                                                                                                   Filed
                                                                                             Washington State
                                                                                             Court of Appeals
                                                                                              Division Two

                                                                                               July 14, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
 STATE OF WASHINGTON,                                                   No. 50592-4-II

                         Respondent,

         v.
                                                                 UNPUBLISHED OPINION
 LEVAR DEMETRIUS COUCH,

                         Appellant.



        SUTTON, A.C.J. — Levar Demetrius Couch appeals the trial court’s imposition of various

discretionary legal financial obligations (LFOs), a criminal filing fee, and an interest accrual

provision following his guilty plea convictions in three separate judgments and sentences. Couch

argues that (1) the trial court failed to engage in an adequate, individualized inquiry as to his ability

to pay before imposing the discretionary LFOs, and (2) the $200 criminal filing fee and the interest

accrual provision should be stricken under State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).

        Because the record does not show whether the trial court found Couch indigent under RCW

10.101.010(3)(a) through (c) or under subsection (d), we remand to the trial court to determine the

basis of Couch’s indigency and to then reconsider the imposition of discretionary costs under RCW

10.01.160(3) and the filing fee under RCW 36.18.020(2)(h). And because RCW 10.82.090(1)

prohibits the accrual of interest on non-restitution LFOs, we remand for the trial court to strike the

interest accrual provisions to the extent they apply to non-restitution LFOs and amend the

judgments and sentences for counts I and III accordingly.
No. 50592-4-II


                                               FACTS

          Couch pleaded guilty to attempted eluding, second degree driving with a suspended

license, and driving under the influence. At the sentencing hearing, the State requested that the

trial court impose various LFOs, including “$200 cost,” $500 for Department of Assigned Counsel

recoupment, “DUI fines and costs of $2895.50,” and “DUI recovery costs of $124.04.” Verbatim

Report of Proceedings (VRP) at 2-3.

          Prior to imposing the LFOs, the trial court noted that Couch was 32 years old and inquired

into his employment history and education. Couch told the trial court that before his arrest he had

worked at a department store selling women’s shoes for a year and a half and that he had attended

school through the 12th grade.

          On June 15, 2017, the trial court entered three separate judgments and sentences, one for

each conviction. In the judgments and sentences, the trial court imposed (1) a $500 crime victim

assessment, (2) a $100 DNA database fee,1 (3) $500 in costs related to the court appointed attorney

and defense costs, (4) a $200 criminal filing fee, (5) a $2,895.50 “[f]ine” related to the driving

under the influence conviction, and (6) $124.04 in “[e]mergency [r]esponse [c]osts to Washington

State Patrol.” Clerk’s Papers (CP) at 27, 36, 38. In the judgment and sentences for counts I and

III, the trial court also ordered that interest on all “the financial obligations” would start to accrue

from the date of the judgment. CP at 28, 41.




1
    This was Couch’s first felony offense.


                                                   2
No. 50592-4-II


        After sentencing, the trial court signed an order of indigency for purposes of the appeal.

This order did not specify the basis of Couch’s indigency. Couch appeals the LFOs and the interest

provisions in the three judgments and sentences.

                                             ANALYSIS

        Couch argues that the trial court failed to engage in an adequate, individualized inquiry as

to his ability to pay before imposing the discretionary LFOs as required under RCW 10.01.160(3)

and State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015). He also argues that the criminal

filing fee is no longer permitted under RCW 36.18.020(2)(h) because he is indigent.

        RCW 10.01.160(3) now prohibits the trial court from imposing discretionary costs on a

defendant “if the defendant at the time of sentencing is indigent as defined in RCW

10.101.010(3)(a) through (c).”2 If Couch is indigent under RCW 10.101.010(3)(a) through (c),

the trial court is not required to conduct the inquiry required by Blazina before imposing these

costs. Ramirez, 191 Wn.2d at 747-48. And RCW 36.18.020(2)(h) prohibits the imposition of the

criminal filing fee if the defendant is indigent as defined by RCW 10.101.010(3)(a) through (c).

        Because the appellate record does not disclose the basis of Couch’s indigence, we remand

for the trial court to determine whether Couch is indigent under RCW 10.101.010(3)(a) through

(c). If he is, then the trial court should strike all discretionary costs and the criminal filing fee. If

he is indigent under RCW 10.101.010(3)(d), the trial court should “take account of the financial




2
 The current versions of RCW 10.01.160(3) and RCW 36.18.020 apply to Couch because his
appeal was not final when the amendments to these statutes took effect. Ramirez, 191 Wn.2d at
749.



                                                   3
No. 50592-4-II


resources of the defendant and the nature of the burden that payment of costs will impose” before

reimposing the costs. RCW 10.01.160(3).

         Couch further argues that under RCW 10.82.090(1), the interest accrual provision should

be struck from his judgments and sentences for counts I and III.3 As the State concedes, Couch is

correct. RCW 10.82.090(1) prohibits interest accrual on non-restitution LFOs, regardless of a

defendant’s indigency. Accordingly, on remand the trial court should strike the interest provisions

from the judgments and sentences for counts I and III.

                                          CONCLUSION

         Because the record does not show whether the trial court found Couch indigent under RCW

10.101.010(3)(a) through (c) or under subsection (d), we remand to the trial court to determine the

basis of Couch’s indigency and to then reconsider the imposition of discretionary costs under RCW

10.01.160(3) and the filing fee under RCW 36.18.020(2)(h). And because RCW 10.82.090(1)

prohibits the accrual of interest on non-restitution LFOs, we remand for the trial court to strike the

interest accrual provisions to the extent they apply to non-restitution LFOs and amend the

judgments and sentences for counts I and III accordingly.




3
    RCW 10.82.090(1) applies to Couch. Ramirez, 191 Wn.2d at 749.


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No. 50592-4-II


        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.



                                                    SUTTON, A.C.J.
 We concur:



 MELNICK, J.




 CRUSER, J.




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