State Of Washington v. James Brown, Jr. ( 2016 )

Filed
Washington State
Court of Appeals
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Division Two
DIVISION II May 24, 2016
STATE OF WASHINGTON, No. 46775-5-II
Respondent,
UNPUBLISHED OPINION
v.
JAMES BROWN, JR.,
Appellant.
BJORGEN, C.J. — A jury returned verdicts finding James Brown guilty of second degree
assault and fourth degree assault. The jury also returned special verdicts finding that Brown
committed the second degree assault while armed with a deadly weapon and that he committed
the fourth degree assault against a member of his family or household. Brown appeals his
convictions and resulting sentence, asserting that (1) the prosecutor committed misconduct by
asking him to comment on the credibility of witnesses, (2) his defense counsel was ineffective
for (i) failing to object to the prosecutor’s questions asking him to comment on the credibility of
witnesses, (ii) failing to object to the prosecutor’s question implying that he had an obligation to
speak with police, and (iii) failing to object to witness testimony that Brown contends
commented on his credibility, (3) the trial court violated his right to appointed counsel by failing
to inquire into the breakdown of the attorney-client relationship, and (4) the trial court erred at
sentencing by ordering him to pay discretionary legal financial obligations (LFOs) without first
inquiring into his ability to pay those obligations.
We affirm Brown’s conviction, reverse the imposition of discretionary LFOs, and remand
for the trial court to make an individualized inquiry into Brown’s ability to pay before imposing
No. 46775-5-II
any discretionary LFOs, consistently with State v. Blazina, 182 Wash. 2d 827, 839, 344 P.3d 680
(2015) and former RCW 10.01.160(3) (2010).
FACTS
In 2014, Brown and Naomi Oligario were in a dating relationship and had an 8-year-old
daughter in common. Oligario also had three older children, including her 17-year-old son, RJ.1
On June 25, 2014, Brown went to Oligario’s home to drop off the couple’s daughter.2 Oligario
believed that Brown had been drinking alcohol while he was out with their daughter, and she
asked Brown to speak with her outside of the house. Oligario gave Brown a sandwich that she
had made for him, and the two went outside to talk. After Brown and Oligario began arguing,
Brown threw the sandwich at Oligario’s face. In response, Oligario pushed Brown. While
pushing Brown, Oligario slipped and fell to the ground. Oligario then called out for RJ.
RJ ran outside and began arguing with Brown. Brown grabbed a pickaxe and, according
to RJ and Oligario, ran toward RJ and swung the pickaxe at him. Oligario grabbed Brown’s legs
and bit him, causing Brown to lose control of the pickaxe. Brown and RJ continued to argue,
and Brown grabbed a wooden cross. When Brown approached RJ while holding the wooden
cross, Oligario put Brown in a choke hold until he calmed down. Police arrived and, after
speaking with the parties, arrested Brown. The State thereafter charged Brown with second
degree assault with a deadly weapon sentence enhancement and fourth degree assault with a
domestic violence sentence enhancement.
The following exchange took place before trial:
1
This opinion uses the juvenile victim’s initials to protect his interest in privacy.
2
According to Oligario, Brown had been living at the house until a couple weeks earlier but
moved away after a previous altercation with her. According to Brown, he was residing at the
home at the time of the incident.
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No. 46775-5-II
[Defense counsel]: Your Honor, I want to mention to the court, Mr. Brown
says that I did not call witnesses for him at this time. I want to allow him a chance
to speak to the court if he wants to about that.
[Brown]: I do have witnesses. He didn’t bring it to my attention and let
them know how I wanted to go back in because he was there when everything was
going on. And I was wondering why he didn’t come and question me about it, how
to get in touch with him. He never did do that to me. So I was wondering why I
ain’t got to [sic] witnesses up here and going to trial, everything is so fast. I don’t
know what’s going on here. I’m just popping up and going to trial. I ain’t got no
understanding about nothing about what’s going on here.
[Trial court]: Okay. Well, Mr. Brown, I’ll let you bring that up with
[defense counsel]. You can discuss whether or not you want to call a witness. We
can re-address that if it looks like you’re going to want to be calling a witness.
[Defense counsel] can discuss that with you. And we can address whether or not
there’s any issues created by that.
At this point, that’s between the two of you to discuss and to work out.
[Brown]: Okay.
[Trial court]: But Mr. Brown, you’ve had a number of court appearances
where this date has been told to you as your court date. In fact, you had a date not
too long ago where the State asked to continue the trial date where you objected
wanting your trial to go forward, and the court allowed the continuance. So this
shouldn’t be too much of a surprise to you that you’re up for trial today.
[Brown]: Okay.
Report of Proceedings (RP) at 12-13.
The following day, the trial court held a CrR 3.5 hearing to determine the admissibility of
Brown’s statements to the police. At the conclusion of the CrR 3.5 hearing defense counsel
conceded, and the trial court found, that Brown’s pre-Miranda3 statements to police were made
voluntarily in a noncustodial setting. The trial court thus concluded that Brown’s statements to
police were admissible at trial.4 After the trial court ruled on the admissibility of Brown’s
statements, defense counsel stated to the trial court:
My investigator actually was able to track down the witness Mr. Brown was
referring to. His name is Harold J. Jones. From what I just spoke to my investigator
about, the report he’ll be filing with me, we will not be calling Mr. Jones as a
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4
Brown does not assign error to the findings of fact and conclusions of law entered following the
CrR 3.5 hearing.
3
No. 46775-5-II
witness for the defense. I’ve explained this to Mr. Brown and made my reason
clear to him. I wanted to put that on the record.
RP at 38. Brown did not raise any issue with his defense counsel’s decision not to call his
requested witness and did not raise any other issue with his counsel’s representation throughout
the course of the trial.
At trial the State called Oligario and RJ, who testified consistently with the facts as stated
above. The State also called Kitsap County Sheriff’s deputies Victor Cleere and Mark Gundrum.
Both deputies testified that they did not immediately start making arrests at the scene because
they needed to speak with the parties to investigate whether a crime had occurred. Regarding his
interactions with Brown, Cleere testified as follows:
[Cleere]: Basically Mr. Brown was, I would say, semi-cooperative. He
seemed to be a little bit worked up. I was asking him what was
going on. He was telling me that they had tussled, but he wouldn’t
be specific about what was happening. Basically had to ask him
numerous times, you know, what had happened, trying to get a
chronological story of what was going on. And I wasn’t really
getting a straight story from him. The story was changing quite a
bit.
[State]: What do you mean, the story was changing?
[Cleere]: I asked him, you know: Did they fight? He said, “Well, I didn’t hit
her.” “Did you push her?” “Well, no, she fell down.” I asked what
the fight was about. At first it was about [RJ] disrespecting him, and
then later it turned into something about driving the daughter while
he was intoxicated, things like that. The story just kept moving
around, it just wasn’t . . .
[State]: Were you interested in getting his side of what happened?
[Cleere]: Yeah, I wanted to know from his side what had happened. You
know, obviously there was some sort of dispute there, and I just
wanted to get his story, which wasn’t forthcoming.
....
[State]: And what did he say about the pickaxe?
[Cleere]: I believe he said that [RJ] was coming after him and he picked it up
to protect himself.
[State]: So at that point, did you want to know some of the details?
[Cleere]: Right, yeah. I wanted to know why would he want to protect himself
from [RJ], why was [RJ] coming after him. There wasn’t much to
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No. 46775-5-II
go on. The story obviously had a lot of holes in it. It didn’t make a
lot of sense to me.
[State]: Did you try to get details out of him?
[Cleere]: Yes, I did.
[State]: How long do you think you talked to him?
[Cleere]: Several minutes.
[State]: How many times do you think you asked him specifically what
happened?
[Cleere]: At least 12 times.
[State]: Did he seem to understand the questions?
[Cleere]: Yes. He seemed to understand the questions. He was talking to me.
He was talking about a lot of stuff. But, I mean, he was not getting
specific about what happened between him and the female and her
son, which is [RJ]. He just, basically he would minimize it, say that
they tussled. That doesn’t really specifically tell me what happened.
RP at 133-35. Gundrum similarly testified about his interactions with Brown, stating that Brown
was “vague” and “ambiguous” about the incident. RP at 145-46.
Brown testified in his defense. Brown admitted to throwing a sandwich at Oligario’s
face. Brown also admitted to picking up a pickaxe, but claimed that he did so in self-defense. In
claiming self-defense, Brown did not testify that RJ had used, attempted to use, or threatened to
use force against him. Instead, Brown testified that he grabbed the pickaxe at the moment that
Oligario called out for RJ and RJ came running out of the house. Brown stated that he feared for
his life when RJ came running out of the house because RJ was “quick and strong.” RP at 161.
Brown also stated that he knew RJ “was going to be ready to do something” because that is how
a son would act “[w]hen a parent calls for help.” RP at 168. Brown denied that he had swung
the pickaxe at RJ, stating that Oligario caused him to drop the pickaxe shortly after he had
grabbed it.
The following exchange took place during the State’s cross-examination of Brown:
[State]: And you’ve had good relationships with [Oligario and RJ], right?
[Brown]: Yes.
....
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No. 46775-5-II
[State]: . Were you surprised they were willing to talk to the police and
surprised they were willing to come in and testify?
[Brown]: You know, like I said, [Oligario], she is a very nice person and she
[is] truthful about what she do. She’s trying to raise her kids like
that. I wouldn’t put it out that she wasn’t going to come and speak
up. That’s the way she is. She was raised like that to tell the truth
and have her kids tell the truth. That’s what I admire about her.
[State]: Knowing that that’s what she does, she tries to tell the truth, you
must be upset that she would make up a story and [RJ] would make
up stories about what happened that night.
[Brown]: You know something, I can look at something and you ask me how
did it—how did it go? I couldn’t tell you just exactly how—I can
be looking at something, I can see you make a move, I couldn’t even
do the same way you do, you know what I’m saying? I know
everybody’s story is not going to meet up, but it’s going to be close.
I know they going to say what they want to say, and I’m going to
say it the way I saw it.
[State]: Right, So different people see a situation, everybody is going to
describe it a little different.
....
[State]: Would you agree with me your story of what happened that night is
dramatically different from what everybody else described?
[Brown]: It’s not dramatically different. It’s related to what was going on,
you know what I’m saying? They—they didn’t put everything out
there because they want to maybe shut out things. I put it right out
there what was all about. Maybe she didn’t want to come up and
say my son might be disrespecting me, this and that. She might not
want to bring that up.
RP at 200-02. Defense counsel did not object to this line of questioning.
The jury returned verdicts finding Brown guilty of second degree assault and fourth
degree assault, and it returned special verdicts finding Brown committed the second degree
assault while armed with a deadly weapon and committed the fourth degree assault against a
member of his family or household.
Prior to his sentencing hearing, Brown filed a letter with the trial court that requested an
“immediate appeal” based on his defense counsel’s ineffective assistance. CP at 99. Brown’s
letter stated that his defense counsel failed to defend him at trial and failed to call his requested
witness to testify. Brown’s letter further requested a sentence at the bottom range, a new trial, or
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No. 46775-5-II
a plea to a lesser charge. Brown’s letter did not request that the trial court appoint him substitute
counsel to represent him at his sentencing hearing.
At the sentencing hearing, the trial court addressed Brown’s letter, stating that his defense
counsel had filed a notice of appeal, that it appeared to the court that defense counsel was a good
advocate, and that it would deny Brown’s request to set aside the jury’s verdict. The sentencing
court thereafter imposed a standard range sentence based on Brown’s offender score of 6. The
sentencing court also imposed LFOs, to which Brown did not object. Brown appeals his
convictions and sentence.
ANALYSIS
I. PROSECUTORIAL MISCONDUCT
Brown first asserts that his convictions must be reversed based on the prosecutor’s
misconduct in asking him to comment on Oligario’s and RJ’s credibility. We disagree.
A defendant claiming prosecutorial misconduct must show both improper conduct and
resulting prejudice. State v. Fisher, 165 Wash. 2d 727, 747, 202 P.3d 937 (2009). Prejudice exists
when there is a substantial likelihood that the misconduct affected the verdict. State v.
McKenzie, 157 Wash. 2d 44, 52, 134 P.3d 221 (2006). Because Brown did not object at trial to the
prosecutor’s conduct that he complains of on appeal, he must further demonstrate that the
misconduct was “so flagrant and ill-intentioned that it evinces an enduring and resulting
prejudice” that was incurable by a jury instruction. State v. Stenson, 132 Wash. 2d 668, 719, 940
P.2d 1239 (1997).
Here the State concedes that the prosecutor committed misconduct by asking Brown
whether he was upset that Oligario and RJ “would make up stories about what happened that
night.” RP at 201. We accept the State’s concession. See State v. Ramos, 164 Wash. App. 327,
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No. 46775-5-II
334, 263 P.3d 1268 (2011) (A prosecutor commits misconduct by asking a defendant whether
another witness is lying.). However, the State contends, and we agree, that Brown has failed to
make the required showing that the prosecutor’s misconduct was so flagrant and ill-intentioned
that the resulting prejudice was incurable by a jury instruction.
Unprompted by any improper questioning by the State, Brown testified that Oligario was
a “truthful” person and that she had raised her children to “tell the truth.” RP at 200-01. Having
already testified that Oligario was truthful and that she had raised RJ to be truthful, any prejudice
resulting from the prosecutor’s follow-up questions to Brown regarding Oligario’s and RJ’s
credibility was minimal and could have been cured with a jury instruction. Accordingly, Brown
has not shown reversible error based on the prosecutor’s misconduct. Stenson, 132 Wash. 2d at
719.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, Brown asserts that his defense counsel was ineffective for (1) failing to object to
the State’s questions asking him to comment on Oligario’s and RJ’s credibility, (2) failing to
object to the State’s question that implied he had an obligation to speak with police, and (3)
failing to object to portions of Cleere’s and Dundrum’s testimony that he contends improperly
commented on his credibility. We disagree.
To prevail on an ineffective assistance of counsel claim, Brown must show both that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.
Brockob, 159 Wash. 2d 311, 344-45, 150 P.3d 59 (2006). Performance is deficient if, after
considering all the circumstances, it falls below an objective standard of reasonableness. State v.
McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995). Prejudice results if there is a
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No. 46775-5-II
reasonable probability that the outcome of the trial would have been different had defense
counsel not rendered deficient performance. State v. Grier, 171 Wash. 2d 17, 34, 246 P.3d 1260
(2011), cert. denied, 135 S. Ct. 153 (2014). We strongly presume that counsel is effective and
Brown must show the absence of any legitimate strategic or tactical reason supporting defense
counsel’s actions. McFarland, 127 Wash. 2d at 336-37. To rebut this presumption, Brown bears
the heavy burden of “establishing the absence of any ‘conceivable legitimate tactic explaining
counsel’s performance.’” Grier, 171 Wash. 2d at 42 (quoting State v. Reichenbach, 153 Wash. 2d
126, 130, 101 P.3d 80 (2004)).
A. Brown’s Testimony
1. Credibility
Brown first asserts that defense counsel was ineffective for failing to object to the State’s
questions asking him to comment on Oligario’s and RJ’s credibility. However, as discussed
above, Brown’s initial testimony regarding Oligario’s and RJ’s tendencies to be truthful was not
prompted by any improper questioning by the State. Thus, it is conceivable that defense counsel
chose not to object to the State’s follow-up questions to allow Brown to explain why their
account of the events differed from his account. Defense counsel’s decision not to object
permitted the jury to hear Brown’s explanation that Oligario and RJ may have perceived the
event differently than he had. Had defense counsel objected to the State’s follow-up questions,
the jury may have been left only with Brown’s testimony that Oligario was truthful and had
raised RJ to be the same. Accordingly, we hold that defense counsel had a legitimate tactical
reason for not objecting to the State’s questioning, which defeats Brown’s ineffective assistance
of counsel claim. Grier, 171 Wash. 2d at 42.
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No. 46775-5-II
2. Right to Silence
Next, Brown asserts that his defense counsel was ineffective for failing to object to the
State’s question, “So when the deputies came to you, you knew all you had to do was tell the
truth,” which he contends improperly asked him to comment on his Fifth Amendment right to
silence. RP at 193; U.S. CONST. amend. V. We disagree.
A comment on the right to silence occurs when evidence of the defendant’s silence is
used to the State’s advantage as either substantive evidence of guilt or to suggest to the jury that
the silence was an admission of guilt. State v. Lewis, 130 Wash. 2d 700, 707, 927 P.2d 235 (1996).
“The use of pre-arrest silence as substantive evidence of guilt implicates the Fifth Amendment
and is not merely an evidentiary issue.” State v. Easter, 130 Wash. 2d 228, 235, 922 P.2d 1285
(1996). However, if the defendant testifies at trial and claims self-defense, the State may use a
defendant’s pre-arrest silence to impeach the defendant’s self-defense claim. State v. Burke, 163
Wash. 2d 204, 213, 217, 181 P.3d 1 (2008) (citing Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct.
2124, 65 L. Ed. 2d 86 (1980)).
Here, Brown did not exercise his right to pre-arrest silence, and he testified at trial that
his conduct against RJ was taken in self-defense. Accordingly, when viewed in context, the
State’s question to Brown did not ask him to comment on exercising his right to silence when
police officers spoke to him but, rather, asked him to explain why he did not assert the same self-
defense claim to which he had just testified at trial when he chose to speak with police officers
on the day of the incident. Moreover, even assuming for the sake of argument that the State’s
question asked Brown to comment on his pre-arrest silence, such use of Brown’s silence was
permissible as impeachment evidence under Burke. 163 Wash. 2d at 217. At most, the State’s
question was designed to impeach Brown’s self-defense claim to show how the claim had
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No. 46775-5-II
evolved over time and was not designed to elicit substantive evidence of his guilt. Accordingly,
Brown cannot demonstrate that his defense counsel performed deficiently for failing to object to
the State’s question. Therefore, Brown’s claim of ineffective assistance on this ground cannot
succeed.
B. Cleere’s and Dundrum’s Testimony
Next, Brown asserts that defense counsel was ineffective for failing to object to portions
of Cleere’s and Dundrum’s testimony, which testimony Brown contends included improper
comments on his credibility. Again, we disagree.
Generally, witnesses are not permitted to testify about their opinions of the defendant’s
credibility. State v. Demery, 144 Wash. 2d 753, 759, 30 P.3d 1278 (2001). Impermissible opinion
testimony about the defendant’s credibility “unfairly prejudices the defendant because it invades
the exclusive province of the jury to make an independent determination of the relevant facts.”
State v. Rafay, 168 Wash. App. 734, 805, 285 P.3d 83 (2012) (citing State v. Kirkman, 159 Wash. 2d
918, 927, 155 P.3d 125 (2007)). “Testimony from a law enforcement officer regarding the
veracity of another witness may be especially prejudicial because an officer’s testimony often
carries a special aura of reliability.” Kirkman, 159 Wash. 2d at 928. However, testimony based on
“direct knowledge of facts at issue” rather than on “one’s belief or idea” does not constitute
opinion testimony. Demery, 144 Wash. 2d at 760 (internal quotation marks omitted). Additionally,
“testimony that is not a direct comment on the defendant’s guilt or on the veracity of a witness, is
otherwise helpful to the jury, and is based on inferences from the evidence is not improper
opinion testimony.” City of Seattle v. Heatly, 70 Wash. App. 573, 578, 854 P.2d 658 (1993).
Here, neither Cleere nor Dundrum testified as to their opinions regarding Brown’s
credibility. Instead, they merely stated their observations of Brown’s responses to their
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No. 46775-5-II
questions about what had transpired between him, RJ, and Oligario. There was nothing improper
about this testimony because it was based on the officers’ direct observations of Brown’s
conduct in answering their questions at the scene and, thus, did not invade the province of the
jury to determine whether Brown was a credible witness.
III. DISSATISFACTION WITH APPOINTED COUNSEL
Next, Brown asserts that the trial court abused its discretion by failing to adequately inquire
about the breakdown of his relationship with defense counsel. We disagree.
Indigent defendants have a Sixth Amendment right to appointed counsel at all critical
stages of a criminal prosecution. State v. Harell, 80 Wash. App. 802, 804, 911 P.2d 1034 (1996).
Sentencing is a critical stage of a criminal prosecution. State v. Robinson, 153 Wash. 2d 689, 694,
107 P.3d 90 (2005). A defendant wishing to discharge his appointed counsel must make a timely
motion to do so upon proper grounds. State v. Cross, 156 Wash. 2d 580, 606, 132 P.3d 80 (2006).
Trial strategy, including the decision to call witnesses, is a matter within the discretion of counsel.
Cross, 156 Wash. 2d at 606-07; State v. Jones, 33 Wash. App. 865, 872, 658 P.2d 1262 (1983). Thus,
a defendant’s disagreement with counsel over the decision to call or not to call a witness generally
does not create a conflict raising Sixth Amendment concerns. Cross, 156 Wash. 2d at 609.
Brown did not file any motion to discharge his counsel or to have substitute counsel
appointed. Absent such a motion, Brown cannot demonstrate that the trial court abused its
discretion by failing to inquire into his alleged conflict with counsel. Further, because Brown’s
issue with his defense counsel concerned only counsel’s decision not to call a witness, a matter
of trial strategy, he did not present any valid basis for the trial court to appoint new counsel.
Accordingly, Brown’s argument on this issue lacks merit.
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No. 46775-5-II
IV. LEGAL FINANCIAL OBLIGATIONS
Finally, Brown asserts for the first time on appeal that the trial court erred by imposing
LFOs without first considering whether he had the present or likely future ability to pay the
LFOs as required under Blazina, 182 Wash. 2d 827. In State v. Lyle, 188 Wash. App. 848, 850, 355
P.3d 327 (2015),5 remanded, 365 P.3d 1263 (2016), the majority opinion held that a defendant
sentenced after we issued our decision in Blazina, 174 Wash. App. 906, 301 P.3d 492 (2013),
remanded, 182 Wash. 2d 827 (2015), waives this challenge by not raising it in the trial court.
Brown did not challenge the trial court’s preprinted finding that he had the ability pay
LFOs at his October 10, 2014 sentencing hearing that occurred after our decision in Blazina.
Under the majority opinion in Lyle, Brown’s failure to challenge the trial court’s LFO finding
would generally result in his waiver of the issue on appeal. However, in light of our Supreme
Court’s recent order granting the petition for review in Lyle, 365 P.3d 1263, and remanding to
the trial court on the LFO issue presented there, we elect to exercise our discretion whether to
reach challenges to discretionary6 LFO’s when not raised in the trial court.
Here, there was no discussion of Brown’s ability to pay discretionary LFOs at his
sentencing hearing. The State, however, points to Brown’s statement at sentencing that he
“work[s] hard” and to his request for a low-end sentence so that he “can get back out to my work
5
Bjorgen, A.C.J., dissented.
6 Brown challenges both discretionary and mandatory LFOs, relying solely on Blazina and
former RCW 10.01.160(3), the statute on which Blazina rests. Blazina, however, only addressed
discretionary LFOs in imposing its requirement for an individualized determination of ability to
pay. 182 Wash. 2d at 832, 837. Therefore, Brown’s argument that his mandatory LFOs are subject
to the requirement of an individualized determination fails. In addition, we held in State v.
Mathers, No. 47523-5-II (Wash. Ct. App. May 10, 2016) that mandatory LFOs imposed for the
deoxyribonucleic acid (DNA) fee and the Victim Penalty Assessment (VPA) fee are not subject
to the requirement of an individualized determination.
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No. 46775-5-II
and deal with my [nine] kids,” as support for a finding that he has the ability to pay the imposed
LFOs. RP (Oct. 10, 2014) at 7-8. Brown’s statement that he “work[s] hard,” while suggesting
that he has been employed in the past and is likely employable, does not reveal Brown’s past or
potential future income or his necessary living expenses. RP (Oct. 10, 2014) at 7. Accordingly,
we cannot conclude on these statements alone that the trial court had a sufficient factual basis to
impose discretionary LFOs absent the individualized inquiry required in Blazina.
The trial court found Brown indigent at the conclusion of the proceeding. Although a
trial court’s indigency finding does not necessarily show an inability to pay in all situations, our
Supreme Court recognized in Blazina that if a defendant meets the GR 34 standard for indigency,
“courts should seriously question that person’s ability to pay LFOs.” Blazina, 182 Wash. 2d at 839.
At the least, this recognition shows that the need for an individualized inquiry into ability to pay
is heightened under Blazina when the defendant is indigent. In Blazina the court remanded for
an individualized determination, even though the defendants had not objected below, because it
found that the pernicious consequences of “broken LFO systems” on indigent defendants
“demand” that it reach the issue. 182 Wash. 2d at 830, 833-34. Those same consequences face
Brown, another indigent defendant. Although his present indigency does not necessarily mean
that Brown is or will be unable to pay his LFOs, it does mean under Blazina that the trial court
must assess his ability to pay in the individualized manner the Supreme Court requires. The trial
court failed to make that individualized determination. Accordingly, we exercise our discretion
and remand to the trial court for reconsideration of the discretionary LFOs consistently with
former RCW 10.01.160(2)-(3) and Blazina, 182 Wash. 2d at 838-39.
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No. 46775-5-II
V. APPELLATE COSTS
Brown filed a supplemental brief contending that if the State substantially prevails in this
appeal, we should decline to impose appellate costs on him because he is indigent and is serving
a substantial sentence. The State responded that it does not intend to file a cost bill in this
matter, regardless of the outcome. Holding the State to its representation, Brown’s challenge to
appellate costs is moot and need not be considered.
CONCLUSION
We affirm Brown’s conviction, reverse the imposition of discretionary LFOs, and remand
for the trial court to make an individualized inquiry into Brown’s ability to pay before imposing
any discretionary LFOs, consistently with Blazina, 182 Wash. 2d at 839 and former RCW
10.01.160(2)-(3).
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
BJORGEN, C.J.
We concur:
MELNICK, J.
SUTTON, J.
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