State of Washington v. Magdaleno Cruz Tellez ( 2016 )

FILED
MARCH 5, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33552-6-111
Respondent, )
)
v. )
)
MAGDALENO CRUZ TELLEZ, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. -In June 2015, Magdaleno Cruz Tellez was convicted in a
stipulated facts trial before the Benton County Superior Court of violating a protective
order, a gross misdemeanor. On appeal, he challenges the superior court's imposition of
discretionary legal financial obligations (LFOs). He contends (1) the trial court failed to
make an individualized determination of his present and future ability to pay, and (2) his
counsel provided ineffective assistance of counsel by failing to object to the LFOs.
Because Mr. Tellez did not raise the LFO issue before the trial court at sentencing, we
exercise our discretion under RAP 2.5(a) and decline to address this contention. We also
No. 33552-6-111
State v. Tellez
conclude that Mr. Tellez does not establish ineffective assistance of counsel on this
record. Thus, we affirm.
FACTS
During the sentencing phase of Mr. Tellez's stipulated facts trial, the court asked
Mr. Tellez about his projected financial situation, and then imposed LFOs:
THE COURT: I'll ask you, were you employed at the time you
were arrested on this?
THE DEFENDANT: Yes.
THE COURT: What were you doing at that time?
THE DEFENDANT: Forklift driver at Pasco Processing.
THE COURT: Has anything changed to where you're physically or
unable at this time to work?
THE DEFENDANT: No. I have the opportunity. I'm ready to go
back to work.
THE COURT: All right then. Is there any other reason why you
would not be able to pay legal-financial obligations associated with this
judgment and sentence?
THE DEFENDANT: No.
THE COURT: Ok. So, I'll assess a $500.00 victim assessment,
$860.00 in costs, a $100.00 domestic violence assessment.
Report of Proceedings at 10. Neither Mr. Tellez nor defense counsel objected.
The trial court imposed mandatory fees of $500 for the victim assessment (RCW
7.68.035), $100 for the domestic violence penalty assessment (RCW 10.99.080) and $200
for the criminal filing fee, for a total of $800. See State v. Lundy, 176 Wash. App. 96, 102,
308 P.3d 755 (2013) (the criminal filing fee is mandatory). The trial court also imposed
discretionary fees of $60 for the sheriffs service fee and $600 for attorney fees, for a
total of $660. Upon Mr. Tellez's motion after trial, the trial court found he lacked
2
No. 33552-6-III
State v. Tellez
sufficient funds to seek an appeal, and entered an order of indigency granting him the
right to review at public expense.
DISCRETIONARY LFOS
In March 2015, two months before Mr. Tellez was sentenced, the Washington
Supreme Court decided State v. Blazina, 182 Wash. 2d 827, 344 P .3d 680 (2015), which
made clear that under RCW 10.01.160(3 ), 1 a sentencing court must make an
individualized inquiry on the record into the defendant's present and future ability to pay
LFOs. Blazina, 182 Wash. 2d at 838. Citing Blazina, Mr. Tellez contends for the first time
on appeal that the trial court violated RCW 10.01.160(3) because it ordered him to pay
discretionary LFOs without considering his current or future ability to pay.
Mr. Tellez did not challenge the LFOs or the sufficiency of the individualized
inquiry at his sentencing. Consequently, he is not automatically entitled to review.
Blazina, 182 Wash. 2d at 832. RAP 2.5(a) grants appellate courts discretion whether to
review a defendant's LFO challenge raised for the first time on appeal. Id. at 833. Here,
the sentencing court heeded Blazina and engaged in some individualized inquiry.
Because only the sufficiency of the inquiry could arguably be the basis for appeal, we
decline to review his unpreserved challenge.
1
The provision states the court "shall not order a defendant to pay costs unless the
defendant is or will be able to pay them." RCW 10.01.160(3). In its inquiry, the court
must take into account the defendant's financial resources and the burden of the costs.
RCW 10.01.160(3).
3
No. 33552-6-III
State v. Tellez
INEFFECTIVE ASSISTANCE OF COUNSEL
Mr. Tellez contends his trial counsel provided ineffective assistance of counsel by
failing to challenge the LFOs. Based on this record, we do not find prejudicial error.
Our review of ineffective assistance of counsel claims is de novo. State v.
Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 (2009). To prove ineffective assistance of
counsel, Mr. Tellez must show with a preponderance of the evidence that his trial
counsel's performance fell below an objective standard of reasonableness, and that this
deficiency actually prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-
88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wash. 2d 322, 334-
35, 899 P.2d 1251 (1995). We will find prejudice ifit is reasonably probable that, but for
the deficient performance, the outcome of the trial would have been different.
McFarland, 127 Wash. 2d at 335. Mr. Tellez fails to show either deficient performance or
prejudice.
First, he does not show that trial counsel had any reason to object to the imposition
ofLFOs. As Blazina established, the trial court must make an individualized inquiry into
a defendant's current and future ability to pay. 182 Wash. 2d at 838. Additionally, if the
defendant meets the GR 34 standard for indigency, a court "should seriously question that
person's ability to pay LFOs." See id. at 838-39 (under GR 34, the court must find a
person indigent ifhe or she receives assistance from a needs-based program or if he or
she has a household income below 125 percent of the federal poverty guideline). Here,
4
No. 33552-6-III
State v. Tellez
although Mr. Tellez apparently met the GR 34 standard for indigency, the sentencing
court's inquiry into his ability to pay was sufficient to establish that Mr. Tellez thought he
would be able to pay off his LFOs. Before imposing the LFOs, the court asked whether
he would be able to return to his work as a forklift driver and allowed Mr. Tellez to give
any other reasons why he would not be able to pay. Under these circumstances, defense
counsel reasonably did not object to the imposition of LFOs.
Second, the record also suggests that any objection raised would have been
unsuccessful. Mr. Tellez contends defense counsel should have informed the court that
he had outstanding LFOs from other convictions totaling over $12,000. See Appellant's
Brief, Appendix 1. This information does not appear in the record and is not properly
before this court on appeal. See State v. Grier, 171 Wash. 2d 17, 29, 246 P.3d 1260 (2011)
(when ineffective assistance is raised on appeal, the court may consider only facts within
the record). Moreover, even with knowledge of his other debts, Mr. Tellez assured the
court that he would be able to pay the LFOs associated with his judgment and sentence.
He simply does not show that an objection raised by defense counsel likely would have
changed the trial court's decision to impose the discretionary fees. Consequently, his
claim of ineffective assistance of counsel fails.
Affirmed.
5
No. 33552-6-111
State v. Tellez
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.
WE CONCUR:
Pennell, J.
6