                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                       August 30, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 47740-8-II

                               Respondent,                       Consolidated with:
                                                                  No. 47742-4-II
        v.                                                        No. 47743-2-II
                                                                  No. 47745-9-II
 JASON SHIRTS,

                               Appellant.                     PUBLISHED OPINION


       LEE, J. — Jason Shirts filed four separate motions under RCW 10.01.160(4) seeking

remission of the legal financial obligations (LFOs) imposed on him in four prior convictions. The

superior court denied the motions because there was no showing that the State had tried to collect

on the LFOs. Shirts filed notices of appeal, which were treated by this court as motions for

discretionary review and granted.

       Shirts argues that he has standing to appeal the superior court’s decision as an aggrieved

party and that the superior court erred in denying his motions to remit because he was entitled to

a hearing on his motions. We hold that Shirts is an aggrieved party. We further hold that although

the superior court erred in denying Shirts’s motions to remit on the basis of failing to allege or

prove that the State sought to collect the LFOs, the superior court was not required to hold an
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evidentiary hearing on the motions. Therefore, we reverse and remand to the superior court to

consider the motions for remission on the merits.

                                                FACTS

          In May 2015, Shirts filed four separate motions to remit the LFOs he owed under four

cause numbers in Clark County Superior Court.1 Shirts was sentenced after pleading guilty in each

cause number; the guilty pleas were entered in 2002, 2006, 2008, and 2012. Each sentence

imposed LFOs.

          After Shirts was last sentenced in 2012, he owed $31,986.12 in LFOs; at the end of 2013,

because of the accrued interest, Shirts owed $35,824.45.2 Shirts asserted that the LFOs were

causing him to be denied transitional classes and classification advances in the Department of

Corrections (DOC), that he had no salary, wages, or money in a bank account, that he owned no

property of value, that he was not married, and that he owed $100,000 to a creditor in Gig Harbor.

          Shirts’s motions to remit were brought pursuant to RCW 10.01.160(4). In support of his

motions, Shirts also filed several affidavits, other motions, declarations of service, and proposed

findings. In his motions, Shirts contended that the superior court did not consider his ability to

pay when imposing LFOs, nor did the superior court consider his ability to pay the interest on the

LFOs. Shirts argued that he had “been incarcerated since 2012[,] . . . [h]is circumstances ha[d]




1
 Clark County Superior Court Cause Nos. 02-1-00245-5; 06-1-01644-1; 07-1-02248-1; and 12-
1-01206-1.
2
    The State does not dispute these figures.



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changed drastically[,] and these fines [we]re causing a sever[e] hardship on him and his family.”

Mot. for Discretionary Review Appendix (App.) at 55, 138, 228, 308.

          The State responded to Shirts’s motions by citing to State v. Crook, 146 Wn. App. 24, 189

P.3d 811 (2008), review denied, 165 Wn.2d 1044 (2009), for the proposition that Shirts could

move to terminate his LFOs only after the State had attempted to collect on his obligations. The

State argued that because Shirts did not show that the State had attempted to collect on Shirts’s

LFOs, the superior court must deny the motions.

          On May 21, 2015, Shirts filed motions to appear telephonically at a hearing or to be

transported by DOC to appear at a hearing in person. In the alternative, Shirts asked to reschedule

the hearing.

          The superior court entered orders for each motion on May 21, 2015. The superior court

found that Shirts “failed to allege or provide evidence that Clark County is attempting or seeking

enforcement/collection of Legal Financial Obligations at this time” and denied the motions. App.

at 73, 157, 247, 326.

          Shirts filed notices of appeal with supporting affidavits in each of the four cause numbers.

The State moved to strike the notices, again arguing that Shirts had not shown that the State had

sought to collect on the LFOs and was therefore not entitled to a hearing. The State also argued

that Shirts did not support his allegations of hardship with documented evidence or a sufficient

record.




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       The parties were informed that the notices of appeal would be treated as notices for

discretionary review. A commissioner of this court then granted discretionary review on October

26, 2015. Discretionary review was granted on the issues of whether Shirts is an “aggrieved party”

with standing to appeal and whether the superior court erred in denying Shirts’s motions to remit

without a hearing because he failed to allege or prove the State was attempting to collect LFOs.

                                           ANALYSIS

A.     AGGRIEVED PARTY UNDER RAP 3.1

       This court granted discretionary review as to whether Shirts is an “aggrieved party” under

RAP 3.1.3 Ruling Granting Rev. at 12. We hold that Shirts is an “aggrieved party.”

       “Only an aggrieved party may seek review by the appellate court.” RAP 3.1. “‘An

aggrieved party is one who has a present, substantial interest, as distinguished from a mere

expectancy, or . . . contingent interest in the subject matter.’” State v. Mahone, 98 Wn. App. 342,

347, 989 P.2d 583 (1999) (quoting Tinker v. Kent Gypsum Supply, Inc., 95 Wn. App. 761, 764,

977 P.2d 627, review denied, 139 Wn.2d 1008 (1999)).




3
  The State argues that this issue is not properly before us. We reject this argument. A
commissioner of this court granted discretionary review of the trial court’s denial of Shirts’
motions to remit. The State did not seek to modify the commissioner’s order or seek
reconsideration. Thus, the State’s argument that this case is not properly before us fails.



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         In Mahone, the court considered whether the superior court’s denial of Mahone’s motion

to remit under a nearly identical statute, RCW 10.73.160(4),4 was appealable as a matter of right.

Id. at 346. Instead of reaching the issue of appealability as a matter of right, the court held that

“Mahone [wa]s not aggrieved by the order denying remission” because the State had not yet

attempted to enforce payment of the LFOs, and therefore, Mahone was not an aggrieved party

eligible to seek appellate review. Id. at 347. The court reasoned:

                Before Mahone is aggrieved, as defined in RAP 3.1, two things must
         happen. It must be determined that he has the ability to pay and the State must
         proceed to enforce the judgment for costs. Until such time as the State determines
         he has the ability to pay and enforces payment of the costs assessed against him,
         any attempt to determine whether payment will create a hardship is mere
         speculation.




4
    Title 10.73 RCW deals with appellate costs in criminal appeals, and RCW 10.73.160(4) states:

         A defendant who has been sentenced to pay costs and who is not in contumacious
         default in the payment may at any time petition the court that sentenced the
         defendant or juvenile offender for remission of the payment of costs or of any
         unpaid portion. If it appears to the satisfaction of the sentencing court that payment
         of the amount due will impose manifest hardship on the defendant or the
         defendant’s immediate family, the sentencing court may remit all or part of the
         amount due in costs, or modify the method of payment under RCW 10.01.170.

Thus, RCW 10.73.160(4) and RCW 10.01.160(4) are nearly identical, the exceptions being: (1)
that RCW 10.01.160(4) includes the word “thereof” in the first sentence between “payment” and
“may” and again after “unpaid portion”; (2) that RCW 10.01.160(4) refers to the “sentencing
court” where RCW 10.73.160(4) refers to the “court that sentenced the defendant”; and (3) that
RCW 10.73.160(4) refers to “the sentencing court” in the second sentence where RCW
10.01.160(4) simply refers to “the court.”



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Id. at 348. The Mahone court held that this “mere speculation” is insufficient to meet the “‘present,

substantial interest,’” standard of an aggrieved party entitled to seek appellate review under RAP

3.1. Id. at 347-48.

       Applying Mahone to the case at bar, Shirts would not be an aggrieved party entitled to seek

appellate review of the superior court’s denial of his motions to remit because neither of the “two

things” that “must happen” for Shirts to be “aggrieved, as defined in RAP 3.1” have happened. Id.

First, there has not been a determination that Shirts has the ability to pay his LFOs, and second,

the State has not proceeded to enforce the collection of his LFOs. Id. Thus, under Mahone, Shirts

would not be an aggrieved party and would not be entitled to review of a superior court’s

determination on a motion to remit until after the State attempts to enforce payment of LFOs.

       However, this court decided Mahone long before our Supreme Court’s recent decision in

State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). And Blazina calls into question the

continued precedential value of Mahone.

       In Blazina, the defendant challenged a trial court’s imposition of LFOs for the first time on

appeal, arguing that the trial court erred by imposing discretionary LFOs without making an

individualized inquiry into his ability to pay as required by RCW 10.01.160(3). Id. at 830. The

court rejected the State’s argument that the proper time for a defendant to challenge the imposition

of LFOs is when the State seeks to collect. Id. at 830, 832 n.1. Instead, the court, recognizing the




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reality of “broken LFO systems” that create a multitude of problems for impoverished offenders,5

exercised its discretion to reach the merits of the case. Id. at 835.

       Blazina’s recognition of the impacts LFOs have on offenders contradicts Mahone’s

reasoning that any determination of whether payment will create a hardship would be mere

speculation if no enforcement is sought. In light of Blazina, and contrary to the court’s conclusion

in Mahone, an offender can be “aggrieved” even if the State does not attempt to enforce payment.6

Therefore, given the recognized and real impacts LFOs have on offenders, we decline to follow

Mahone’s requirement that the State must attempt to collect LFOs from an offender before the

offender can be considered “aggrieved.”




5
  The Blazina court extensively reviewed the various problem associated with LFOs that offenders
face, including inequities between impoverished offenders and their wealthier counterparts,
causing offenders who cannot afford to pay to remain under the court’s jurisdiction longer; the
court’s long-term involvement in the offenders’ lives inhibits reentry into society because legal or
background checks will show an active record in court for individuals who have not fully paid
their LFOs; active court records negatively impact employment, credit ratings, housing, and
finances; and disparate impact on minorities, who receive disproportionately higher LFO penalties.
182 Wn.2d at 835-37.
6
  The continued precedential value of Mahone is further called into question by our decision in
State v. Hathaway, 161 Wn. App. 634, 251 P.3d 253, review denied, 172 Wn.2d 1021 (2011). In
Hathaway, we addressed the issue of whether a challenge to a LFO for a jury demand fee can be
challenged before the State seeks to enforce payment. Id. at 651. We acknowledged the holding
in Mahone that an offender is “not yet ‘aggrieved in a legal sense’” until the State seeks payment
of the LFO, but we still reached the merits of the issue, relying on RAP 1.2(c). 161 Wn. App. at
651 (quoting State v. Smits, 152 Wn. App. 514, 525, 216 P.3d 1097 (2009)). RAP 1.2(c) permits
appellate courts to waive or alter the rules of appellate procedure in order to serve the ends of
justice. Id. at 652. Therefore, because resolution of the issue would facilitate justice and conserve
future judicial resources, we addressed the merits of the issue. Id.



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       Here, in addition to the impacts identified in Blazina, Shirts provided evidence that he is

currently denied access to transitional classes and classification advances in DOC due to his

outstanding LFOs. We hold that Shirts is an aggrieved party under RAP 3.1.

B.     MOTION FOR REMISSION UNDER RCW 10.01.160

       Shirts argues that the superior court erred in failing to reach the merits of his motions.

Specifically, Shirts argues that because the statute allows defendants to move for remission “at any

time,” RCW 10.01.160(4), “it follows that [the defendants] must be given some process on the

subject of remission when they so move.” Br. of Appellant at 12-13. Shirts argues, “Without

some fact finding process, no court could satisfy itself that payment will or will not impose a

manifest hardship,” and “no manifest hardship determination can be made unless and until the

moving party is able to present evidence and arguments to the trial court demonstrating why the

LFOs cause manifest hardship.” Br. of Appellant at 13. We agree that the superior court erred in

denying Shirts’s petition on the basis that Shirts had not alleged or shown that the State was seeking

enforcement or collection of his LFOs, but we disagree that the superior court is required to hold

an evidentiary hearing just because a petition under RCW 10.01.160(4) is filed.

       1.      Standard of Review

       We review issues of statutory construction de novo. State v. Wentz, 149 Wn.2d 342, 346,

68 P.3d 282 (2003). We look to the statute’s plain language in order to give effect to legislative

intent, giving statutory terms their plain and ordinary meaning. Id.; In re Det. of Rogers, 117 Wn.

App. 270, 274, 71 P.3d 220 (2003). We do not engage in judicial interpretation of an unambiguous

statute. State v. Thorne, 129 Wn.2d 736, 762-63, 921 P.2d 514 (1996). A statute is ambiguous




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when the language is susceptible to more than one reasonable interpretation. State v. Jacobs, 154

Wn.2d 596, 600-01, 115 P.3d 281 (2005). Whenever possible, statutes are read in harmony and

in such manner as to give each effect. State v. Bays, 90 Wn. App. 731, 735, 954 P.2d 301 (1998).

       Statutes are interpreted to give effect to all language in them and to render no portion

meaningless or superfluous. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). “Where a

provision contains both the words ‘shall’ and ‘may,’ it is presumed that the lawmaker intended to

distinguish between them: ‘shall’ being construed as mandatory and ‘may’ as permissive or

discretionary.” Rogers, 117 Wn. App. at 274-75. We avoid a reading that produces absurd results

because this court does not presume the legislature intended absurd results. J.P., 149 Wn.2d at

450.

       2.      A Petition to Remit Under RCW 10.01.160(4)

       RCW 10.01.160(4) provides:

       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.

Per this statute, in order to file a petition to remit, a defendant must meet two conditions.7 RCW

10.01.160(4). First, the defendant has to have been “ordered to pay costs,” and, second, the




7
  We note the distinction here between mandatory and discretionary LFOs. Mandatory LFOs are
not “costs” under RCW 10.01.160(1) and (2), and therefore, they are not subject to a motion to
remit under RCW 10.01.160(4).



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defendant has to not be “in contumacious default.”8 RCW 10.01.160(4). If a defendant meets

these two conditions, the defendant may file a petition to remit “at any time.” RCW 10.01.160(4).

       As stated above, “may” is presumed to be permissive, which makes sense because it would

be absurd for the legislature to require that defendants petition courts to remit their LFOs simply

because LFOs are owed and the defendants are not in default. Rogers, 117 Wn. App. at 274-75.

The phrase “at any time” is unambiguous. RCW 10.01.160(4). Thus, the plain and unambiguous

language of the statute’s first sentence permits a defendant to petition the superior court for

remission of his LFOs “at any time,” so long as the defendant owes LFOs and is not in

“contumacious default.” RCW 10.01.160(4) (emphasis added).

       Here, Shirts showed the superior court, through the supporting affidavits and other filings,

that he owed LFOs. There is no indication that Shirts was in “contumacious default.” Therefore,

the plain and unambiguous language of the statute permitted Shirts to petition to remit his LFOs

“at any time.” RCW 10.01.160(4).

       The second sentence of the statute directs the trial court’s action after the defendant has

filed his or her petition for remission: “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.” RCW 10.01.160(4). Like the first sentence, the second sentence is plain

and unambiguous. It gives the superior court broad discretion to remit the LFOs by first allowing




8
  Webster’s defines “contumacious” as “perverse in resisting authority” and “stubbornly
disobedient.” WEBSTER’S THIRD INTERNATIONAL DICTIONARY 497 (1969).


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the superior court to determine whether it is satisfied that the defendant has shown “manifest

hardship,” and then, if the superior court is satisfied that “manifest hardship” has been shown, it

has discretion to “remit all or part of the amount due in costs.” RCW 10.01.160(4).

          Here, Shirts filed his petitions, with supporting affidavits and other filings, asserting that

his LFOs imposed “sever[e] hardship” upon him and his family. App. at 55, 138, 228, 308. At

that point, the statute requires the superior court to determine whether Shirts had made a

satisfactory showing of “manifest hardship.” RCW 10.01.160(4). But the superior court did not

do so. Instead, the superior court denied the motion as untimely because the State had not sought

to collect. The superior court, by failing to exercise its discretion, abused its discretion. State v.

Stearman, 187 Wn. App. 257, 265, 348 P.3d 394 (2015) (“A trial court abuses its discretion when

it fails to exercise its discretion.”). Therefore, based on to the plain language of the statute, the

superior court erred in not following the plain language of the statute.

          3.     The Statute Does Not Require an Evidentiary Hearing

          Shirts further contends that the superior court erred in failing to grant him an evidentiary

hearing on his motions to remit. We disagree because Shirts’s contention lacks support in the

statute and in case law.9

          Nothing in the plain language of the statute requires an evidentiary hearing to be held. See

RCW 10.01.160(4). Asking us to interpret the phrase: “[i]f it appears to the satisfaction of the

court” to mean an evidentiary hearing must be held would require us to interpret, or add language

to, an unambiguous statute, contrary to the rules of statutory interpretation. RCW 10.01.160(4);



9
    Shirts does not argue that any constitutional provision requires an evidentiary hearing.


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Thorne, 129 Wn.2d at 762-63 (holding that appellate courts do not engage in judicial interpretation

of an unambiguous statute).      If the superior court is able to make its “manifest hardship”

determination on the pleadings alone, an evidentiary hearing would be superfluous. On the other

hand, if the superior court reviews the pleadings and believes an evidentiary hearing would be

instructive, the statute does not prohibit an evidentiary hearing.

        Existing case law supports this interpretation. Division Three of this court, in State v.

Crook, 146 Wn. App. at 26, rejected the argument that the failure to hold an evidentiary hearing

before denying a motion to remit LFOs was error. In Crook, as is the case here, the defendant

moved for remission of his LFOs while he was incarcerated and the superior court denied the

motions without an evidentiary hearing. Id. The Crook opinion did not provide the superior

court’s stated reason for denying the motion to remit, but it held that nothing in the record before

it showed the superior court erred in denying the motions to remit without an evidentiary hearing.

Id. at 28.

        Shirts attempts to distinguish Crook on the basis that Crook alleged that DOC was

enforcing the collection of LFOs, whereas Shirts does not allege that there has been an attempt at

collection. Shirts also argues that Crook is wrongly decided because the court stated that DOC

deductions from inmate wages to repay LFOs were not State collections actions, which Shirts says

is incorrect. Neither of Shirts’s arguments invalidates Crook’s persuasive effect on our decision

because determining whether an agency or the State has attempted to collect LFOs does not dictate

whether an evidentiary hearing is required. Thus, Shirts’s argument fails.




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                                          CONCLUSION

       We hold that Shirts is an aggrieved party. We further hold that although the superior court

erred in denying Shirts’s motions to remit because Shirts failed to allege or prove that the State

sought to collect the LFOs, the superior court was not required to hold an evidentiary hearing on

the motions. Therefore, we reverse and remand to the superior court to consider the motions for

remission on the merits.10



                                                                           Lee, J.
 We concur:



                  Johanson, P.J.




                     Sutton, J.




10
  In his brief, Shirts requests that we instruct superior courts to follow the standard set forth in GR
34, and specifically GR 34(a)(3)(A), as the “appropriate standard to assess whether the payment
of the outstanding balance of already assessed LFOs present a manifest hardship under RCW
10.01.160(4).” Br. of Appellant at 28. We decline to do so because the issue is beyond the scope
of discretionary review. Therefore, this issue is not properly before us.

        Shirts also asks that we hold that counsel should be appointed to assist all indigent people
in the remissions process. Again, this issue is beyond the scope of discretionary review and not
properly before us.



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