                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        March 7, 2017
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    STATE OF WASHINGTON,                                           No. 48209-6-II

                               Respondent,                   UNPUBLISHED OPINION

         v.

    FRANK A. WALLMULLER,

                               Appellant.

        J. SUTTON — Frank Wallmuller appeals the trial court’s order denying Wallmuller’s motion

to terminate legal financial obligations (LFOs) as untimely.1 The State concedes the trial court

erred by denying Wallmuller’s motion as untimely. We accept the State’s concession, reverse the

trial court’s order denying Wallmuller’s motion to terminate LFOs, and remand to the trial court

to consider Wallmuller’s motion to terminate LFOs.

                                             FACTS

        On December 29, 2009, Wallmuller was convicted of five counts of rape of a child in the

first degree and four counts of sexual exploitation of a minor. The trial court imposed a total of

$10,061.68 of LFOs. On June 1, 2015, Wallmuller filed a motion to terminate LFOs under RCW




1
  Wallmuller has also filed a statement of additional grounds (SAG). RAP 10.10. However,
Wallmuller’s SAG relates to community custody provisions imposed by the trial court at
sentencing. Because Wallmuller’s appeal is from the trial court’s order on his motion to terminate
LFOs, Wallmuller’s SAG addresses issues outside the scope of his current appeal. Moreover, any
challenge to the community custody provisions in his judgment and sentence would be time barred
under CrR 7.8 and RCW 10.73.090. Accordingly, we decline to address it further.
No. 48209-6-II


10.01.160(4).2 The trial court denied the motion as untimely. Wallmuller appeals the trial court’s

order denying his motion to terminate LFOs.3

                                             ANALYSIS

         Wallmuller argues that RCW 10.01.160(4) allows a defendant to move to terminate LFOs

at any time and, therefore, the trial court erred by denying his motion as untimely. The State

concedes that the trial court erred under RCW 10.01.160(4) and State v. Shirts, 195 Wn. App. 849,

381 P.3d 1223 (2016). We accept the State’s concession and remand to the trial court.

         Our recent opinion in Shirts clearly establishes that, when a defendant owes LFOs and is

not in default, the trial court errs by denying a motion to terminate LFOs under RCW 10.01.160(4).

195 Wn. App. at 859-60. If the defendant meets the two prerequisites for filing a motion to

terminate, the trial court either makes a “manifest hardship” determination on the pleadings or




2
    RCW 10.01.160(4) states:
                 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.
3
  Appeals of motions to terminate LFOs are post-judgment motions that should be treated as
motions for discretionary review. State v. Shirts, 195 Wn. App. 849, 853, 381 P.3d 1223 (2016).
Under RAP 2.3(b)(1), we grant discretionary review if the superior court has committed an obvious
error that renders further proceedings useless, and under RAP 2.3(b)(2), we grant discretionary
review if the superior court has committed probable error that substantially alters the status quo or
substantially limits the freedom of a party to act. Under RAP 5.1(c), “[a] notice of appeal of a
decision which is not appealable will be given the same effect as a notice for discretionary review.”
In light of the State’s proper concession, we grant discretionary review of Wallmuller’s motion to
terminate LFOs.


                                                   2
No. 48209-6-II


holds an evidentiary hearing to determine whether “manifest hardship” exists. Shirts, 195 Wn.

App. at 859-60.

         The State concedes that the trial court erred by denying Wallmuller’s motion to terminate

LFOs as untimely. Based on Shirts, the State’s concession is proper and we accept it. We accept

the State’s concession, reverse the trial court’s order denying Wallmuller’s motion to terminate

LFOs, and remand to the trial court to consider Wallmuller’s motion to terminate LFOs.4

         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.



                                                     SUTTON, J.
    We concur:



    WORSWICK, P.J.




    JOHANSON, J.




4
 Wallmuller also asks that any request for appellate costs be denied. Because Wallmuller is the
prevailing party on appeal, his request to deny appellate costs is moot. RAP 14.2.


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