State of Washington v. Ronald Aaron Malone ( 2016 )

FILED
May 5, 2016
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. 32781-7-111
)
Respondent, )
)
v. )
) PUBLISHED OPINION
RONALD A. MALONE, )
)
````````~A~p~p_e_lla_n_t.``)
PRICE, J.P.T.*- Ronald Malone pied guilty to possession of a controlled
substance-methamphetamine. At sentencing the judge imposed both mandatory and
discretionary legal financial obligations {LFOs) upon Malone. On appeal, Malone
presents four arguments: (1) the trial court erred when it imposed discretionary LFOs
without an on the record inquiry into Malone's ability to pay, (2) the mandatory DNA 1
collection fee violates substantive due process, (3) the mandatory DNA collection fee
violates equal protection, and (4) the trial court abused its discretion by ordering Malone
to submit a DNA sample. We reach and agree only with Malone's first contention, and
remand for resentencing.
* Judge Michael P. Price is serving as a judge pro tempore of the court pursuant to
RCW 2.06.150.
1
Deoxyribonucleic acid.
No. 32781-7-III
State v. Malone
FACTS
On May 29, 2014, Ronald Malone pled guilty to the crime of felony possession of a
controlled substance-methamphetamine. Additional facts are not relevant to the
assignments of error in this case, except to note that Malone has prior felony convictions
from the time period after the mandatory DNA assessment began. Clerk's Papers (CP) at 16.
PROCEDURE
Malone pled guilty to possession of a controlled substance as part of a plea bargain
that dropped charges for two charges of bail jumping. He was sentenced to the low end
of the sentencing range, 12 months and one day. In addition, the court imposed LFOs,
some which are mandatory while others are discretionary. The mandatory financial
obligations are: $500 victim assessment fee, $200 criminal filing fee, $100 DNA
collection fee and $2,000 repeat offender fee 2 for a total of $2,800 in mandatory fees.
The discretionary financial obligations are: $600 court appointed attorney recoupment,
$200 warrant fee, $250 drug enforcement fund, and $100 crime lab fee for a total of
$1, 150 in discretionary fees. The court also ordered Malone to pay the unspecified costs
of incarceration with a cap of $500, as well as any future medical costs that Yakima
County may incur upon his behalf.
2
This is a mandatory fine, but upon a finding of indigence the judge may defer or
suspend it. RCW 69.50.430; State v. Mayer, 120 Wash. App. 720, 727, 86 P.3d 217 (2004).
2
No. 327 81-7-III
State v. Malone
The judgment and sentence included a standard boilerplate recitation about
Malone's ability to pay, "The Court has considered the total amount owing, the
defendant's past, present, and future ability to pay LFOs, including the defendant's
financial resources and the likelihood that the defendant's status will change." CP at 17.
The judgment and sentence also stated the "defendant shall have a biological
sample collected for purposes of DNA identification." CP at 18. Malone did not object
to either the fees or the DNA collection at sentencing. The trial court record does not
reflect an inquiry into Malone's individual present or future ability to pay.
ANALYSIS
I. Discretionary LFOs
The first error Malone alleges is the imposition of discretionary LFOs without the
trial court conducting an individualized inquiry on the record into defendant's ability to
pay. State v. Blazina, 182 Wash. 2d 827, 838, 344 P.3d 680 (2015). Malone did not raise
this issue at the trial court, and we have discretionary authority to decline to hear
arguments for the first time on appeal. RAP 2.5(a); State v. Russell, 171 Wash. 2d 118, 122,
249 P.3d 604 (2011). Blazina does not mandate review of the alleged error in the
imposition of discretionary LFOs; instead it notes that "each appellate court must make
its own decision to accept discretionary review." Blazina, 182 Wash. 2d at 835. Persuaded
by the policy concerns outlined in Blazina, we choose to exercise discretion in this case
to review the merits of this argument. See id. at 835-38.
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No. 327 81-7-III
State v. Malone
Trial courts must impose mandatory LFOs, and may impose discretionary costs as
well. RCW 9.94A.760; RCW 10.01.160(1). The statute uses mandatory 'shall' language
that reads:
The court shall not order 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). Blazina interprets this to impose a duty on the trial court judge to
conduct an on the record, individualized inquiry of the defendant's present and future
ability to pay before imposing discretionary fees, not use boilerplate standard language.
Blazina, 182 Wash. 2d at 838.
In the present case the trial court included the insufficient standard language on
Malone's ability to pay discretionary costs. CP at 17. But the record does not reflect any
consideration of incarceration, job status, debts, or other indicators of ability to pay.
Nonetheless the trial court ordered discretionary LFOs. In light of the recent clarification
of the requirements ofRCW 10.01.160(3) we remand the judgment and sentence to the
trial court with instructions to conduct the required inquiry into Malone's ability to pay to
determine whether discretionary LFOs are still appropriate.
II. Mandatory DNA assessment
Malone also challenges the DNA collection fee on substantive due process and
equal protection grounds. He also contends that it is an abuse of discretion for the trial
4
No. 32781-7-III
State v. Malone
court to order him to submit a DNA sample if one is already on record. The DNA
assessment requires a mandatory $100 LFO and a biological sample. RCW 43.43.754(1).
A new sample is not required if a sample is already on file. RCW 43.43.754(2). Like his
challenge to the LFOs above, these arguments are being put forth for the first time on
appeal, meaning we must also consider whether to grant discretion to review these
arguments.
As we stated earlier, we have authority under the rules to accept review of an issue
being raised for the first time on appeal. RAP 2.5(a). We chose to review the issue of
discretionary LFOs in part because of the strong policy concerns outlined in Blazina but
also importantly because that case outlines a duty of the trial court judge to conduct an
inquiry into the defendant's ability to pay. That differs from the constitutional arguments
being presented now where Malone would bear the burden. Under general discretion we
decline to hear these claims of error now because they were not preserved below.
Separate from our discretion to hear any argument for the first time on appeal,
RAP 2.5(a) also affirmatively allows a party to raise an error for the first time on appeal
for a variety of reasons, the relevant one being if it is "manifest error affecting a
constitutional right." RAP 2.5(a)(3). To be "manifest" the record must reflect the facts
necessary to adjudicate the claimed error on appeal. State v. Koss, 181 Wash. 2d 493, 503,
334 P.3d 1042 (2014). This question of manifest error is identical to the argument
presented in State v. Stoddard which we declined to review. State v. Stoddard, 192 Wash.
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No. 32781-7-111
State v. Malone
App. 222, 228, 366 P.3d 474 (2016). In that case we found there was insufficient
evidence on the record of the appellant's financial status to support a challenge to the
mandatory $100 collection fee. Id. Likewise in the case at hand Malone's argument
assumes his poverty, but the record does not show Malone presenting evidence that he
cannot pay the mandatory $100 assessment fee. We decline to hear constitutional
argument on the mandatory DNA collection fee.
Malone also argues that because he has been convicted in Washington in the past,
his DNA sample has already been collected by the Washington State Patrol pursuant to
RCW 43.43.754, and it is error to require him to submit a new sample. In a similar vein
to his arguments of poverty, the record before us does not reflect that Malone's DNA was
actually taken by the Washington State Patrol Crime Laboratory or still is on file, and so
is lacking in evidence.
CONCLUSION
We remand to the trial court to conduct an individualized Blazina inquiry on
Ronald Malone's ability to pay discretionary LFOs. Otherwise we affirm the sentence.
&ffce, J.P.T . . /
I CONCUR:
6
32781-7-III
KORSMO, J. (dissenting in part) - Except for the decision to remand for a new
hearing on the discretionary legal financial obligations, I agree with the majority opinion.
For the reasons stated previously, we should decline to exercise our discretion in this
instance, particularly since RCW 10.01.160 gives Mr. Malone the ability to raise the
matter again at any time. See State v. Munoz-Rivera, 190 Wash. App. 870, 361 P .3d 182
(2015) (Siddoway, J., concurring); State v. Arredondo, 190 Wash. App. 512, 539-40, 360
P.3d 920 (2015) (Korsmo, J., dissenting); State v. Duncan, 180 Wash. App. 245, 327 P.3d
699 (2014), aff'd and remanded, No. 90188-1 (Wash. April 28, 2016). We have reached
the curious circumstance where an alleged violation of a statutory obligation is given
review while a constitution-based claim is not reviewed. That practice certainly stands
the RAP 2.5(a)(3) exception on its head.
As there is adequate relief available for this statutory claim, I would affirm.