                                                                     FILED
                                                                  APRIL 13, 2017
                                                            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. 34221-2-111
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
JOSE LUIS AGUILAR,                            )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, A.CJ. -Following Jose Aguilar's 2014 convictions for

second degree murder and first degree rape of a child, the trial court imposed a sentence

that included $34,718.97 in discretionary legal financial obligations (LFOs). In 2016, Mr.

Aguilar moved the trial court to terminate those LFOs on the basis that he never received

the requisite inquiry into his ability to pay as required by State v. Blazina, 182 Wn.2d 827,·

344 P.3d 680 (2015). The trial court held a new sentencing hearing and found Mr.

Aguilar had a minimal present ability to pay the LFOs. Mr. Aguilar appeals, arguing the

trial court's finding was clearly erroneous. We agree and remand for the trial court to

strike the discretionary LFOs.
No. 34221-2-III
State v. Aguilar


                                           FACTS

       In July 2014, Mr. Aguilar pleaded guilty to second degree murder and first degree

rape of a child. On September 24, 2014, the trial court imposed consecutive sentences of

357 months (for second degree murder) and 123 months to life (for first degree rape of a

child). Mr. Aguilar was 37 years old at the time of the sentencing hearing.

       The trial court also imposed $35,518.97 in LFOs. Of that sum, $34,718.97 were

discretionary costs, which included a $60.00 sheriffs service fee, a $14,496.35 court-

appointed attorney fee, and a $20,162.62 "special costs reimbursement" fee. Clerk's

Papers (CP) at 16 (capitalization omitted). The judgment and sentence did not contain a

finding that Mr. Aguilar had the ability to pay the LFOs, nor did the trial court conduct an

on-the-record inquiry into Mr. Aguilar's financial resources or ability to pay. The court

also ordered $2,189.44 in restitution. There is no evidence in the record that Mr. Aguilar

ever appealed from the 2014 judgment and sentence.

       On January 20, 2016, Mr. Aguilar filed a motion in the trial court "to

terminate legal financial obligation(s )." CP at 21 ( capitalization omitted). Citing

RCW 10.01.160(3) and Blazina, 182 Wn.2d 827, Mr. Aguilar argued he never received

the requisite inquiry into his ability to pay and asked the court to waive his discretionary

LFOs. Mr. Aguilar attached a summary of his LFO account to his motion.



                                              2
No. 34221-2-III
State v. Aguilar


       The State responded that terminating the LFOs was not the proper remedy, but

requested a new sentencing hearing so the court could comply with Blazina. The trial

court agreed and ordered that

       a new sentencing hearing will be held to ensure compliance by the court
       with [Blazina], including that the court makes an individualized inquiry into
       the defendant's current and future ability to pay before the court imposes
       legal financial obligations and that said inquiry shall include the court's
       consideration of important factors, such as incarceration and the
       defendant's other debts, including restitution, relative to determine the
       defendant's ability to pay.

CP at 28. Citing the remission statute, the trial court also agreed to treat Mr. Aguilar's

motion in part as a motion to remit his LFOs, provided Mr. Aguilar brought additional

evidence to support his request.

       At the hearing, Mr. Aguilar stated his main issue was that the Department of

Corrections garnished 75 percent of the wages he earned while incarcerated. He stated

his gross monthly income was $150.00, but his net income was only $40.00 after the

garnishment. The State responded that Mr. Aguilar had already paid $193.99 toward his

LFOs, which indicated he had the ability to pay the remaining amount.

       The trial court found that Mr. Aguilar had a "minimal" present ability to repay his

LFOs, and that it did not "see a problem taking 75 percent of [h]is earnings from jail."

Report of Proceedings (RP) (Feb. 18, 2016) at 3. The trial court further concluded it



                                              3
No. 34221-2-111
State v. Aguilar


would be inappropriate to address or eliminate Mr. Aguilar's LFOs while he remained

incarcerated, but stated it would consider Mr. Aguilar's request when he is released from

pnson.

         The trial court then modified the judgment and sentence to contain the following

findings:

                . . . The court finds that the defendant may have the future ability to
         pay the legal financial obligations imposed herein. RCW 9.94A.753. He
         has minimal ability to currently pay .

                . . . It is appropriate to re-address the LFO issue when [defendant] is
         released from custody.

CP at 34. Mr. Aguilar timely appealed.

                                          ANALYSIS

         Mr. Aguilar argues the trial court erred in finding he has the current or future

ability to pay his discretionary LFOs.

         Mr. Aguilar filed his motion challenging his LFOs 16 months after the trial court

entered the obligations. Ordinarily, this would preclude Mr. Aguilar from challenging the

2014 sentencing court's decision imposing those costs. See In re Pers. Restraint of

Flippo, 187 Wn.2d 106, 110-11, 3 85 P .3d 128 (2016) (holding that LFO errors do not

render a judgment and sentence facially invalid for purposes ofRCW 10.73.090(1), nor

was Blazina a significant change in the law requiring retroactive application under

                                               4
No. 34221-2-III
State v. Aguilar


RCW 10.73.100(6)). Because there is no record Mr. Aguilar ever appealed the 2014

judgment and sentence, it became final the date it was entered and the trial court could

have treated Mr. Aguilar's January 2016 motion solely as a motion to remit costs under

RCW 10.01.160(4). See City of Richland v. Wakefield, 186 Wn.2d 596, 601, 380 P.3d

459 (2016) ("Wakefield acknowledges that she did not appeal the costs imposed as part of

her judgment and sentence, and thus she is not challenging the original decision imposing

those costs."). However, because the trial court ordered a new sentencing hearing for the

purpose of determining Mr. Aguilar's ability to pay, Mr. Aguilar is entitled to review of

that decision. 1

       RCW 10.01.160(3) provides in part that a court "shall not order a defendant to pay

costs unless the defendant is or will be able to pay them." Under the plain language of

this provision, a sentencing court does not have authority to order a defendant to pay costs

unless the defendant is or will be able to pay them, after taking into account the




       1
         The State appears to argue, citing State v. Crook, 146 Wn. App. 24, 189 P.3d
811 (2008), that Mr. Aguilar's claim is not ripe because the State has not yet attempted to
enforce payment. The Blazina court rejected this argument. See Blazina, 182 Wn.2d at
832 n.1. Moreover, Crook involved an appeal from a motion for remission of payment
under RCW 10.01.160(4)-it did not involve the question of whether the trial court
complied with RCW lG.01.160(3) in imposing discretionary LFOs. See Crook, 146 Wn.
App. at 27.

                                             5
No. 34221-2-111
State v. Aguilar


defendant's financial resources. In re Pers. Restraint ofDove, 196 Wn. App. 148, 158,

381 P.3d 1280 (2016).

       A trial court's finding that the defendant has the ability to pay LFOs is essentially

factual and this court reviews this finding under the clearly erroneous standard. State v.

Bertrand, 165 Wn. App. 393,404 n.13, 267 P.3d 511 (2011). A finding of fact is clearly

erroneous when,'" although there is some evidence to support it, review of all of the

evidence leads to a definite and firm conviction that a mistake has been committed.'"

State v. Lundy, 176 Wn. App. 96, 105, 308 P.3d 755 (2013) (internal quotation marks

omitted) (quoting Schryvers v. Coulee Cmty. Hosp., 138 Wn. App. 648, 654, 158 P.3d

113 (2007)).

       Here, a review of all the evidence meets this standard. Mr. Aguilar will be in

prison at least until his mid-70s. The trial court imposed $34,718.97 in discretionary

LFOs. This amount began accruing interest at a 12 percent rate when the trial court

entered the judgment and sentence in September 2014. See RCW 10.82.090(1);

RCW 4.56.110(4); RCW 19.52.020(1). Mr. Aguilar's LFO account summary shows that

by November 2015, $4,992.04 had accrued in interest, for a total balance of $40,225.00

(not including restitution).




                                              6
No. 34221-2-III
State v. Aguilar


       The State contends Mr. Aguilar earns approximately $150 per month while

incarcerated. But this is just a fraction of the monthly interest that accrues on his LFOs.

Our Supreme Court has disapproved of imposing LFOs when the defendant cannot or will

not be able to pay off the principal amount. See Wakefield, 186 Wn.2d at 607. Although

RCW 10.01.160(3) does not expressly say what "costs" the defendant must be able to pay,

the only rational interpretation of the statute is that it requires the defendant to be able to

pay the total amount of discretionary LFOs imposed, including interest. See Wakefield,

186 Wn.2d at 607 ( encouraging courts to remit LFOs if the person cannot "pay amounts

that will actually pay off their LFOs" (emphasis added)).

       Because the evidence from the resentencing hearing does not support the trial

court's finding that Mr. Aguilar has the ability to pay the total discretionary costs of

$34,718.97 plus interest, it was clearly erroneous for the trial court to impose those costs.2

We therefore remand for the trial court to strike Mr. Aguilar's discretionary LFOs.




       2
         The dissent does not dispute that Mr. Aguilar can never pay the LFO judgment.
Despite the plain language ofRCW 10.01.160(3) that prohibits imposition of
discretionary LFOs if a defendant lacks the current or likely future ability to pay, the
dissent would conclude that imposition of discretionary LFOs was proper. In so holding,
the dissent ignores the clear implication of Blazina, 182 Wn.2d 827: discretionary LFOs
are improper if an individualized inquiry fails to establish that the defendant has the
present or likely future ability to pay LFOs.

                                               7
No. 34221-2-111
State v. Aguilar


       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.


                                          Lawrence-Berrey, A.CJ.
                                                                              j
I CONCUR:




Pennell, J.




                                             8
                                      No. 34221-2-111

       SIDDOWAY, J. (dissenting in part)-The legislature has required that the

Department of Corrections (DOC) make work programs available to inmates. See, e.g.,

RCW 72.09.100. It requires DOC to make deductions from an inmate's wages for costs

of incarceration, the crime victim's compensation fund, legal financial obligations

(LFOs ), any civil judgment for assault, and an inmate savings account. RCW

72.09.11 l(a). The formula developed by the DOC for distributing inmate wages "shall

not reduce the inmate account below the indigency level, as defined in RCW 72.09.015."

RCW 72.09.111. The deductions have been held constitutional. In re Pers. Restraint of

Metcalf, 92 Wn. App. 165, 176-83, 963 P.2d 911 (1998), cert. denied, 527 U.S. 1041,

119 S. Ct. 2405, 144 L. Ed. 2d 803 (1999).

       The current rate at which LFOs are withheld from an inmate's wages is 20

percent. RCW 72.09.11 l(a)(iv); DOC Policy 200.00 attachment 2 (Deduction Matrix,

rev. 7/15). 1 At the hearing granted Mr. Aguilar to engage in the Blazina2 inquiry, the trial

court was informed that in the 16 months or less in which Mr. Aguilar had been in DOC

custody, 3 he had paid $193.99 toward his LFOs, suggesting that he had earned wages of

$969.95 ($193.99/.20). Clerk's Papers (CP}at 26. Based on that showing, the trial court


       1
         http://www.doc.wa.gov/information/policies/files/200000a2.pdf [https://perma.cc
/JL5Y-QS5N].
       2
         State v. Blazina, 182 Wn.2d 827,344 P.3d 680 (2015).
       3
         The $193.99 received was as of a submission dated January 22, 2016, Clerk's
Papers (CP) at 26; his judgment and sentence was entered on September 24, 2014.
CP at 3.
No. 34221-2-III
State v. Aguilar


found that Mr. Aguilar had a "minimal ability to currently pay." CP at 34. The court

"[did not] see a problem" taking deductions from Mr. Aguilar's earnings in prison,

adding, "At this point in time I don't think it's appropriate to address or elimina,te some

LFO's. It certainly would be at the time he is released." Report of Proceedings (RP)

(Feb. 18, 2016) at 3-4 (emphasis added). In its order, the court wrote, "It is appropriate to

re-address LFO issue when Def is released from custody. " 4 CP at 34. In recognizing the

likelihood of future remission of any LFOs and interest that Mr. Aguilar is unable to pay

through wage deductions while in prison, the trial court's decision is not inconsistent with

City of Richlandv. Wakefield, 186 Wn.2d 596,601,380 P.3d 459 (2016).



       4
        See RCW 10.82.090 regarding postrelease reduction or waiver of interest
accruing during the period of total confinement. In its finding explaining amendment of
the provision in 2011, the legislature stated:
      (1) The legislature finds that it is in the interest of the public to promote the
      reintegration into society of individuals convicted of crimes. Research
      indicates that legal financial obligations may constitute a significant barrier
      to successful reintegration. The legislature further recognizes that the
      accrual of interest on nonrestitution debt during the term of incarceration
      results in many individuals leaving prison with insurmountable debt. These
      circumstances make it less likely that restitution will be paid in full and
      more likely that former offenders and their families will remain in poverty.
      In order to foster reintegration, this act creates a mechanism for courts to
      eliminate interest accrued on nonrestitution debt during incarceration and
      improves incentives for payment of legal financial obligations.
              (2) At the same time, the legislature believes that payment of legal
      financial obligations is an important part of taking personal responsibility
      for one's actions. The legislature therefore, supports the efforts of county
      clerks in taking collection action against those who do not make a good
      faith effort to pay.
LA ws OF 2011, ch. 106, §§ 1-2. Whatever our personal views as appellate judges, we
must respect the actions of the legislature acting within its governmental sphere.
                                             2
No. 34221-2-111
State v. Aguilar


       The legislature has determined that inmates able to earn wages in DOC work

programs should use up to 75 percent to apply to their obligations and savings, including

applying 20 percent to LFOs imposed by the court. By ordering the trial court to strike

all of Mr. Aguilar's discretionary legal financial obligations rather than reduce them, so

that Mr. Aguilar will be able to keep more of his wages (which is the principal relief he

was requesting 5) the majority apparently disagrees. While I am surprised that the trial

court did not reduce the discretionary court costs, and I would have reached a different

decision myself, I believe it usurps the policy judgment of the legislature and the

sentencing discretion of the trial court for us to strike the discretionary LFOs entirely,

giving Mr. Aguilar what is, effectively, a reprieve from the statutory wage deduction

requirement. I therefore respectfully dissent.




       5   As Mr. Aguilar's lawyer stated at the hearing,
       My client's main issue what is owing him in prison is that ultimately at the
       end of the day they take 75 percent of his earnings. As a result out of a pay
       check that he gets per month approximately $150 realizing on the record
       that that fluctuates a little bit he winds up with about $40 a month. So that
       was part of the driving force in the matter, Your Honor.

RP (Feb. 18, 2016) at 2-3.

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