                                                                   FILED 

                                                                 MAY 28, 2015 

                                                         In the Office of the Clerk of Court 

                                                       W A State Cou rt of Appeals, Division III 




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                            )           No. 32112-6-III
                                                )
                      Respondent,               )
                                                )
              v.                                )           UNPUBLISHED OPINION
                                                )
JOHN T. HAMRE,                                  )
                                                )
                     Appellant.                 )

       LAWRENCE-BERREY, J. - A jury found John Hamre guilty of attempting to elude

a police vehicle. On appeal, he raises an issue he did not preserve below. He argues that

the trial court improperly imposed legal financial obligations (LFOs) on him without first

inquiring into his ability to pay. State v. Blazina,      Wn.2d _,344 P.3d 680 (2015)

confirms an appellate court's discretion on whether to allow the argument to be raised for

the first time on review. Because the discretionary LFOs here are less than $750, we

exercise our discretion against reviewing the waived error.
No. 32112-6-III
State v. Hamre


                                           FACTS

       Mr. Hamre was charged and convicted by a jury of attempting to elude a police

vehicle. The sentencing court imposed discretionary costs of $198 and mandatory costs

of $700, for a total LFO of $898. The court ordered Mr. Hamre to pay $25 per month

commencing September 15,2014. The judgment and sentence contained, the following

boilerp late language:

              2.5 Legal Financial Obligations/Restitution [RCW 9.94A.760]. The
       court has considered the total amount owing, the defendant's 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.

Clerk's Papers (CP) at 25. However, the record reveals no actual inquiry by the

sentencing court concerning Mr. Hamre's present or future ability to pay the LFOs. Nor

does the record reveal any objection by Mr. Hamre concerning imposition of the LFOs.

Mr. Hamre nevertheless appeals.

                                        ANALYSIS

       Mr. Hamre challenges the trial court's imposition ofLFOs and scheduled payment.

He contends that the trial court failed to take into account his present or future ability to

pay, as required by RCW 10.01.160.




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No. 32112-6-III
State v. Hamre


         In State v. Duncan, 180 Wn. App. 245, 253, 327 P.3d 699 (20 14),petitionjor

review filed, No. 90188-1 (Wash. Apr. 30,2014), we observed that whether a defendant

will be unable to pay LFOs imposed at sentencing is not an issue that defendants

overlook, it is one they reasonably waive. Further, we concluded that henceforth we

would decline to address a challenge to consider that issue if raised for the first time on

appeaL Id. (citing RAP 2.5(a)). Our position was consistent with that of the other

divisions of our court. See State v. Blazina, 174 Wn. App. 906, 911,301 P.3d 492 (2013),

remanded, 344 P.3d 680 (2015); State v. Calvin, 316 P.3d 496, 507,petitionjor review

filed, No. 89518-0 (Wash. Nov. 12,2013). We consistently held, until our Supreme Court

decided otherwise, that this was the rule we would follow.

         In Blazina, the Supreme Court held that RAP 2.5(a) provides appellate courts with

discretion whether to review a defendant's LFO challenge raised for the first time on

appeal. Blazina, 344 P.3d at 683. There, the Blazina court exercised its discretion in

favor of allowing the LFO challenge. Id. In doing so, the Blazina court chronicled the

myriad of problems associated with LFOs imposed against indigent defendants. Id. at

683-85

         Here, Mr. Hamre failed to object to the trial court's imposition ofLFOs. We,

therefore, have discretion to rely on our analysis in Duncan and not review the claimed


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No. 32ll2-6-III
State v. Hamre


error. In determining whether to review the newly raised error, we weigh the

administrative burden and expense of bringing Mr. Hamre to a new sentencing hearing

against the likelihood that the LFO result would change. An important variable in this

analysis is the dollar amount of discretionary LFOs imposed by the sentencing court.

       It is important to agree on a uniform standard to assist appellate counsel in

advising their clients whether to raise the LFO issue for the first time on appeal. We note

that if we declare that the issue was waived below, the defendant will be burdened with

extra costs as the nonprevailing party. Toward announcing a uniform standard, we

suggest that when discretionary LFOs are less than $750, we should be reluctant to decide

the newly raised issue.

       Here, Mr. Hamre's discretionary LFOs are only $198. We, therefore, exercise our

discretion and decide not to review this waived issue for the first time on appeal. In so

holding, we do not countenance a sentencing court's failure to make the inquiry on the

record necessitated by RCW 10.01.160. Rather, we reason that the administrative burden

and expense of bringing Mr. Hamre back to court for a new hearing outweighs the

likelihood that the relatively small discretionary costs imposed will be reduced.




                                             4

No. 32112-6-111
State v. Hamre


      Affinn.

      A majority of the panel has detennined 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.


                                         Lawrence-Berrey, 1.
WE CONCUR: 





Brown, A.C.J.




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