In re Pers. Restraint of Flippo

This opinion was filed for record
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cstw~o<-~ SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Personal ) No. 92616-6
Restraint of )
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EARL OWEN FLIPPO, ) ENBANC
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Petitioner. ) Filed: _ _ _ _'!_'--'"-tL'-'••_:_ll_ _
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YU, J.- Petitioner Earl Owen Flippo contends that his personal restraint
petition (PRP) is not time barred even though it was filed more than one year after
his judgment and sentence became final. Flippo asks us to hold that the trial
court's alleged failure to perform an individualized inquiry into his ability to pay
discretionary legal financial obligations (LFOs) renders his judgment and sentence
facially invalid. In the alternative, Flippo asks us to hold that our recent opinion in
State v. Blazina 1 is a significant, material change in the law requiring retroactive
application in accordance with RCW 10.73.100(6). We decline to do so on both
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182 Wn.2d 827,344 P.3d 680 (2015).
In re Pers. Restraint ofFlippo, No. 92616-6
points and therefore affirm the Court of Appeals opinion dismissing Flippo's PRP
as time barred.
FACTUAL AND PROCEDURAL HISTORY
A jury convicted Flippo of four counts of child molestation in 2008. Flippo
timely appealed to Division Three, which upheld the verdict and sentence in 2010.
The Court of Appeals dismissed Flippo's first PRP in 2011. In 2015, Flippo filed
his second PRP, arguing for the first time that the sentencing court imposed
discretionary LFOs without having performed an individualized inquiry into his
ability to pay. Division Three of the Court of Appeals dismissed Flippo's PRP on
the basis that it was untimely. We granted discretionary review and now affirm.
IssuEs
A. Does the lack of an individualized inquiry into a defendant's present
and future ability to pay discretionary LFOs render a judgment and sentence
facially invalid for purposes ofRCW 10.73.090(1)?
B. Did this court's decision in Blazina constitute a significant change in
the law requiring retroactive application pursuant to RCW 10.73.1 00( 6)?
ANALYSIS
PRPs "are modern version[s] of ancient writs," most notably habeas corpus,
"that allow petitioners to challenge the lawfulness of confinement." In re Pers.
Restraint of Coats, 173 Wash. 2d 123, 128, 267 P.3d 324 (2011). By statute, a
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In re Pers. Restraint of Flippo, No. 92616-6
petitioner must file a PRP no later than "one year after the judgment becomes final
if the judgment and sentence is valid on its face and was rendered by a court of
competent jurisdiction." RCW 10.73.090(1). There is an exemption from the one-
year time limit for PRPs based solely on "a significant change in the law, whether
substantive or procedural, which is material to the conviction [or] sentence" if
"sufficient reasons exist to require retroactive application of the changed legal
standard." RCW 10.73.1 00( 6). Flippo contends that the one-year time limit does
not apply, because either his judgment and sentence is not valid on its face or
Blazina was a significant, material change in the law that applies retroactively. 2
We reject both arguments.
A. THE LACK OF AN INDIVIDUALIZED INQUIRY PURSUANT TO RCW 10.01.160(3)
DOES NOT RENDER A JUDGMENT AND SENTENCE FACIALLY !NVALID
A sentencing court's alleged failure to conform with the requirements of
RCW 10.0 1.160(3) does not render the judgment and sentence facially invalid for
purposes ofRCW 10.73.090(1). Facial validity depends on whether the court
exceeded its substantive authority, and the court here plainly had substantive
authority to impose discretionary LFOs.
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Although Flippo argued in his PRP that the imposition of discretionary LFOs is never
"final" under RCW 10.73.090(1) due to the availability of statutory remissions procedures, he
later conceded that his judgment and sentence became final more than one year ago. Suppl. Br.
ofPet'r at 4. This concession was proper based on the explicit definitions of when "a judgment
becomes final" in RCW 10.73.090(3).
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In re Pers. Restraint ofFlippo, No. 92616-6
We have described the "valid on its face" language ofRCW 10.73.090(1) as
"a term of art that, like many terms of art, obscures, rather than illuminates, its
meaning." In re Pers. Restraint of Scott, 173 Wn.2d 911,916,271 P.3d 218
(2012) (plurality opinion). Courts have "regularly found facial invalidity when the
court actually exercised a power it did not have." Coats, 173 Wash. 2d at 136.
However, "the 'not valid on its face' limitation ofRCW 10.73.090 is not a device
to make an end run around the one-year time bar for most errors .... " Id. at 144.
In this case, Flippo argues that statutory authority to impose discretionary
LFOs stems from the affirmative duty of the court to engage in an individualized
inquiry into the defendant's present and future ability to pay. Therefore, he
contends, "[i]fthe trial court fails to engage in the required inquiries, it lacks
authority to impose discretionary LFOs." Suppl. Br. ofPet'r at 6. This is not so;
Flippo's argument erroneously conflates the substantive authority to impose
discretionary LFOs with the proper procedure for doing so.
The specific grant of authority to impose discretionary LFOs and the duty to
engage in an individualized financial inquiry regarding a defendant's present and
future likely ability to pay are distinct components of the discretionary LFO
statute, and only the former has any bearing on the question of facial validity. See,
e.g., In re Pers. Restraint of Carrier, 173 Wash. 2d 791, 799-800, 272 P.3d 209
(2012) (differentiating between documents revealing that a court exceeded its
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In re Pers. Restraint of Flippo, No. 92616-6
substantive authority and documents revealing procedural defects); Coats, 173
Wash. 2d at 140-41 (In assessing facial invalidity, "[ w ]e have not referred to trial
rulings, motions, or jury instructions when they reflect on fair trial issues and not
the validity of the judgment and sentence."). Even if the sentencing transcript
might reveal that no individualized inquiry occurred as required by RCW
10.01.160(3), it does not follow that the court exercised authority it did not have.
Such authority exists pursuant to RCW 10.0 1.160(1 ), which provides that "[t]he
court may require a defendant to pay costs." The procedural safeguard ofRCW
10.0 1.160(3) "creates a duty" on the court to engage in an individualized inquiry
prior to imposing discretionary LFOs, but does not detract from a court's
substantive authority to do so. Blazina, 182 Wash. 2d at 838.
Importantly, in Blazina we noted that unpreserved LFO errors do not result
in the type of"'illegal or erroneous sentences'" that may be reviewed as a matter
of right. Id. at 833. Similarly, they do not render a judgment and sentence facially
invalid for purposes ofRCW 10.73.090(1). We hold that Flippo's judgment and
sentence is valid on its face.
B. BLAZINA DID NOT CONSTITUTE A SIGNIFICANT CHANGE IN THE LAW REQUIRING
RETROACTNE APPLICAT!ON PURSUANT TO RCW 10.73.1 00( 6)
Flippo also contends that our decision in Blazina constituted a material,
significant change in the law requiring retroactive application. Because Blazina
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In re Pers. Restraint ofFlippo, No. 92616-6
was not a significant change in the law, Flippo's PRP is not exempt from the one-
year time bar by operation ofRCW 10.73.100(6).
Blazina is firmly rooted in in the plain statutory language ofRCW
10.01.160(3). We found neither ambiguity in the language ofthe statute nor
divergence in the manner with which appellate courts had been applying the law.
Rather, we took the opportunity in Blazina "to emphasize the trial court's
obligation to consider the defendant's ability to pay" before imposing discretionary
LFOs. 182 Wash. 2d at 839. Blazina was simply a directive to the courts, clarifying
how to fully comply with RCW 10.01.160(3); it did not change anything about the
meaning of that statute or any other material provision oflaw.
We recognize that prior to Blazina, there were no specific cases from this
court interpreting RCW 10.01.160(3). However, the relevant inquiry for purposes
ofRCW 10.73.100(6) is whether our opinion in Blazina "'effectively overturned a
prior appellate decision that was originally determinative of a material issue.'" In
re Pers. Restraint ofLavery, 154 Wash. 2d 249, 258, Ill P.3d 837 (2005) (quoting In
re Pers. Restraint of Greening, 141 Wash. 2d 687, 697, 9 P.3d 206 (2000)). Flippo
argues that Blazina abrogated the holdings in State v. Blank, 131 Wash. 2d 230, 930
P.2d 1213 (1997), State v. Lundy, 176 Wn. App. 96,308 P.3d 755 (2013), State v.
Smits, 152 Wn. App. 514,216 P.3d 1097 (2009), and State v. Crook, 146 Wash. App.
24, 189 P.3d 811 (2008). But none of those cases interpreted a sentencing court's
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In re Pers. Restraint ofFlippo, No. 92616-6
obligations pursuant to RCW 10.01.160(3), and the imperative language found in
RCW 10.01.160(3) existed in 2008 just as it did in 2015. Former RCW 10.01.160
(LAWS OF 2008, ch. 318, § 2). Thus, prior to Blazina, a defendant could certainly
request that the court perform an individualized inquiry pursuant to the statute.
Flippo further asserts that arguing the issue of an individualized inquiry to
the sentencing court prior to Blazina would have been futile as a result of this
court's holding in State v. Curry, 118 Wash. 2d 911, 829 P.2d 166 (1992). In Curry,
we determined that "[n]either the statute nor the constitution requires a trial court
to enter formal, specific findings regarding a defendant's ability to pay court
costs." Id. at 916. In Blazina, we held that "[t]he record must reflect that the trial
court made an individualized inquiry into the defendant's current and future ability
to pay." 182 Wash. 2d at 838. Read together, both opinions make clear what is and
is not required of the sentencing court, and nothing about those requirements
changed with Blazina. The record must reflect that an individualized inquiry has
been made, but the court need not enter formal, specific findings. To the extent
trial counsel believed otherwise, a "'significant change in the law' requires that the
law, not counsels' understanding of the law on an unsettled question, has
changed." State v. Miller, 185 Wn.2d Ill, 116, 371 P.3d 528 (2016).
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In re Pers. ·Restraint ofFlippo, No. 92616-6
Blazina did not constitute a significant change in the law for purposes of
RCW 10.73.100(6). Flippo's PRP is thus not exempt from the one-year time bar,
and the Court of Appeals properly dismissed it.
C. APPELLATE COSTS
Finally, Flippo asks this court to deny the State's request for appellate costs.
"RCW 10.73.160(1) authorizes an appellate court to award to the State as a
substantially prevailing party under RAP 14.2 the appellate counsel expenses
incurred on behalf of a defendant." State v. Nolan, 141 Wash. 2d 620, 628, 8 P.3d
300 (2000). This court may, as a matter of discretion, decline to award any
appellate costs. Id. Based on Flippo's undisputed indigency, his statement of
finances indicating that his assets are limited to $1.67 in his prison account, and
our order appointing counsel for Flippo on review, we now choose to exercise our
discretion and direct the clerk of the court not to award appellate costs even though
the State has substantially prevailed.
CONCLUSION
In Blazina, this court emphasized the importance of adhering to the statutory
procedural safeguards calling for an individualized inquiry prior to imposing
discretionary LFOs in accordance with RCW 10.01.160(3). However, this
procedural inquiry is distinct from a court's substantive authority to impose
discretionary LFOs, and the lack of such an inquiry does not render a judgment and
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In re Pers. Restraint of Flippo, No. 92616-6
sentence facially invalid. Further, our opinion in Blazina did not result in a
material, significant change in the law requiring retroactive application for
purposes ofRCW 10.73.100(6). Accordingly, we hold Flippo's PRP is time barred
and affirm the decision of the Court of Appeals.
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In re Pers. Restraint of Flippo, No. 92616-6
WE CONCUR:
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