                                                                 FILED
                                                               MAY 15, 2018
                                                       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. 35318-4-III
                                              )
                     Respondent,              )
                                              )
       v.                                     )         UNPUBLISHED OPINION
                                              )
DANIEL M. CAMPBELL,                           )
                                              )
                     Appellant.               )

       PENNELL, J. — Daniel Campbell appeals a trial court order requiring repayment of

legal financial obligations (LFOs) prior to release from custody. We grant Mr.

Campbell’s request for relief and strike the trial court’s repayment schedule.

                                         FACTS

       Daniel Campbell was convicted of second degree assault. Sentencing took place

on May 5, 2017. At sentencing, the trial court imposed a standard range sentence of

63 months’ imprisonment, 18 months’ community custody and mandatory LFOs of

$800.00. The court declined to impose discretionary LFOs based on Mr. Campbell’s

inability to pay.

       During a colloquy with the court, defense counsel requested Mr. Campbell’s LFO

payments be deferred until after release from custody. The trial court denied this request.

The court expressed concern that interest on the LFOs would accrue during Mr.
No. 35318-4-III
State v. Campbell


Campbell’s time in custody and that Mr. Campbell needed to start paying down his LFOs

as soon as possible. The trial court therefore ordered Mr. Campbell to make payments of

$5.00 per month, beginning on May 15, 2018.

      The written judgment and sentence contains the following paragraph addressing

Mr. Campbell’s repayment schedule:

      All payments shall be made in accordance with the policies of the clerk of
      the court and on a schedule established by the DOC or the clerk of the
      court, commencing immediately, unless the court specifically sets forth the
      rate here: Not less than $5.00 per month commencing 5/15/2018. RCW
      9.94A.760.

Clerk’s Papers at 140.
                                      ANALYSIS

      Mr. Campbell appeals the portion of his judgment and sentencing requiring

repayment of LFOs prior to release from confinement. We review this matter for abuse

of discretion. State v. Clark, 191 Wn. App. 369, 372, 362 P.3d 309 (2015). Although the

State has not yet sought collection of Mr. Campbell’s LFOs, Mr. Campbell’s challenge is

ripe for review. State v. Blazina, 182 Wn.2d 827, 830, 832 n.1, 344 P.3d 680 (2015).

      To be valid, an LFO repayment order must satisfy several factual foundations.

Among other things, the order must take into account a defendant’s financial resources

and only require payments that the defendant will be able to make. State v. Duncan,

185 Wn.2d 430, 437, 374 P.3d 83 (2016). In addition, an order requiring specific

                                            2
No. 35318-4-III
State v. Campbell


monthly payments must be structured so as to enable a defendant to retire his or her

LFOs. City of Richland v. Wakefield, 186 Wn.2d 596, 607, 380 P.3d 459 (2016); State v.

Sorrell, 2 Wn. App. 2d 156, 173, 408 P.3d 1100 (2018).

       The trial court’s requirement that Mr. Campbell begin paying LFOs at $5.00 per

month starting on May 15, 2018, lacked factual justification. The trial court had no

reason to believe Mr. Campbell would be able to afford payments toward his LFOs by

May 15, 2018. Mr. Campbell will still be serving his sentence by May 15 and most likely

will not yet be eligible for work release. See WAC 137-56-040 (eligibility for work

release does not begin until last 180 days of incarceration). In addition, at the time of

sentencing the trial court had no reason to believe $5.00 per month would ever permit Mr.

Campbell to retire his LFOs. 1

       Because the trial court lacked a sufficient basis for imposing Mr. Campbell’s LFO

repayment schedule, this portion of the judgment and sentence must be stricken.

However, full resentencing is unwarranted. Striking the LFO repayment portion of

Mr. Campbell’s judgment and sentence will permit the Department of Corrections to set

an appropriate payment schedule based on Mr. Campbell’s individual circumstances.



       1
        The law has since changed. Starting June 7, 2018, interest will no longer accrue
on nonrestitution LFOs. Laws of 2018, ch. 269, § 1.

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No. 35318-4-111
State v. Campbell


RCW 9.94A.760(1), (7). Mr. Campbell makes no showing that further relief is warranted

at this time.

                                       CONCLUSION

       This matter is remanded to the trial court with instructions to strike the repayment

schedule set forth on Mr. Campbell's judgment and sentence. Because Mr. Campbell has

prevailed on appeal, the State is not entitled to costs.

       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.


                                            Pennell, J.
I CONCUR:




Lawrence-Berrey, C.J.




                                               4
                                     No. 35318-4-III

       SIDDOWAY, J. (Dissenting) — The legislature has directed sentencing courts to set

a sum that an offender is required to pay towards satisfying legal financial obligations

(LFOs), and to do so on the judgment and sentence or a subsequent order to pay. RCW

9.94A.760. The legislature has authorized the sentencing court to designate a period in

which the LFOs may be paid and to do so at sentencing—a time when the legislature

would have been well aware that the sentencing court cannot predict when the offender

will have resources with which to pay. RCW 9.92.070.

       The legislature has deemed it appropriate that a portion of incoming funds

received by an inmate during incarceration be applied to his or her LFOs. RCW

72.09.480(2). Some deductions do not apply to funds an inmate receives as settlements

or awards resulting from legal action. RCW 72.09.480(2)-(3), 72.09.111(1)(a). The

deductions do not apply to funds received for the Department of Correction’s (DOC)

education, vocation, or postsecondary education degree programs; for postage expenses;

or for certain medical expenses. RCW 72.09.480(6)-(8). The legislature has also deemed

it appropriate that a portion of an inmate’s wages be applied to his or her LFOs. RCW

72.09.111. These deductions from incoming funds and inmate wages have been held

constitutional as long as they do not exceed the cost of incarceration. Wright v. Riveland,

219 F.3d 905, 918 (9th Cir. 2000); In re Pers. Restraint of Metcalf, 92 Wn. App. 165,

176, 963 P.2d 911 (1998).

       In this case, the sentencing court was asked by the State to set a minimum monthly

payment and a commencement date. Report of Proceedings (RP) at 287. It agreed to do
No. 35318-4-III
State v. Campbell (Dissent)


so, knowing that it was impossible to predict when Mr. Campbell might have resources

available with which to pay. RP at 294-95. In setting the date and amount, the

sentencing court would have been aware that during the period of supervision, the DOC

could recommend a change in the monthly payment schedule to reflect Mr. Campbell’s

financial circumstances. RCW 9.94A.760(7)(a). The sentencing court would also have

been aware of constitutional limitations on a system that requires defendants to pay court

ordered LFOs, including among other limitations that Mr. Campbell could not be held in

contempt for failure to repay if his default was not attributable to an intentional refusal to

obey the court order or a failure to make a good faith effort to make repayment. State v.

Duncan, 185 Wn.2d 430, 436, 374 P.3d 83 (2016).

       Following Mr. Campbell’s sentencing, the legislature enacted LFO reform, under

which Mr. Campbell has further protection from adverse consequences in the event he

has no resources available on the court-ordered commencement date for his payments.

LAWS OF 2018, ch. 269, §§ 8, 13, 15. The changes are effective in a matter of weeks, on

June 7, 2018. Id. at ii. Under the new law, if the State initiates a show cause proceeding

because payments are not being made and the court determines that the nonpayment is

not willful, Mr. Campbell could be relieved of some of his LFOs at that time:

       [T]he court may, and if the court finds that the defendant is indigent as
       defined in RCW 10.101.010(3) (a) through (c), the court shall modify the
       terms of payment of the legal financial obligations, reduce or waive
       nonrestitution legal financial obligations, or convert nonrestitution legal
       financial obligations to community restitution hours, if the jurisdiction
       operates a community restitution program, at the rate of no less than the
       state minimum wage . . . for each hour of community restitution,

                                              2
No. 35318-4-III
State v. Campbell (Dissent)



Id. at § 13 ( emphasis added), although the crime victim penalty assessment may not be

reduced, waived or converted to community restitution hours. See id.

       From the sentencing court's statements at sentencing, I construe it as reasoning

that paying down his LFOs will be easier for Mr. Campbell while incarcerated and

having State-provided room and board than it will be following his release. Defense

counsel had referred during sentencing to his client's past struggles finding housing.

RP at 291. If a sentencing court wishes to exercise its discretion to set a minimum

payment amount and commencement date rather than leave that decision to the DOC, we

should respect that. If a sentencing court believes that an offender is better served in the

long run by starting to pay down LFOs with incoming funds and wages while

incarcerated, we should respect that. The legislature gave the discretion to set the

commencement date and payment amount to the sentencing court, not to us.

       For this reason, I dissent.




                                                  SIDDOWAY,J.




                                              3
