State Of Washington, V Eric Gillen

Filed
Washington State
Court of Appeals
Division Two
November 3, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53109-7-II
Respondent,
v. UNPUBLISHED OPINION
ERIC GILLEN,
Appellant.
MAXA, J. – Eric Gillen appeals certain legal financial obligations (LFOs) imposed
following his convictions of unlawful possession of methamphetamine with intent to deliver and
three counts of bail jumping. He claims that the trial court should not have imposed supervision
fees determined by the Department of Corrections (DOC) and improperly imposed interest on his
LFOs. We remand for the trial court to reevaluate the imposition of supervision fees and to
strike the interest accrual provision regarding nonrestitution LFOs from the judgment and
sentence.
FACTS
In January 2019, a jury found Gillen guilty of unlawful possession of methamphetamine
with intent to deliver and three counts of bail jumping. At sentencing, the trial court did not
make findings of fact regarding Gillen’s present and future ability to pay LFOs. But the court
No. 53109-7-II
imposed only the mandatory victim assessment fee of $500, thereby waiving all discretionary
costs.
However, the trial court without comment did not strike from the judgment and sentence
a preprinted provision requiring Gillen to “pay supervision fees as determined by DOC.” Clerk’s
Papers (CP) at 88. And the court did not strike a preprinted provision stating: “The financial
obligations imposed in this judgment shall bear interest from the date of the judgment until
payment in full, at the rate applicable to civil judgments.” CP at 90.
Gillen appeals the imposition of supervision fees and the interest accrual provision
regarding LFOs.
ANALYSIS
A. SUPERVISION FEES
Gillen argues that the trial court erred in imposing supervision fees as determined by
DOC because he is indigent. We disagree.
RCW 9.94A.703(2)(d)1 governs the community custody supervision assessment and
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].” This court has held
that community custody supervision fees 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).
1
RCW 9.94A.703 has been amended since the events of this case transpired. Because these
amendments are not material to this case, we do not include the word “former" before RCW
9.94A.703.
2
No. 53109-7-II
Gillen relies on RCW 10.01.160(3)2, which states, “The court shall not order a defendant
to pay costs if the defendant at the time of sentencing is indigent as defined in RCW
10.101.010(3)(a) through (c).” However, a fee is not a “cost” under RCW 10.01.160(3) just
because it is a discretionary financial obligation. RCW 10.01.160(2) defines “cost” as an
expense specially incurred by the State to prosecute the defendant, to administer a deferred
prosecution program, or to administer pretrial supervision. The supervision fee is not a “cost”
under this definition. Therefore, RCW 10.01.160(3) does not prohibit the imposition of
supervision fees on an indigent defendant.
However, we acknowledge that the imposition of LFOs on indigent defendants can create
a significant hardship. See State v. Blazina, 182 Wn.2d 827, 835-37, 344 P.3d 680, 683 (2015)
The court in State v. Clark emphasized that there are strong policy arguments in favor of
considering an indigent defendant’s ability to pay discretionary LFOs even when such
consideration is not required. 191 Wn. App. 369, 376, 362 P.3d 309 (2015). And under RCW
9.94A.703(2)(d) the trial court has discretion to waive the supervision fee.
Here, it is unclear whether the trial court actually intended to impose supervision fees as
an LFO. Therefore, we encourage the court on remand to reevaluate the imposition of the
supervision fees.
B. INTEREST ACCRUAL PROVISION
Gillen claims, and the State concedes, that the trial court erred in imposing interest on his
LFOs because the legislature amended RCW 10.82.090 in 2018 to eliminate interest accrual on
nonrestitution portions of LFOs. We agree.
2
RCW 10.01.160 has been amended since the events of this case transpired. Because these
amendments are not material to this case, we do not include the word “former” before RCW
10.01.160.
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No. 53109-7-II
The statutory language is unambiguous: “As of June 7, 2018, no interest shall accrue on
nonrestitution legal financial obligations.” RCW 10.82.090(1). Gillen was convicted and
sentenced after June 7, 2018. Therefore, we remand for the trial court to strike the interest
accrual provision regarding nonrestitution LFOs from the judgment and sentence.
CONCLUSION
We remand for the trial court to reevaluate its decision to impose supervision fees and to
strike the interest accrual provision regarding nonrestitution LFOs from the judgment and
sentence.
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.
MAXA, J.
We concur:
LEE, C.J.
SUTTON, J.
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