                                                               FILED
                                                              May 3, 2016
                                                     In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division Ill



           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                          )         No. 33198-9-111
                                              )
                      Respondent,             )
                                              )
                V.                            )         UNPUBLISHED OPINION
                                              )
CARLOS VALDEZ,                                )
                                              )
                      Appellant.              )

       LAWRENCE-BERREY, J. -Carlos Valdez pleaded guilty to one count of murder in

the second degree while armed with a firearm, as an accomplice. He appeals his

sentence, and argues (1) the trial court erred in imposing nearly $6,000 of discretionary

legal financial obligations (LFOs) without conducting an individualized inquiry into his

current and future ability to pay, (2) the mandatory $100 DNA1 collection fee violates

substantive due process, and (3) the trial court failed to follow the procedural

requirements set forth in CrR 7 .8(c) when it denied his postjudgment motion to withdraw

his guilty plea. Mr. Valdez also filed a statement of additional grounds for review (SAG)



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State v. Valdez


requesting that he be allowed to withdraw his guilty plea because he pleaded guilty as an

accomplice, but was sentenced as a principal. We exercise our discretion and review the

claimed LFO error. We remand to the trial court for it to conduct an individualized

inquiry into Mr. Valdez's present and future ability to pay. In all other respects, we deny

his contentions and affirm.

                                         FACTS

       On January 9, 2014, the State charged Carlos Valdez with one count of first degree

murder. The certificate of probable cause indicated that on January 3, 2014, the body of a

20-year-old female was found on a riverbank. The victim had been shot and then thrown

or pushed down the riverbank. Mr. Valdez was implicated as the shooter. Apparently,

the victim owed a methamphetamine supplier an ounce of methamphetamine. The

supplier informed Mr. Valdez that he had two choices: either Mr. Valdez or the victim

needed to pay him, or the victim had to die.

      On December 19, 2014, the State filed an amended information, charging Mr.

Valdez with second degree murder while armed with a firearm, either as a principal or an

accomplice. That day, Mr. Valdez pleaded guilty to the amended information, choosing

to plead as an accomplice. Mr. Valdez's plea statement indicated that the standard range

sentence was between 123-220 months, plus a 60-month enhancement. The State agreed


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to recommend 183 months. During the colloquy with the trial court at the plea hearing,

Mr. Valdez acknowledged:

       On December 31, 2013, I did act as an accomplice to the intentional
       shooting of and killing of [the victim], a human being. This took place
       without premeditation. During the commission of this crime, my
       accomplice was armed with a firearm. This took place in Walla Walla
       County, Washington. I have been informed by my attorneys what it means
       to be an accomplice.

Report of Proceedings (RP) at 3-4.

       On February 9, 2015, Mr. Valdez was sentenced for one count of second degree

murder while armed with a firearm. The trial court stated that it had an opportunity to

spend a "great deal of time" on the file, including the presentence investigation (PSI). RP

at 17. Based mostly on Mr. Valdez's lack of remorse, the trial court opted against

imposing the recommended sentence and instead imposed 280 months of incarceration.

      During sentencing, the trial court did not make any comments concerning Mr.

Valdez's current or future ability to pay LFOs. On appeal, the State notes that the PSI

contains information concerning Mr. Valdez's current and future ability to pay. The PSI

notes that Mr. Valdez became involved in gangs, drugs, and alcohol and attended nine

different middle and high schools before dropping out completely. Since dropping out,

he worked one day as a laborer, and has supported himself by a variety of criminal means.

The PSI further notes that Mr. Valdez obtained "very few high school credits," but that

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State v. Valdez


this was likely due to his truancy rather than any learning disability. Clerk's Papers (CP)

at 20. Mr. Valdez informed the author of the PSI of his intent to obtain his GED (general

education development) while in prison. Under a section entitled "Financial," the PSI

notes that Mr. Valdez "has been supporting himself ... via criminal means, primarily

drug dealing and retail thefts. He has no legal income source." CP at 20.

       The trial court imposed LFOs of$11,680.61 on Mr. Valdez, which consisted of a

$100.00 DNA collection fee, $500.00 victim assessment fee, $5,099.01 in restitution,

$200.00 in court costs, a $100.00 crime laboratory fee, $249.10 in sheriff fees, $775.00 in

fees for the court-appointed attorney, and $4,657.50 in court-appointed defense experts

and other defense costs. The judgment and sentence contained the following boilerplate

language:

      2.4 ABILITY TO PAY LEGAL FINANICAL OBLIGATIONS.
      (RCW 9.94A.760) The court has considered the defendant's past, 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. The court specifically finds that the defendant has the
      ability or likely future ability to pay the legal financial obligations ordered
      herein.

CP at 27. The trial court informed Mr. Valdez that he would begin making payments "90

days after [his] release or when funds become available at not less than $50 per month."

RP at 17.


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       On February 17, 2015, Mr. Valdez filed a motion to withdraw his guilty plea. His

motion argued that the State failed to enthusiastically support the plea agreement, the plea

lacked an adequate basis in fact, the PSI was subjective, and he received ineffective

assistance of counsel. One week later, Mr. Valdez, prose, appealed his conviction,

asserting the same arguments contained in his yet to be considered motion. On March 16,

2015, Mr. Valdez filed another notice of appeal, requesting review of his February 9,

2015 judgment and sentence. On March 23, 2015, the trial court denied Mr. Valdez's

postjudgment motion to withdraw his guilty plea. The motion hearing was conducted ex

parte, without the presence of Mr. Valdez. Mr. Valdez did not file another notice of

appeal seeking review of the order denying his postjudgment motion to withdraw his

guilty plea.

                                       ANALYSIS

A.     Review of unpreserved LFO claim

       Whenever a person is convicted, the trial court "may order the payment

of a legal financial obligation" as part of the sentence. RCW 9.94A.760(1); accord

RCW 10.01.160(1). From the date of judgment, LFOs bear interest at a rate of 12 percent

per annum. See RCW 4.56.110(4); see also RCW 19.52.020(1). Under RCW

10.01.160(3), "the court shall take account of the financial resources of the defendant and


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State v. Valdez


the nature of the burden that payment of costs will impose." In other words, "a trial court

has a statutory obligation to make an individualized inquiry into a defendant's current and

future ability to pay before the court imposes LFOs." State v. Blazina, 182 Wn.2d 827,

830, 344 P.3d 680 (2015).

       Importantly, "the court must do more than sign a judgment and sentence with

boilerplate language stating that it engaged in the required inquiry." Id. at 838. The

individualized inquiry requires the court to "consider important factors ... such as

incarceration and a defendant's other debts, including restitution, when determining a

defendant's ability to pay." Id. "The record must reflect that the trial court made an

individualized inquiry into the defendant's current and future ability to pay." Id.

However, neither RCW 10.01.160 nor the Washington Constitution '"requires a trial

court to enter formal, specific findings regarding a defendant's ability to pay

[discretionary] court costs."' State v. Lundy, 176 Wn. App. 96, 105, 308 P.3d 755 (2013)

(quoting State v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992)).

       This court "review[ s] a decision on whether to impose LFOs for abuse of

discretion." State v. Clark, 191 Wn. App. 369, 372, 362 P.3d 309 (2015). "The trial

court's determination 'as to the defendant's resources and ability to pay is essentially

factual and should be reviewed under the clearly erroneous standard.'" State v. Bertrand,



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State v. Valdez


165 Wn. App. 393, 404 n.13, 267 P.3d 511 (2011) (quoting State v. Baldwin, 63 Wn.

App. 303, 312, 818 P.2d 1116 (1991)).

       Subject to three exceptions, RAP 2.5(a) provides that an "appellate court may

refuse to review any claim of error which was not raised in the trial court." In Blazina,

the Washington Supreme Court recently confirmed that an appellate court's discretion

under RAP 2.5(a) extends to review of a trial court's imposition of discretionary LFOs.

Blazina, 182 Wn.2d at 830. However, "[a] defendant who makes no objection to the

imposition of discretionary LFOs at sentencing is not automatically entitled to review."

Id. at 832.

       "While such unpreserved LFO errors do not command review as a matter of right,

each appellate court is entitled to 'make its own decision to accept discretionary review.'"

State v. Munoz-Rivera, 190 Wn. App. 870, 895, 361 P.3d 182 (2015) (quoting Blazina,

182 Wn.2d at 835). One approach is to "consider the administrative burden and expense

of bringing [a defendant] to a new sentencing hearing and the likelihood that the LFO

result would change." State v. Arredondo, 190 Wn. App. 512, 538, 360 P.3d 920 (2015).

This is the approach favored by this author.

       Here, the trial court imposed both mandatory and discretionary LFOs, and Mr.

Valdez failed to object to any LFO issues during sentencing. The $500.00 victim



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assessment, $100.00 DNA collection fee, and $5,099.01 in restitution apply irrespective

of Mr. Valdez's ability to pay. See Lundy, 176 Wn. App. at 102 ("For victim restitution,

victim assessments, DNA fees, and criminal filing fees, the legislature has directed

expressly that a defendant's ability to pay should not be taken into account."). However,

the $200.00 in court costs, $100.00 crime laboratory fee, $249.10 in sheriff fees, $775.00

in fees for the court-appointed attorney, and $4,657.50 in court-appointed defense experts

and other defense costs are all discretionary LFOs. See State v. Kuster, 175 Wn. App.

420, 425, 306 P.3d 1022 (2013) (ambiguous $200.00 "court costs" cannot be considered

mandatory fee); see also RCW 43.43.690(1) (crime laboratory fee may be suspended if

the court "finds that the person does not have the ability to pay the fee"); see also Munoz-

Rivera, 190 Wn. App. at 893 (sheriff fees and court-appointed attorney fees are

discretionary). The discretionary LFOs total almost $6,000.00.

       Because of the relatively high amount of discretionary LFOs, the near quadrupling

of the LFO judgment due to over 20 years of interest while incarcerated, Mr. Valdez's

lack of a high school education, lack of any work history, and the sense that a convicted

murderer has limited job prospects on release, we exercise our discretion in favor of

reviewing the unpreserved error.




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          The record of the sentencing hearing does not reveal the presentation or

consideration of any information about Mr. Valdez's present or future ability to pay

LFOs. Although the PSI makes passing remarks about Mr. Valdez's past illegal income

sources, we do not consider such sources as relevant to the inquiry of one's present or

future ability to pay. Inherent in the required individualized inquiry, is Mr. Valdez's

potential to pay LFOs from gainful employment. We, therefore, remand this case to the

trial court with instructions to conduct an individualized inquiry into Mr. Valdez's present

and future ability to pay.

B.     Substantive due process challenge to the DNA collection fee

       Mr. Valdez next contends that the application ofRCW 43.43.7541 to defendants

who do not have the ability, or likely future ability, to pay the $100 DNA collection fee

violates substantive due process. RCW 43.43.754 demands a biological sample, for

purposes of DNA identification analysis, from every defendant convicted of a felony.

Pursuant to RCW 43.43.7541, "[e]very sentence imposed for a crime specified in

RCW 43.43.754 must include a fee of one hundred dollars" to create an offender DNA

sample. The statute "furthers the purpose of funding for the state DNA database and

agencies that collect samples." State v. Thornton, 188 Wn. App. 371, 375, 353 P.3d 642

(2015).



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       "Statutes are presumed to be constitutional." State v. Blank, 131 Wn.2d 230, 235,

930 P.2d 1213 (1997). "A party challenging the constitutionality of a statute has the

heavy burden of proving its unconstitutionality beyond a reasonable doubt." Id. This

court reviews constitutional challenges de novo. Amunrud v. Bd. ofAppeals, 15 8 Wn.2d

208, 215, 143 P.3d 571 (2006).

       The State responds that Mr. Valdez lacks standing to challenge the

constitutionality ofRCW 43.43.7541. RAP 3.1 provides that for appellate standing,

"[o]nly an aggrieved party may seek review by the appellate court." An aggrieved party

is "one whose proprietary, pecuniary, or personal rights are substantially affected" by the

trial court's order. Cooper v. City of Tacoma, 47 Wn. App. 315, 316, 734 P.2d 541

(1987).

       The DNA collection fee is a mandatory LFO. See RCW 43.43.7541; see also

Lundy, 176 Wn. App. at 102. Washington has adopted the view that"' [ c] onstitutional

principles will be implicated ... only if the government seeks to enforce collection of the

assessments "at a time when [the defendant is] unable, through no fault of his own, to

comply.""' Lundy, 176 Wn. App. at 103 n.4 (some alterations in original) (quoting

United States v. Pagan, 785 F.2d 378, 381-82 (2d Cir. 1986)). "'It is at the point of

enforced collection ... , where an indigent may be faced with the alternatives of payment



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No. 33198-9-III
State v. Valdez


or imprisonment, that he may assert a constitutional objection on the grounds of his

indigency."' Kuster, 175 Wn. App. at 424-25 (quoting Blank, 131 Wn.2d at 241).

       Here, any potential constitutional implications in the enforcement of

RCW 43.43.7541 as applied to Mr. Valdez will not arise until the State attempts to collect

the $100 DNA collection fee from him. When that occurs, Mr. Valdez will be able to

petition for remission of payments under RCW 10.01.160(4 ), if needed. Until the State

tries to collect the $100 DNA fee, Mr. Valdez lacks standing to challenge the

constitutionality ofRCW 43.43.7541. See Lundy, 176 Wn. App. at 103 n.4.

C.     Postjudgment motion to withdraw guilty plea

       Mr. Valdez next argues that the trial court erred by not complying with

CrR 7.8(c)(2) and (3). He argues that CrR 7.8(c)(2) requires a trial court to make a

specific finding that the motion is timely and fits within CrR 7.8(c)(2)(i) or (ii) before

issuing a substantive decision on the motion.

       The State responds that Mr. Valdez did not properly appeal the March 23, 2015

order denying his postjudgment motion to withdraw his guilty plea. The State makes a

two-fold argument. First, both of Mr. Valdez's notices of appeal were ineffective

because they were filed before the trial court considered the motion or entered its order.




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Second, Mr. Valdez's March 16, 2015 notice of appeal was limited to his appeal of the

judgment and sentence.

       RAP 7 .2(e) authorizes trial courts to consider postjudgment motions after an

appeal has been accepted. Further, RAP 7.2(e) generally requires any party wishing to

appeal the postjudgment order to timely file a separate notice of appeal. See RAP 5 .1 ( f)

(A party wishing to appeal a trial court decision entered pursuant to RAP 7 .2 must initiate

a separate review); see also Glass v. Windsor Navigation Co., 81 Wn.2d 726, 730, 504

P .2d 113 5 ( 1973) ("A premature notice of appeal is totally ineffective, not merely

defective."). Further, RAP 5.3(a)(3) specifies that a notice of appeal must "designate the

decision or part of decision which the party wants reviewed" and, in general, this court

will not review an order that was not designated in the notice of appeal. See RAP 2.4(a);

see also Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370,

378, 46 P.3d 789 (2002).

       Here, Mr. Valdez failed to properly appeal the March 23, 2015 order denying his

motion to withdraw his guilty plea. His premature notices of appeal that did not identify

the yet to be entered order were ineffective in this regard. We therefore decline to review

the March 23, 2015 order.




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SAG issue: Vacation ofguilty plea because judgment and sentence failed to state that
plea was for accomplice liability only

       Mr. Valdez filed a SAG that indicated he pleaded guilty to complicity to second

degree murder, but was sentenced for actual second degree murder. According to Mr.

Valdez, he did not knowingly plead to second degree murder, and his guilty plea should

be withdrawn and his case remanded for a new trial to prevent this "manifest injustice."

       "Due process requires that a defendant's guilty plea must be knowing, intelligent,

and voluntary." State v. Codiga, 162 Wn.2d 912, 922, 175 P.3d 1082 (2008). "The

defendant's burden when seeking to withdraw a plea is demanding because ample

safeguards exist to protect the defendant's rights before the trial court accepts the plea."

State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d 377 (2010). CrR 7.8 governs

postjudgment motions to withdraw guilty pleas. CrR 4.2(f). Where, as here, a criminal

defendant attempts to withdraw his guilty plea after judgment, the motion must meet the

requirements of both CrR 4.2(f) and CrR 7.8(b). See State v. Lamb, 175 Wn.2d 121, 128,

285 P.3d 27 (2012).

       Under CrR 4.2(f), the trial court "shall allow a defendant to withdraw the

defendant's plea of guilty whenever it appears that the withdrawal is necessary to correct

a manifest injustice." "[A] 'manifest injustice' is 'an injustice that is obvious, directly

observable, overt, [and] not obscure."' State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505

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No. 33198-9-III
State v. Valdez


(1991) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). Courts have

found instances of manifest injustice where ( 1) effective assistance of counsel was

denied, (2) the plea was not ratified by the defendant, (3) the plea was not voluntary, or

(4) the plea agreement was not kept. Id. (quoting Taylor, 83 Wn.2d at 597). However,

"meeting only the manifest injustice standard of CrR 4.2(f) is insufficient when

considering a postjudgment motion to withdraw a guilty plea." Lamb, 175 Wn.2d at 129.

       Under CrR 7 .8(b), a court may relieve a party from a final judgment based

on mistake, inadvertence, excusable neglect, newly discovered evidence, or the

CrR 7.8(b)(5) catchall "[a]ny other reason justifying relief from the operation of the

judgment." To obtain relief under CrR 7.8(b)(5), a defendant must show "extraordinary

circumstances" not covered by any other section of CrR 7 .8. State v. Aguirre, 73 Wn.

App. 682, 688, 871 P.2d 616 (1994). "'Extraordinary circumstances' must relate to

'irregularities which are extraneous to the action of the court or go to the question of the

regularity of its proceedings.'" Id. (internal quotation marks omitted) ( quoting Shum v.

Dep't ofLabor & Indus., 63 Wn. App. 405, 408, 819 P.2d 399 (1991)).

       Mr. Valdez's SAG is an attempt to withdraw his guilty plea, and as indicated

above, he did not properly appeal the order denying his postjudgment motion to withdraw

his guilty plea. Moreover, his argument is unpersuasive. It is well established that


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State v. Valdez


"[t]here is no separate crime of being an accomplice; accomplice liability is principal

liability." State v. Toomey, 38 Wn. App. 831, 840, 690 P.2d 1175 (1984); see

RCW 9A.08.020(1). An accomplice has the same standard range sentence as a principal

under the Sentencing Reform Act of 1981, chapter 9.94A RCW, with variations only

coming into play when determining exceptional sentences. See e.g., State v. Moore, 73

Wn. App. 789, 798-99, 871 P.2d 642 (1994). The lack of any identifiable conviction and

sentencing consequences between principal liability and accomplice liability supports our

conclusions that Mr. Valdez has failed to demonstrate "extraordinary circumstances"

under CrR 7.8(b), let alone "manifest injustice" under CrR 4.2(f).

                  Affirmed in part, remanded.

                  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.

                                                  l      '--'r'-"'<,t ..   '3 ~,
                                                      Lawrence-Berrey, A.C.J.

WE CONCUR:


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