State Of Washington, V Charlene J. Allen

Filed
Washington State
Court of Appeals
Division Two
July 12, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47487-5-II
Respondent,
v.
CHARLENE JEANETTE ALLEN, UNPUBLISHED OPINION
Appellant.
JOHANSON, J. — Charlene Jeanette Allen appeals the legal financial obligations (LFOs)
the trial court imposed following her guilty plea convictions for unlawful possession of a
controlled substance (methamphetamine)1 and third degree theft.2 She argues that the trial court
(1) imposed two LFOs that were not authorized and not supported by the record and (2) erred when
it determined that she had the current or future ability to pay LFOs.3 We agree that two of the
LFOs are not supported by the evidence and that the trial court failed to conduct an adequate
inquiry into Allen’s current and future ability to pay LFOs. Accordingly, we reverse and remand
1
RCW 69.50.4013(1).
2
RCW 9A.56.050.
3
In a supplemental brief, she also argues that should she not prevail in this appeal, we should not
impose appellate costs. Because Allen is the prevailing party in this appeal, we do not address this
supplemental argument.
No. 47487-5-II
this matter to the trial court (1) to strike the drug enforcement fund contribution to OPNET4 and
drug court costs and (2) to reexamine Allen’s current and future ability to pay the remaining
discretionary LFOs as required under State v. Blazina, 182 Wash. 2d 827, 839, 344 P.3d 680 (2015).
FACTS
On February 13, 2015, officers from the Sequim Police Department were dispatched to a
theft in progress. When the officers contacted her, Allen admitted that she had taken some brushes
from the store without paying for them. The officers arrested her for third degree theft.
The officers then discovered drug paraphernalia and what appeared to be marijuana,
methamphetamine, and heroin in her possession. Allen told the officers that she regularly used
methamphetamine, heroin, and marijuana and that she had relapsed three weeks earlier. The
officers field tested the suspected drugs and then sent them to the Washington State Patrol crime
lab for testing.
The State charged Allen with unlawful possession of methamphetamine, unlawful
possession of heroin, and third degree theft. During the probable cause hearing, the trial court
asked Allen if she was employed. She responded that she was not currently employed and that she
had last worked a “couple months ago.” Report of Proceedings (RP) (Feb. 17, 2015) at 6. She
stated that she had been working 30 hours a week at a “laundry mat in Sequim” and that she made
minimum wage. RP (Feb. 17, 2015) at 7. The trial court found that Allen did not “have the
financial resources to hire an attorney” and appointed counsel at public expense. RP (Feb. 17,
2015) at 7.
4
Olympic Peninsula Narcotics Enforcement Team.
2
No. 47487-5-II
Two months later, Allen pleaded guilty to unlawful possession of methamphetamine and
third degree theft.5 Allen’s guilty plea statement acknowledged that the State would recommend
that she pay the following LFOs: a $500 victim’s assessment fee, a $100 deoxyribonucleic acid
(DNA) fee, $200 court costs, $500 in attorney fees, and “$1000 drug fine split between drug
court and OPNET.” Clerk’s Papers (CP) at 32.
At the change of plea hearing, the State recommended a first-time offender resolution,
requested that the trial court convert the 30-day sentence to 240 hours of community service, and
asked for six months of community custody and a chemical dependency evaluation. The State
requested the LFOs as set out above.
Defense counsel stated that he did not know if Allen had worked recently, noting that she
was “young”6 so he was not sure if “she’s ever had much of a career.” RP (Apr. 21, 2015) at 20.
In regard to the $1,000 fine that the State had proposed be split between OPNET and the drug
court, defense counsel asked the trial court to “waive [t]he drug fine due to indigence” and argued
that there was no authority allowing the trial court to instead “impose restitution” to be split
between OPNET and the drug court. RP (Apr. 21, 2015) at 20.
After hearing from counsel, the trial court asked Allen if she had ever had drug treatment.
Allen stated that she had “[a] few years back” and that although she did not complete the program,
she had been “clean and sober for quite a while.” RP (Apr. 21, 2015) at 21. She further stated that
5
The unlawful possession of heroin charge was dismissed.
6
Allen was 27 years old when this hearing was held.
3
No. 47487-5-II
she had relapsed when her life became stressful because the State took away her son, but she stated
that she knew she could stay clean because she had done it before.
The trial court then asked her about her education and employment. Allen told the trial
court that she had a general educational development certificate and that she had done “random
stuff” like waitressing and care giving. RP (Apr. 21, 2015) at 22. When the trial court asked her
if she had any special skills, she responded, “Just being a mom.” RP (Apr. 21, 2015) at 22. The
court then asked, “[D]o you have anything prohibiting you from having full time employment, any
disabilities or anything?” RP (Apr. 21, 2015) at 23. Allen responded, “No, just these new
charges.” RP (Apr. 21, 2015) at 23.
After this colloquy, the trial court stated that because Allen did not have any disabilities, it
was “going to find [she did] have the capacity to have some earnings in the future.” RP (Apr. 21,
2015) at 23. Allen interrupted, stating, “Yes.” RP (Apr. 21, 2015) at 23. The trial court then
stated that “given the fact you are young, you have no disabilities, I think you’re going to have the
capacity to have some earnings and I will impose the requested financial obligations by the State,”
including “the drug fine.” RP (Apr. 21, 2015) at 23-24.
Defense counsel once again argued that there was no authority allowing the trial court to
split the drug fine between OPNET and the drug court. Although the trial court had originally
stated that it was not waiving the $1,000 drug fine and that it was going to split this fine between
OPNET and the drug court, when defense counsel argued that there was no authority allowing the
4
No. 47487-5-II
trial court to split the drug fine,7 the trial court then stated it was “waiving the [drug] fine so that
it does split between Drug Court and OPNET.” RP (Apr. 21, 2015) at 27.
The trial court sentenced Allen to concurrent 30-day sentences on the two counts and
converted the sentences to 240 hours of community service. The trial court also ordered that Allen
be evaluated for chemical dependence and participate in drug treatment if it was recommended.
The trial court imposed up to 12 months of community custody if drug treatment was ordered and
up to 6 months of community custody if drug treatment was not ordered.
The trial court imposed $2,300 in LFOs: (1) a $500 victim assessment fee, (2) a $200
criminal filing fee, (3) $500 for her court-appointed attorney, (4) a $100 DNA collection fee, (5) a
$500 contribution to the “[d]rug enforcement fund . . . to OPNET,” and (6) $500 in “[o]ther fine[s]
or costs for: [Drug Court Program].” CP at 21. Although the judgment and sentence includes
lines where the trial court could have awarded (1) the drug fine under chapter 69.50 RCW, (2) a
crime lab fee, and (3) a “[s]tatutory assessment” to the “[d]rug enforcement fund of [OPNET],”
the trial court left these lines blank. CP at 22. The trial court ordered Allen to pay $40 a month
starting July 2015.
Allen appeals her LFOs.
ANALYSIS
I. STANDARD OF REVIEW
As stated in State v. Clark,
Appellate courts review a decision on whether to impose LFOs for abuse of
discretion. State v. Baldwin, 63 Wash. App. 303, 312, 818 P.2d 1116[, 837 P.2d 646]
7
Defense counsel appears to assert that other courts had accomplished this by awarding
“restitution” to OPNET and the drug court.
5
No. 47487-5-II
(1991). Discretion is abused when it is exercised on untenable grounds or for
untenable reasons. State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775
(1971). The trial court’s factual determination concerning a defendant’s resources
and ability to pay is reviewed under the “clearly erroneous” standard. State v.
Bertrand, 165 Wash. App. 393, 403-04, 267 P.3d 511 (2011); Baldwin, 63 Wash. App.
at 312.
191 Wash. App. 369, 372, 362 P.3d 309 (2015).
II. OPNET DRUG ENFORCEMENT FUND AND DRUG COURT LFOS
Allen first argues that the $500 allocated to the drug enforcement fund for OPNET and the
$500 in drug court costs were not authorized or supported by the record. 8 We agree that these
LFOs were improper.
A. OPNET DRUG ENFORCEMENT FUND CONTRIBUTION
Allen argues that the OPNET drug enforcement fund contribution was improper because
there was no evidence that the amount imposed was commensurate with or related to the costs of
investigation. We agree.
A trial court may order payment of drug enforcement fund contributions as part of a
defendant’s LFOs. State v. Hunter, 102 Wash. App. 630, 635, 9 P.3d 872 (2000). The amount of
the contribution must, however, be based on the costs of the investigation. Hunter, 102 Wash. App.
at 639.
8
It is not entirely clear from the record whether the trial court intended to impose a $500 drug
enforcement fund contribution and $500 in drug court costs or whether it intended to merely
allocate a $1,000 drug fine (RCW 69.50.430(1)). But because the judgment and sentence does not
include a drug fine and, instead, unambiguously states that the trial court was imposing a drug
enforcement fund contribution and drug court costs, we assume that the trial court was not merely
attempting to allocate the drug fine. State v. Hescock, 98 Wash. App. 600, 606, 989 P.2d 1251 (1999)
(use of trial court’s oral ruling is limited to interpreting an ambiguous written ruling; when a trial
court’s written ruling is unambiguous, we may not turn to the trial court’s oral ruling).
6
No. 47487-5-II
In Hunter, although the record did not contain specific evidence substantiating the costs of
the investigation leading to the defendant’s drug charges, the trial court stated on the record that it
was “‘obvious from the Court’s review of the record here that substantial amounts of money were
necessary to investigate and ultimately charge and convict Mr. Hunter here.’” 102 Wash. App. at
633. Division One of this court approved the drug enforcement fund contribution after determining
that despite the lack of specific information about the investigatory costs in the record, the trial
court had apparently considered those costs. Hunter, 102 Wash. App. at 641. Division One also
noted that its decision was based, in part, on the fact that the trial court “did not have the benefit
of [Division One’s] interpretation of the statute” requiring that the amount of the drug enforcement
fund contribution be based on the costs of the investigation when it imposed this obligation.
Hunter, 102 Wash. App. at 641.
The drug charges in Hunter appear to have been the result of an in-depth drug investigation
by a local drug task force.9 Here, in contrast, the drugs were inadvertently discovered during the
investigation of a property crime, there is no suggestion in the record that OPNET ever investigated
Allen, and the trial court never commented about any investigatory costs.
The State argues that the following costs were related to the investigation of a drug crime:
(1) the officer’s time to question and search the suspect, (2) field testing and processing the
evidence, (3) forensic testing,10 (4) documentation, and (5) prosecution. But the record does not
9
Hunter pleaded guilty to delivery of methamphetamine, delivery of cocaine, and unlawful
possession of a firearm. Hunter, 102 Wash. App. at 632. There are, however, no other factual details
regarding the offenses or the investigation in the Hunter opinion.
10
We note that the trial court could have imposed a separate LFO to recoup any crime lab fee.
7
No. 47487-5-II
contain any evidence about these costs, there is nothing in the record showing that any of these
possible costs were incurred by OPNET, and the trial court never recognized that there were any
significant investigatory costs.
Given the absence of any evidence of an OPNET drug investigation or related costs, the
trial court abused its discretion when it imposed the OPNET drug enforcement fund contribution.
B. DRUG COURT COSTS
Allen further argues that the drug court costs were improper. She asserts that this cost is
not authorized under RCW 9.94A.030(31).
RCW 9.94A.030(31) is a definitional statute that provides in part,
“Legal financial obligation” means a sum of money that is ordered by a superior
court of the state of Washington for legal financial obligations which may include
restitution to the victim, statutorily imposed crime victims’ compensation fees as
assessed pursuant to RCW 7.68.035, court costs, county or interlocal drug funds,
court-appointed attorneys’ fees, and costs of defense, fines, and any other financial
obligation that is assessed to the offender as a result of a felony conviction.
RCW 9.94A.030(31) includes court costs and county or interlocal drug funds in the definition of
LFOs and, arguably, drug court costs could be construed as either court costs or one of the entities
entitled to benefit from a county or interlocal drug fund. Although Hunter suggests that this is
sufficient to authorize the trial court to impose such LFOs,11 it also holds that any such costs must
be related to expenses or costs actually incurred. 102 Wash. App. at 639. Again, because there is
nothing in the record showing that Allen incurred any drug court costs, the trial court abused its
discretion in imposing these costs.
11
In Hunter, Division One held that because an earlier version of RCW 9.94A.030(31) included
“county or interlocal drug funds” in the definition of an LFO, that was sufficient to allow the trial
court to require the defendant to contribute to such a fund. 102 Wash. App. at 635.
8
No. 47487-5-II
III. ABILITY TO PAY
Allen next argues that the trial court erred when it found that she had the current or future
ability to pay LFOs. We agree.
In Blazina,12 our Supreme Court held that not only must the trial court make an
individualized inquiry into the defendant’s current and future ability to pay LFOs before imposing
them, but that “[t]his 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.” 182 Wash. 2d at 839. Here, although the trial court inquired into Allen’s education,
past employment, and potential future ability to work, it did not inquire about Allen’s broader
financial status, such as whether she had any debt or child care expenses. Without understanding
Allen’s broader financial status, there was no way the trial court could determine that she would
have the ability to pay LFOs even if she was capable of earning some income in the future. We
hold that the trial court’s inquiry was inadequate to support the imposition of LFOs.
CONCLUSION
Because the trial court abused its discretion in imposing the OPNET drug enforcement
fund contribution and the drug court costs and failed to conduct an adequate inquiry into Allen’s
current and future ability to pay LFOs, we reverse and remand this matter to the trial court to strike
the OPNET drug enforcement fund contribution and drug court costs and to reexamine
12
Our Supreme Court issued Blazina on March 12, 2015; Allen was sentenced on April 21, 2015.
Thus, the trial court had the benefit of Blazina when it imposed the LFOs.
9
No. 47487-5-II
Allen’s current and future ability to pay the remaining LFOs as required under Blazina. Because
Allen is the prevailing party on appeal, the State is not entitled to appellate costs.
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.
JOHANSON, J.
We concur:
BJORGEN, C.J.
MAXA, J.
10