                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           April 2, 2019

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 50634-3-II

                                Respondent,

        v.

 MICKEY ROBERT GUAYANTE,                                      UNPUBLISHED OPINION

                                Petitioner.

       WORSWICK, J. —Mickey Guayante appeals from an order denying his motion to

terminate his legal financial obligations (LFOs), asserting that the sentencing court abused its

discretion by denying his motion on the basis that he had failed to establish a manifest hardship.

He requests we order the sentencing court to terminate his $7,500 appointed attorney fee and the

balance of interest accrued on the fee. In a Statement of Additional Grounds (SAG) for Review,

Guayante asserts that the sentencing court employed an incorrect standard when determining

whether his payment of LFOs would impose a manifest hardship.

       The State agrees that we may order the sentencing court to terminate Guayante’s $7,500

appointed attorney fee. We accept the State’s agreement and remand to the sentencing court for

entry of an order terminating Guayante’s $7,500 appointed attorney fee. But because the

sentencing court did not have discretion to modify the interest on Guayante’s LFOs, it did not err

by failing to do so, and we do not direct the sentencing court to modify such interest on remand.
No. 50634-3-II


                                              FACTS

       On March 6, 1998, the trial court entered a judgment and sentence against Guayante

following his guilty plea to first degree felony murder. The trial court sentenced Guayante to

340 months of incarceration and imposed legal financial obligations that included a $7,500

appointed attorney fee.

       On May 9, 2017, Guayante filed a motion to remit his LFOs. Guayante also filed an

affidavit in support of his remission motion in which he declared:

               At the time I was sentenced in the above cause I had already been found
       indigent by the sentencing court pursuant to RCW 10.101.010(3)(a), (c), and (d).
       There has been no positive change in my financial circumstance, and in fact my
       station in life has greatly diminished.
               I am currently serving more than 25 years in the Washington DOC
       [(Department of Corrections)] and have no means to pay the LFOs. In addition,
       my mental disabilities make it certain that I will never again be gainfully employed.
       I will never purposefully rebel against paying my LFOs, and therefore be in
       contumacious default, but the foreseeable future does not include a way for me to
       make payments.
               Upon my release in approximately six more years I will be homeless and
       unemployed. The only manner of income I will be receiving is government benefits
       which do not rise above the level of self-sufficiency standards. As an indigent and
       disabled person my future outlook is not bright and the added stress of fulfilling
       these financial obligations is greatly distressing. I humbly ask you for relief so that
       my reentry into society may have one less obstacle and that much greater of a
       chance at being successful.

Clerk’s Papers (CP) at 32-33. The State opposed Guayante’s remission motion, arguing that he

could not demonstrate that payment of his LFOs were currently inflicting a manifest hardship

because the Department of Corrections was providing for his basic needs. At a hearing

addressing Guayante’s motion to remit LFOs, the sentencing court stated it was denying the

motion, reasoning:




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No. 50634-3-II


         We take people as we find them at the time that the motion [to remit LFOs] is filed
         and at this time, I cannot make a finding that there’s a manifest hardship because
         all of your basic necessities of life are being provided by the State. That may
         change in the future and you are welcome to bring the motion again at any time,
         sir.

Report of Proceedings at 14. The sentencing court entered a written order denying Guayante’s

motion to remit, which stated, “The Court finds that the motion to remit may be brought at any

time. However at this time the Defendant has failed to establish a manifest hardship.” CP at 38.

We granted discretionary review of the sentencing court’s order denying Guayante’s motion to

remit.

                                             ANALYSIS

         Guayante contends that the trial court abused its discretion by denying his motion to

remit on the basis that he could not show a manifest hardship due to the fact that the Department

of Corrections was providing for his basic needs. We agree.

         Guayante filed his motion to remit under former RCW 10.01.160(4) (2015),1 which

provided:

                 A defendant who has been ordered to pay costs and who is not in
         contumacious default in the payment thereof 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 in costs, or modify the
         method of payment under RCW 10.01.170.




1
 In 2018, the legislature amended RCW 10.01.160(4) to provide that a defendant may file a
motion to remit costs only after release from total confinement and that a manifest hardship
exists where the defendant is indigent as defined in RCW 10.101.010(3)(a) through (c). LAWS
OF 2018, ch. 269 § 6(4). Neither party argues that the 2018 amendments apply.


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No. 50634-3-II


Former RCW 10.01.160(4) does not define “manifest hardship.” Our Supreme Court has held

that “[a] person’s present inability to meet his or her own basic needs is not only relevant, but

crucial to determining whether paying LFOs would create a manifest hardship.” City of

Richland v. Wakefield, 186 Wn.2d 596, 606, 380 P.3d 459 (2016). Our Supreme Court did not,

however, suggest that a present inability to meet basic needs was an exclusive factor to be

considered by a sentencing court when evaluating whether a defendant’s LFO payments would

cause a manifest hardship or that a present ability to meet basic needs would foreclose a finding

of manifest hardship. Wakefield, 186 Wn.2d at 606-07. To the contrary, the Wakefield court

noted that remission under former RCW 10.01.160(4) is appropriate where the defendant has no

present or future ability to pay LFOs that are subject to remission. 186 Wn.2d at 606-607. And

sentencing courts should use GR 34’s indigency standards as a guide for determining whether a

defendant has a present or future ability to pay LFOs and, thus, whether a defendant’s payment

would cause a manifest hardship. 186 Wn.2d at 606-607.

       Here, Guayante agreed at his remission hearing that his current ability to meet basic

needs was a relevant factor for consideration in determining whether his LFO payments would

cause a manifest hardship. But Guayante argued that, under Wakefield, the sentencing court

should also consider his inability to pay LFO as evidenced by his indigent status under GR 34

when determining whether his payments would impose a manifest hardship. The sentencing

court did not evaluate Guayante’s ability to pay or determine whether he was indigent under GR

34, instead stating that it was foreclosed from finding a manifest hardship based on the fact that

the Department of Corrections was providing for Guayante’s basic needs.




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No. 50634-3-II


       We hold that, under our Supreme Court’s guidance in Wakefield, the sentencing court

abused its discretion by failing to consider Guayante’s indigent status and inability to pay LFOs

that were subject to remission when denying his motion. State v. Bauer, 98 Wn. App. 870, 878,

991 P.2d 668 (2000) (A trial court abuses its discretion when its decision is based on untenable

grounds or reasons.). Thus we reverse the trial court’s order denying Guayante’s motion to

terminate his LFOs.

       Although we would typically remand to the sentencing court to reconsider Guayante’s

motion with direction to consider his ability to pay under the guidance of GR 34, in light of our

Supreme Court’s precedent and the parties’ agreement as to the appropriate remedy, we remand

for entry of an order terminating Guayante’s $7,500 appointed attorney fee. See Wakefield, 186

Wn.2d at 606.2

       We do not, however, direct the sentencing court to terminate any interest accrued on

Guayante’s appointed attorney fee because it does not have discretion to do so until Guayante is

released from total confinement. When Guayante filed his motion to remit, former RCW

10.82.090 (2015) governed the sentencing court’s authority to waive or reduce interest on his

LFOs. Former RCW 10.82.090(2) provided the sentencing court with discretion to waive or

reduce an offender’s LFO interest only after “the offender’s release from total confinement.”

Because Guayante filed his motion to remit while incarcerated, former RCW 10.82.090(2) did

not permit the sentencing court to waive or reduce any interest accrued on his LFOs.



2
 Because we grant Guayante’s requested relief based on the arguments raised by his counsel, we
do not address his SAG.




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No. 50634-3-II


Accordingly, the sentencing court did not err by declining to waive any accrued interest on

Guayante’s appointed attorney fee, and we direct the sentencing court on remand to terminate

only Guayante’s $7,500 appointed attorney fee and not any interest accrued on the fee.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.



                                                                         Worswick, J.
    We concur:



    Maxa, C.J.




    Glasgow, J.




3
  Under the current version of RCW 10.82.090, no interest shall accrue on nonrestitution LFOs
as of June 7, 2018. Additionally, the current version of RCW 10.82.090(2)(a) directs sentencing
courts to waive all interest on nonrestitution LFOs that accrued before June 7, 2018 on motion by
the offender “following the offender’s release from total confinement.” Therefore, Guayante
will be relieved of all the interest accrued on his appointed attorney fee if he files a motion under
RCW 10.82.090 after his release from incarceration.


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