                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          April 12, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 47249-0-II

                               Respondent,

        v.

 PATRICK WADE NEWMAN,                                         UNPUBLISHED OPINION

                               Appellant.

       LEE, J. — Patrick Wade Newman appeals his sentence, arguing that the trial court erred by

imposing $1,325 in discretionary legal financial obligations (LFOs) without making an

individualized inquiry into his present and future ability to pay the discretionary LFOs and that he

received ineffective assistance of counsel when counsel failed to object to the imposition of

discretionary LFOs. We hold that Newman received ineffective assistance of counsel when

counsel failed to object to the imposition of discretionary LFOs, and we remand for the trial court

to make an individualized inquiry into Newman’s ability to pay discretionary LFOs.

                                              FACTS

       The underlying facts are not at issue. A jury found Newman guilty of possession of a

controlled substance. The trial court sentenced him to 10 days in confinement with 12 months in

community custody. The State prepared a judgment and sentence, which included a $1,000 “drug
No. 47249-0-II


fine” and other discretionary LFOs. Clerk’s Papers at 47. At sentencing, Newman asked the trial

court to strike “the thousand-dollar drug fee” because Newman “might not be working a whole

bunch soon.” Verbatim Report of Proceedings (VRP) (Feb. 9, 2016) at 136. The trial court asked

Newman whether he was working; Newman responded that he was currently working.

       The trial court did not impose the drug fee, but did impose the following LFOs: $500 victim

assessment, $200 criminal filing fee, $100 DNA collection fee, and $100 crime lab fee; and $150

incarceration fee, $825 court appointed attorney fee, and $250 drug enforcement fund of Cowlitz

County Prosecutor.1 Newman appeals.

                                            ANALYSIS

       Newman argues that he received ineffective assistance of counsel when defense counsel

failed to object to “all discretionary legal financial obligations.” Br. of Appellant at 6. We agree.

       We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d

870, 883, 204 P.3d 916 (2009). A defendant claiming ineffective assistance of counsel has the

burden to establish that (1) counsel’s performance was deficient and (2) the deficient performance

prejudiced the defendant’s case. Id. Failure to establish either prong is fatal to an ineffective

assistance of counsel claim. State v. McLean, 178 Wn. App. 236, 246, 313 P.3d 1181 (2013),

review denied, 179 Wn.2d 1026 (2014).

       Counsel’s performance is deficient if it falls below an objective standard of reasonableness.

State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).




1
 Of the LFOs imposed, the victim assessment, criminal filing fee and DNA collection fee are
mandatory and not challenged on appeal. RCW 7.68.035; RCW 36.18.020(2)(a) and (h); RCW
43.43.7541; see State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).


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No. 47249-0-II


Our scrutiny of counsel’s performance is highly deferential; we strongly presume reasonableness.

State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). To rebut this presumption, a defendant

bears the burden of establishing the absence of any legitimate trial tactic explaining counsel’s

performance. Id. “But counsel’s performance is not deficient if it can be characterized as a

legitimate trial tactic.” McLean, 178 Wn. App. at 247.

       Defense counsel did not object to the trial court’s imposition of $1,325 in discretionary

LFOs. Our decision in State v. Blazina held that a defendant waives any challenge to discretionary

LFOs on appeal by failing to object to the imposition of discretionary LFOs during sentencing.2

174 Wn. App. 906, 911, 301 P.3d 492 (2013), remanded, 182 Wn.2d 827, 344 P.3d 680 (2015).

Newman was sentenced on February 9, 2015—approximately 21 months after this court’s Blazina

opinion was published. Accordingly, defense counsel was on notice that the trial court was

required to consider the defendant’s ability to pay discretionary LFOs and that failing to object to

discretionary LFOs waived the defendant’s challenge. There is no evident legitimate strategic or

tactical reason for defense counsel to not object, especially since defense counsel had informed the

trial court that Newman “might not be working a whole bunch soon.” VRP (Feb. 9, 2016) at 136.

Thus, defense counsel’s performance was deficient by failing to object to the discretionary LFOs.

       Next, we must determine whether Newman has established prejudice.               To establish

prejudice, Newman must show that there is a reasonable probability that the result would have

been different had the deficient performance not occurred. Grier, 171 Wn.2d at 34. The record




2
 The Supreme Court, although ultimately reversing in Blazina, held that we properly exercised
our discretion in declining to review the challenge to discretionary LFO raised for the first time on
appeal. State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).


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No. 47249-0-II


demonstrates a reasonable probability that the result would have been different. Defense counsel

requested that the trial court strike the proposed $1,000 drug fee based on Newman’s future

inability to pay, which would have been an appropriate basis to object to the other discretionary

LFOs. The trial court’s decision to strike the drug fee at defense counsel’s request demonstrates

the trial court’s willingness to exercise its discretion to not impose fees that the defendant would

likely not be able to pay. Thus, based on the trial court’s exercise of discretion in not imposing

the drug fee, there is a reasonable probability that the trial court would have also not imposed the

other discretionary LFOs if defense counsel had objected.

        Newman also argues that counsel’s failure to object to discretionary LFOs was prejudicial

because of the various hardships that result from criminal convictions and LFOs. Newman’s

concerns regarding the criminal justice system involve a policy issue, not a legal issue, and this

court defers to the legislature to resolve such issues. See State v. Gentry, 125 Wn.2d 570, 629, 888

P.2d 1105, cert. denied, 516 U.S. 843 (1995); Eggert v. Ford, 21 Wn.2d 152, 160-61, 150 P.2d

719 (1944) (holding there “may be a better policy than that which the legislature has seen fit to

adopt; but a discussion of that matter has no place here, since the court has no legislative power,

but is strictly limited to enforcing the law as it finds it”).




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No. 47249-0-II


         We remand for the trial court to consider Newman’s current and future ability to pay

discretionary LFOs.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.



                                                                         Lee, J.
    We concur:



                   Worswick, J.




                   Bjorgen, C.J.




3
 Newman also argues that the trial court erred by imposing discretionary LFOs without making
an individualized inquiry into his present and future ability to pay. Because we remand on other
grounds, we do not address this challenge.


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