                                                   FILED
                                                    APPEALS DIV I
                                           COURT OF VIASHIIAG101.1
                                            STATE OF
                                                             19
                                            N11111_ 31 NI 1:



      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                 No. 76741-1-1
                      Respondent,
         V.                                      DIVISION ONE

 JOSHUA DAVID CHARLES RHOADES,                   UNPUBLISHED OPINION

                     Appellant.                  FILED: July 31, 2017


       LEACH, J. — Joshua Rhoades appeals the trial court's denial of his motion

to vacate his legal financial obligations(LF05). Because the trial court adequately

considered Rhoades's ability to pay, it did not abuse its discretion when it denied

Rhoades's motion. We affirm.

                                    Background

       In 1999, Rhoades was convicted of assault in the second degree. The

judgment and sentence imposed these LF0s: a $1,000 Lewis County Jail fee,

$380 in court-appointed attorney fees, a $110 filing fee, a $500 victim assessment,

and $4,054 in restitution. The court later ordered him to pay an additional $3,656

in restitution.

       In 2000, Rhoades was convicted of four counts of vehicle prowling in the

second degree, theft in the second degree, and theft in the third degree. The

judgment and sentence imposed these LF0s: a $1,000 Lewis County Jail fee,
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$380 in court-appointed attorney fees, a $110 filing fee, a $500 victim assessment,

and $545 in restitution.

       In 2007, Rhoades was convicted of harassment and unlawful display of a

weapon. The judgment and sentence imposed these LF0s: a $200 filing fee, a

$500 victim assessment, $800 in court-appointed attorney fees, a $210 subpoena

service fee, a $1,000 Lewis County Jail fee, and $565 for investigative services.

       In April 2016, Rhoades filed a CrR 7.8 motion to modify or terminate his

unpaid LFOs owed on these judgments.

       At the motion hearing on the matter, Rhoades emphasized that he had four

children to support. His counsel also told the court that Rhoades had completed

a specialty pastry and baking college program, which qualified him to apply for

baking jobs when released. In addition, he was enrolled in a number of other

programs, including a math program and legal writing and paralegal courses. He

had plans to take additional courses such as carpentry and business management.

The court noted that Rhoades had been able to pay $1,450 to take classes in

prison.

       Rhoades acknowledged that he had no physical, mental, or emotional

reason why he could not hold a job, if offered one. When the court asked Rhoades

if there was anything else it should know about his CrR 7.8 motion, Rhoades

responded,"No."

       Based on this information, the trial court found Rhoades had the future

ability to pay and denied his motion. It offered, however, to waive the interest on


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his LFOs once he had paid off the principal amount as long as he continuously

made minimal payments and the debts were not sent to a collection agency.

      To permit Rhoades to appeal at public expense, the superior court later

entered an order of indigency.

                                     Analysis

       Rhoades challenges the trial court's denial of his motion to vacate his LF0s.

       CrR 7.8(b) permits a court to amend a judgment to correct an erroneous

sentence where justice requires. We review a decision on a CrR 7.8 motion for

abuse of discretion.1 We also review a decision imposing LFOs for abuse of

discretion.2 A trial court abuses its discretion when it exercises discretion in a

manifestly unreasonable manner or bases its decision on untenable grounds or

reasons.3

       Rhoades contends that the trial court did not adequately consider his ability

to pay his LF0s. "The court shall not order a defendant to pay costs unless the

defendant is or will be able to pay them." As our Supreme Court explained in

State v. Blazina,5 a trial court must conduct "an individualized inquiry into the

defendant's current and future ability to pay" before it may impose discretionary

LF0s. It must consider factors like incarceration and the defendant's other debts.6



       IState v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d 1080(1996).
      2 State v. Clark, 191 Wn. App. 369, 372, 362 P.3d 309(2015).
      3 State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001).
      4 RCW 10.01.160(3).
      5 182 Wn.2d 827, 838, 344 P.3d 680 (2015).
      6 Blazina, 182 Wn.2d at 838.



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       First, Rhoades does not distinguish between his mandatory and

discretionary LFOs. A trial court cannot consider ability to pay before it imposes

mandatory LFOs like the criminal filing and DNA (deoxyribonucleic acid) testing

fees.7 Restitution is also a mandatory obligation for which a sentencing court may

not consider ability to pay.8 Thus, a trial court's duty to consider ability to pay

applies only to discretionary LFOs like jail fees and attorney fees.

       For the discretionary LFOs, the court adequately considered Rhoades's

ability to pay. First, it considered the job training that Rhoades received while

incarcerated. It also considered whether any disability impeded his ability to work

or hold a job. The court gave Rhoades the opportunity to identify any other debts.

And, notably, the court considered the burden that the LFOs imposed, particularly

in light of the steep 12 percent interest rate that LFOs accumulate.8 The court told

Rhoades that if he continued to make regular, minimal payments, the court would

later waive any remaining interest.       The trial court adequately considered

Rhoades's ability to work and the burden that LFOs would impose before it denied

his motion.




       7 State  v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).
      8  Lundy, 176 Wn. App. at 102. "Restitution shall be ordered whenever the
offender is convicted of an offense which results in injury to any person or damage
to or loss of property. . . unless extraordinary circumstances exist which make
restitution inappropriate... ." RCW 9.94A.753(5). "The court may not reduce the
total amount of restitution ordered because the offender may lack the ability to pay
the total amount." RCW 9.94A.753(4).
       9 Blazina noted that "on average, a person who pays $25 per month toward
their LFOs will owe the State more 10 years after conviction than they did when
the LFOs were initially assessed." Blazina, 182 Wn.2d at 836.

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       Rhoades also contends that the court abused its discretion by finding that

he had the future ability to pay. But given that Rhoades had completed a number

of training courses and had no physical, mental, or emotional reason he could not

work, the record adequately supports the court's conclusion that Rhoades would

have the future ability to pay his LF05, particularly in light of the court's offer to

forgive the interest on his LF0s.

       We next address Rhoades's pro se arguments.

       First, he asserts that the trial court's inquiry into his ability to pay LFOs when

considering his motion to vacate cannot cure the original sentencing court's failure

to consider his ability to pay each time it first imposed LF05. His argument ignores

the appropriate relief for this error. When a trial court fails to consider ability to

pay, the appropriate remedy is to remand for resentencing, not to vacate the LFOs

the court imposed.1° CrR 7.8 does not provide a procedural loophole for Rhoades

to obtain this inappropriate remedy unavailable on direct review. And because the

trial court engaged in the analysis required by Blazina, he cannot show that the

original court's error harmed him.

       Next, citing Blazina and RCW 10.01.160(3), Rhoades asserts that the trial

court had to vacate his LFOs because Lewis County courts have found him

indigent. But the only orders of indigency in the record were entered after the

court's decision on the CrR 7.8 motion. In addition, while Blazina advises courts




       10 State v. Duncan, 185 Wn.2d 430, 437, 374 P.3d 83(2016).


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to look to GR 34 for guidance in deciding whether to impose LF0s,11 "Blazina's

reference to GR 34 does not change the law; it simply gives courts guidance when

determining the individual's ability to pay LF05."12 As we have discussed, the trial

court adequately considered Rhoades's ability to pay.

       Finally, Rhoades asserts that the trial court should have applied the

"manifest hardship" standard of RCW 10.01.160(4).

       RCW 10.01.160(4) provides,

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

This statute applies to a motion for remission. Rhoades did not move for remission.

Thus, the statute's standard did not apply to his motion.

                                    Conclusion

       We affirm the trial court's denial of Rhoades's CrR 7.8 motion.




WE CONCUR:




       11         182 Wn.2d at 838-39.
       12 In re   rs. Restraint of Hi. o, 191 Wn. App. 405, 411, 362 P.3d 1011
(2015), aff'd, 18 Wn.2d 106, 385 P.3d 128(2016).

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