                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         November 3, 2015




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 45666-4-II

                                Respondent,

        v.

 MONTGOMERY F. McCLEERY,                                      UNPUBLISHED OPINION

                                Appellant.

       JOHANSON, C.J. — Montgomery McCleery appeals his conviction for possession of a

controlled substance, arguing that the trial court erred in concluding that he gave a voluntary

statement to a detective. He also challenges the trial court’s imposition of $1,500 in attorney fees.

The State filed a motion on the merits to affirm, which a commissioner of this court referred to

this panel for consideration. RAP 18.14(a). We affirm McCleery’s conviction, but reverse his

sentence and remand to the trial court to resentence him after making an individualized

determination of McCleery’s ability to pay the full amount of attorney fees.

                                              FACTS

       The State charged McCleery with possession of methamphetamine. Before McCleery’s

trial, the parties litigated the admissibility of statements McCleery made to City of Aberdeen

Detective John Snodgrass while McCleery was in custody following his arrest. See CrR 3.5.
No. 45666-4-II


         Officer Jason Capps arrested McCleery shortly after midnight on May 10, 2013. After

Capps administered Miranda1 warnings, McCleery told Capps that he did not want to speak to

him.2

         Snodgrass testified at the CrR 3.5 hearing that approximately eight hours after McCleery’s

arrest, he asked a corrections officer to contact McCleery to see “if Mr. McCleery wanted to speak

to me” and “would be open for an interview.” Report of Proceedings (RP) (July 26, 2013) at 7,

11. The corrections officer reported to Snodgrass that McCleery wished to speak with him.

Snodgrass read McCleery his Miranda rights. McCleery stated he understood his rights and spoke

with Snodgrass. The trial court concluded that McCleery made a knowing, intelligent, and

voluntary waiver of his rights and gave a voluntary statement to Snodgrass.

         McCleery was convicted after a jury trial. Although he filed a presentencing memorandum

requesting the trial court impose $500 in attorney fees, the trial court required McCleery to pay

$1,500 in attorney fees.

                                            ANALYSIS

                                            I. CRR 3.5

         McCleery first argues that the trial court erred in admitting his statements to Snodgrass.

He states that when he was initially arrested, he invoked his right to remain silent. He contends

that because he never initiated further discussions with Snodgrass, his statements should not have

been admitted. He also highlights that neither the arresting officer nor the corrections officer



1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
  Capps did not testify at the CrR 3.5 hearing, but the State acknowledges that McCleery declined
to speak with him.

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No. 45666-4-II


testified and asserts that in the absence of such testimony, the trial court could not determine

whether either officer coerced or threatened McCleery.

        The State relies on State v. Robbins, 15 Wn. App. 108, 110-11, 547 P.2d 288 (1976), for

the proposition that a detainee may be requestioned even after invoking his or her Miranda rights,

so long as he or she is again advised of his or her Miranda rights and there is no evidence that the

individual was coerced while incarcerated. Robbins, in turn, relied on the United States Supreme

Court case of Michigan v. Mosley, 423 U.S. 96, 113, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975).

Mosley permitted questioning of a suspect regarding an unrelated crime two hours after he

exercised his right to remain silent and following readmonition of Miranda warnings. 423 U.S. at

100-06.

        We review the validity of a Miranda waiver de novo. State v. Johnson, 128 Wn.2d 431,

443, 909 P.2d 293 (1996). A defendant may waive his Miranda rights if the waiver is knowing,

voluntary, and intelligent. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d

694 (1966); State v. Bradford, 95 Wn. App. 935, 944, 978 P.2d 534 (1999). We examine the

totality of the circumstances to determine if the waiver was made voluntarily and with “‘full

awareness of both the nature of the right being abandoned and the consequences of the decision to

abandon it.’” Bradford, 95 Wn. App. at 944 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106

S. Ct. 1135, 89 L. Ed. 2d 410 (1986)). The State bears the burden of showing by a preponderance

of the evidence that a waiver of Miranda rights was knowing, voluntary, and intelligent. State v.

Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007). A trial court’s determination that a defendant’s

statements were made voluntarily will not be disturbed on appeal if there is substantial evidence

in the record to support it.


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No. 45666-4-II


       Police interrogation must stop when a person asserts his or her Miranda rights unless the

person initiates further communication, exchanges, or conversations with the police. Edwards v.

Arizona, 451 U.S. 477, 485, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). A detainee, however, may

be found to have waived the right if he or she “freely and selectively responds to police questioning

after initially asserting Miranda rights.” State v. Wheeler, 108 Wn.2d 230, 238, 737 P.2d 1005

(1987) (citing State v. Coles, 28 Wn. App. 563, 567, 625 P.2d 713 (1981)); see also State v.

Haynes, 16 Wn. App. 778, 786, 559 P.2d 583 (1977) (“[A] defendant who has exercised his

Miranda right to remain silent, and whose right to cut off questioning has been ‘scrupulously

honored’ by the police, may nevertheless be subsequently questioned under appropriate

circumstances to elicit admissible statements.” (quoting Mosley, 423 U.S. at 103)).

       To determine the validity of a waiver of a defendant’s previously asserted right to remain

silent, a court may consider the following factors: (1) whether the defendant’s right to cut off

questioning was scrupulously honored, (2) whether law enforcement engaged in further conduct

amounting to interrogation before obtaining the waiver, (3) whether law enforcement engaged in

tactics tending to force the defendant into changing his mind, and (4) whether the waiver was

knowing and voluntary. Wheeler, 108 Wn.2d at 238. To be voluntary, statements must be the

product of rational intellect and free will. State v. Rupe, 101 Wn.2d 664, 679, 683 P.2d 571 (1984).

In determining voluntariness, we evaluate the totality of the circumstances, including the physical

and mental condition of the accused, his experience, and the conduct of the police. Rupe, 101

Wn.2d at 679.




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No. 45666-4-II


            State v. Brown, 158 Wn. App. 49, 60-62, 240 P.3d 1175 (2010), for example, concluded

that a two-hour break in questioning after the defendant initially stated he wished to remain silent

satisfied the Wheeler factors when the questioning officer again advised the defendant of his

Miranda rights before speaking with him. Here, the break was much longer.

            McCleery also argues that in order for his statements to be admissible, he—and not law

enforcement—must have initiated the discussion with Snodgrass.                However, this is not a

controlling factor. Our Supreme Court recently noted,

            [Officers] may not resume discussion with the suspect until the suspect reinitiates
            further communication with the police, or a significant period of time has passed
            and officers reissue a fresh set of Miranda warnings and obtain a valid waiver. [384
            U.S. at 473-74]; see [Mosley, 423 U.S. at 103-04].

In re Pers. Restraint of Cross, 180 Wn.2d 664, 682, 327 P.3d 660 (2014) (emphasis added). Here,

after a significant period of time passed, McCleery received a fresh set of Miranda warnings and

Snodgrass obtained a valid waiver. Thus, the trial court properly admitted McCleery’s statements

at trial.

                                              II. SENTENCE

            McCleery appeals his sentence on the grounds that the trial court violated his right to

counsel by ordering him to pay attorney fees when he lacks the ability to pay them. RCW

10.01.160(3). In a presentencing memorandum, McCleery requested the trial court impose the

following legal financial obligations: $200 in court costs, a $500 victim witness assessment, $500

in attorney fees, and a $100 deoxyribonucleic acid (DNA) collection fee, for a total of $1,300. He




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No. 45666-4-II


also noted that “this conviction may prevent him from obtaining employment in his preferred

area.”3 Clerk’s Papers (CP) at 27.

       The trial court, however, imposed $1,500 in attorney fees. It also imposed a $500 victim

assessment, $200 in court costs, a $100 crime lab fee,4 and a $100 DNA collection fee. Finally,

the trial court imposed, but deferred due to indigency, a $2,000 fine pursuant to “RCW 9A.20.21;

[Violation of the Uniform Controlled Substances Act (VUCSA)] chapter 60.50 RCW.” The total

amount owed for attorney fees and costs is $2,400 plus $2,000 in a deferred fine for a total amount

due of $4,400. The only reference to fees at the sentencing hearing was from McCleery’s counsel

who referenced the imposition of “standard fines and assessments.” RP (Oct. 28, 2013) at 84. The

judgment and sentence, however, provides, “The court has considered the total amount owing, the

defendant’s 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.” CP at 30.




3
  We conclude that this preserved an objection to larger fees on the ground that McCleery may not
be able to pay. RAP 2.5(a). See State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492 (2013)
(concluding that defendant failed to preserve challenge to trial court’s imposition of legal financial
obligations because he failed to object at sentencing), aff’d in relevant part and remanded, 182
Wn.2d 827, 832, 344 P.3d 680 (2015) (“A defendant who makes no objection to the imposition of
discretionary [legal financial obligations (LFOs)] at sentencing is not automatically entitled to
review.”).
4
  RCW 43.43.690(1) provides, “[T]he court may suspend payment of all or part of the fee if it finds
that the person does not have the ability to pay the fee.” McCleery, however, does not challenge
the trial court’s imposition of this fee.

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No. 45666-4-II


        In its recent decision in State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015), our

Supreme Court held that the trial court must examine a defendant’s ability to pay discretionary

legal financial obligations (LFOs):5

        [T]he court must do more than sign a judgment and sentence with boilerplate
        language stating that it engaged in the required inquiry. The record must reflect
        that the trial court made an individualized inquiry into the defendant’s current and
        future ability to pay. Within this inquiry, the court must also consider important
        factors, as amici suggest, such as incarceration and a defendant’s other debts,
        including restitution, when determining a defendant’s ability to pay.

(Emphasis added.) See also RCW 10.01.160 (1)-(3) (imposition of defense costs and attorney fees

is discretionary).

        We note that the trial court deferred the $2,000 drug fine due to current indigency, so it

could be argued that the trial court did consider McCleery’s ability to pay in assessing the LFOs.

But for the purpose of former RCW 69.50.430 (2003), the sentencing court looks to only present

financial status. “[T]he trial court assesses the defendant’s financial wherewithal as he or she

stands before the court, not as it was in the past, or as it will be as a result of his or her

incarceration.” State v. Mayer, 120 Wn. App. 720, 728, 86 P.3d 217 (2004). It should engage in

a “meaningful discussion” of the defendant’s “current assets, his credit history, or other potential

economic resources.” Mayer, 120 Wn. App. at 728. The fact that the trial court deferred the drug

fine on the basis of current indigency does not satisfy the court’s duty as outlined in Blazina to

make an individualized finding of present and future ability to pay. In fact, the finding of current

indigency could support a conclusion that McCleery lacks the ability to pay LFOs. And finally,




5
 See State v. Lundy, 176 Wn. App. 96, 102-05, 308 P.3d 755 (2013) (distinguishing between
mandatory and discretionary LFOs).

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No. 45666-4-II


the State does not argue that the fine deferral supports the fact that the sentencing court satisfied

Blazina or RCW 10.01.160(3).

         Because the record here contains only the “boilerplate language” disfavored by Blazina

and a finding of current indigency, we remand this matter to the trial court for consideration of

McCleery’s ability to pay the additional $1,000 in attorney fees. 6 We affirm the conviction and

remand for resentencing.

         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.



                                                    JOHANSON, C.J.
    We concur:



    MAXA, J.




    MELNICK, J.




6
  Although on appeal McCleery challenges the full amount of attorney fees, he was the one who
suggested the trial court impose $500 in fees. Under the doctrine of invited error, a party cannot
set up an error in the trial court and then complain of it on appeal. See In re Pers. Restraint of
Coggin, 182 Wn.2d 115, 119, 340 P.3d 810 (2014).
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