                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             June 28, 2016

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 46819-1-II

                                Respondent,

         v.

 LONZELL DEVAUGHN GRAHAM,                                       UNPUBLISHED OPINION

                                Appellant.

       MELNICK, J. — Lonzell Devaughn Graham appeals from his conviction and sentence for a

felony domestic violence court order violation. We conclude that the trial court did not err by

denying Graham’s motion to suppress, that the legal financial obligations (LFOs) ordered do not

violate his due process or equal protection rights, that the trial court did not err by ordering Graham

to provide a biological sample. We further conclude that the trial court did err by not conducting

an individualized inquiry before imposing a discretionary LFO. We affirm, but remand to the trial

court to conduct an individualized inquiry as to Graham’s ability to pay the discretionary LFO.

                                               FACTS

       On May 20, 2014, the State charged Graham with a felony domestic violence court order

violation, alleging he willfully contacted Tasha Lamb, the protected party, after having received

actual notice of the existence of the court order, and that he had at least two previous convictions

for violating orders.
46819-1-II


I.     SUPPRESSION HEARING

       On August 26, 2014, Graham filed a motion to suppress evidence pursuant to CrR 3.6. On

September 3, the trial court heard the following undisputed testimony from Officer Donald Hobbs

on the motion to suppress. Hobbs worked as a police officer for approximately ten years. He

came into contact with Graham on Pacific Highway in Milton while working patrol. As he

monitored traffic, Hobbs observed a gold Lincoln automobile driving southbound with “two

windshield wipers stuck on the windshield in an upright position . . . [and] both or one of the side

front windows was very dark tinted.” 1 Report of Proceedings (RP) at 57. It was a dry day. Hobbs

stopped the vehicle because “obviously, the windshield wipers were defective. They were stuck

in an upright position, which would make them defective windshield wipers, and probably

obscuring his view as well. And dark tinted windows.” 1 RP at 58.

       Based on Hobbs’s training and experience, he knew “what a dark tinted window looks like

that’s darker than allowed by law,” and he “had [completed] numerous, numerous stops on tinted

windows.” 1 RP at 58. He also has made “many, many” stops for equipment violations, such as

windshield wipers stuck in the middle of the windshield. 1 RP at 58. Officer Hobbs took a photo

that showed the windshield wipers were stuck in the upright position. He wrote Graham a ticket

for the tint of the windows and for the broken windshield wipers.

       On September 26, the trial court filed its findings of fact and conclusions of law regarding

the motion to suppress. In relevant part, the trial court found:

                                      UNDISPUTED FACTS

       1. On May 18, 2014, Milton Police Officer Donald Hobbs observed a vehicle
       traveling south bound at the 7800 block of Pacific Highway in Milton, WA. He
       observed the vehicle’s windshield wipers were stuck in an upright position and it
       was not raining. Officer Hobbs observed the vehicle’s windows were darker than
       allowed by law. Based on his training and experience as a patrol officer for
       approximately ten years, Officer Hobbs pulled the vehicle over.


                                                  2
46819-1-II


       ....

                                   CONCLUSIONS OF LAW

       ....

       3. The court found Officer Hobbs’ testimony credible.

       4. Officer Hobbs had an articulable reasonable suspicion [to] conduct a traffic stop
       and was legally authorized to contact the defendant.

Clerk’s Papers (CP) at 63-65.

II.    TRIAL AND SENTENCING

       On September 3, the parties stipulated to the admission of Graham’s prior convictions for

violating protection orders issued under chapter 10.99 RCW or chapter 26.50 RCW.

       Officer Hobbs, the sole witness at trial, testified similarly to how he did at the suppression

hearing with the following additions. Graham drove the car and a woman sat in the passenger seat.

Graham handed Officer Hobbs his registration and license, and Officer Hobbs radioed dispatch to

check Graham’s name. Dispatch advised Hobbs that Graham had a valid license, and that a no

contact order existed prohibiting his contact with Lamb. Dispatch told Officer Hobbs that Lamb

was a white female born in 1980. Officer Hobbs went to the passenger side of Graham’s vehicle,

advised the woman that a protection order existed, and requested her identification. Using the

identification the passenger provided, Officer Hobbs confirmed the woman was Lamb. He

returned to his car, and after dispatch confirmed the existence of a protection order, Hobbs placed

Graham under arrest for violating the no contact order.

       The jury found Graham guilty. By special verdict, the jury also found that Graham and

Lamb were members of the same family or household.

       On September 26, the trial court sentenced Graham to 60 months of confinement. In

determining Graham’s LFOs the following exchange occurred:


                                                 3
46819-1-II


                 [THE STATE]: Thank you. And I would note it’s mandatory legal financial
         obligations, $500 crime victim assessment, the $100 DNA[1] database fee, the $500
         DAC[2] recoupment.
                 THE COURT: DAC recoupment is not mandatory.
                 [THE STATE]: I believe she was a conflict through DAC.
                 [DEFENSE]: Yes.
                 [THE STATE]: And the $200 filing fee. I just wanted to accurately—
                 THE COURT: What the court’s intent is is that it be the minimum we can
         impose and still be consistent with the statute. It makes no sense to burden him
         further with financial obligations. He walks out of here and he has another problem.
         Enough already.
                 [THE STATE]: I understand.
                 [DEFENSE]: Your Honor, Mr. Graham and I were just discussing that some
         of the costs are mandatory and some are discretionary. And one that he had a
         question about was the DNA fee, because based on his history, as the court—
                 THE COURT: Maybe had one or two before?
                 [DEFENSE]: Yes.
                 THE COURT: I know. It’s mandatory. Whether it makes sense or not,
         again, that’s up to the Legislature. The point is well taken.
                 [GRAHAM]: I’ve been—I was sentenced another time where everything
         was waived because I was on Social Security, and they knew they [weren’t] going
         to get the money anyways.
                 THE COURT: Well, there’s a difference in enforcing and putting it in the
         rule. And the time of enforcement I think is when you take up the issue of whether
         or not they’re actually going to impose it on you or enforce it at that point. It’s not
         this point. This is the time the amount is set forth. But the actual enforcement is
         the time to take up the issue of whether or not you can afford is at that time.
                 [THE STATE]: . . . Would you be putting him on a $10-per-month payment
         plan upon release from prison?
                 THE COURT: I don’t think I can do that without knowing his financial
         condition. And I won't know that until he’s released, so I won’t be doing that.
                 [THE STATE]: Thank you.
                 THE COURT: I could put in not more than $10.
                 [GRAHAM]: I’m on Social Security.

5 RP at 348-50. Graham did not object to the DAC recoupment fee at the hearing, but he did

object to the DNA fee. The trial court ordered Graham to pay $1,300 in LFOs, all of which were

mandatory, except for the DAC recoupment fee. Graham appeals.



1
    Deoxyribonucleic acid.
2
    Department of Assigned Counsel.


                                                   4
46819-1-II


                                           ANALYSIS

I.     MOTION TO SUPPRESS

       Graham argues that because Hobbs did not have a reasonable articulable suspicion a traffic

infraction was occurring, the trial court erred by denying his motion to suppress evidence. Graham

specifically challenges the trial court’s finding of fact 1 that the stop was based on the officer’s

training and experience and conclusion of law 4. We disagree.

       A.      Standard of Review

       We review a trial court’s denial of a motion to suppress by determining whether substantial

evidence supports the challenged findings of fact and whether those findings support the trial

court’s conclusions of law. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). Evidence

is substantial when it is enough “to persuade a fair-minded person of the truth of the stated

premise.” State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999). Unchallenged findings of

fact are verities on appeal. State v. Bonds, 174 Wn. App. 553, 562, 299 P.3d 663 (2013). We

review conclusions of law de novo. State v. Roden, 179 Wn.2d 893, 898, 321 P.3d 1183 (2014).

       B.      The Trial Court Did Not Err By Denying the Motion to Suppress

       Under the Fourth Amendment to the United States Constitution and article I, section 7 of

the Washington State Constitution, a police officer generally cannot seize a person without a

warrant supported by probable cause. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).

“‘As a general rule, warrantless searches and seizures are per se unreasonable.’” State v.

Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996) (quoting State v. Houser, 95 Wn.2d 143,

149, 622 P.2d 1218 (1980)). However, “[e]xceptions to the warrant requirement fall into several

broad categories: consent, exigent circumstances, searches incident to a valid arrest, inventory

searches, plain view,” and investigative stops as set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct.



                                                 5
46819-1-II


1868, 20 L. Ed. 2d 889 (1968). State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). “The

burden is always on the state to prove one of these narrow exceptions.” Ladson, 138 Wn.2d at 350.

        A Terry stop is justified when the officer can “point to specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry,

392 U.S. at 21. When considering the reasonableness of a stop, the court must evaluate it based

on a totality of the circumstances. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991).

“The trial court takes into account an officer’s training and experience when determining the

reasonableness of a Terry stop.” Glover, 116 Wn.2d at 514. Terry stops have been applied to

traffic violations, including traffic infractions. State v. Duncan, 146 Wn.2d 166, 173-74, 43 P.3d

513 (2002); Ladson, 138 Wn.2d at 350-51.               Those traffic stops are subject to the same

reasonableness requirement. Ladson, 138 Wn.2d at 350.

        Substantial evidence supports the trial court’s finding of fact 1. Officer Hobbs, the sole

witness at the suppression hearing, testified to each of the facts in the trial court’s finding of fact

1. Officer Hobbs stated that based on his training and experience, he had completed “numerous

stops on tinted windows and I know what a dark tinted window looks like that’s darker than

allowed by law.” 1 RP at 58. Therefore, substantial evidence supported the trial court’s finding.

        Because substantial evidence supports the finding, we review the trial court’s conclusion

of law. Officer Hobbs had a reasonable articulable suspicion that Graham’s windows were too

darkly tinted, a traffic violation, and the trial court did not err by so concluding.

        Therefore, the trial court correctly denied Graham’s motion to suppress.




                                                   6
46819-1-II


II.    LEGAL FINANCIAL OBLIGATIONS

       Graham argues the mandatory DNA collection fee under RCW 43.43.7541 3 violates his

substantive due process rights because he does not have the ability or the likely future ability to

pay. He also argues that RCW 43.43.7541 violates his right to equal protection because it requires

some defendants to pay the DNA collection fee multiple times while others only pay it once.

Finally, Graham argues that the trial court erred when it ordered him to pay a “court-appointed

attorney fee” because it mistakenly believed it was mandatory. Br. of Appellant at 21. We disagree

with Graham’s arguments, except that the trial court erred in imposing a discretionary LFO, i.e.

the attorney fee, without first making an inquiry into his ability to pay.

       A.      STANDING

       The State argues that Graham lacks standing to challenge the constitutionality of the DNA

fee as violating substantive due process because he “has not been found to be constitutionally

indigent.” Br. of Resp’t at 12. We disagree.

       We review whether a party has standing to assert a constitutional violation de novo. State

v. A.W., 181 Wn. App. 400, 409, 326 P.3d 737 (2014).

                No precise definition of “constitutional indigence” exists. In Williams [v.
       Illinois, 399 U.S. 235, 242, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970)], the Supreme
       Court spoke of indigence as meaning “without funds.” Nonetheless, courts have
       recognized that constitutional indigence cannot mean absolute destitution. At the
       same time, a constitutional distinction exists between poverty and indigence, and
       constitutional protection attaches only to indigence. Bearden [v. Georgia, 461 U.S.
       660, 661-62, 666 n.8, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983),] essentially
       mandates that we examine the totality of the defendant’s financial circumstances to
       determine whether he or she is constitutionally indigent in the face of a particular
       fine.

State v. Johnson, 179 Wn.2d 534, 553-54, 315 P.3d 1090 (2014) (citations omitted).


3
 The 2015 amendment to RCW 43.43.7541 does not affect our analysis in this opinion. See LAWS
OF 2015, Ch. 265, § 31.


                                                  7
46819-1-II


       To prove standing, Graham must show (1) “‘a personal injury fairly traceable to the

challenged conduct and likely to be redressed by the requested relief” and (2) that his claim falls

within the zone of interests protected by the statute or constitution provision at issue. Johnson,

179 Wn.2d at 552 (quoting High Tide Seafoods v. State, 106 Wn.2d 695, 702, 725 P.2d 411

(1986)). If a party lacks standing for a claim, we refrain from reaching the merits of the issue.

Johnson, 179 Wn.2d at 552. A defendant may not challenge the constitutionality of a statute unless

he or she is harmed by the alleged unconstitutional feature of the challenged statute. State v.

Jendrey, 46 Wn. App. 379, 384, 730 P.2d 1374 (1986); State v. Lundquist, 60 Wn.2d 397, 401,

374 P.2d 246 (1962).

       The trial court appointed Graham a lawyer, and at sentencing, the trial court learned that

Graham was on social security. The trial court found him indigent. The trial court also made clear

that because of Graham’s financial situation, it was attempting to impose the least amount of LFOs

it could. Graham is constitutionally indigent for purposes of this appeal and was so in the trial

court. He is challenging the law for imposing mandatory LFOs on indigent defendants. Relying

on the above-stated two part test, Graham has standing.

       B.      RIPENESS

       The State argues that Graham’s claim is not ripe for review because the State has not yet

attempted to enforce payment. We disagree.

       In State v. Blazina, 182 Wn.2d 827, 832 n.1, 344 P.3d 680 (2015), the court clarified that

a challenge to the trial court’s entry of an LFO order under RCW 10.01.160(3) is ripe for judicial

determination. The same rationale applies to LFOs imposed pursuant to other statutes.




                                                8
46819-1-II


         C.      SUBSTANTIVE DUE PROCESS

         Graham argues that RCW 43.43.7541 is unconstitutional because it violates the due process

rights of defendants who do not have the ability or likely future ability to pay the obligation. We

disagree. We recently rejected similar arguments in State v. Mathers, No. 47523-5-II, 2016 WL

2865576 (Wash. Ct. App. May 10, 2016).

         We must determine whether RCW 43.43.75414 violates the guarantees of the due process

clauses of the Washington and federal constitutions. RCW 43.43.7541 requires every sentence

imposed for a violation of specified crimes include a $100 DNA fee. Felony violation of a no

contact order is one of the specified crimes. RCW 43.43.7541.

         Both the state and federal constitutions mandate that no person may be deprived of life,

liberty, or property without due process of law. U.S. CONST. amends. V, XIV, § 1; WASH. CONST.

art. I, § 3. “‘The due process clause of the Fourteenth Amendment confers both procedural and

substantive protections.’” Nielsen v. Dep’t of Licensing, 177 Wn. App. 45, 52, 309 P.3d 1221

(2013) (quoting Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006)).

“‘Substantive due process seems to have been gradually adopted as the shorthand for individual

rights which are not clearly textual.’” Mathers, 2016 WL 2865576, at *7 (quoting Stephen Kanter,

The Griswold Diagrams: Toward A Unified Theory of Constitutional Rights, 28 Cardozo L. Rev.

623, 669 n.170 (2006)). “Substantive due process protects against arbitrary and capricious

government action even when the decision to take action is pursuant to constitutionally adequate

procedures.” Amunrud, 158 Wn.2d at 218-19. “It requires that ‘deprivations of life, liberty, or

property be substantively reasonable’ . . . [or] ‘supported by some legitimate justification.’”



4
    This statute is entitled: DNA identification system—Collection of biological samples—Fee.



                                                 9
46819-1-II


Nielsen, 177 Wn. App. at 53 (quoting Russell W. Galloway, Jr., Basic Substantive Due Process

Analysis, 26 U.S.F. L. Rev. 625, 625-26 (1992)).

       The level of review applied in a substantive due process challenge depends on the nature

of the interest involved. Amunrud, 158 Wn.2d at 219. If no fundamental right is involved, the

proper standard of review is rational basis. In re Det. of Morgan, 180 Wn.2d 312, 324, 330 P.3d

774 (2014).

       For a statute to survive a rational basis review, it must be “rationally related to a legitimate

state interest.” Amunrud, 158 Wn.2d at 222. When applying this test, we may “assume the

existence of any necessary state of facts which [we] can reasonably conceive in determining

whether a rational relationship exists between the challenged law and a legitimate state interest.”

Amunrud, 158 Wn.2d at 222. The rational basis test “‘is not a toothless one,’” but statutes are

presumed constitutional, and the burden is on the challenger to prove the law is unconstitutional.

Mathews v. De Castro, 429 U.S. 181, 185, 97 S. Ct. 431, 50 L. Ed. 2d 389 (1976) (quoting Mathews

v. Lucas, 427 U.S. 495, 510, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976)). Both parties correctly argue

we should employ this standard of review.

       Graham argues that an indigent’s inability to pay the DNA fee is not rationally related to

any legitimate state interest. However, Graham concedes that the DNA fee serves a legitimate

interest because it “ostensibly serves the State’s interest to fund the collection, analysis, and

retention of a convicted offender’s DNA profile so this might help facilitate future criminal

identifications.” Br. of Appellant at 13.




                                                 10
46819-1-II


          For the foregoing reasons, and for those stated in Mathers, 2016 WL 2865576, RCW

43.43.7541 does not violate due process because there is a legitimate state interest, as Graham

concedes, and that interest is rationally related to the law and the infringement on the offenders’

rights.

          But Graham argues that the imposition of a mandatory fee on indigent defendants who will

be unable to pay the fee does not rationally serve that interest. He is conflating arguments. The

rational relationship still exists. However, to the extent that Graham argues that he could be

incarcerated for failure to pay, there are protections in place and his claim fails. “[O]ur courts have

held that these mandatory obligations are constitutional so long as ‘there are sufficient safeguards

in the current sentencing scheme to prevent imprisonment of indigent defendants.’” State v. Lundy,

176 Wn. App. 96, 102-03, 308 P.3d 755 (2013) (quoting State v. Curry, 118 Wn.2d 911, 918, 829

P.2d 166 (1992)).

                  “Due process precludes the jailing of an offender for failure to pay a fine if
          the offender’s failure to pay was due to his or her indigence. However, if an
          offender is capable of paying but willfully refuses to pay, or if an offender does not
          make sufficient bona fide efforts to seek employment or borrow money in order to
          pay, the State may imprison the offender for failing to pay his or her LFO. The
          burden is on the offender to show that his nonpayment is not willful. Although the
          offender carries the burden, due process still imposes a duty on the court to inquire
          into the offender’s ability to pay. Inquiry into the offender’s ability to pay comes at
          the point of collection and when sanctions are sought for nonpayment.”

State v. Stone, 165 Wn. App. 796, 817, 268 P.3d 226 (2012) (internal quotations omitted) (quoting

State v. Nason, 168 Wn.2d 936, 945, 233 P.3d 848 (2010)).

          D.     EQUAL PROTECTION

          Graham argues that RCW 43.43.7541 violates his equal protection rights because “it

irrationally requires some defendants to pay a DNA-collection fee multiple times, while others

need pay only once.” Br. of Appellant at 16. We disagree. The two groups Graham asks us to



                                                    11
46819-1-II


compare are offenders who are required to provide DNA samples one time and offenders who are

ordered to give biological samples multiple times.

          Under the Washington and federal constitutions, persons similarly situated with respect to

the legitimate purposes of the law are guaranteed equal treatment. U.S. CONST. amend. 14; WASH.

CONST. art. I, § 12; State v. Manussier, 129 Wn.2d 652, 672, 921 P.2d 473 (1996). “Equal

protection is denied if a valid law is administered in a way that unjustly discriminates between

similarly situated persons. Before [we] will scrutinize an equal protection claim, the defendant

must establish that he is situated similarly to others in a class.” Harris v. Charles, 151 Wn. App.

929, 936, 214 P.3d 962 (2009) (citing State v. Handley, 115 Wn.2d 275, 289-90, 796 P.2d 1266

(1990)).

          Equal protection challenges are analyzed under one of three standards of review: strict

scrutiny, intermediate scrutiny, or rational basis. Manussier, 129 Wn.2d at 672-73. When the

classification does not involve a suspect class or threaten a fundamental right we utilize a rational

basis test. Manussier, 129 Wn.2d at 673. We review Graham’s challenge under the rational basis

test.5

                  When evaluating an equal protection claim, we must first determine
          whether the individual claiming the violation is similarly situated with other
          persons. A defendant must establish that he received disparate treatment because
          of membership in a class of similarly situated individuals and that the disparate
          treatment was the result of intentional or purposeful discrimination. Although
          equal protection does not require that the State treat all persons identically, any
          classification must be relevant to the purpose for the disparate treatment.

State v. Osman, 157 Wn.2d 474, 484, 139 P.3d 334 (2006) (citations omitted). “Disparate

treatment of those within and without a designated class rationally relates to achievement of the

State’s objective if there is some basis in reality for the distinction between the two classes and


5
    Both Graham and the State correctly agree this standard is the one we should utilize.


                                                  12
46819-1-II


the distinction serves the purpose intended by the legislature.” Osman, 157 Wn.2d at 486. Like

treatment must be afforded to people who are similarly situated with respect to the legitimate

purpose of the challenged statute. Manussier, 129 Wn.2d at 672.

       One purpose of this statute is to fund the state DNA database and defray costs for agencies

that collect the biological samples. Another purpose of the statute is to satisfy the “public’s

incontestable interest in deterring recidivism and identifying persons who commit crimes and the

likelihood that a DNA databank will advance this interest.” State v. Brewster, 152 Wn. App. 856,

860, 218 P.3d 249 (2009). The statute’s purpose is rationally related to the legislature’s interest in

funding the state’s DNA database.

       Regardless, Graham’s equal protection claim fails because, “[w]ithout proof of

discriminatory intent, a generally applicable law with disparate impact is not unconstitutional.

‘The Fourteenth Amendment does not regard neutral laws as invidious ones, even when their

burdens purportedly fall disproportionately on a protected class. A fortiori it does not do so when

. . . the classes complaining of disparate impact are not even protected.’” State v. Johnson, No.

32834-1-III, 2016 WL 3124893, at *2 (Wash. Ct. App. June 2, 2016) (quoting Crawford v. Marion

Cty. Election Bd., 553 U.S. 181, 207, 128 S. Ct. 1610, 170 L. Ed. 2d 574 (2008)). Graham does

not assert or demonstrate that the legislature had a discriminatory intent when it enacted RCW

43.43.7541.

       Therefore, we conclude that RCW 43.43.7541 does not violate Graham’s right to equal

protection.




                                                 13
46819-1-II


       E.     COLLECTION OF DNA SAMPLE

       Graham asks us to reverse the trial court’s DNA collection order because it abused its

discretion in imposing it. We disagree.

       A party may object to a sentencing condition for the first time on appeal. State v.

Armstrong, 91 Wn. App. 635, 638, 959 P.2d 1128 (1998). We review sentencing conditions for

abuse of discretion. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). A trial court abuses

its discretion if the imposition of the condition was “on untenable grounds, or for untenable

reasons.” State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       The trial court ordered the biological sample under RCW 43.43.754(1). However, this

statute provides that “[i]f the Washington state patrol crime laboratory already has a DNA sample

from an individual for a qualifying offense, a subsequent submission is not required to be

submitted.” RCW 43.43.754(2).

       It was clear that the trial court understood that Graham had likely provided a DNA sample

in the past. However, Graham never presented proof of this fact and never affirmatively stated he

had. And even if he had, the statute does not preclude the submission of additional samples from

a defendant. RCW 43.43.754(2). The trial court did not abuse its discretion by ordering Graham

to submit a DNA sample.

       F.     DISCRETIONARY LFO

       Graham argues that the trial court erred by ordering him to pay the discretionary $500 DAC

recoupment fee because it mistakenly believed the fee was a mandatory LFO. Because it is not a

mandatory LFO, we remand to trial court to make an individual inquiry on Graham’s current and

future ability to pay the discretionary DAC recoupment fee. Blazina, 182 Wn.2d at 830.




                                               14
46819-1-II


        We affirm, but remand the case to the trial court to conduct an individualized inquiry on

Graham’s ability to pay the discretionary LFO imposed.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                            Melnick, J.

We concur:




        Maxa, A.C.J.




        Sutton, J.




                                               15
