      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 78709-8-I
                       Respondent,
       v.                                       DIVISION ONE

TERRELL D. LILLY,                               UNPUBLISHED OPINION

                       Appellant.               FILED: November 18, 2019


       LEACH, J.   —   Terry Lilly appeals his judgment and sentence.    He claims

that the trial court should not have imposed a community supervision cost and

misstated the law about his right to possess a firearm when sentencing him. We

reject his challenge to the court’s comments but remand to the trial court to strike

the community supervision cost.

                                    BACKGROUND

      Terrell Lilly pleaded guilty to first degree assault and second degree

robbery. At sentencing, the trial court stated, “I am waiving all non-mandatory

costs and fees; I’m positive that Terrell doesn’t really have financial resources.”

The judgment and sentence requires that Lilly “[p]ay supervision fees as

determined by the Department of Corrections.”
       During the sentencing hearing, the trial court informed Lilly that it is “illegal

now for you in Washington forever. You cannot ever have a gun in our state.’

The court also stated that he “can’t get back the right to have a gun in our state.”

Lilly appeals the judgment and sentence.

                                         ANALYSIS

                                Community Supervision Cost

       Lilly challenges the court’s order for Lilly to “[p]ay supervision fees as

determined by the Department of Corrections.” Because he is indigent and the

court “waiv[ed] all non-mandatory costs and fees,” he asks this court to strike the

community supervision fee that he claims is a nonmandatory cost.

       The State responds that the community supervision fee is a “fee” and not

a “cost.”           However, this court has already held that “costs of community

custody.    .   .   are discretionary LFOs.”1 And RCW 10.01.160 prohibits courts from

imposing discretionary costs on a defendant who is indigent at the time of

sentencing.2 Because Lilly is indigent and the community supervision cost is

discretionary, we remand for the superior court to strike the community

supervision cost.




       1State v. Lundstrom, 6 Wn. App. 2d 388, 396 n.3, 429 P.3d 1116 (2018),
review denied, 193 Wn.2d 1007 (201 9).
      2 RCW 10.01.160(3); State v. Ramirez, 191 Wn.2d 732, 746, 426 P.3d

714 (2018).

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                              Sentencing Comments

      Lilly asserts that the trial court incorrectly stated the law in advising Lilly

that he could never possess a firearm again and this court should strike the trial

court’s comments.    Lilly is correct about the law.   He may regain his right to

possess a firearm if his conviction is pardoned, annulled, or receives a certificate

of rehabilitation or other equivalent procedure.    But Lilly does not ask for any

material relief that this court can provide. He only asks that this court strike the

trial court’s comments that do not have the force of law and have no effect on

Lilly’s judgment or sentence. Also, the court advised Lilly of his ability to regain

his right to possess a firearm in his guilty plea statement.3 So we deny his

request to strike the comments.

                                  CONCLUSION

      We reject Lilly’s challenge to the trial court’s oral comments about his gun

rights but remand for the superior court to strike the community supervision cost.




WE CONCI




       ~ “This plea of guilty will result in the revocation of my right to possess,
own, or have in my control any firearm unless my right to do so is restored by a
superior court in Washington State, and by a federal court if required.”

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