                                                                           FILED 

                                                                        JULY 17,2014 

                                                                 In the Office ofthe Clerk of Court 

                                                               W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 31629-7-111
                                              )
                     Respondent,              )
                                              )
              v.                              )
                                              )
LUKE MICKLE,                                  )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       BROWN, A.C.J. - Luke Mickle appeals the sentencing court's imposition of legal

financial obligations (LFOs). He contends the court failed to first find he had the present

or future ability to pay. Mr. Mickle next contends the court abused its discretion in

ordering him to pay discretionary costs without taking into account his financial

resources and the nature of the burden that payment of costs will impose as required

under RCW 10.01.160(3). We affirm.

                                          FACTS

      A jury found Mr. Mickle guilty of felony harassment. Before sentencing, defense

counsel stated. "Judge, my client will be hopefully gainfully employed after this; he'll be

able to pay fines and fees." Report of Proceedings (Apr. 30, 2013) (RP) at 9. The

sentencing court then sentenced Mr. Mickle to eight months' confinement and imposed

mandatory costs of $700 and discretionary costs of $750, for a total amount of LFOs of
No. 31629-7-111
State v. Mickle


$1,450. The court made no oral ruling finding Mr. Mickle had the present or future

ability to pay the LFOs. The judgment and sentence, however, states, "The court has

considered the total amount owing, the defendant's present and future ability to pay

legal financial obligations, including the defendant's financial resources and the

likelihood that the defendant's status will change." Clerk's Papers (CP) at 22.

       The court made no further inquiry into Mr. Mickle's financial resources and the

nature of the burden that payment of LFOs would impose: The court ordered, ''Total

financial obligation in the case is $1,450. Mr. Mickle is required to pay that at a rate that

he works out with the court clerk. And he's to report to the clerk within 72 hours of his

release." RP (Apr. 30, 2013) at 15-16.

       The judgment and sentence states, "All payments shall be made in accordance

with the policies of the clerk of the court and on a schedule established by [Department

of Corrections] or the clerk of the court, commencing immediately." CP at 26. Mr.

Mickle appealed.

                                         ANALYSIS

       The issue is whether Mr. Mickle waived his challenge to his LFOs. The State

argues he did not preserve his error claims for our review because he did not object at

the sentencing hearing. The State is correct.

       Until our Supreme Court decides otherwise, the rule established by each division

of this court is that a defendant may not challenge a determination regarding his or her

ability to pay LFOs for the first time on appeal. State v. Duncan, No. 29916-3-111, slip



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No. 31629-7-111
State v. Mickle


op. at 7-12 (Wash. Ct. App. Mar. 25, 2014) (citing RAP 2.5(a) and State v. Kuster, 175

Wn. App. 420, 424-25,306 P.3d 1022 (2013)); State v. Calvin, _Wn. App. _,316

P.3d 496,507-08, petition for review filed, No. 89518-0 (Wash. Nov. 12,2013); State v.

Biazina, 174 Wn. App. 906, 911, 301 P.3d 492, review granted, 178 Wn.2d 1010, 311

P.3d 27 (2013).

       Moreover, we reject Mr. Mickle's challenge to his discretionary LFOs. RCW

10.01.160(3) requires that "[i]n determining the amount and method of payment of

costs, the court shall take account of the financial resources of the defendant and the

nature of the burden that payment of costs will impose." The trial court made no

specific finding of Mr. Mickle's ability to pay the costs; although counsel stated Mr.

Mickle would be gainfully employed. Nonetheless, it is premature for us to address the

assigned error for two reasons.

       First, challenges to LFOs are not properly before us until the State seeks to

enforce them. State v. Hathaway, 161 Wn. App. 634, 651,251 P.3d 253 (2011).

Because a person is not an "aggrieved party" under RAP 3.1 "until the State seeks to

enforce the award of costs and it is determined that [the defendant] has the ability to

pay," appellate review is inappropriate. State v. Mahone, 98 Wn. App. 342, 349, 989

P.2d 583 (1999); see also State v. Blank, 131 Wn.2d 230,242,930 P.2d 1213 (1997).

In State v. Crook, 146 Wn. App. 24, 27-28, 189 P.3d 811 (2008), the court held,

"Mandatory Department of Corrections deductions from inmate wages for repayment of

legal financial obligations are not collection actions by the State requiring inquiry into a



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No. 31629-7-111
State v. Mickle


defendant's financial status." Thus, "[i]nquiry into the defendant's ability to pay is

appropriate only when the State enforces collection under the judgment or imposes

sanctions for nonpayment." Crook, 146 Wn. App. at 27.

       Second, when and if the State seeks to collect, Mr. Mickle may petition the trial

court for remission under RCW 10.01.160(4): "A defendant who has been ordered to

pay costs ... may at any time petition the sentencing court for remission of the payment

of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that

payment of the amount due will impose manifest hardship on the defendant or the

defendant's immediate family, the court may remit all or part of the amount due." The

denial or granting of that motion would warrant appellate review.

       Accordingly, Mr. Mickle fails to provide a basis for reversal of the sentencing

court's imposition of LFOs.

       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.


                                                   Brown, A.C.J.

WE CONCUR: 



   ~1P-B s
Fearing, J.        }                               Lawrence-Berrey, J.




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