State of Washington v. Dustin M. Birch ( 2022 )

FILED
MARCH 1, 2022
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 37932-9-III
Respondent, )
)
v. )
)
DUSTIN M. BIRCH, ) UNPUBLISHED OPINION
)
Appellant. )
STAAB, J. — Dustin Birch entered a guilty plea in 2020 and the trial court imposed
sentence and community custody conditions. The trial court waived non-mandatory legal
financial obligations and imposed community custody supervision fees. The parties
jointly assert that the supervision fees should be struck. The record supports the trial
court’s intention to waive the supervision fees. Given the State’s concession, remand to
strike is appropriate.
No. 37932-9-III
State v. Birch
BACKGROUND
The State charged Dustin Birch with one count of failure to register as a sex
offender and two counts of bail jumping. On the day of trial, Mr. Birch entered an
Alford1 plea. In his plea, he agreed that he had the ability to pay the crime victim
assessment and $1,000 fine. The court found him guilty and imposed a sentence of 51
months with 9 months of community custody (including substance testing) for the bail
jumping counts and a concurrent sentence on the failure to register count. During
sentencing, the State asked the court to impose the mandatory $500 crime victim
assessment and a $1,000 fine. Defense counsel asked the trial court to waive financial
obligations in consideration of “what he’s able to pay” since he was “looking at a
significant amount of time in prison and is not currently working.” Report of
Proceedings (RP) at 29.
The court found that Mr. Birch “has the ability or likely future ability to pay the
legal financial obligations imposed herein,” but also indicated its intention to “follow the
state’s recommendation, except that I will impose only those legal/financial obligations
which are mandatory.” Clerk’s Papers (CP) at 28; RP at 30. No income evaluation
otherwise appears in the record.
1
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
2
No. 37932-9-III
State v. Birch
The parties provided the judgment and sentence and the court signed it without
objection. The judgment and sentence imposed the $500 crime victim assessment but
struck the $1,000 fine at paragraph 4.1. The court filled out the community custody
terms in paragraph 4.6 which included printed terms at section (B)(7) that the defendant
shall “pay supervision fees as determined by DOC[2][.]” CP at 30.
Mr. Birch appeals the imposition of the DOC supervision fee. For the purpose of
this appeal, he was found indigent.
ANALYSIS
RCW 9.94A.703(2)(d) provides that “[u]nless waived by the court, as part of any
term of community custody, the court shall order an offender to . . . [p]ay supervision
fees as determined by the [DOC].” “Community custody supervision fees are
discretionary LFOs because they are waivable by the court.” State v. Spaulding, 15 Wn.
App. 2d 526, 536, 476 P.3d 205 (2020). However, they are not subject to indigency
analysis. Id. at 537. Thus, they are of a subtly different character than other LFOs.
In this case, the trial court clearly intended to impose only legal financial
obligations that were mandatory while waiving any discretionary fees. The State
concedes that since the DOC supervision fees are discretionary, the record supports the
conclusion that the trial court intended to strike the DOC fees.
2
Department of Corrections.
3
No. 37932-9-III
State v. Birch
We accept the State’s concession and grant Birch’s appeal. We remand with
instructions for the superior court to strike the DOC supervision fee from the judgment
and sentence.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Staab, J.
WE CONCUR:
_________________________________
Lawrence-Berrey, J.
_________________________________
Siddoway, A.C.J.
4