### FILED OCT 15,2015 In the Office ofthe ClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) ) No. 32659-4-111 Respondent, ) ) 

### v. ) ) JOSELUISNIEVES, ) UNPUBLISHED OPINION ) Appellant. ) Brown,J. JoseLuis Nieves appeals the imposition ofdiscretionary legal financial obligations (LFOs) bythe Grant County SuperiorCourt athisresentencing for convictions offirst degree assault, intimidating a public servant, drive-by shooting, and unlawful possession ofa firearm. The case facts areexplained inthis court's opinion reversingthreeintimidation convictions andneednotberestatedbecausethey are not relevanttothis appeal. 

### See State v. 

### Nieves, unpublished opinionno. 30340-3-111, noted at 2013 WL 1908319 (Wa. Ct. App. 2013). 

### Mr. Nieves contends (1) the trial court failed to make an individualized determination ofhis presentand future abilitytopay, and (2) his defense counsel providedineffective assistanceby failing to objectto the LFOs. Because 

### Mr. Nieves did notraisethe LFO issuebefore thetrial court at sentencing or at resentencing, we exerciseourdiscretionunderRAP 2.5(a) and declineto address his frrstNo. 32659-4-II1 State v. Nieves
contention, and concludeMr. Nieves fails to establish ineffective assistance ofcounsel. Accordingly, we affinn. FACTS Without objection or discussion, the trial court originally imposed the following LFOs: victim assessment ($500), criminal filing fee ($200), sheriffservice fees ($183), court appointed attorney fees ($500), and DNA I collection fee ($100), for a total of $1,523. Onremand, the State elected to dismiss the intimidation charges. Mr. Nieves
was resentenced onthe remainingconvictions. Again, neitherparty northe trial court mentioned the LFOs at resentencing. As in the firstjudgment and sentence, the amended judgment and sentence containedboilerplate findings on Mr. Nieves's ability topay the financial obligations: Thecourt has consideredthe total amount owing, the defendant's past, present, and future ability to pay legal financial obligations, including the defendant's financial resources and the likelihood thatthe defendant's status will change. The court finds
... [t]hatthe defendant has the ability or likely future ability topay the legal financial obligations imposedherein. Clerk's Papers at 93. Thetrial court imposedidentical LFOs inthe amendedjudgment and sentence, except that it deleted the $500 fee for the court appointed attorney. The amended total for the LFOs was $1,023.

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### No. 32659-4-III State v. Nieves



### A. Discretionary LFOs Forthe first time on appeal, Mr. Nieves contends the trial court violated RCW 10.01.160(3) when it ordered him to pay discretionary LFOs without considering his present or likely future ability to pay.2 

### RCW 10.01.160(3) states the court "shall not order a defendant to pay costs unless the defendant is or will be able to pay them." The court must take into account the financial resources ofthe defendant and the burden of the costs. RCW 10.01.160(3). Eachjudge must "conduct a case-by-case analysis and arrive at an LFO order appropriate to the individual defendant's circumstances." State 

### v. Blazina, 

### 182 Wn.2d 827, 834, 344 P.3d 680 (2015). Our record shows the trial court did not address Mr. Nieves' financial resources before imposing the LFOs. Mr. Nieves did not, however, challenge the imposition ofthe discretionary LFOs at his first sentencing orhis resentencing hearings. In Blazina, 

### 182 Wn.2d at 833, the Washington Supreme Court held that RAP 2.5(a) grants appellate courts discretion

2 

### Mr. Nieves contends the discretionary LFOs include the $183 sheriffservice fees, the $40 prosecutor reimbursement fee, and the $100 DNA collection fee. The $100 DNA collection fee, however, is not a discretionary fee. Under RCW 43.43.7541, payment ofa $100 DNA collection fee is mandatory for every adult orjuvenile convicted ofa felony or certain other offenses. Although a sentencing court may waive collection ofDNA for a felon who already has a sample at the Washington state patrol crime lab, it may not waive the DNAcollection fee. See 

### RCW 43.43.754(2); RCW 43.43.7541. This court's mistaken reference in a footnote in the prior appeal to the trial court's discretion in imposing the DNA collection fee was clearly erroneous. See Nieves, 

### 2013 WL 1908319, at *2 n.4. Thus, the trial court actually ordered Mr. Nieves to pay $223 in discretionary LFOs. 3No. 32659-4-III State v. Nieves

whether to review a defendant's LFO challenge raised for the first time on appeal. In deciding whether to review the new error, we partly weigh the administrative burden and expense ofbringing Mr. Nieves to a new sentencing hearing and the need forjudicial efficiency. Considering Mr. Nieves can assert his objections to the minimal discretionary LFO assessments at a later sentencing condition review hearing before collection and the unlikely change ofthe imposed discretionary assessments, we decline his invitation for us to reverse and remand the imposition ofdiscretionary LFOs amounting to $223. We therefore exercise our discretion under RAP 2.5(a) and decide not to review this issue for the first time on appeal. B. Ineffective Assistance ofCounsel Mr. Nieves contends his trial counsel provided ineffective assistance ofcounsel by failing to challenge the LFOs. CitingBlazina, 182 Wn.2d at 835, he argues the erroneous imposition ofLFOs makes more difficult his reentering society. To prove ineffective assistance ofcounsel, Mr. Nieves must show with a preponderance ofthe evidence his counsel's performance fell below an objective standard ofreasonableness and this deficiency actually prejudiced him. Strickland v. Washington, 466 U.S. 668,687-88,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Prejudice occurs ifa reasonable probability exists that, but for the deficient performance, the outcome ofthe

4No. 32659-4-III State v. Nieves

trial would have been different. McFarland, 127 Wn.2d at 335. We stronglypresume counsel provided effective assistance. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). We review ineffective assistance ofcounsel claims de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). Mr. Nieves fails to show either deficientperformance orprejudice. InState v. Duncan, 180 Wn. App. 245, 250,327 P.3d 699 (2014), this court discussed defendant's reasonable strategy at sentencing to present themselves in the best light: it is an "unsurprising fact that many defendants do not make an effort at sentencingto suggest to the sentencing court that they are, and will remain, unproductive." Mr. Nieves was 22 years old atthe time ofhis amended sentencing, unemployed, and indigent. He offers no evidence showing he had any disability preventinghim from working after his release from confinement. On this record, it is unlikely the trial court would have reduced his discretionary fees further. Notably, the court deleted the $500 fee it had imposed in the original sentence for the court appointed attorney. He does not show his counsel's failure to object to $233 ofdiscretionary LFOs was objectively unreasonable or the results ofthe proceeding would have been different ifhe had objected. Thus, we reject his claim of ineffective assistance ofcounsel. Affirmed.

5No. 32659-4-II1 State v. Nieves

A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

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