Personal Restraint Petition of Earl Owen Flippo ( 2015 )

FILED
Nov. 24, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
In the Matter of the Personal Restraint ) No. 33619-1-111
of: )
)
)
EARL OWEN FLIPPO, ) PUBLISHED OPINION
)
Petitioner. )
BROWN, J. - Earl Owen Flippo seeks relief from personal restraint in the form of
legal financial obligations (LFOs) imposed for his 2008 Walla Walla County convictions
of four counts of first degree child molestation. Relying mainly on the intervening case
State v. Blazina, 182 Wash. 2d 827, 344 P.3d 680 (2015), Mr. Flippo claims he is entitled to
vacation of his LFOs because the superior court imposed them without properly
considering his present or future ability to pay, and his ongoing indigency makes it
unlikely he will ever be able to pay those obligations. We dismiss the petition as time-
barred.
FACTS AND PROCEDURE
As part of Mr. Flippo's judgment and sentence, the superior court imposed LFOs
totaling $2,619.20. These included $200.00 in court costs, $286.05 in witness fees, a
$250.00 jury demand fee, $508.15 in sheriff fees, a $500.00 victim assessment, a $775.00
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court appointed attorney fee, and a $100.00 DNA collection fee. Mr. Flippo did not
object to those costs at sentencing. He filed a direct appeal in which he challenged his
convictions. This court affinned the judgment and sentence. See State v. Flippo, unpub.
op'n no. 27079-3-111 (Wa. Ct. App. 2009). This court issued its appeal mandate on
March 16,2010. The judgment and sentence became final on that date. RCW
1O.73.090(3)(b). Mr. Flippo was assessed appellate costs of$4,087. He also previously
filed a first personal restraint petition in which he claimed instructional error and
ineffective assistance of counsel at trial. Our acting chiefjudge dismissed the petition as
frivolous. See In re Pers. Restraint ofFlippo, order no. 30073-1-111 (Wa. Ct. App. 2011).
On July 16,2015, Mr. Flippo filed this form petition entitled "Personal Restraint
Petition (regarding LFOs post Blazina).")
DISCUSSION
Since Mr. Flippo filed this petition more than one year after his judgment and
sentence became final, it is barred as untimely under RCW 10.73.090(1) unless the
judgment is facially invalid or was entered without competent jurisdiction, or the petition
is based solely on one or more of the exceptions to the time bar as set forth in RCW
10.73.100(1)-(6). See In re Pers. Restraint ofMcKiearnan, 165 Wash. 2d 777, 781, 203
P.3d 375 (2009). In addition, under RCW 10.73.140 this court will not consider a
) This Court has received numerous now-pending personal restraint petitions from
petitioners using this unofficial fonn based upon Blazina and whose judgments and
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successive petition unless the petitioner certifies that he has not filed a previous petition
on similar grounds, and shows good cause why he did not raise any new grounds in the
previous petition. A significant intervening change in the law resulting from a court
decision satisfies the good cause requirement. See State v. Brown, 154 Wash. 2d 787, 794,
117 P.3d 336 (2005). Because Mr. Flippo relies on the intervening case Blazina, we
focus on whether that decision is a change in the law that helps him overcome the time
bar. See In re Pers. Restraint of Lavery, 154 Wash. 2d 249, 258, 111 P.3d 837 (2005). It is
the petitioner's burden to make these showings. Id.
In Mr. Flippo's grounds for relief stated at page 2 of his petition, he claims the
sentencing court failed to make an individualized inquiry into his ability to pay LFOs,
and instead merely relied on boilerplate language in the judgment and sentence to find
that he has the ability or likely future ability to pay. He contends this violated the
Supreme Court's holding in Blazina that RCW 10.01.160(3) requires the record to reflect
that the sentencing judge made an individualized inquiry into the defendant's current and
future ability to pay before the court imposes discretionary LFOs. Blazina, 182 Wash. 2d at
837, 839. He contends Blazina is a significant change in the law that is material to his
case and should apply retroactively under the time bar exception in RCW
sentences were final for more than one year at the time of filing.
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10.73.100(6). The argument fails.
The time-bar exception in RCW 10.73.100(6) provides:
There has been a significant change in the law, whether substantive or procedural,
which is material to the conviction, sentence, or other order entered in a criminal
or civil proceeding instituted by the state or local government, and either the
legislature has expressly provided that the change in the law is to be applied
retroactively, or a court, in interpreting a change in the law that lacks express
legislative intent regarding retroactive application, determines that sufficient
reasons exist to require retroactive application of the changed legal standard.
RCW 10.73.100(6).
An intervening opinion constitutes a significant change in the law under RCW
10.73.100(6) when it has effectively overturned a prior appellate decision that was
originally determinative of a material issue. In re Pers. Restraint ofLavery, 154 Wash. 2d
at 258 (internal quotation marks omitted). "One test to determine whether an appellate
decision represents a significant change in the law is whether the defendant could have
argued the issue before publication of the decision." In re Pers. Restraint ofStoudmire,
145 Wn.2d 258,264,36 P.3d 1005 (2001). As we reason below, Mr. Flippo could have
made his LFO challenges at his 2008 sentencing hearing-well before Blazina.
Blazina's primary holding that the record must reflect the sentencing judge's
individualized inquiry of the defendant's current and future ability to pay before
imposing discretionary LFOs (as opposed to merely entering a boilerplate finding on the
judgment and sentence) only confirms, and does not alter, what has always been required
ofthe sentencing court under RCW 10.01. 160(3}-a statute that was enacted in 1976 and
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has remained unchanged. See LAWS OF 1975-76, 2nd Ex. Sess., ch. 96 § 1; see also
Johnson v. Morris, 87 Wn.2d 922,927,557 P.2d 1299 (1976) (construction ofa statute
by the highest court of a state is determinative of the meaning and effect of the statute
from the time of its enactment). The statute provides:
The court shall not sentence a defendant to pay costs unless the defendant is or
will be able to pay them. In 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.
RCW 10.01.160(3). These longstanding requirements are also reflected in case law
preceding Blazina. See State v. Baldwin, 63 Wash. App. 303, 310-12,818 P.2d 1116
(1991).
Blazina additionally advises that sentencing courts should look to the standards in
GR 34 as one of the non-exhaustive ways to determine a defendant's indigent status.
Blazina, 182 Wash. 2d at 838-39. Mr. Flippo claims he continues to meet the GR 34
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indigency standards (income below 125 percent of federal poverty guideline) after also
being declared indigent under RAP 15.2 for his direct appeal. But Blazina's reference to
GR 34 does not change the law; it simply gives courts guidance when determining the
individual's ability to pay LFOs.
Finally, Blazina also holds that RAP 2.5(a) gives appellate courts discretion
whether to consider a defendant's LFO challenge raised for the first time on appeal.
Blazina, 182 Wash. 2d at 834-35. And the concurring opinion in Blazina suggests that the
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unpreserved error can be reached by applying RAP 1.2(a), which states that the "rules
will be liberally interpreted to promote justice and facilitate the decision of cases on the
merits." Id. at 841 (Fairhurst, J., concurring in result). Mr. Flippo urges us to apply
these rules and review his personal restraint petition on the merits. We will not do so.
Since Blazina imposes no obligation for appellate courts to review LFO challenges raised
for the first time in a direct appeal, it therefore follows Blazina does not require review of
LFO claims made initially in a personal restraint petition-much less one that is untimely
filed.
For the above reasons, we hold that Blazina is not a significant change in the law
for purposes of the time bar exception in RCW 10.73.100(6). Thus, Mr. Flippo's
additional citation to In re Pers. Restraint ofVandervlugt, 120 Wn.2d 427,842 P.2d 950
(1992), for the proposition that principles offaimess compel retroactive application of
Blazina is misplaced. In Vandervlugt, the court found a significant change in the law
resulting from two cases of first impression that affected petitioner's sentence and were
filed in between his direct appeal and timely personal restraint petition. Id. at 433-35.
Mr. Flippo also argues that the judgment and sentence imposing LFOs is not
"final" in any event for purposes ofRCW 10.73.090(1) because defendants are allowed
under RCW 10.01.160(4) to petition the sentencing court at any time for remission of the
payment of costs. The statute provides:
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[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
underRCW 10.01.170.
RCW 10.73.160(4).
While Mr. Flippo is correct that the statute provides a remedy to petition the
sentencing court for post-judgment remission ofLFOs (and that indeed is his remedy
with respect to his LFOs and appellate costs that are part of the judgment), in no way
does the statute alter the finality date of his judgment and sentence as set forth in RCW
10.73.090(3)(b) Gudgment becomes final on date that appellate court issues its mandate
disposing of a timely direct appeal).
Mr. Flippo further argues in his reply brief that the court's boilerplate finding of
his ability to pay renders the judgment and sentence invalid on its face for purposes of the
time bar exception in RCW 10.73.090(1). It does not. An error renders a judgment
invalid under RCW 10.73.090 "only where a court has in fact exceeded its statutory
authority in entering the judgment and sentence." In re Pers. Restraint ofCoats, 173
Wash. 2d 123, 135, 143,267 P.3d 324 (2011). The LFOs imposed upon Mr. Flippo were all
authorized by statute. And he makes no claim to the contrary. His judgment and
sentence shows no facial invalidity.
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The petition is dismissed as time-barred under RCW 10.73.090(1).2
Brown, J.
WE CONCUR:
Sl doway, C.J.
2We deny Mr. Flippo's request for appointed counsel. There is no right to
counsel in a non-meritorious petition or second petition challenging a judgment and
sentence. In re Pers. Restraint ofGentry, 137 Wash. 2d 379. 390, 972 P .2d 1250 (1999);
RCW 10.73.150(4).
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