State v. Blazina

Madsen, C.J.

¶1 At sentencing, judges ordered Nicholas Blazina and Mauricio Paige-Colter to pay discretionary legal financial obligations (LFOs) under RCW 10.01.160(3). The records do not show that the trial judges considered either defendant’s ability to pay before imposing the LFOs. Neither defendant objected at the time. For the first time on appeal, however, both argued that a trial judge must make an individualized inquiry into a defendant’s ability to pay and that the judges’ failure to make this inquiry warranted resentencing. Citing RAP 2.5, the Court of Appeals declined to reach the issue because the defendants failed to object at sentencing and thus failed to preserve the issue for appeal.

¶2 Although a defendant has the obligation to properly preserve a claim of error, an appellate court may use its discretion to reach unpreserved claims of error consistent with RAP 2.5. In this case, we hold that the Court of Appeals did not err in declining to reach the merits. However, exercising our own RAP 2.5 discretion, we reach the merits and hold that a trial court has a statutory obligation to make an individualized inquiry into a defendant’s current and future ability to pay before the court imposes LFOs. Because the trial judges failed to make this inquiry, we remand to the trial courts for new sentence hearings.

FACTS

A. State v. Blazina

¶3 A jury convicted Blazina of one count of second degree assault, and the trial court sentenced him to 20 months in prison. The State also recommended that the court impose a $500 victim penalty assessment, $200 filing fee, $100 DNA (deoxyribonucleic acid) sample fee, $400 for the Pierce County Department of Assigned Counsel, and $2,087.87 in extradition costs. Blazina did not object, and the trial court accepted the State’s recommendation. The trial court, however, did not examine Blazina’s ability to pay the discretionary fees on the record. Instead, Blazina’s judgment and sentence included the following boilerplate language:

2.5 ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS The court has considered the total amount owing, the defend [anti’s past, present and future ability to pay legal financial obligations, including the defendant’s financial resources and the likelihood that the defendant’s status will change. The court finds that the defendant has the ability or likely future ability to pay the legal financial obligations imposed herein. ROW 9.94A.753.

Clerk’s Papers at 29.

¶4 Blazina appealed and argued that the trial court erred when it found him able to pay his LFOs. The Court of Appeals declined to consider this claim because Blazina “did not object at his sentencing hearing to the finding of his current or likely future ability to pay these obligations.” State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492 (2013). We granted review. State v. Blazina, 178 Wn. App. 1010, 311 P.3d 27 (2013).

B. State v. Paige-Colter

¶5 The State charged Paige-Colter with one count of first degree assault and one count of first degree unlawful possession of a firearm. A jury convicted Paige-Colter as charged. The trial court imposed the State’s recommended 360-month sentence of confinement. The State also recommended that the court “impose ... standard legal financial obligations, $500 crime victim penalty assessment, $200 filing fee, $100 fee for the DNA sample, $1,500 Department of Assigned Counsel recoupment . . . [, and] restitution by later order.” Paige-Colter Verbatim Report of Proceedings (Dec. 9,2011) at 6. Paige-Colter made no objection. The trial court accepted the State’s recommendation without examining Paige-Colter’s ability to pay these fees on the record. Paige-Colter’s judgment and sentence included boilerplate language stating the court considered his ability to pay the imposed legal fees.

¶6 Paige-Colter appealed and argued that the trial court erred when it imposed discretionary LFOs without first making an individualized inquiry into his ability to pay. The Court of Appeals concluded that Paige-Colter waived these claims by not objecting below. State v. Paige-Colter, noted at 175 Wn. App. 1010, 2013 WL 2444604, at *1, 2013 Wash. App. LEXIS 1325, at *3. We granted review on this issue and consolidated the case with Blazina. State v. Paige-Colter, 178 Wn.2d 1018, 312 P.3d 650 (2013).

ANALYSIS

¶7 A defendant who makes no objection to the imposition of discretionary LFOs at sentencing is not automatically entitled to review.¹ It is well settled that an “appellate court may refuse to review any claim of error which was not raised in the trial court.” RAP 2.5(a). This rule exists to give the trial court an opportunity to correct the error and to give the opposing party an opportunity to respond. State v. Davis, 175 Wn.2d 287, 344, 290 P.3d 43 (2012), cert. denied, 134 S. Ct. 62 (2013). The text of RAP 2.5(a) clearly delineates three exceptions that allow an appeal as a matter of right. See RAP 2.5(a).²

¶8 Blazina and Paige-Colter do not argue that one of the RAP 2.5(a) exceptions applies. Instead, they cite State v. Ford, 137 Wn.2d 472, 477-78, 973 P.2d 452 (1999) and argue that “it is well established that illegal or erroneous sentences may be challenged for the first time on appeal,” suggesting that they may challenge unpreserved LFO errors on appeal as a matter of right. Suppl. Br. of Pet’r (Blazina) at 3. In State v. Jones, 182 Wn.2d 1, 6, 338 P.3d 278 (2014), a recent unanimous decision by this court, we said that Ford held unpreserved sentencing errors “may be raised for the first time on appeal because sentencing can implicate fundamental principles of due process if the sentence is based on information that is false, lacks a minimum indicia of reliability, or is unsupported in the record.” However, we find the exception created by Ford does not apply in this case.

¶9 Unpreserved LFO errors do not command review as a matter of right under Ford and its progeny. As stated in Ford and reiterated in our subsequent cases, concern about sentence conformity motivated our decision to allow review of sentencing errors raised for the first time on appeal. See Ford, 137 Wn.2d at 478. We did not want to “ ‘permití ] widely varying sentences to stand for no reason other than the failure of counsel to register a proper objection in the trial court.’ ” Id. (quoting State v. Paine, 69 Wn. App. 873, 884, 850 P.2d 1369 (1993)). Errors in calculating offender scores and the imposition of vague community custody requirements create this sort of sentencing error and properly fall within this narrow category. See State v. Mendoza, 165 Wn.2d 913, 919-20, 205 P.3d 113 (2009) (prior convictions for sentencing range calculation); Ford, 137 Wn.2d at 475-78 (classification of out of state convictions for offender score calculation); State v. Bahl, 164 Wn.2d 739, 743-45, 193 P.3d 678 (2008) (community custody conditions of sentence). We thought it justifiable to review these challenges raised for the first time on appeal because the error, if permitted to stand, would create inconsistent sentences for the same crime and because some defendants would receive unjust punishment simply because his or her attorney failed to object.

¶10 But allowing challenges to discretionary LFO orders would not promote sentencing uniformity in the same way. The trial court must decide to impose LFOs and must consider the defendant’s current or future ability to pay those LFOs based on the particular facts of the defendant’s case. See RCW 10.01.160(3). The legislature did not intend LFO orders to be uniform among cases of similar crimes. Rather, it intended each judge to conduct a case-by-case analysis and arrive at an LFO order appropriate to the individual defendant’s circumstances. Though the statute mandates that a trial judge consider the defendant’s ability to pay and, here, the trial judges erred by failing to consider, this error will not taint sentencing for similar crimes in the future. The error is unique to these defendants’ circumstances, and the Court of Appeals properly exercised its discretion to decline review.

¶11 Although the Court of Appeals properly declined discretionary review, RAP 2.5(a) governs the review of issues not raised in the trial court for all appellate courts, including this one. While appellate courts normally decline to review issues raised for the first time on appeal, see Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 844 (2005), RAP 2.5(a) grants appellate courts discretion to accept review of claimed error not appealed as a matter of right.³ State v. Russell, 171 Wn.2d 118, 122, 249 P.3d 604 (2011). Each appellate court must make its own decision to accept discretionary review. National and local cries for reform of broken LFO systems demand that this court exercise its RAP 2.5(a) discretion and reach the merits of this case.

¶12 At a national level, organizations have chronicled problems associated with LFOs imposed against indigent defendants. These problems include increased difficulty in reentering society, the doubtful recoupment of money by the government, and inequities in administration. In 2010, the American Civil Liberties Union issued a report that chronicled the problems associated with LFOs in five states — including Washington — and recommended reforms to state and to local officials. Am. Civil Liberties Union, In for a Penny: The Rise of America’s New Debtors’ Prisons (2010) (ACLU), https: //www.aclu.org/files/assets /InForAPenny _web.pdf. That same year, the Brennan Center for Justice at New York University School of Law published a report outlining the problems with criminal debt, most notably the impediment it creates to reentry and rehabilitation. Alicia Bannon, Mitali Nagrecha & Rebekah Diller, Brennan Ctr. for Justice, Criminal Justice Debt: A Barrier to Reentry (2010), http://www.brennancenter.org/sites/de fault/files/legacy/Fees%20and%20Fines%20FINAL.pdf. Two years later, the Brennan Center followed up with “A Toolkit for Action” that proposed five specific reforms to combat the problems caused by inequitable LFO systems. Roopal Patel & Meghna Philip, Brennan Ctr. for Justice, Criminal Justice Debt: A Toolkit for Action (2012), http://www.brennancenter.org/sites /default/files /legacy/publications/Criminal%20Justice%20Debt%20Ba ckground%20for%20web.pdf. As part of its second proposed reform, the Brennan Center advocated that courts must determine a person’s ability to pay before the court imposes LFOs. Id. at 14.

¶13 Washington has contributed its own voice to this national conversation. In 2008, the Washington State Minority and Justice Commission issued a report that assessed the problems with the LFO system in Washington. Katherine A. Beckett, Alexes M. Harris & Heather Evans, Wash. State Minority & Justice Comm’n, The Assessment and Consequences of Legal Financial Obligations in Washington State (2008) (Wash. State Minority & Justice Comm’n), http:// www.courts.wa.gov/committee/pdf/2008LFO_report.pdf. This conversation remains important to our state and to our court system.

¶14 As amici⁴ and the above-referenced reports point out, Washington’s LFO system carries problematic consequences. To begin with, LFOs accrue interest at a rate of 12 percent and may also accumulate collection fees when they are not paid on time. RCW 10.82.090(1); Travis Stearns, Legal Financial Obligations: Fulfilling the Promise of Gideon by Reducing the Burden, 11 Seattle J. Soc. Just. 963, 967 (2013). Many defendants cannot afford these high sums and either do not pay at all or contribute a small amount every month. Wash. State Minority & Justice Comm’n, supra, at 21. But on average, a person who pays $25 per month toward their LFOs will owe the State more 10 years after conviction than they did when the LFOs were initially assessed. Id. at 22. Consequently, indigent offenders owe higher LFO sums than their wealthier counterparts because they cannot afford to pay, which allows interest to accumulate and to increase the total amount that they owe. See id. at 21-22. The inability to pay off the LFOs means that courts retain jurisdiction over impoverished offenders long after they are released from prison because the court maintains jurisdiction until they completely satisfy their LFOs. Id. at 9-11; RCW 9.94A.760(4) (“For an offense committed on or after July 1, 2000, the court shall retain jurisdiction over the offender, for purposes of the offender’s compliance with payment of the legal financial obligations, until the obligation is completely satisfied, regardless of the statutory maximum for the crime.”). The court’s long-term involvement in defendants’ lives inhibits reentry: legal or background checks will show an active record in superior court for individuals who have not fully paid their LFOs. ACLU, supra, at 68-69. This active record can have serious negative consequences on employment, on housing, and on finances. Id. at 69. LFO debt also impacts credit ratings, making it more difficult to find secure housing. Wash. State Minority & Justice Comm’n, supra, at 43. All of these reentry difficulties increase the chances of recidivism. Id. at 68.

¶15 Moreover, the State cannot collect money from defendants who cannot pay, which obviates one of the reasons for courts to impose LFOs. See RCW 9.94A.030. For example, for three-quarters of the cases sentenced in the first two months of 2004, less than 20 percent of LFOs had been paid three years after sentencing. Wash. State Minority & Justice Comm’n, supra, at 20.

¶16 Significant disparities also exist in the administration of LFOs in Washington. For example, drug-related offenses, offenses resulting in trial, Latino defendants, and male defendants all receive disproportionately high LFO penalties. Id. at 28-29. Additionally, counties with smaller populations, higher violent crime rates, and smaller proportions of their budget spent on law and justice assess higher LFO penalties than other Washington counties. Id.

¶17 Blazina and Paige-Colter argue that in order to impose discretionary LFOs under RCW 10.01.160(3), the sentencing judge must consider the defendant’s individual financial circumstances and make an individualized inquiry into the defendant’s current and future ability to pay. Suppl. Br. of Pet’r (Blazina) at 8. They also argue that the record must reflect this inquiry. We agree. By statute, “[t]he court shall not order a defendant to pay costs unless the defendant is or will be able to pay them.” RCW 10.01.160(3) (emphasis added). To determine the amount and method for paying the 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.” Id. (emphasis added).

¶18 As a general rule, we treat the word “shall” as presumptively imperative — we presume it creates a duty rather than confers discretion. State v. Bartholomew, 104 Wn.2d 844, 848, 710 P.2d 196 (1985). Here, the statute follows this general rule. Because the legislature used the word “may” 11 times and the word “shall” 8 times in RCW 10.01.160, we hold that the legislature intended the two words to have different meanings, with “shall” being imperative.

¶19 Practically speaking, this imperative under RCW 10.01.160(3) means that the 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. Within this inquiry, the court must also consider important factors, as amici suggest, such as incarceration and a defendant’s other debts, including restitution, when determining a defendant’s ability to pay.

¶20 Courts should also look to the comment in court rule GR 34 for guidance. This rule allows a person to obtain a waiver of filing fees and surcharges on the basis of indigent status, and the comment to the rule lists ways that a person may prove indigent status. GR 34. For example, under the rule, courts must find a person indigent if the person establishes that he or she receives assistance from a needs-based, means-tested assistance program, such as Social Security or food stamps. Id. (comment listing facts that prove indigent status). In addition, courts must find a person indigent if his or her household income falls below 125 percent of the federal poverty guideline. Id. Although the ways to establish indigent status remain nonex-haustive, see id., if someone does meet the GR 34 standard for indigency, courts should seriously question that person’s ability to pay LFOs.

CONCLUSION

¶21 At sentencing, judges ordered Blazina and Paige-Colter to pay LFOs under RCW 10.01.160(3). The records, however, do not show that the trial judges considered either defendant’s ability to pay before imposing the LFOs. The defendants did not object at sentencing. Instead, they raised the issue for the first time on appeal. Although appellate courts will normally decline to hear unpreserved claims of error, we take this occasion to emphasize the trial court’s obligation to consider the defendant’s ability to pay.

¶22 We hold that RCW 10.01.160(3) requires the record to reflect that the sentencing judge make an individualized inquiry into the defendant’s current and future ability to pay before the court imposes LFOs. This inquiry also requires the court to consider important factors, such as incarceration and a defendant’s other debts, including restitution, when determining a defendant’s ability to pay. Because the records in this case do not show that the sentencing judges made this inquiry into either defendant’s ability to pay, we remand the cases to the trial courts for new sentence hearings.

C. Johnson, Owens, Wiggins, González, and Gordon Mc-Cloud, JJ., and J.M. Johnson, J. Pro Tem., concur.

1 The State argues that the issue is not ripe for review because the proper time to challenge the imposition of an LFO arises when the State seeks to collect. Suppl. Br. of Resp’t (Blazina) at 5-6. We disagree. “ ‘Three requirements compose a claim fit for judicial determination: if the issues are primarily legal, do not require further factual development, and the challenged action is final.’ ” State v. Bahl, 164 Wn.2d 739, 751, 193 P.3d 678 (2008) (quoting First United Methodist Church of Seattle v. Hr’g Exam’r for Seattle Landmarks’ Pres. Bd., 129 Wn.2d 238, 255-56, 916 P.2d 374 (1996)). A challenge to the trial court’s entry of an LFO order under ROW 10.01.160(3) satisfies all three conditions.

2 By rule, “a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right.” RAP 2.5(a).

3 RAP 2.5(a) states, “The appellate court may refuse to review any claim of error which was not raised in the trial court.”

4 This court received a joint amici curiae brief from the Washington Defender Association, the American Civil Liberties Union of Washington, Columbia Legal Services, the Center for Justice, and the Washington Association of Criminal Defense Lawyers.