    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                           No. 71323-0-1
                      Respondent,
                                                           DIVISION ONE
               v.

                                                           UNPUBLISHED OPINION
JOSHUA DALE MASON-WEBB,

                      Appellant.                           FILED: April 20, 2015


       Appelwick, J. — Mason-Webb appeals the trial court's conclusion that he had the

present or future ability to pay the discretionary legal financial obligation that it imposed.

Mason-Webb was convicted of first degree escape when he failed to return to his work

release program after being authorized to leave to apply for a job. In a statement of

additional grounds, he argues that the trial court erred in concluding that the definition of

escape in RCW 9A.76.110 is unambiguous. He also contends that he received ineffective

assistance of counsel. We remand for resentencing and otherwise affirm.

                                           FACTS


       On July 30, 2012, Joshua Mason-Webb was found guilty of conspiracy to deliver

meth. His sentence included 10 months in the King County Work/Education Release

(WER) program. That same day, Mason-Webb reviewed and signed the WER conditions

of conduct, which documented the rules of the WER program.1



       1 This form included several conditions of participating in the program. Notably,
Mason-Webb agreed that he would not commit a crime and that he must be on time when
reporting back to the work release facility. The form stated that three written warnings in
a 30 day period for being less than 60 minutes late would result in removal from WER
and incarceration into secure detention. It further stated that one incident of being 60
minutes late or more would result in removal from WER and incarceration into secure
detention.
No. 71323-0-1/2




       The King County WER program is located on the tenth floor of the King County

courthouse. The WER program houses court-ordered participants who have jobs, are

searching for jobs, or are going to school. Participants are allowed to leave the facility,

but need passes to do so.

       When a participant is first ordered to participate in the program, he or she meets

with a caseworker who explains the rules of the program, how passes work, and what to

expect. The caseworker reviews the WER program packet with the participant. The

packet includes an escape form, which details the different degrees of escape a

participant can be charged with if he or she leaves without a pass or fails to return.2 A

pass is issued after a participant makes a written request to leave to perform an

acceptable function such as job searching. The pass has a specific time to leave and a

specific time to return written on it.

       On August 8, 2012, Mason-Webb was transferred from the King County Jail to the

WER program. Mason-Webb met with caseworker John Markholt for an orientation to

the WER program. Markholt reviewed the escape form with Mason-Webb. Markholt

explained the form to Mason-Webb and said that it is the most important form in the WER

packet.   Markholt explained that once Mason-Webb was transferred into the WER

program, he had to have an authorized pass to leave the facility and needed to return

within the time specified on the pass. And, he told Mason-Webb that if he left the facility



        2 The escape form outlines the three different degrees of escape (escape in the
first degree, escape in the second degree, and escape in the third degree). It specifically
lists the relevant statutes—RCW 9A.76.110, RCW 9A.76.120, and RCW 9A.76.130. By
signing it, the WER program participant acknowledges that violating the program policies
will result in disciplinary action and potential escape charges.
No. 71323-0-1/3




without an authorized pass, he would face a potential escape charge. Mason-Webb did

not have any questions about the form and he signed it.

       During the next three months, Mason-Webb participated in the WER program and

was permitted out of the facility on dozens of occasions on temporary passes.         On

November 8, 2012, Mason-Webb requested a temporary pass to apply for a job in Kent.

The pass was authorized from 8a.m. to 11 a.m.

       Mason-Webb checked out of the WER facility and left at 8:03 a.m. on November

8. At 10:00 a.m. that morning, Markholt received a voice mail message from Mason-

Webb stating that he would be a little late returning to the facility. Mason-Webb did not

return to the facility on November 8 or any of the days following.

       On November 15, 2012, Mason-Webb was arrested.            The State subsequently

charged him with escape in the first degree pursuant to RCW 9A.76.110. Mason-Webb

moved for dismissal via a Knapstad3 motion.       The motion was denied and the case

eventually proceeded to trial.

       Following a jury trial, Mason-Webb was convicted of escape in the first degree. On

December 3, 2013, the court sentenced Mason-Webb to 33 months of incarceration. In

addition to imposing $600 of mandatory legal financial obligations (LFOs), the sentencing

court ordered him to pay discretionary court costs in the amount of $465. The felony

judgment and sentence stated:

       OTHER FINANCIAL OBLIGATIONS: Having considered the defendant's
       present and likely future financial resources, the Court concludes that the
       defendant has the present or likely future ability to pay the financial
       obligations imposed.



        State v. Knapstad. 107 Wn.2d 346, 353-54, 729 P.2d 48 (1986).
No. 71323-0-1/4




Mason-Webb appeals.

                                      DISCUSSION


       Mason-Webb argues the trial court erred when it found that he had the ability to

pay discretionary court costs. He contends this is so because it had insufficient evidence

that Mason-Webb possessed the ability to pay as required by RCW 10.01.160(3). He

also makes a statement of additional grounds and contends that the trial court erred in

concluding that the definition of escape in RCW 9A.76.110 is unambiguous. He further

contends that he received ineffective assistance of counsel.


  I.   Discretionary Legal Financial Obligations

       Mason-Webb argues that the trial court failed to consider his ability to pay

discretionary court costs and thus had insufficient evidence to impose them.

       As a threshold matter, the State contends that because Mason-Webb did not

object to the imposition of the costs and the trial court's finding below that he failed to

preserve the issue for appeal. RAP 2.5(a) states that an appellate court may refuse to

review any claim of error which was not raised in the trial court. But, RAP 2.5(a) grants

appellate courts discretion to accept review of claimed errors not appealed as a matter of

right. State v. Russell. 171 Wn.2d 118, 122, 249 P.3d 844 (2011). The Washington

Supreme Court recently considered the issue of whether a defendant may raise the

imposition of discretionary LFOs for the first time on appeal under RAP 2.5(a) in State v.

Blazina.        Wn.2d     344 P.3d 680, *1 (2015).

       In Blazina. a consolidated case, the defendants appealed the imposition of

discretionary LFOs and argued that the trial court erred when it found them able to pay.

id. at *1-*2.    But, the Court of Appeals declined to consider the defendants' claims
No. 71323-0-1/5



pursuant to RAP 2.5(a), because the defendants did not object at the sentencing hearings

to the findings of ability to pay the obligations. Id. The Washington Supreme Court

disagreed. See id. at *3. The Blazina court stated that while unpreserved LFO errors do

not command review as a matter of right and while the Court of Appeals properly declined

discretionary review, it would invoke its discretion under RAP 2.5(a). ]d. at *3. The court

opined that each appellate court must make its own decision to accept discretionary

review.     Id. It stated that national and local cries for reform of broken LFO systems

demand that it exercise its RAP 2.5(a) discretion. ]d. We agree and reach the merits of

Mason-Webb's claim.


       Mason-Webb argues that in order to impose discretionary LFOs under RCW

10.01.160(3), the sentencing judge must consider the defendant's present or likely future

ability to pay. RCW 10.01.160(3) states,

      The court shall not order a defendant to pay costs unless the defendant is
      or will be able to pay them. In determining the amount and method of
      payment of costs, the court shall take account of the financial resources of
      the defendant and the nature of the burden that payment of costs will
          impose.

          Neither RCW 10.01.160 nor the constitution requires a trial court to enter formal,

specific findings regarding a defendant's ability to pay discretionary court costs. State v.

Lundv. 176 Wn. App. 96, 105, 308 P.3d 755 (2013). But, ifan unnecessary finding of fact

is made, perhaps through inclusion of boilerplate language in the judgment and sentence,

we review it under the clearly erroneous standard.         Id. 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. Id.
No. 71323-0-1/6




As such, the State's burden for establishing whether a defendant has the present or likely

future ability to pay discretionary LFOs is a low one. jd. at 106.

       Here, the language in the judgment and sentence was "the Court concludes that

the defendant has the present or likely future ability to pay the financial obligations

imposed." (Emphasis added.) Mason-Webb characterizes the language in the judgment

and sentence as a finding of fact.         The State accepts this characterization. Such a

characterization would align the case with Lundy. See 176 Wn. App. at 105 n.7. Mason-

Webb then contends that there is nothing in the record to support the trial court's finding

of fact. But, unlike the "court finds" language used in Lundv. the trial court here stated

that the "court concludes." jd. Unlike in Lundv. the trial court's language does not suggest

it made an unnecessary finding. The trial court stated a necessary conclusion, and we

decline to rewrite it as a finding of fact. Mason-Webb has appealed only the "finding of

fact," therefore his challenge fails.

       Even assuming we treat the trial court's statement as a finding of fact, Mason-

Webb fails to illustrate that the finding was clearly erroneous. Mason-Webb relies on

State v. Bertrand. 165 Wn. App. 393, 267 P.3d 511 (2011) for his assertion. In Bertrand.

the defendant had disabilities that may have reduced or possibly eliminated her future

ability to pay LFOs, but the trial court ordered the defendant to pay the LFOs. jd. at 404

& n.15. The Bertrand court concluded that there was no evidence to support the trial

court's finding that Bertrand had the present or future ability to pay the LFOs. jd. at 404.

       By contrast, here, the evidence does not support a definite conviction that a

mistake has been committed.             First, at the time of the offense, Mason-Webb was

participating in work release and had been granted a pass to apply for a job. He was able
No. 71323-0-1/7




to work unlike the defendant in Bertrand.       Moreover, at sentencing, Mason-Webb's

attorney opined that Mason-Webb was very hard working, did a lot of legal research on

the case, and that in his opinion, Mason-Webb has a great chance of success in the

community if he applies himself. Based on this record, the trial court's "finding of fact"

was not clearly erroneous. Therefore, remand on this basis is improper.

       Mason-Webb assigned error to only the trial court's finding of fact related to his

ability to pay, not to the trial court's ultimate decision to impose those costs. He did so

ostensibly because of the state of the law at the time he filed his appeal.4 Even though

Mason-Webb did not explicitly assign error to the trial court's imposition of the LFO, we

will also consider that challenge now in light of Blazina.5 See RAP 7.3 (stating that the

appellate court has the authority to perform all acts necessary or appropriate to secure

the fair and orderly review of a case); State v. McCormick. 152 Wn. App. 536, 539-40,

216 P.3d 475 (2009) (concluding that a new rule applies retroactively even if defendant

failed to object or make argument previously, because justice demands that similarly

situated defendants whose appeals are pending direct review deserve like treatment

following a change in the law).

       The Blazina court ultimately concluded that RCW 10.01.160(3) requires the record

to reflect that the sentencing judge made an individualized inquiry into the defendant's

      4 At the time of the briefing, a challenge to the imposition of LFOs was not ripe for
review until the State sought to collect. Lundv. 176 Wn. App. at 108. The Washington
Supreme Court's recent decision in Blazina changed that limiting standard to allow
challenges to the trial court's imposition of an LFO prior to collection. See 344 P.3d at *2
n.1.
       5 It is clear from Mason-Webb's briefing that he seeks to prove that a proper review
of his financial situation would have illustrated that he did not have the present or future
ability to pay the discretionary LFO. In other words, his ultimate argument is that the
sentencing court erred when it imposed the discretionary LFO.
No. 71323-0-1/8




current and future ability to pay before the court imposes LFOs. Id. at *6. This inquiry

also 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. k± The Blazina court concluded that, because the records before it did not show

that the sentencing judges inquired into either defendant's ability to pay, remand to the

trial court for new sentence hearings was appropriate, jd.

       Here, although there is evidence present in the record that Mason-Webb might

have the ability to pay the discretionary LFO in the future, there is no evidence in the

record that the sentencing court made the individualized and detailed inquiry as is now

necessary under Blazina. As a result, we remand to the trial court for a new sentencing

hearing.

 II.   Knapstad Motion and Statutory Interpretation

       Mason-Webb challenges the trial court's interpretation of the escape statute,

because he contends the meaning of the word "escape" is ambiguous.6 This court

reviews issues of statutory interpretation de novo. Cerrillo v. Esparza. 158 Wn.2d 194,

199, 142 P.3d 155 (2006).

       Our primary duty in interpreting any statute is to discern and implement the intent

of the legislature. State v. J.P.. 149 Wn.2d 444, 450, 69 P.3d 318 (2003). Our starting

point must always be the statute's plain language and ordinary meaning. Id. When the

      6 Mason-Webb labels his assignment of error as a challenge to the denial of his
Knapstad motion. A defendant who goes to trial cannot appeal the denial of a Knapstad
motion. State v. Richards. 109 Wn. App. 648, 653, 36 P.3d 1119 (2001). However, the
content of Mason-Webb's argument pertains to statutory interpretation. To the extent that
Mason-Webb challenges the trial court's interpretation of the escape statute, we may
review that challenge on appeal. See State v. Peters. 35 Wn. App. 427,430-31, 667 P.2d
136 (1983) (engaging in statutory interpretation on appeal).

                                               8
No. 71323-0-1/9




plain meaning is unambiguous—that is, when the statutory language admits of only one

meaning—the legislative intent is apparent and we will not construe the statute otherwise,

jd. The plain meaning of the statute may be discerned from all the legislature has said in

the statute and related statutes which disclosed legislative intent about the provision in

question. Id. Legislative definitions provided by the statute are controlling, but in the

absence of a statutory definition, we will give a term its plain and ordinary meaning

ascertained from a standard dictionary. State v. Sullivan. 143 Wn.2d 162, 175, 19 P.3d

1012(2001).

       Mason-Webb first argues that because the term "escape" is subject to differing

interpretations, the escape statute is ambiguous, and thus, the trial court erred when it

did not apply the rule of lenity.    Under the rule of lenity, the court must adopt the

interpretation most favorable to the criminal defendant. State v. McGee. 122 Wn.2d 783,

787, 864 P.2d 912 (1993). According to Mason-Webb, the word "escape" in the escape

statute does not include a failure to return.

       But, a plain reading of the statute and the legislative intent indicates that Mason-

Webb's argument is without merit. Mason-Webb was convicted of escape in the first

degree, RCW 9A.76.110. A person is guilty of first degree escape if, "he or she knowingly

escapes from custody or a detention facility while being detained pursuant to a conviction

of a felony or an equivalent juvenile offense." RCW 9A.76.110(1). RCW 9A.76.110(2)

states that it is an affirmative defense to escape in the first degree that uncontrollable

circumstances prevented the person from "remaining in custody or in the detention facility

or from returning to custody or to the detention facility." (Emphasis added.) The plain

language of the statute is clear that "escape" also evinces a failure to return.
No. 71323-0-1/10




       Mason-Webb also contends that because common usage of the word "escape"

implies leaving physical confinement without permission, he could not have escaped

when he was out on his authorized pass. The escape statutes require an individual to

escape from either a detention facility or from custody. See RCW 9A.76.110, RCW

9A.76.120, RCW 9A.76.130.        He contends that one cannot escape from a detention

facility unless he or she is physically confined. By making this argument he is really

claiming ambiguity in the meaning of "custody" and "detention facility" as written in the

statutes—not "escape." But, "detention facility" is explicitly defined in RCW 9A.76.010(3).

The definition of "detention facility" explicitly includes a person in work release, furlough,

or other such facility or program.     RCW 9A.76.010(3)(e). And, "custody" is explicitly

defined in RCW 9A.76.010(2) and includes restraint pursuant to an order of a court.7

       Moreover, this court has already rejected this argument. In State v. Peters, 35 Wn.

App. 427,428, 667 P.2d 136 (1983), a consolidated case, one of the defendants, Norlund,

was being detained in a juvenile detention facility. Norlund was released pursuant to a

pass which directed her to return to the facility at 11 a.m. six days later, jd. at 428-29.

Norlund did not return and was convicted of second degree escape. Id. at 429. The other

defendant, Peters, was being detained at a juvenile detention facility. Id. She left the

facility in the custody of a counselor and participated in an off campus celebration at a

pizza parlor marking the conclusion of a drug-alcohol education program. ]d_. As the



       7 Mason-Webb argues that notwithstanding these statutory definitions, the
meaning of "escape" is still unclear and ambiguous because "detention facility" and
"custody" only explain what a person escapes from, not the act of escaping. But, Mason-
Webb's argument is that he could not have escaped when he was not in physical
confinement. Thus, he himself connects the definition of "detention facility" to the
meaning of "escape."


                                                 10
No. 71323-0-1/11




group left the pizza parlor, Peters ran away. jd, Peters was convicted of second degree

escape, jd.

       On appeal, Norlund and Peters argued that because the escape statute defines

"'detention facility'" as "'any place used for the confinement of a person,'" one cannot be

guilty of escape "'from a detention facility,'" unless he or she escapes from a place of

confinement. Id at 430 (quoting former RCW 9A.76.010(2) (1979)). This is the same

argument Mason-Webb makes here.

       In rejecting this argument, the Peters court reasoned that a detention facility is

"'any place used for the confinement of a person ... in any work release, furlough, or

other such facility or program.'" jd at 430-31 (quoting former RCW 9A.76.010(2)(e)

(1979)); RCW 9A.76.010(3)(e). It continued that the term "place" thus encompasses any

area in which a person is permitted to go or remain according to the terms of his work

release, furlough, or comparable program. Id. at 431. It concluded that a person who,

while on work release or furlough, is not within the area where he is authorized to be at a

particular time, or a person who has remained in an area he was authorized to go beyond

the time permitted him, has escaped from a detention facility, jd. Based on Peters, even

if we apply the common meaning of escape that Mason-Webb urges—leaving physical

confinement in a specific place—Mason-Webb's actions still constitute escaping from a

detention facility as required by RCW 9A.76.110.

       Mason-Webb contends that because the definition of detention facility is defined

by statute and is not ambiguous, the "judicially construed" definition from Peters was

improperly applied here. As a preliminary matter, the court in Peters was not introducing

an alternate definition of "detention facility."        Instead, it was applying the statutory


                                                   11
No. 71323-0-1/12




definition and interpreting how that definition applied in a specific context. Further, even

if the Peters court improperly construed the definition of "detention facility," the legislature

is presumed to be aware of judicial constructions of existing statutes. Hazel v. Van Beek,

135 Wn.2d 45, 58, 954 P.2d 1301 (1998).            Since Peters was decided in 1983, the

legislature—which has amended RCW 9A.76.010 numerous times since—has not altered

the language of the relevant statutes so as to expressly overrule the holding in Peters.

See id; Laws of 2013, ch. 43, § 1; Laws of 2009, ch. 549, § 1003; Laws of 2001, ch.

264, §4; Laws OF 1991, ch. 181, §6.

        Mason-Webb then attempts to distinguish his case from Peters by claiming that he

was not in any work release, furlough, or comparable program at the time of the escape,

but was on an authorized pass. But, as was decided in Peters, a person who, while on

work release, is not within the area where he is authorized to be at a particular time, has

escaped from a detention facility. Peters. 35 Wn. App. at 431. Mason-Webb's pass

required that he return to the work release facility. He failed to do so.

        The trial court did not err in its interpretation of the escape statute.

 III.   Ineffective Assistance of Counsel

        In his statement of additional grounds, Mason-Webb also argues that he received

ineffective assistance of counsel.      To prevail on a claim of ineffective assistance, a

defendant must show that (1) counsel's performance was deficient and (2) the deficient

performance prejudiced the trial. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). There is a strong presumption of effective assistance. In

re Pet, of Moore. 167 Wn. 2d 113, 122, 216 P.3d 1015 (2009).




                                                   12
No. 71323-0-1/13




          First, Mason-Webb asserts that his attorney should have requested a lesser

degree jury instruction.   His attorney requested only a lesser included offense jury

instruction.


       A defendant is entitled to an instruction on an inferior degree offense when

       "(1) the statutes for both the charged offense and the proposed inferior
       degree offense "proscribe but one offense"; (2) the information charges an
       offense that is divided into degrees, and the proposed offense is an inferior
       degree of the charged offense; and (3) there is evidence that the defendant
       committed only the inferior offense."

State v. Peterson. 133 Wn.2d 885, 891, 948 P.2d 381 (1997) (emphasis added) (quoting

Sate v. Foster. 91 Wn.2d 46, 472, 589 P.2d 789 (1979) and State v. Daniels. 56 Wn. App.

646, 651, 784 P.2d 579 (1990)); State v. Tamalini. 134 Wn.2d 725, 732, 953 P.2d 450

(1998).

       There is no evidence that Mason-Webb committed only the inferior offense of

second degree or third degree escape. Therefore, Mason-Webb would not have been

entitled to an inferior degree instruction and counsel's performance was not deficient.

       The two elements that distinguish first degree escape from the lesser degrees of

the crime are that the defendant knowingly escaped while being detained pursuant to a

conviction of a felony.    Compare RCW 9A.76.110 with RCW 9A.76.120, and RCW

9A.76.130. In order to possess the requisite knowledge to be convicted of escape in the

first degree, Mason-Webb needed to know only that he was leaving confinement without

permission. RCW 9A.08.010(b); 11A Washington Practice: Washington Pattern Jury

Instructions: Criminal 120.26, at 500 (3d ed. 2008) (WPIC). He did not need to know

that what he was doing was defined by law as being unlawful or that it was an element of

a crime.     RCW 9A.08.010(b); WPIC 120.26. There was uncontested evidence in the


                                               13
No. 71323-0-1/14




record that Mason-Webb knew he was not allowed to leave work release or return late

after leaving on an authorized pass. It is not disputed that he was being detained because

of a felony conviction. Because of this, there is no evidence that Mason-Webb committed

only an inferior offense.   As a result, counsel's failure to request a lesser degree

instruction was not deficient nor did it prejudice Mason-Webb's trial.

       Secondly, Mason-Webb claims that his attorney should have objected to the

prosecutor's improper conduct during trial. Specifically, he contends that the prosecutor

acted improperly when she presented the definition of a "judicial construction of detention

facility" from Peters on a PowerPoint slide during closing argument.       He claims that

because the definition was improper, counsel should have objected. But, Mason-Webb

does not specifically recount what was on the PowerPoint slide nor is the actual slide in

the record for our review. As such, we cannot review this argument. See RAP 10.10(c)

("[T]he appellate court will not consider a defendant's statement of additional grounds for

review if it does not inform the court of the nature and occurrence of alleged errors.");

State v. O'Connor. 155 Wn. App. 282, 293, 229 P.3d 880 (2010) (declining to review

statement of additional grounds where appellant did not explain the underlying facts for

his claims).

       Mason-Webb also claims that his attorney should have objected to the

prosecutor's rhetorical question. During closing argument, the prosecutor asked the jury

"[H]owelse would we keep people in work release programs ifnot for the rules that require

them to return?" He claims that it is improper for the prosecutor to argue that the jury

should convict to protect the community or deter future law breaking. He further contends




                                               14
No. 71323-0-1/15




that this argument improperly appealed to the passion and prejudice of the jury by

implying that the jury must convict to deter future escape.

      A prosecuting attorney's allegedly improper remarks must be reviewed in the

context of the total argument. State v. Brown. 132 Wn.2d 529, 561, 940 P.2d 546 (1997).

Mason-Webb mischaracterizes the prosecutor's statement in the context of her closing

argument.   In closing, the prosecutor was highlighting that a person can be guilty of

escape even if his behavior was not dramatic, like digging a tunnel under a prison wall.

She was emphasizing that, because work release is not as structured as prison that the

work release program would be ineffective if participants were not bound by the law to

return to the program after leaving temporarily. She was attempting to provide support

for the elements of the crime. She was not encouraging the jury to convict in order to

protect the community or deter future law breaking. As the prosecutor's comments were

not improper, there were no improper comments to which Mason-Webb's attorney

needed to object.    As such, Mason-Webb did not receive ineffective assistance of

counsel.                                                                         r^.i
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      We remand for resentencing. We otherwise affirm.                           r^5*
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WE CONCUR:




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