State of Washington v. Luke Mickle ( 2014 )

FILED
JULY 17,2014
In the Office ofthe Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31629-7-111
)
Respondent, )
)
v. )
)
LUKE MICKLE, ) UNPUBLISHED OPINION
)
Appellant. )
BROWN, A.C.J. - Luke Mickle appeals the sentencing court's imposition of legal
financial obligations (LFOs). He contends the court failed to first find he had the present
or future ability to pay. Mr. Mickle next contends the court abused its discretion in
ordering him to pay discretionary costs without taking into account his financial
resources and the nature of the burden that payment of costs will impose as required
under RCW 10.01.160(3). We affirm.
FACTS
A jury found Mr. Mickle guilty of felony harassment. Before sentencing, defense
counsel stated. "Judge, my client will be hopefully gainfully employed after this; he'll be
able to pay fines and fees." Report of Proceedings (Apr. 30, 2013) (RP) at 9. The
sentencing court then sentenced Mr. Mickle to eight months' confinement and imposed
mandatory costs of $700 and discretionary costs of $750, for a total amount of LFOs of
No. 31629-7-111
State v. Mickle
$1,450. The court made no oral ruling finding Mr. Mickle had the present or future
ability to pay the LFOs. The judgment and sentence, however, states, "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." Clerk's Papers (CP) at 22.
The court made no further inquiry into Mr. Mickle's financial resources and the
nature of the burden that payment of LFOs would impose: The court ordered, ''Total
financial obligation in the case is $1,450. Mr. Mickle is required to pay that at a rate that
he works out with the court clerk. And he's to report to the clerk within 72 hours of his
release." RP (Apr. 30, 2013) at 15-16.
The judgment and sentence states, "All payments shall be made in accordance
with the policies of the clerk of the court and on a schedule established by [Department
of Corrections] or the clerk of the court, commencing immediately." CP at 26. Mr.
Mickle appealed.
ANALYSIS
The issue is whether Mr. Mickle waived his challenge to his LFOs. The State
argues he did not preserve his error claims for our review because he did not object at
the sentencing hearing. The State is correct.
Until our Supreme Court decides otherwise, the rule established by each division
of this court is that a defendant may not challenge a determination regarding his or her
ability to pay LFOs for the first time on appeal. State v. Duncan, No. 29916-3-111, slip
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State v. Mickle
op. at 7-12 (Wash. Ct. App. Mar. 25, 2014) (citing RAP 2.5(a) and State v. Kuster, 175
Wn. App. 420, 424-25,306 P.3d 1022 (2013)); State v. Calvin, _Wn. App. _,316
P.3d 496,507-08, petition for review filed, No. 89518-0 (Wash. Nov. 12,2013); State v.
Biazina, 174 Wn. App. 906, 911, 301 P.3d 492, review granted, 178 Wn.2d 1010, 311
P.3d 27 (2013).
Moreover, we reject Mr. Mickle's challenge to his discretionary LFOs. RCW
10.01.160(3) requires that "[i]n determining the amount and method of payment of
costs, the court shall take account of the financial resources of the defendant and the
nature of the burden that payment of costs will impose." The trial court made no
specific finding of Mr. Mickle's ability to pay the costs; although counsel stated Mr.
Mickle would be gainfully employed. Nonetheless, it is premature for us to address the
assigned error for two reasons.
First, challenges to LFOs are not properly before us until the State seeks to
enforce them. State v. Hathaway, 161 Wn. App. 634, 651,251 P.3d 253 (2011).
Because a person is not an "aggrieved party" under RAP 3.1 "until the State seeks to
enforce the award of costs and it is determined that [the defendant] has the ability to
pay," appellate review is inappropriate. State v. Mahone, 98 Wn. App. 342, 349, 989
P.2d 583 (1999); see also State v. Blank, 131 Wn.2d 230,242,930 P.2d 1213 (1997).
In State v. Crook, 146 Wn. App. 24, 27-28, 189 P.3d 811 (2008), the court held,
"Mandatory Department of Corrections deductions from inmate wages for repayment of
legal financial obligations are not collection actions by the State requiring inquiry into a
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State v. Mickle
defendant's financial status." Thus, "[i]nquiry into the defendant's ability to pay is
appropriate only when the State enforces collection under the judgment or imposes
sanctions for nonpayment." Crook, 146 Wn. App. at 27.
Second, when and if the State seeks to collect, Mr. Mickle may petition the trial
court for remission under RCW 10.01.160(4): "A defendant who has been ordered to
pay costs ... 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." The
denial or granting of that motion would warrant appellate review.
Accordingly, Mr. Mickle fails to provide a basis for reversal of the sentencing
court's imposition of LFOs.
Affirmed.
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.
Brown, A.C.J.
WE CONCUR:
~1P-B s
Fearing, J. } Lawrence-Berrey, J.
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