State Of Washington v. Paul Marshall ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 80844-3-I
v.
UNPUBLISHED OPINION
PAUL MARSHALL,
Petitioner.
DWYER, J. — Paul Marshall seeks review of the superior court’s order
affirming the district court’s imposition of discretionary legal financial obligations.
Marshall contends that the superior court erred by affirming the district court’s
imposition of certain legal financial obligations because the district court failed to
conduct an adequate inquiry into his ability to pay. Finding no error, we affirm.
I
A jury convicted Paul Marshall of one count of driving under the influence
(DUI), alleged to have occurred on February 28, 2014. At sentencing, which took
place on April 4, 2018, the State recommended that the court impose a five-year
suspended sentence while requiring Marshall to serve 10 days in jail, pay a $350
fine, and pay certain other statutory fees. 1 Marshall’s counsel requested that the
district court impose a two-year suspended sentence, require that Marshall serve
1The State recommended that the court impose 360 days of jail time with 350 days
suspended, a $5,000 fine with $4,650 suspended, and “[a]dditional statutory fines.”
No. 80844-3-I /2
the mandatory minimum of one day in jail, and waive all discretionary legal
financial obligations. 2
To support this request, Marshall’s counsel informed the court that
Marshall was a “hardworking young man” who worked at two food service jobs
and was living in his truck at the time he was charged with driving under the
influence. According to Marshall’s counsel, in the four years since the date of the
offense, Marshall had become an assistant manager at a retail store and was no
longer homeless.
The court then inquired further into Marshall’s present financial situation,
asking Marshall’s counsel: “What else do I need to know about Mr. Marshall’s
financial situation?” After an off-the-record conversation with Marshall,
Marshall’s counsel informed the court that Marshall earned $16 per hour as an
assistant manager, paid $300 per month in rent, contributed to expenses such as
utilities, gas, and food, had student loan debts, and had existing legal financial
obligations that amounted to $1,328. Marshall’s counsel informed the court that
Marshall’s financial situation allowed him to pay $25 per month in satisfaction of
any financial obligations imposed on him at sentencing.
The court then offered Marshall an opportunity to discuss his
circumstances: “You have an opportunity, Mr. Marshall, but no requirement to tell
me anything about you or your circumstances before sentencing. Is there
2 Whenever a DUI sentence requires a defendant to serve less than 364 days in jail, the
court must impose a suspended sentence and provide for a period of probation, with certain
conditions mandated by statute, of up to five years. RCW 46.61.5055(11).
2
No. 80844-3-I /3
anything you think I need to know?” Marshall, through his counsel, declined the
invitation.
After the inquiry into Marshall’s financial circumstances, the court imposed
the mandatory one day in jail, with the balance of remaining jail time suspended
for five years, provided for a five-year period of probation, and imposed $838 in
legal financial obligations: a $350 fine, a $43 criminal conviction fee, a $245
public safety and education assessment, and a $200 probation fee (that was
reduced from the standard $550). 3 In so doing, the court waived most
discretionary legal financial obligations. Finally, the district court ordered
Marshall to make payments at a rate of $25 per month. This allowed Marshall to
satisfy the financial obligations over a 34-month period—well within the 60-month
period of probation.
Marshall appealed to the Snohomish County Superior Court. After
considering the six assignments of error that were raised by Marshall, the
superior court affirmed. With regard to the legal financial obligations that were
imposed by the district court, the superior court determined that the district court
had conducted an adequate inquiry into Marshall’s current and future ability to
pay. The superior court also concluded that the district court did not abuse its
discretion when it imposed discretionary legal financial obligations, “particularly in
light of the modest monthly payments it established.”
Marshall petitioned this court for discretionary review of the superior
court’s order affirming the judgment and sentence imposed by the district court.
3Specifically, the district court imposed 360 days of jail time with 359 days suspended
and a $5,000 fine with $4,650 suspended.
3
No. 80844-3-I /4
A commissioner of our court granted review of the claim that the superior court
erred by affirming the district court’s imposition of certain discretionary legal
financial obligations when sentencing Marshall.
II
Marshall contends that the district court erred in imposing his sentence
upon him. Specifically, Marshall asserts that the district court failed to
adequately inquire into Marshall’s current or future ability to pay. However, the
record makes clear that the district court conducted an individualized inquiry into
Marshall’s financial circumstances and tailored its decision concerning the
obligations imposed and the circumstances of payment to Marshall’s particular
financial situation. In so doing, it did not err.
A
We review the adequacy of the trial court’s inquiry into a defendant’s
ability to pay de novo. State v. Ramirez, 191 Wn.2d 732, 740-42, 426 P.3d 714(2018). This inquiry involves both factual and legal components. Ramirez, 191
Wn.2d at 740. Factually, we examine the record to determine “what evidence the
trial court actually considered in making the . . . inquiry.” Ramirez, 191 Wn.2d at
740. We then determine whether the sentencing court’s inquiry satisfied the
legal requirements. Ramirez, 191 Wn.2d at 740. However, the sentencing
court’s ultimate decision to impose nonmandatory financial obligations “is
undoubtedly discretionary.” Ramirez, 191 Wn.2d at 741-42. We thus review
whether such obligations were validly imposed for an abuse of
discretion. Ramirez, 191 Wn.2d at 741-42. A sentencing court abuses its
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No. 80844-3-I /5
discretion when its decision is manifestly unreasonable or based on untenable
grounds or reasons. Ramirez, 191 Wn.2d at 741. 4
B
A sentencing court must conduct an individualized inquiry into a
defendant’s ability to pay before imposing discretionary costs at sentencing.
RCW 10.01.160(3); 5 State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015).
In Blazina, our Supreme Court repudiated the practice then prevalent in certain
courts to forego inquiring into a defendant’s ability to pay and instead rely on
boilerplate language in the judgment and sentence to satisfy the requirements of
former RCW 10.01.160(3) (2010). See 182 Wn.2d at 831-32. 6 This practice was
deemed improper because the legislature “intended each judge to conduct a
case-by-case analysis” to determine which discretionary costs are “appropriate to
the individual defendant’s circumstances.” Blazina, 182 Wn.2d at 834. Blazina
makes clear that a sentencing court is required to conduct an individualized
inquiry on the record into a defendant’s current and future ability to pay before
imposing discretionary costs as part of a sentence. 7 Blazina, 182 Wn.2d at 838.
4 This decision was filed in September 2018, five months after Marshall was sentenced.
It was therefore unavailable to the district court at the time of sentencing.
5 The district court sentenced Marshall in April 2018. The latest iteration of RCW
10.01.160(3) was enacted by the 2018 legislature with an effective date of June 7, 2018. LAWS
OF 2018, ch. 269.
6 Our Supreme Court made clear the evil it sought to end. “[T]he court must do more
than sign a judgment and sentence with boilerplate language stating that it engaged in the
required inquiry. The record must reflect that the trial court made an individualized inquiry into
the defendant’s current and future ability to pay.” Blazina, 182 Wn.2d at 838.
7 Marshall asserts that the $350 fine and the $43 criminal conviction fee that were
imposed by the district court are discretionary legal financial obligations that necessitated an
individualized inquiry under RCW 10.01.160(3). But a fine is not a cost. State v. Clark, 191 Wn.
App. 369, 375-76, 362 P.3d 309 (2015) (holding that fines are not costs “subject to the strictures
of RCW 10.01.160(3)”); see also RCW 10.01.160(2) (defining “costs” without mention of fines).
The State contends that the criminal conviction fee was mandatory unless Marshall was found to
be indigent under RCW 10.101.010(3)(a)-(c). See RCW 3.62.085 (excluding the definition of
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No. 80844-3-I /6
In conducting this inquiry, courts should consider certain “‘important
factors’” that relate to a defendant’s ability to pay. Ramirez, 191 Wn.2d at 743
(quoting Blazina, 182 Wn.2d at 838). These factors include, but are not limited
to, the defendant’s incarceration, employment history, monthly income, other
financial resources, monthly living expenses, and outstanding debts. Ramirez,
191 Wn.2d at 742-44. Courts must look to court rule GR 34, which lists the ways
a person may prove to be indigent for the purpose of seeking a waiver of civil
filing fees and surcharges, for guidance. 8 Ramirez, 191 Wn.2d at 743
“indigent” in RCW 10.101.010(3)(d) that encompasses people who are unable to pay the
anticipated cost of counsel). We need not determine whether the criminal conviction fee is a
“cost” under RCW 10.01.160(3). Because the district court imposed the probation fee, which
neither party disputes is a “cost” under RCW 10.01.160(2), the district court was required to
conduct an individualized inquiry into Marshall’s particularized ability to pay before imposing this
discretionary cost. RCW 10.01.160(3); Blazina, 182 Wn.2d at 838.
8 GR 34 sets forth two methods by which an individual may obtain a waiver of trial court
fees and charges in civil matters. See GR 34(a). An individual who is represented by a qualified
legal services provider (QLSP) or an attorney working in conjunction with a QLSP may submit “a
declaration of counsel stating that the individual was screened and found eligible by the QLSP.”
GR 34(a)(1). Additionally:
[a]n individual who is not represented by a [QLSP] . . . or an attorney working in
conjunction with a [QLSP] shall be determined to be indigent within the meaning
of this rule if such person, on the basis of the information presented, establishes
that:
(A) he or she is currently receiving assistance under a needs-based,
means-tested assistance program such as the following:
(i) Federal Temporary Assistance for Needy Families (TANF);
(ii) State-provided general assistance for unemployable
individuals (GA-U or GA-X);
(iii) Federal Supplemental Security Income (SSI);
(iv) Federal poverty-related veteran’s benefits; or
(v) Food Stamp Program (FSP); or
(B) his or her household income is at or below 125 percent of the federal
poverty guideline; or
(C) his or her household income is above 125 percent of the federal
poverty guideline and the applicant has recurring basic living expenses
(as defined in RCW 10.101.010(4)(d)) that render him or her without the
financial ability to pay the filing fees and other fees or surcharges for
which a request for waiver is made; or
(D) other compelling circumstances exist that demonstrate an
applicant’s inability to pay fees and/or surcharges.
GR 34(a)(3).
For one person, the 2018 federal poverty guideline was a gross annual income of
$12,140 or an approximate hourly wage of $5.84. Annual Update of the Department of
6
No. 80844-3-I /7
(citing Blazina, 182 Wn.2d at 838). Because defendants often desire to appear
in the best possible light at sentencing, judges must critically evaluate any
promise made by a defendant as to the defendant’s ability to pay. Ramirez, 191
Wn.2d at 745-46.
Here, the district court’s inquiry was individualized and considered
necessary important factors. Marshall’s counsel informed the court about
Marshall’s employment history, his current job as an assistant manager at a retail
store, his improved housing arrangements, and his bettered life and financial
situation in the four years since the date of his offense. The court then inquired
further into Marshall’s financial situation and provided time for him to confer with
his counsel off the record. Marshall’s counsel then provided the court with more
details about Marshall’s current financial situation. In particular, Marshall’s
counsel informed the court about Marshall’s hourly wage of $16 per hour, his
monthly rent payment of $300 per month, his outstanding legal financial
obligations of $1,328, his student loan debt, and other living expenses.
Marshall’s counsel also requested that the court allow Marshall to make
payments over time and stated that Marshall could pay $25 per month. After
considering all of the information before the court, the judge then imposed a
sentence whereby the court waived most discretionary legal financial obligations
and allowed Marshall to satisfy the sentence by paying $25 per month over 34
months during the 60-month probation period.
Health and Human Services Poverty Guidelines, 83 Fed. Reg., 2642-2644 (Jan. 18,
2018).
7
No. 80844-3-I /8
There is nothing in the record suggesting that Marshall did not have the
current and future ability to satisfy the obligations imposed by paying $25 per
month. For certain, he made no such claim in the sentencing court. Instead,
after consultation, his counsel actually requested that exact arrangement. And
notably absent from his appellate briefing is any claim that Marshall is not in fact
able to pay the amount imposed on the schedule provided.
Here, the record demonstrates that Marshall had improved his situation
markedly over four years. At sentencing, he had a regular source of income as
an assistant manager at a retail store. He earned $16 per hour. The $25 monthly
obligation suggested by Marshall’s counsel, after conferring with Marshall,
required a contribution of less than two hours of earnings per month. Thus,
Marshall’s payment obligation and terms of payment were structured by the court
to enable him to satisfy the legal financial obligations in 34 months—long before
the end of his 60-month sentence. 9
Nor is there anything dispositive about the fact that Marshall was
approved for an appointed attorney at public expense. The ability of a person to
gather together the amount of money necessary to hire a private attorney—on
short notice—is not necessarily indicative of that same person’s ability to satisfy
the financial conditions of a sentence over a 60-month period. The legislature
recognizes this distinction. It specifically excluded from its definition of
indigency—when determining the assessment of costs at sentencing—those who
9This structure also allowed for future alterations to the plan should Marshall’s financial
circumstances change.
8
No. 80844-3-I /9
are found to be indigent pursuant to RCW 10.101.010(3)(d), the provision
pertaining to eligibility for appointed counsel.
We further note several considerations not presented by the parties. First,
we agree with the observation in Ramirez that courts must be aware that some
defendants—in order to be well-perceived by the judge—might “over-promise”
concerning their ability to pay. See 191 Wn.2d at 745-46. But sentencing judges
are not compelled to view defendants as liars. Here, the judge had an ample
basis to evaluate statements made regarding Marshall’s ability to pay. Two key
components of trustworthiness are apparent from the record: (1) Marshall was
represented by counsel and the statement was made in the aftermath of an
attorney-client discussion, and (2) the promise was a modest one, pledging
payment of an amount less than two hours of earnings per month. Nothing in
these circumstances indicated that Marshall was making a promise that he could
never keep solely to avoid a more serious sentence. Rather, the payment
suggested was modest in amount and consistent with his financial situation as it
had been expressed to the court.
We also note that, in sentencing misdemeanants, the law encourages the
judge to sentence the person, not just the crime. See Harris v. Charles, 171
Wn.2d 455, 465, 256 P.3d 328 (2011) (discussing differing goals of misdemeanor
and felony sentencing schemes). Here, the man standing before the court had
bettered his life in several ways. He had earned the trust and respect of the
court, notwithstanding his four-year distant criminal act. He made a modest
promise to the judge. Rather than treat this promise with unnecessary
9
No. 80844-3-I /10
skepticism, the judge took the basic promise and formulated a plan—imposing
some fines, fees, and costs while suspending or waiving others—that would
allow Marshall to succeed. This is as it should be.
In addition, trial judges well-know that one of a criminal defendant’s most
prized and important possessions is a job. Judges also know that most hourly
workers do not enjoy the ancillary benefits of employment that are routinely
bestowed on salaried employees. The record is silent as to whether Marshall
had to take vacation to come to court—or even if he was allocated vacation to
take. Nor do we know whether his store employed more than one assistant
manager. But, in general, judges know that missing work in order to attend court
is seldom a good thing for an hourly worker. This undoubtedly incentivized the
district court herein to conclude the sentencing in one appearance, rather than
require a continuance to obtain more or other information and thus require
Marshall to once again be absent from work in the near future.
And what evidence would have made a difference? Petitioner’s briefing is
silent on this question. Here, the best information available was Marshall’s
statement—after consultation with counsel and consistent with the record—that
he could pay $25 per month. As noted previously, there is no allegation that this
is untrue. Instead, reversal is urged because the judge did not ask specific
questions about every factor mentioned in the 2018 legislation or the Ramirez
opinion—a statute and opinion that both postdate Marshall’s sentencing. This is
a purely formalistic objection and, in effect, seeks to substitute a new boilerplate
approach for the properly-rejected boilerplate approach of days gone by.
10
No. 80844-3-I /11
Marshall establishes no prejudice from any variance between the inquiry
employed by the sentencing court and any later-expressed expectations
espoused in statute or case law. 10
The sentencing court actively inquired into Marshall’s ability to pay the
legal financial obligations that it imposed. Its sentence was tailored to Marshall’s
circumstances. No entitlement to appellate relief is established. 11
Affirmed.
WE CONCUR:
10 This is not a quibble with our Supreme Court’s determination that the 2018 amendment
to RCW 10.10.160 applies to the district court’s earlier sentencing of Marshall. See Ramirez, 191
Wn.2d at 747. Rather, it is an evaluation of the absence of prejudice shown from any variation.
11 Should Marshall’s self-assessment of his ability to pay prove to have been overly
optimistic—or should his financial circumstances change for the worse—he retains the ability to
request that the court remit or modify its imposition of discretionary legal financial obligations,
extend his period to pay, or modify his monthly payment amount.
11