                                                                         FILED 

                                                                     OCTOBER 20, 2015 

                                                                 In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31700-5-III
                      Respondent,             )
                                              )
       v.                                     )
                                              )
COLE LEE HEALY,                               )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. -    Cole Healy challenges two requirements of his judgment and

sentence, arguing that the trial court should revisit his legal financial obligations (LFOs)

and should not have imposed a "no obstructing behavior" condition as part ofhis

community supervision. We agree with his latter claim and strike that language from the

judgment, but otherwise affirm.

                                          FACTS

       Ajury convicted Mr. Healy of one count ofthird degree assault that occurred in

the Pend Orielle County Jail. That incident occurred when he fought with a corrections

officer who was attempting to stop Mr. Healy from attacking another inmate.
No. 31700-5-III
State v. Healy


       At sentencing, the court stressed the need for Mr. Healy to avoid becoming

involved with police officers:

       And Mr. Healy, I've just added "no obstructing behavior." That's kind of
       redundant, actually, but the idea would be to discourage any further
       behavior problems with law enforcement.

Report of Proceedings at 101. The noted phrase was added to the community custody

provisions of the judgment and sentence. There the court hand wrote under the "comply

with the following crime-related prohibitions" box of the judgment:

       No criminal law violations; No assaultive behavior; No obstructing
       behavior.

Clerk's Papers at 80.

       The court also imposed $1,100 in total legal financial obligations. There were

$800 in mandatory assessments (victim assessment, filing fee, DNA 1 collection fee) and

$300 in discretionary costs (booking fee, public defender recoupment). Mr. Healy was

directed to begin payment at $25 per month upon release from custody.

       Mr. Healy timely appealed his conviction to this court.

                                       ANALYSIS

       Mr. Healy asks that this court strike the "no obstructing behavior" language and

remand the LFOs for a new hearing concerning his ability to pay. We address the claims

in the order stated.


       1 Deoxyribonucleic   acid.

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No. 31700-5-111
State v. Healy


       Obstructing Behavior

       Mr. Healy argues that the "obstructing behavior" language is unconstitutionally

vague. Although its meaning was clear in context, we agree that the written formulation

in the judgment and sentence does not provide sufficient direction to prevent improper

enforcement and strike the provision.

       A sentencing condition must be sufficiently clear to allow the offender to comply

with the condition and prevent arbitrary enforcement. State v. Sanchez Valencia, 169

Wn.2d 782,791,239 P.3d 1059 (2010); State v. Bahl, 164 Wn.2d 739,752-753,193 P.3d

678 (2008). The vagueness doctrine does not require "complete certainty" of expression,

and the terms are considered in context. Valencia, 169 Wn.2d at 793. When a term is

undefined, courts can turn to a dictionary to provide the plain and ordinary meaning of

the language in question. Bahl, 164 Wn.2d at 754.

      The imposition of a sentencing condition is reviewed for abuse of discretion.

Valencia, 169 Wn.2d at 793. Discretion is abused when it is exercised on untenable

grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12,26,482

P .2d 775 (1971). Discretion also is abused when exercised contrary to law. State v.

Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995).

      In the context of the sentencing hearing, the court explained that Mr. Healy needed

to stop confronting law enforcement officers. The court noted that the "obstructing

behavior" language was redundant since it was part of a condition to "obey all laws" and

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No. 31700-5-III
State v. Healy


commit "no criminal violations." It appears the court merely was reinforcing the notion

that obstructing a law enforcement officer was a crime and that Mr. Healy needed to

avoid confrontation with authority. However, the written language of the condition does

not contain those limitations. The terms "obstructing" or "obstruction" have a rather

broad common meaning. The standard dictionary definition is "a condition of being

clogged or blocked." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1559

(1993). As written, neither Mr. Healy nor a law enforcement officer would know what

the court intended.

       Accordingly, we believe that the "no obstructing behavior" language is vague. We

direct the trial court to strike the condition from the judgment and sentence.

       Legal Financial Obligations

       Mr. Healy also asks that we remand the case for the court to more fully consider

the question of his LFOs. He did not object to the court's finding below. We decline to

review the claim.

       This court reviews the trial court's determination concerning a defendant's

resources and ability to pay under the clearly erroneous standard. State v. Bertrand, 165

Wn. App. 393, 403-404, 267 P.3d 511 (2011). A decision on whether to impose fees is

reviewed for abuse of discretion. State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116

(1991). RCW 10.01.160(3) provides that, "the court shall take account of the financial

resources of the defendant and the nature of the burden that payment of costs will

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No. 31700-5-III
State v. Healy


impose." This inquiry is only required for discretionary LFOs. State v. Lundy, 176 Wn.

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

victim assessments, DNA fees, and criminal filing fees, operate according to the current

sentencing scheme and without the court's discretion by legislative design). Trial courts

are not required to enter formal, specific findings. Id. at 105.

       If the defendant does not address the LFO issue in the trial court, appellate courts

are not required to consider the claim on appeal because it arises from a statute rather

than the constitution. RAP 2.5(a); State v. Blazina, 182 Wn.2d 827, 832-834, 344 P.3d

680 (2015). Appellate courts do retain discretion to decide if they will hear an LFO

claim for the first time on appeal. Blazina, 182 Wn.2d at 834-835.

       Here, we decline to consider the claim. Only $300 of the total financial

obligations was discretionary (public defender, booking fee) with the trial judge, while

the remaining $800 fell in the mandatory category. Lundy, 176 Wn. App. at 102. This

small amount does not raise the questions presented by the larger sum at issue in Blazina.

Moreover, Mr. Healy remains free to seek remittance at any time should he desire to raise

the question of his financial situation before the court. RCW 10.01.160(4).

       The conviction is affirmed, but the matter is remanded for the trial court to strike

the "obstructing behavior" language from the judgment and sentence.




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No. 31700-5-III
State v. Healy


         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.


                                                              Kors~
WE CONCUR: 





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