                                                                           FILED
                                                                        AUGUST 6, 2019
                                                                  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. 35759-7-III
                       Respondent,              )
                                                )
        v.                                      )
                                                )
 JUSTIN A. WELKER,                              )         UNPUBLISHED OPINION
                                                )
                       Appellant.               )

       SIDDOWAY, J. — Justin Welker moved the trial court for remission or termination

of legal financial obligations (LFOs) that remained payable under his criminal

convictions dating back to 2006 and 2007. Although the superior court provided some

relief, it ruled that a single crime victim penalty assessment remained payable and, while

the LFO could not be collected from Mr. Welker’s Social Security disability benefits, he

would be required to report to the clerk’s office annually on whether he was receiving

income from other sources. He appeals.

       Following the Supreme Court’s decision in State v. Catling, 193 Wn.2d 252, 438

P.3d 1174 (2019) (Catling II), it is clear the trial court’s order is valid. We affirm.
No. 35759-7-III
State v. Welker


                      FACTS AND PROCEDURAL BACKGROUND

       In April 2017, at a time when Justin Welker owed amounts for LFOs imposed on

him in 2006 and 2007, he moved the Spokane County Superior Court to remit his LFOs

because he lacked the ability to pay, or alternatively, deem his LFOs uncollectable. He

argued that since his only income was $616.25 a month from SSI1 and food stamps, he

did not have income with which to make payments toward his LFOs. He argued that City

of Richland v. Wakefield, 186 Wn.2d 596, 380 P.3d 459 (2016), mandated the relief he

was requesting.

       The State argued that because Mr. Welker’s LFO balance was for mandatory

LFOs, the trial court lacked authority to reduce or waive it.

       At the hearing on Mr. Welker’s motion, he argued that the Social Security Act

“prohibit[ed] courts from ordering defendants to pay LFOs if the person’s only source of

income is Social Security Disability.” Report of Proceedings (June 2, 2017) at 2. The

State agreed that it could not collect LFOs from a defendant whose only source of income

was Social Security disability benefits, but argued remission was not available because

Mr. Welker’s remaining LFO balance was for mandatory LFOs. The State conceded that

because SSI was then Mr. Welker’s only income source, the trial court should suspend

collection efforts.



       1
           Supplemental Security Income.

                                             2
No. 35759-7-III
State v. Welker


       The trial court took the matter under advisement, later issuing a memorandum

opinion and order. The trial court’s opinion concluded that Wakefield did not apply

because it involved discretionary LFOs, while Mr. Welker’s remaining LFOs were

mandatory.2 The trial court also noted that “at some time during the pendency Welker

had the ability to make the payments and did, in fact, make payments toward his LFOs.”

Clerk’s Papers (CP) at 86.

       The trial court granted some relief to Mr. Welker, ordering the clerk’s office to

reverse the application of amounts earlier collected to discretionary LFOs that the court

found could have been waived or reduced. It ordered the clerk to apply those amounts to

mandatory LFOs, with the result that the LFOs imposed by Mr. Welker’s 2006 judgment

would be completely satisfied and he would only have a single mandatory LFO

remaining from his 2007 judgment: the balance owed on the $500 crime victim penalty

assessment. The trial court also suspended further collection efforts until the next annual

review hearing, which would take place in April 2018.

       The court’s order stated that Mr. Welker would be required to demonstrate

annually, in April, that he continues to qualify for suspension of collection efforts. The




       2
        The trial court also distinguished Wakefield as involving a different type of
Social Security disability benefit than the one at issue in Wakefield. In fact, Ms.
Wakefield received SSI, the same type of benefit received by Mr. Welker. Wakefield,
186 Wn.2d at 603.

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No. 35759-7-III
State v. Welker


court waived any outstanding court interest on Mr. Welker’s mandatory LFOs. While it

observed that the victim penalty assessment would continue to accrue interest until paid

in full, it added that “[a]t the time of full payment of the principal, Welker can motion the

Court to waive this interest also.” CP at 90.

       Mr. Welker moved for reconsideration, which was denied. He sought

discretionary review by this court of the superior court’s August 2017 opinion and order

and its November 2017 denial of reconsideration.3 Our commissioner determined that

the two decisions were appealable as a matter of right.

       At the time of oral argument of the appeal, this court’s decision in State v. Catling,

2 Wn. App. 2d 819, 413 P.3d 27 (2018) (Catling I), had been accepted for review by the

Washington Supreme Court. This court held in Catling I that “[t]he Constitution does not

limit the ability of the states to impose financial obligations on convicted offenders; it

only prohibits the enforced collection of financial obligations from those who cannot pay

them.” Id. at 823. It further held that while mandatory LFOs could not be enforced

against a defendant’s Social Security disability benefits, the Social Security anti-

attachment statute, 42 U.S.C. § 407(a), did not operate to invalidate the LFOs, which

could be satisfied out of any funds not subject to the statute. This court remanded the



       3
        Mr. Welker’s opening brief complains of actions taken in the superior court
preceding these rulings on his remission request. Those actions were not timely appealed
and will not be addressed.

                                                4
No. 35759-7-III
State v. Welker


case to the sentencing court “to amend its judgment and sentence to indicate that the

LFOs may not be satisfied out of any funds subject to 42 U.S.C. § 407(a).” Id. at 826.

      At oral argument the parties agreed that Mr. Welker’s appeal should be stayed

pending a decision from the Supreme Court in Catling II. Following issuance of the

Supreme Court’s decision, the stay was lifted.

                                       ANALYSIS

      The Supreme Court’s decision in Catling II resolves the issues on appeal. The

Supreme Court held in Catling II that this court’s decision had

      appropriately applie[d] the plain language of 42 U.S.C. § 407(a). The
      remedy employed adheres to § 407(a)’s mandate that no Social Security
      disability benefits are available to satisfy a debt, while at the same time
      recognizes that nothing in § 407(a) immunizes criminal defendants
      receiving Social Security benefits from the imposition of mandatory
      LFOs—here, the crime victim fund assessment.

193 Wn.2d at 264.

      The Supreme Court reversed this court in part because its own intervening

decision in State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), afforded Mr. Catling

relief from the criminal filing fee and possibly the DNA4 collection fee, which are no

longer mandatory in all cases. Catling II, 193 Wn.2d at 257-59. As for the $500 crime

victim penalty assessment however—the only LFO remaining payable by Mr. Welker—

the Supreme Court recognized that it continued to be mandatory under RCW


      4
          Deoxyribonucleic acid.

                                            5
No. 35759-7-III
State v. Welker


7.68.035(1)(a). Id. at 259. The court observed that in overhauling Washington’s LFO

provisions in 2018, the legislature was explicit about the mandatory character of the

crime victim penalty assessment, stating, in House Bill 1783:

       “The crime victim penalty assessment under RCW 7.68.035 may not be
       reduced, revoked, or converted to community restitution hours.”

Id. at 259-60 (quoting LAWS OF 2018, ch. 269, §§ 8(5), 13(3)(f)). Elsewhere, it stated,

       “An offender being indigent . . . is not grounds for failing to impose . . . the
       crime victim penalty assessment under RCW 7.68.035.”

Id. at 260 (quoting LAWS OF 2018, ch. 269, § 14(1)).

       The Supreme Court held that this court’s remand order in Catling I “does not leave

Catling in legal limbo, that is, with a mandatory LFO imposed but with no directive from

the court on how to properly resolve it,” explaining, “Washington’s LFO provisions

address this possibility, authorizing the county clerk to monitor a defendant’s changing

circumstances and to alter the defendant’s payment schedule as needed.” Catling II, at

265 (citing RCW 9.94A.760(8)(b)). It characterized RCW 9.94A.760(8)(b) as

“authoriz[ing] the clerk of the court to require the defendant to report to the clerk’s office

to provide periodic updates regarding his financial status, and here, that would include

whether the defendant has any assets other than his Social Security disability benefits.”

Id. It rejected the suggestion that the requirement that Mr. Catling report periodically

was overly burdensome. Id. at n.6.




                                              6
No. 35759-7-III
State v. Welker


       The trial court's order requiring Mr. Welker to present a financial declaration and

any supporting documentation to the superior court LFO clerk annually in order to

qualify for continuing suspension of collection is consistent with the procedure that the

Supreme Court agreed could be required of Mr. Catling.

       Mr. Welker requests an award of attorney fees under RCW 9.94A. 7709, which

provides for such an award to an LFO obligor if he or she prevails, in an action to enforce

an LFO, where the obligee has acted in bad faith in connection with the proceeding in

question. This appeal does not involve an action to enforce an LFO and Mr. Welker has

not prevailed.

       Affirmed.

       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.


                                                    'J)b&> a ) ~ . ~ .
                                                 Siddoway, J.

WE CONCUR:




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