State Of Washington v. Leona Ruth Starr ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
February 2, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53147-0-II
Respondent,
v.
LEONA RUTH STARR, PUBLISHED OPINION
Appellant.
CRUSER, J. – Leona Ruth Starr1 appeals the sentencing court’s imposition of community
custody supervision fees following her conviction for felony violation of a no-contact order. She
argues that the sentencing court should have waived the community custody supervision fees
because they are discretionary costs and she is indigent. We hold that Starr’s argument fails
because the community custody supervision fees are not “costs” as defined by RCW 10.01.160(2).
Accordingly, we affirm.
FACTS
After a jury convicted Starr of a felony, the sentencing court imposed a sentence that
included community custody.2 The sentencing court found Starr indigent as defined in RCW
1 Starr is also known as Leona R. Sampson and Leona Ruth Martin.
2 The sentencing hearing was held on January 24, 2019.
No. 53147-0-II
10.101.010(3)(c) because her after-tax income was 125 percent or less of the current federal
poverty level. Due to Starr’s indigency, the sentencing court stated that it was waiving all costs
except the crime victim assessment. Specifically, the court stated, “Well, I am imposing 16 months,
12 months community custody, the crime victim assessment. The defendant is otherwise indigent.
So no other costs will be assessed.” Verbatim Report of Proceedings (Jan. 24, 2019) at 22-23.
In the judgment and sentence, the court waived all discretionary legal financial obligations
(LFOs) listed in the LFO section of the judgment and sentence. Although not designated as an
LFO, the community custody section of the judgment and sentence included a provision requiring
Starr to “pay supervision fees as determined by [the Department of Corrections (DOC)]” as a
condition of her community custody. Clerk’s Papers at 12. The sentencing court did not mention
or strike this provision.
Starr appeals the imposition of community custody supervision fees.
ANALYSIS
Starr argues that, in light of her indigency, the sentencing court erred by imposing the
community custody supervision fees. This argument fails.
RCW 10.01.160(3) provides that the sentencing court shall not order a defendant to pay
costs if a defendant is indigent as defined in RCW 10.101.010(3)(a) through (c). Similarly, RCW
9.94A.760(1) provides that the sentencing court cannot order “costs” as described in RCW
10.01.160 if the defendant is indigent as defined in RCW 10.101.010(3)(a) through (c). RCW
10.01.160(2) defines “costs” as follows: “Costs shall be limited to expenses specially incurred by
the state in prosecuting the defendant or in administering the deferred prosecution program under
chapter 10.05 RCW or pretrial supervision.” (Emphasis added.)
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No. 53147-0-II
The community custody supervision fees were imposed under RCW 9.94A.703(2)(d),
which states, “Unless waived by the court, as part of any term of community custody, the court
shall order an offender to . . . [p]ay supervision fees as determined by the [DOC].” Because the
sentencing court can waive these fees, they are discretionary LFOs. State v. Lundstrom, 6 Wn.
App. 2d 388, 396 n.3, 429 P.3d 1116 (2018), review denied, 193 Wn.2d 1007 (2019).
But the fact that the community custody supervision fees are discretionary LFOs does also
not mean that they are costs. Community custody supervision fees clearly do not meet the
definition of a cost under RCW 10.01.160(2) because they are not an expense specially incurred
by the State to prosecute the defendant, to administer a deferred prosecution program, or to
administer pretrial supervision. State v. Spaulding, 15 Wn. App. 2d 526, 536-37, 476 P.3d 205(2020). They are not a pre-conviction expense to be recouped--instead, community custody
supervision fees are intended to cover post-conviction costs that will be incurred at a later date to
help fund the DOC. And RCW 10.01.160(2) expressly requires that costs be limited to three
specific categories of expenses. We would need to ignore the plain language of RCW 10.01.160(2)
and expand the definition of costs in order to conclude that community custody supervision fees
were costs, which is the legislature’s role, not this court’s. Because community custody
supervision fees are not costs, the sentencing court did not err when it imposed these fees despite
Starr’s indigency status. See Spaulding, 15 Wn. App. 2d at 536-37; State v. Clark, 191 Wn. App.
369, 374-75, 362 P.3d 309 (2015) (distinguishing fines from costs).
Starr argues that the sentencing court’s statements demonstrated that it did not intend to
impose any discretionary LFOs. But because the community custody supervision fees, a
community custody condition, were never mentioned, it is mere conjecture that the sentencing
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court considered them at all.3 Furthermore, we cannot examine the sentencing court’s oral
statements to determine the court’s intent because those statements are not part of the final
judgment unless reduced to a written order, here the judgment and sentence. State v. Huckins, 5
Wn. App. 2d 457, 469-70, 426 P.3d 797 (2018) (citing State v. Dailey, 93 Wn.2d 454, 458, 610
P.2d 357 (1980).
3 The dissent characterizes the sentencing court’s failure to strike the community custody
supervision fees in the judgment and sentence as a scrivener’s error that we can correct. Dissent at
6. We disagree with that characterization.
A scrivener’s error is one that, when amended, would correctly convey the intention of the
trial court as expressed in the record at trial. State v. Davis, 160 Wn. App. 471, 478, 248 P.3d 121(2011). Here, the court did not express any intent to waive the community custody supervision
fees--the court referred only to “costs” and did not mention the community custody supervision
fees at all. We presume that the court understood the meaning of the term “cost” and do not infer
that the court meant to include fees that do not fall under the legal definition of a cost.
Furthermore, the fees and costs the sentencing court waived in the judgment and sentence,
specifically the court appointed attorney fees, filing fees, witness fees, service fees, jury demand
fees, and extradition costs, are qualitatively different than the community custody supervision fee
because those costs and fees are intended to recoup expenses that accrued during the course of the
prosecution, not fees intended to cover expenses related to the execution of the defendant’s
sentence. Because the waived costs and fees are qualitatively different than the community custody
supervision fee, and the sentencing court did not expressly state an intention to waive the
prospective community custody supervision fee, there is nothing in the record demonstrating that
the court’s failure to strike the community custody supervision fees was a scrivener’s error and
remand to strike the community custody supervision fee is not appropriate.
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No. 53147-0-II
Because the community custody supervision fees are not “costs” as defined by RCW
10.01.160(2), the sentencing court did not err in imposing these fees, and we affirm.
CRUSER, J.
I concur:
SUTTON, A.C.J.
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No. 53147-0-II
WORSWICK, J. (concurring in part and dissenting in part) — I concur with the majority in
its conclusion that community custody fees are not statutory costs. However, I dissent because I
believe the trial court stated an intent not to impose any discretionary fees.
The section of the judgment and sentence at issue where the imposition of supervision
fees appears looks like this:
(B) While on community custody, the Defendant shall: (1) report to and be
available for contact with the assigned community corrections officer as directed;
(2) work at DOC-approved education, employment and/or community restitution
(service); (3) notify DOC of any change in Defendant’s address or employment; (4)
not consume controlled substances except pursuant to lawfully issued prescriptions;
(5) not unlawfully possess controlled substances while on community custody; (6)
not own, use, or possess firearms or ammunition; (7) pay supervision fees as
determined by DOC; (8) perform affirmative acts as required by DOC to confirm
compliance with the orders of the court; and (9) abide by any additional conditions
imposed by DOC under RCW 9.94A.704 and .706. The Defendant’s residence
location and living arrangements are subject to the prior approval of DOC while on
community custody.
Clerk’s Papers at 12.
It is easy to understand how a trial court could simply overlook item 7 in this block of
text in a 12-page document. During sentencing, the trial court stated, “The defendant is
otherwise indigent. So no other costs will be assessed.” Verbatim Report of Proceedings (Jan.
24, 2019) at 22-23. Although the record could be more specific regarding whether the trial court
meant only statutory costs, or if it was speaking more colloquially, it appears the trial court did
not intend to impose any additional fees, and that the failure to strike item 7 was merely a
scrivener’s error.
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No. 53147-0-II
I would remand this case to the trial court to correct this scrivener’s error and strike
supervision fees from this judgment and sentence.
____________________________
Worswick, J.
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