longstanding rule. 58 Wn.2d at 120. Among the cases cited by Hazzard


]       is State ex rel. Milwaukee Terminal R. Co. v. Superior Court, 54 Wash. 365, 377, 104

        Pac. 17 5 ( 1909), in which the court held, "We cannot sanction the practice of permitting

        new questions to be raised in a petition for rehearing." Holohan v. Melville, 41 Wn.2d

        380,408, 255 P.2d 899 (1953) likewise denied a petition for rehearing where an
j
l       overlooked issue of an agreement's invalidity under the statute of frauds "was not
\I
    I   theretofore raised and therefore could not be considered or determined on this appeal."
    i
               The law was well settled at the time Mr. Cruz Tellez filed his brief that this court
j
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        enjoys the latitude to deny an award of costs to the State in its decision. State v. Nolan,

        141 Wn.2d 620,627, 8 P.3d 300 (2000). The issue could have been raised in his briefing

        of the appeal but was not.


l
I
               The public is entitled to consistency in our application of court rules. If the

        tenured University of Washington professors risking discharge in Nostrand did not


!       present reason enough for a departure from the rule forbidding new issues from being

        presented in a request for rehearing, Mr. Cruz Tellez certainly does not. I dissent from

        this random departure from RAP 12.4.



                                                          ~,~·
                                                          Siddoway, J.



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