    rrcEx
     IN CLERKS OFFICE      \
                                                                    This opinion was
                                                                  filed for record
     COURT,81XIE OF VMSHBiOTON
                                                               atw^on
I DATE OCT 1 n ?nrq
                                                                  Susan L. Carlson
     GMG^JUSnCE
                                                                 Supreme Court Clerk




          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

                  Petitioner,                         No. 96643-5


                                                      En Banc


MATTHEW T. SCHWARTZ,
                                                      Filed       OCT 1 0 2019
                  Respondent.


       OWENS,J. — Matthew T. Schwartz pleaded guilty to felony failure to register

as a sex offender. At sentencing, Schwartz and the State disputed whether two of

Schwartz's prior class C felony convictions had "washed out"—^that is, whether

Schwartz's prior convictions should not have been included in his offender score—

 under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. Specifically,

the parties disagreed as to whether time spent in jail as a sanction for failing to pay

legal financial obligations(LFOs)ordered on a felony conviction resets the five-year

 washout period under RCW 9.94A.525(2)(c).

       We hold that the legislature did not intend that time spent in jail as a sanction
State V. Schwartz, No. 96643-5



for failing to pay LFOs ordered on a felony conviction reset the five-year washout

period and precluded a prior class C felony conviction from washing out. Reading

RCW 9.94A.525(2)(c) as resetting the washout period when a defendant spends time

in jail for failing to pay LFOs leads to absurd results and is contrary to the SRA and

its legislative history. Accordingly, both Schwartz's 1997 and 2001 convictions wash

out under RCW 9.94A.525(2)(c) and should not have been included in his offender

score. Thus, we affirm the Court of Appeals.

                                         FACTS


       Schwartz was convicted of a felony sex offense and required by law to register

as a sex offender. In 2017, a Klickitat County sheriffs deputy learned that Schwartz

had moved from his last reported residence nearly three months prior and had failed to

provide notice ofthe address change. The State subsequently charged Schwartz with

felony failure to register as a sex offender.

       Schwartz pleaded guilty as charged. Prior to sentencing, both the State and

Schwartz reported the following criminal history for Schwartz:

             Crime                 Violation Date    Sentence Date      Crime Type
    Second Degree Assault            09/01/1993       07/10/1998             FA
   (with Sexual Motivation)                                           [felony class A]
           Forgery                   07/02/1997       07/22/1997             FC
                                                                      [felony class C]
  Failure to Register as a Sex       05/04/2001       09/04/2001             FC
            Offender
   VUCSA [violation ofthe            03/13/2013        11/03/2014            FC
      Uniform Controlled
 Substances Act]-Possession
     of Methamphetamine
State V. Schwartz, No. 96643-5




See Clerk's Papers at 28.

       Schwartz stipulated that both his 1998 second degree assault conviction and his
2014 possession of methamphetamine conviction counted toward his offender score.
Accordingly, Schwartz's 1998 second degree assault conviction counted as three
points toward his offender score, and his 2014 possession of methamphetamine
conviction counted as one point. RCW 9.94A.525(2)(a),(17),(7).

       Schwartz argued, however, that neither his 1997 forgery conviction nor his

2001 failure to register as a sex offender conviction should be included in his offender

score. Schwartz asserted that he spent over 5 years in the community without

committing any crime that resulted in a conviction between the date of release from

confinement for his 2001 failure to register as a sex offender conviction and his 2014

possession of methamphetamine conviction.' Schwartz reasoned that because he had

spent over 5 years in the community without a conviction, his 1997 and 2001 class C

felony convictions washed out under the SRA. Schwartz calculated his offender score

as a 4, resulting in a standard range sentence of 12 to 14 months in confinement.

RCW9.94A.510.


       The State disagreed with Schwartz's offender score calculation, contending that

his 1997 forgery and 2001 failure to register as a sex offender convictions counted as




'The parties do not provide the dates on which Schwartz was released from confinement for
any of his prior convictions.
                                            3
State V. Schwartz, No. 96643-5



one point each. RCW 9.94A.525(7),(18). The State noted that the trial court had
entered three separate orders between 2014 and 2015 modifying the judgment and

sentence for Schwartz's 2001 failure to register as a sex offender conviction and

imposing additional jail time as sanctions due to Schwartz's failure to pay LFOs

ordered on his 2001 conviction.^ The State argued that because Schwartz was

confined in jail for failing to pay the LFOs ordered on his 2001 conviction, Schwartz

had been confined pursuant to a felony conviction. The State further reasoned that

due to Schwartz's time in jail pursuant to his 2001 felony conviction, the SRA's

washout period was not triggered until his release in 2015. Accordingly, the State

asserted that Schwartz had not spent 5 years in the community without a conviction

and calculated his offender score as a 6, leading to a standard range sentence of 17 to

22 months. RCW 9.94A.510.


       The trial court determined that Schwartz's offender score was a 6 and imposed

a sentence of 17 months in confinement. The trial court concluded that the three

orders modifying Schwartz's judgment and sentence and imposing sanctions for his

failure to pay LFOs "exclude[d] any washout ofthe forgery and the failing to register


^ In 2014 and 2015, Washington law permitted a court to imprison a defendant as a sanction
for failing to pay LFOs ordered on a sentence if the defendant was capable of paying the
LFOs and willfully refused to pay or if the defendant did not make a sufficient bona fide
effort to seek employment or borrow money to pay the LFOs. State v. Nason, 168 Wn.2d
936, 945, 233 P.3d 848 (2010); see former RCW 9.94A.6333 (2008). In 2018, this law was
amended by House Bill 1783 to provide that a court may sanction a defendant for failure to
pay LFOs only when the failure to pay is willful. State v. Ramirez, 191 Wn.2d 732, 747, 426
P.3d 714(2018). House Bill 1783 "address[ed] some ofthe worst facets ofthe system that
prevent offenders from rebuilding their lives after conviction." Id.
State V. Schwartz, No. 96643-5



as a sex offender crimes." Transcript ofProceedings at 28. The court reasoned that

"the time of any service of any sentence [related to a felony conviction]," id., counted

as "confinement. . . pursuant to a felony conviction" under RCW 9.94A.525(2)(c) of

the SRA.


       Schwartz appealed, and Division Three ofthe Court of Appeals reversed his

sentence and remanded for resentencing within the appropriate standard range. State

V. Schwartz,6 Wn. App. 2d 151, 160,429 P.3d 1080 (2018). The Court of Appeals

held that "the language 'the last date of release from confinement. . . pursuant to a

felony conviction' in RCW 9.94A.525(2)(c) does not include confinement imposed

for a failure to make a payment toward LFOs." Id. at 153 (alteration in original). The

court reasoned that the legislature did not intend that financial conditions on a

criminal sentence be included in an offender score because a condition requiring the

payment ofLFOs is not directly related to public safety and because the obligation to

pay LFOs can continue well beyond the statutory maximum term for the convicted

offense. Id. The State petitioned this court for review, which we granted. 192Wn.2d

1023 (2019).

                                         ISSUE


       Does serving jail time as a sanction for failing to pay LFOs ordered as part of a

felony conviction constitute "confmement . . . pursuant to a felony conviction" under

RCW 9.94A.525(2)(c) such that the statute's washout period would not trigger until the

last date of release from such confmement?
State V. Schwartz, No. 96643-5


                                        ANALYSIS


       The State argues that neither Schwartz's 1997 forgery conviction nor his 2001

failure to register as a sex offender conviction wash out under the SRA because

Schwartz spent time in jail as a sanction for failing to pay LFOs ordered on a felony

conviction. Specifically, the State argues that time spent in jail for failing to pay

LFOs qualifies as "confinement. . . pursuant to a felony conviction" under the plain

language of ROW 9.94A.525(2)(c) and resets the start ofthe five-year washout

period. We disagree. We hold that the legislature did not intend that time spent in jail

as a sanction for failing to pay LFOs ordered on a felony conviction reset the five-year

washout period and precluded a prior class C felony conviction from washing out.^

Accordingly, Schwartz's 1997 and 2001 convictions wash out under ROW

9.94A.525(2)(c) and should not have been included in his offender score.

       We review a trial court's offender score calculation de novo. State v. Tili, 148

Wn.2d 350, 358,60 P.3d 1192(2003). To properly calculate a defendant's offender

score, trial courts must determine a defendant's criminal history based on his or her

prior convictions under the statutory formula ofRCW 9.94A.525. State v. Ross, 152




^ Nothing in this opinion should be read as expressing any view as to whether a prior
conviction may wash out when a defendant has spent time in jail as a sanction for violating a
condition of his or her sentence. We answer only the narrow question of whether
confinement pursuant to a sanction for failing to pay LFOs precludes a prior felony
conviction from washing out under the SRA.
State V. Schwartz, No. 96643-5



Wn.2d 220,229, 95 P.3d 1225 (2004). When a trial court miscalculates a defendant's

offender score, we remand the case to the trial court for resentencing. Id.

       To determine whether the trial court properly calculated Schwartz's offender

score by counting his 1997 forgery and 2001 failure to register as a sex offender

convictions toward his score, we must interpret RCW 9.94A.525(2)(c). We review

questions of statutory interpretation de novo. State v. Ervin, 169 Wn.2d 815, 820, 239

P.3d 354(2010). The primary goal of statutory interpretation is to discern and

implement the legislature's intent in enacting the statute. Id. In interpreting a statute,

we first look to the plain meaning of the statute. State v. Roggenkamp, 153 Wn.2d

614, 621, 106 P.3d 196(2005). To determine a statute's plain meaning, we look to

the text ofthe statute itself, as well as the context ofthe statute, related statutory

provisions, and the statutory scheme as a whole. Ervin, 169 Wn.2d at 820.

       If the meaning ofthe statute is plain on its face, we must give effect to that

plain meaning. Id. If, however, the statute is susceptible to more than one reasonable

interpretation, the statute is ambiguous. Roggenkamp, 153 Wn.2d at 621.

"Legislative history, principles of statutory construction, and relevant case law may

provide guidance in construing the meaning of an ambiguous statute." Id.

       RCW 9.94A.525(2)(c) directs whether class C felony convictions are to be

included in a defendant's offender score. "[0]ffenses which 'shall not be included in

the offender score' ... are said to have 'washed out.'" State v. Keller, 143 Wn.2d

267, 284, 19 P.3d 1030(2001)(quoting former RCW 9.94A.360(2)(1996), reeodified

                                             1
State V. Schwartz, No. 96643-5



as RCW 9.94A.525(2)(c)). RCW 9.94A.525(2)(c) provides:

       [CJlass C prior felony convictions other than sex offenses shall not be
       included in the offender score if, since the last date of release from
       confinement (including full-time residential treatment) pursuant to a
       felony conviction, if any, or entry ofjudgment and sentence, the offender
       had spent five consecutive years in the community without committing
       any crime that subsequently results in a conviction.

The statute is split into two separate clauses: a trigger clause,"which identifies the

beginning ofthe five-year [washout] period," and a continuity/interruption clause,

"which sets forth the substantive requirements an offender must satisfy during the

five-year period." Ervin, 169 Wn.2d at 821. Accordingly, the plain language of

RCW 9.94A.525(2)(c) provides that the washout period on certain prior convictions

will trigger when five years have elapsed between the last date of release from

confinement pursuant to a felony conviction and a subsequent conviction.

       At issue in this case is the meaning of the phrase "the last date of release from

confinement... pursuant to a felony conviction." RCW 9.94A.525(2)(c). The State

relies on State v. Mehrabian, a decision from Division One ofthe Court of Appeals, in

arguing that time spent in jail for the failure to pay LFOs is confinement pursuant to a

felony conviction under the plain language of RCW 9.94A.525(2)(c). 175 Wn. App.

678, 716, 308 P.3d 660(2013). In Mehrabian, the Court of Appeals reasoned that

confinement results from both an original conviction, which includes any ordered

LFOs, and the failure to pay LFOs ordered on that conviction. M at 715. The court

also noted that the term "'pursuant to'" is defined as "'in the course of carrying out'"


                                            8
State V. Schwartz, No. 96643-5


and "'according to.'" Id. at 716 (internal quotation marks omitted)(quoting State v.
Blair, 57 Wn. App. 512, 515-16, 789 P.2d 104(1990)). As a result, the court held that
under the plain language ofRCW 9.94A.525(2)(c), confinement pursuant to a felony
conviction "includes confinement due to [the failure to pay LFOs] since this

confinement results 'in the course of carrying out and according to a felony

conviction.'" Id.(internal quotation marks omitted)(quoting Blair, 57 Wn. App. at
515-16).

       The degree to which the legislature intended the phrase "the last date of release
from confinement. . . pursuant to a felony convietion" to extend is unclear from the

face ofthe statute. Although the State's broad interpretation ofRCW 9.94A.525(2)(c)

is reasonable, it is also reasonable to interpret the statute as referring only to

incarceration ordered on a felony conviction and not jail time served for failing to pay

LFOs after a defendant has been released from that term of incarceration. The SRA

consistently uses the term "release from confinement" to refer to release from

incarceration for the sentenced felony conviction. RCW 9.94A.728(1)("No person

serving a sentence imposed pursuant to [the SRA]... shall leave the confines ofthe

correctional facility or be released prior to the expiration of the sentence ...."),

.760(5)("All other [LFOs]for an offense committed prior to July 1, 2000, may be

enforced at any time during the ten-year period following the offender's release from

total confinement."). Accordingly, RCW 9.94A.525(2)(c) is subject to more than one

reasonable interpretation and is ambiguous.

                                              9
State V. Schwartz, No. 96643-5


       Because RCW 9.94A.525(2)(c) is ambiguous, we may engage in statutory
construction to ascertain its meaning. We do not attempt to ascertain the statute s

meaning for all purposes because this case asks only the narrow question of how it
applies to confinement for failure to pay LFOs. Therefore, we may assume without
deciding that RCW 9.94A.525(2)(c) does reset the washout period when a person is
jailed as a sanction for violating sentence conditions generally. Nevertheless, based
on several factors unique to LFOs, we hold that such a reading is not what the
legislature intended when a person is jailed for failure to pay.

       In effect, the State argues that the five-year washout period can continue to

reset until a defendant has paid all LFOs ordered on a felony conviction. However,

the State's interpretation ofRCW 9.94A.525(2)(c) is contrary to the meaning ofthe
different terms used by the legislature. A "fundamental rule of statutory construction

is that the legislature is deemed to intend a different meaning when it uses different

terms." Roggenkamp, 153 Wn.2d at 625.

       The SRA originally provided that "[cjlass C prior felony convictions ... are

not included [in an offender score] if the offender has spent five years in the

community and has not been convicted of any felonies." LAWS OF 1983, ch. 115, § 7

{recodified as RCW 9.94A.525(2)(c)). The legislature added the trigger clause at

issue in this case pursuant to a recommendation by the Washington Sentencing

Guidelines Commission (Commission). Amend. 1247-S WASH.SENTENCING

 Guidelines Comm'n to Substitute H.B. 1247, at 3,48th Leg., Reg. Sess.(Wash.

                                            10
State V. Schwartz, No. 96643-5


1984). Before making its final recommendation to the legislature, the Commission
considered, yet rejected, amending the washout period to state that "the washout
period starts from the date of dischargefrom confinement and ends at the date ofthe
new offense," so that the washout statute would be more consistent with the SRA's
vacation statute. WASH.SENTENCING GUIDELINES COMM'N,Meeting Minutes

(Dec. 9, 1983) at 10(emphasis added). The SRA permits the vacation of a
defendant's record of conviction for a class C felony when "five years have passed

since the date the [defendant] was discharged" from confinement for that felony.

Former ROW 9.94A.640(2)(f)(2012). A defendant can be discharged from

confinement when the defendant "has completed all requirements of the sentence,

including any and all [LFOs]." RCW 9.94A.637(l)(a).

       Here,the legislature chose to use the term "release" in the washout statute and

the term "discharge" in the vacation statute. Because the legislature chose to use

different terms, we recognize that the legislature intended a different meaning by each

term. By choosing the term "release from confinement," instead of"discharge from

confinement," both the Commission and the legislature intended that defendants not

be required to pay all LFOs ordered on a felony conviction in order to be "release[d]

from confinement. . . pursuant to a felony." Relatedly, the legislature did not intend

that a defendant pay all LFOs before the five-year washout period could trigger and

allow a prior felony conviction to wash out. Accordingly, the legislature's use ofthe

term "release from confinement" in RCW 9.94A.525(2)(c) indicates that the

                                           11
State V. Schwartz, No. 96643-5



legislature did not intend that the five-year washout period continue to reset until a
defendant paid all LFOs ordered on a felony conviction.

       It is also absurd to read RCW 9.94A.525(2)(c) as resetting the five-year

washout period any time a defendant has failed to pay his or her LFOs. "[W]e

presume the legislature does not intend absurd results and, where possible, interpret

ambiguous language to avoid such absurdity." Ervin, 169 Wn.2d at 823-24.

       Class C felony convictions are intended to "eventually 'wash out' and be

eliminated from the Offender Score." WASH. SENTENCING GUIDELINES COMM'N,

Adult Felony Sentencing Manual 1984, at 11-34. However, LFOs are "[o]ne of

the most serious long-term consequences of a conviction." Travis Steams,Intimately

Related to the Criminal Process: Examining the Consequences ofa Conviction After

Padilla v. Kentucky and State v. Sandoval,9 SEATTLE J. FOR SOC. JuST. 855, 874

(2011). Many defendants cannot afford the LFOs ordered as part oftheir convictions

and either pay only a small sum each month or do not pay their LFOs at all. State v.

Blazina, 182 Wn.2d 827, 836, 344 P.3d 680(2015). As a result, a defendant may owe

LFOs for decades after he or she has been released from incarceration—sometimes

even long after the statutory maximum sentence for the convicted offense has expired.

Cf id. at 836-37; see KATHERINE A.BECKETT ET AL., WASH. St. MINORITY & JUST.

CoMM'N, The Assessment and Consequences of Legal Financial

Obligations in Washington State 22(2008)("[E]ven those who make regular

monthly payments of $25 toward an average[LFO] will still possess legal debt after
                                            12
State V. Schwartz, No. 96643-5


30 years."). Given that class C felony convictions are intended to eventually wash out
and a defendant's LFOs may never be satisfied, it is absurd to read RCW

9.94A.525(2)(c) as precluding a conviction from washing out when a defendant

spends time in jail for failing to pay LFOs ordered on that conviction. If convictions
could not wash out under the SRA unless a defendant has paid all LFOs, many felony

convictions would never wash out. We presume that the legislature did not intend

such a result.


       Even further, it is absurd to read RCW 9.94A.525(2)(c) as precluding a

conviction from washing out due to a defendant's failure to pay LFOs because such a

reading would permit varying treatment of similarly situated defendants. For

example, a defendant who was conviction-ffee for five years and who paid all LFOs

owed in that time frame would face a lower standard sentence range because any

eligible prior class C felony convictions would wash out and not be counted toward

his or her offender score. However, a defendant with the exact same criminal history

would be subject to a greater standard sentence range simply because he or she spent

time in jail for failing to pay LFOs. See In re Pers. Restraint ofLaChapelle, 153

Wn.2d 1, 6, 100 P.3d 805 (2004)("The difference of a single point may add or

subtract three years to an offender's sentence."). Such an outcome is contrary to the

SRA, as the SRA applies "equally to offenders in all parts ofthe state, without

discrimination as to any element that does not relate to the crime or the previous

record ofthe defendant." RCW 9.94A.340. Precluding a conviction from washing

                                          13
State V. Schwartz, No. 96643-5



out due to a defendant's failure to pay LFOs permits discrimination based on a

defendant's ability to pay court ordered fees rather than on his or her criminal history.

We presume that the legislature did not intend that defendants who have failed to pay

LFOs ordered on a felony conviction spend even more time in confinement on a

subsequent felony conviction than other similarly situated defendants.

       The dissent contends that such unequal treatment is not an issue in this case

because a person can be jailed only for willful nonpayment, not inability to pay.

However, our own cases show that people who are unable to pay are not consistently

protected from serving jail time. For instance, in one case we were called on to strike

down an "auto-jail provision," which was preprinted on LFO agreement forms and

required a defendant to report to jail for failing to make an LFO payment "without a

contemporaneous inquiry into his ability to pay." State v. Nason, 168 Wn.2d 936,

946,233 P.3d 848 (2010). More recently, we were required to reverse a district court

for "disregard[ing] whether [the defendant] could currently meet her own basic needs

when evaluating her ability to pay." CityofRichlandv. Wakefield, 186 Wn.2d596,

606, 380 P.3d 459(2016). Thus, although we cannot presume that any particular

defendant was unconstitutionally jailed for inability to pay, we know that many have

been. This reality, in addition to the other unique features ofLFOs described above,

leads us to conclude that jail time for failure to pay LFOs is not "confinement. . .

pursuant to a felony conviction" for purposes of ROW 9.94A.525(2)(c).

       Notwithstanding its statutory interpretation argument, the State argues that

                                           14
State V. Schwartz, No. 96643-5


neither Schwartz's 1997 forgery conviction nor his 2001 failure to register as a sex

offender conviction should wash out under RCW 9.94A.525(2)(c) because Schwartz's

2014 conviction for possession of methamphetamine reset the five-year washout

period. The State appears to misunderstand the SRA's washout statute. RCW

9.94A.525(2)(c) requires only that a defendant spend five consecutive crime-free

years in the community. State v. Hall, 45 Wn. App. 766, 769, 728 P.2d 616 (1986).

The washout period is not required to immediately follow the prior conviction. See id.

The parties do not appear to dispute that Schwartz was crime-free in the community

for at least six and a half years. Schwartz,6 Wn. App. 2d at 157. Because Schwartz

spent over five consecutive years in the community without being convicted of a

crime, his later 2014 conviction did not reset the five-year washout period under RCW

9.94A.525(2)(c).

       We hold that the legislature did not intend that time spent in jail as a sanction

for failing to pay LFOs ordered on a felony conviction reset the five-year washout

period and precluded a prior class C felony conviction from washing out under RCW

9.94A.525(2)(c). Stated another way,jail time for failing to pay LFOs does not

constitute "confinement... pursuant to a felony conviction," and a prior class C

felony conviction should not be included in a defendant's offender score when he or

she has been sanctioned for failing to pay LFOs but has nonetheless been in the

community for five years without committing an offense resulting in a conviction.

Because Schwartz spent over five years in the community without committing any

                                            15
State V. Schwartz, No. 96643-5



crime that resulted in a conviction between the date of release from confinement for

his 2001 failure to register as a sex offender conviction and his 2014 possession of

methamphetamine conviction, both his 1997 forgery conviction and his 2001 failure

to register as a sex offender conviction wash out under RCW 9.94A.525(2)(c) and

should not have been included in his offender score.

                                    CONCLUSION


       We hold that the legislature did not intend that time spent in jail as a sanction

for failing to pay LFOs ordered on a felony conviction reset the five-year washout

period and preclude a prior class C felony conviction from washing out. Reading

RCW 9.94A.525(2)(c) as precluding a conviction from washing out when a defendant

spends time in jail for failing to pay LFOs ordered on that conviction leads to absurd

results and is contrary to the SRA and its legislative history. Accordingly, both

Schwartz's 1997 and 2001 convictions wash out under RCW 9.94A.525(2)(c) and

should not have been included in his offender score. We affirm the Court of Appeals.




                                            16
State V. Schwartz, No. 96643-5




WE CONCUR;



-hUAlaUVii- M




                                      zh




                                 17
State V. Schwartz




                                      No. 96643-5


       Gonzalez, J.(dissenting)—Dissatisfied with what it believed to be

inconsistent sentences handed down by judges under our old indeterrhinate sentencing

system, our legislature replaced that system with a determinate sentencing system.

Under this determinate system, sentences are based on the seriousness of the offense

and the offender score of the defendant. The offender score is based on the offender's


prior criminal history. Recognizing that people do reform themselves, some of that

criminal history can "wash out" of a score in time, but only if the person meets certain

criteria. Among those criteria is not willfully failing to pay legal financial obligations

(LFOs). Matthew T. Schwartz willfully failed to pay his LFOs and, less than five

years later, pleaded guilty to failure to register as a sex offender. I agree with the

majority that the failure to pay LFOs because of inability to do so should not keep a

prior offense from washing out. See United States v. Parks, 89 F.3d 570, 573 (9th Cir.

1996)(imposing a longer sentence,"based solely on nonpayment, would be

'fundamentally unfair'"(quoting Bearden v. Georgia, 461 U.S. 660, 668, 103 S. Ct.
State V. Schwartz, No. 96643-5 (Gonzalez, J., dissenting)


2064, 76 L. Ed. 2d 221 (1983))). But the record contains the court orders confining

Schwartz for willfully failing to pay his LFOs. He is not entitled to the relief the

majority gives him today. I respectfully dissent.

       I recognize that there was confusion at oral argument about whether Schwartz

was indigent at the time he was Jailed for willful failure to pay his LFOs.' But it

would have been serious constitutional error to jail an indigent person for failure to

pay LFOs. The record leaves no doubt that Schwartz was jailed because his "failure

to make timely payment was willful or intentional." See, e.g.. Clerk's Papers at 33.

We cannot instead assume he was jailed for being unable to pay his LFOs. Cf. State v.

Yancey, 193 Wn.2d 26, 34, 434 P.3d 518(2019)(remanding for full resentencing

because the thai court's reasoning was unclear from the record).

       The Sentencing Reform Act of 1981 (SRA), chapter 9.94A ROW,is clear. A

prior felony conviction does not count toward a defendant's offender score, i.e., will

"wash out," if five years have passed "since the last date of release from confinement.

. . pursuant to [that] felony conviction." ROW 9.94A.525(2)(c). Plainly, the

legislature intended for "confinement. . . pursuant to a felony conviction" to include

confinement for subsequent violations of conditions in the judgment and sentence.

RCW 9.94A.525(2)(c). LFOs are conditions of a sentence, and a willful failure to


'Schwartz's counsel said that she was not responsible for preserving the record and that she
"assume[d][Schwartz] was" indigent when he was found to willfully fail to pay his LFOs. See
Wash. Supreme Court oral argument, State v. Schwartz, No. 96643-5 (June 25, 2019), at 23 min.,
22 sec., video recording by TVW, Washington State's Public Affairs Network,
http://www.tvw.org.
State V. Schwartz, No. 96643-5 (Gonzalez, J., dissenting)


comply with these conditions may result in modification of the judgment and sentence

and further confinement. E.g., RCW 9.94A.760(10),.6333. In State v. Mehrabian,

the Court of Appeals held that under the plain language of RCW 9.94A.525(2)(c),

confinement pursuant to a felony conviction '"includes confinement due to [the

failure to pay LFOs] since this confinement results in the course of carrying out and

according to a felony conviction.'" 175 Wn. App. 678, 716, 308 P.3d 660(2013)

(internal quotation marks omitted)(quoting State v. Blair, 57 Wn. App. 512, 515-16,

789 P.2d 104 (1990)). 1 agree.

       1 would reverse because the plain language of RCW 9.94A.525(2)(c) does not

make a distinction between financial and nonfmancial conditions. As a policy matter,

1 agree with the majority that the long-term burden imposed by LFOs should not haunt

people in perpetuity. See majority at 11-12. But, assuming the majority is correct that

felony convictions are intended to eventually wash out, holding that they do not wash

out when a defendant willfully failed to pay them does not undermine that intent. A

failure to pay is willful only if the defendant has the current ability to pay but refuses

to do so. RCW 10.01.180(3)(a). A prior felony conviction will wash out if a

defendant is not confined for willfully failing to pay the LFOs on that prior

conviction.


       Before imposing LFOs, courts must consider "incarceration,job status, debts,

or other indicators of ability to pay." State v. Malone, 193 Wn. App. 762, 766, 376

P.3d 443 (2016); see also State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680(2015).

                                               3
State V. Schwartz, No. 96643-5 (Gonzalez, J., dissenting)


And we have cautioned that confmement for willfully failing to pay LFOs should

occur only if"'no reasonable or effective alternatives are available.'" Smith v.

Whatcom County Dist. Court, 147 Wn.2d 98, 113,52 P.3d485(2002)(internal

quotation marks omitted)(quoting In re Pers. Restraint ofKing, 110 Wn.2d 793, 802,

756 P.2d 1303 (1988)); see also Bearden,461 U.S. at 672?

       The majority's decision to treat RCW 9.94A.525(2)(c) as ambiguous and give

it a narrow construction is a dramatic change in the law with additional consequences.

The majority holds RCW 9.94A.525(2)(c) is ambiguous because "it is also reasonable

to interpret the statute as referring only to incarceration ordered on a felony

conviction." Majority at 9. While confmement conceivably refers only to

incarceration ordered on the felony conviction, this narrow construction ofRCW

9.94A.525(2)(c) is not reasonable. See Five Corners Family Farmers v. State, 173

Wn.2d 296, 305,268 P.3d 892(2011)("The fact that two or more interpretations are

conceivable does not render a statute ambiguous."(citing Burton v. Lehman, 153

Wn.2d 416,423,103 P.3d 1230 (2005))).




^ The majority finds,"Precluding a convietion from washing out due to a defendant's failure to
pay LFOs permits discrimination based on a defendant's ability to pay court ordered fees rather
than on his or her criminal history." Majority at 13. A prior conviction would be precluded from
washing out only if a defendant had the ability to pay and was jailed for willfully failing to do so.
If I understand the majority correctly, the same reasoning would preclude anyone from being
jailed for willful failure to pay LFOs because "the SRA applies 'equally to offenders in all parts
ofthe state, without discrimination as to any element that does not relate to the crime or the
previous record ofthe defendant.'" Id.(quoting RCW 9.94A.340). The SRA speeifieally
provides for LFOs; it is not a discriminatory application of the SRA to jail someone for willful
refusal to pay their LFOs.
State V. Schwartz, No. 96643-5 (Gonzalez, J., dissenting)


       Even though the majority cautions that it is not expressing a view on

confinement for violation of other conditions of a sentence, it necessarily does so by

narrowly construing RCW 9.94A.525(2)(c). While the policy surrounding LFOs

factors into the majority's interpretation of the legislature's intent, nothing about the

difference between financial and nonfmancial conditions created the ambiguity

necessitating the statute's narrow construction. By limiting "confinement. . .

pursuant to a felony conviction" in RCW 9.94A.525(2)(c) to specifically mean

incarceration ordered on a felony conviction, confinement for violating any condition

will not inteiTupt the washout period. Contra Blair, 57 Wn. App. at 515-16; State v.

Perencevic, 54 Wn. App. 585, 589,11A P.2d 558 (1989). Such a result is an

unfortunate consequence of the majority's interpretation and is not what the

legislature intended.

       Under RCW 9.94A.525(2)(c), defendants who do not have the ability to pay

LFOs get the benefit of the washout statute. Defendants who willfully fail to pay their

LFOs within five years of the current crime do not get the benefit of the washout

statute. The majority not only gives defendants who had willfully failed to pay their

LFOs the benefit of the washout statute but also potentially gives anyone who is

confined for violating any other condition of their sentence the same benefit. I

respectfully dissent.
State V. Schwartz, No. 96643-5 (Gonzalez, J., dissenting)
