July 11,2013 

In elre Office of the Clerk oFCourt 

WA State Court of Appeals, Division 111 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 1 

1 No. 30548-1-111 

Respondent, 1 

1 

v. 1 

1 

LOUIS VICTOR KUSTER 1 

also known as LOUIS V. KUSTER, 1 

1 

Appellant. 1 

PUBLISHED OPINION 

SIDDOWAY, A.C.J. -Louis Kuster challenges two terms of the sentence imposed 

for his conviction of second degree rape: a restriction on any access to pornography and 

what he characterizes as an implicit finding that he has the ability to pay $800 in legal 

financial obligations (LFOs), which he contends is unsupported by the record. 

The State concedes that the pornography restriction is unconstitutionally vague in 

light of State v. Bahl, 164 Wn.2d 739, 193 P.3d 678 (20081, a concession we accept. We 

conclude that the LFOs at issue are largely mandatory fees, as to which Mr. Kuster's 

arguments have no application. To the extent the court imposed costs, we decline to 

consider Mr. Kuster's argument for the first time on appeal that the court made an 

unsupported, implicit finding of his ability to pay. We remand for the limited purpose of 
No. 30548-1-111 

State v. Kuster 

the trial court striking or narrowing the access to pornography condition. We otherwise 

affirm. 

FACTS AND PROCEDURAL BACICGROUND 

The jury found Louis Icuster guilty of second degree rape in November 20 11. At 

sentencing, the court imposed $800 in LFOs, consisting of a $500 victim assessment fee, 

$200 in court costs, and a $100 DNA' collection fee. 

The judgment included boilerplate language that the court had "considered the 

total amount owing, the defendant's past, present and future ability to pay [LFOs], 

including the defendant's financial resources and the likelihood that the defendant's 

status will change." Clerk's Papers (CP) at 3 1. It did not include any explicit finding 

that Mr. Kuster had the past, present, or future ability to pay the LFOs. The record of the 

sentencing hearing does not reveal the presentation or consideration of any information 

about Mr. Kuster's ability to pay other than the following statements by the court about 

his prospects for earnings during incarceration: 

I will set a minimum monthly payment of $5 per month. I do that because 

you are going to be in the institution. I would expect at some point you will 

get employ~nent within the institution, but you are going to be at the bottom 

of the list as . . . a new person coming in. It may take a while, number one, 

and number two they do not pay a whole lot. It is certainly substantially 

less than the minimum wage. I will make your first payment due on or 

before June 15th because you are going to have to go to classifications and 

that might take a couple months before you go to an institution. And then 

' Deoxyribonucleic acid, 
NO. 30548-1-111 

State v. Kuster 

you may take some more months before you will be eligible to earn any 

money. 

Report of Proceedings (Jan. 4, 2012) at 27. Mr. Kuster did not object at the sentencing 

hearing that his sentence included an unsupported implicit finding of his ability to pay the 

LFOs. 

The trial court sentenced Mr. Kuster to 114 inonths with credit for tiinc served, 

explaining to hiin that in light of the "determinate plus"2 senlcncing provided by RCW 

9.94A.507, 114 months would be his minimum sentence, with his inaxiinum sentence (up 

to life) to be determined by the indcterminate sentencing review board. 

The trial court's judgment also included, as a condition of Mr. ICustcr's period of 

coinmunity custody (which is up to life), "That you do not view or possess pornography 

in any form." CP at 27. 

Mr. Kuster appeals the pornography restriction and what he characterizes as an 

implicit finding of his ability to pay his LFOs. 

ANALYSIS 

The State concedcs that Mr. ICuster may challenge the condition restrictiilg his 

access to pornography for the first time on appeal. It also concedes that the condition is 

2 "Determinate plus" is a term used by state agencies to reflect the determinate and 

indeterminate components of sentences imposed on nonpersistent sex offenders. WASH. 

STATE CASELOAD FORECAST CO~~NCIL, 20 12 WASHINGTON STATE ADIJLT SENTENCING 

GUIDELINES MANUAL 5 3, at 24-25 (version 2012123 1). 
No. 30548-1-111 

State v. Kuster 

unconstitutionally vague. See Bahl, 164 Wn.2d at 745. It agrees that the condition must 

be stricken or narrowed. We accept the State's concessions. With that, there is only one 

disputed issue, raised for the first time on appeal: whether, as Mr. Kuster argues, by 

ordering him to begin making monthly payments toward his LFOs in June 2012, the trial 

court implicitly found, without supporting evidence, that he had the ability to pay. 

Whenever a person is convicted in superior court, the court may order the payment 

of LFOs as part of the sentence. RCW 9.94A.760(1). Among the financial obligations 

the court may impose are certain costs, including expenses specially incurred by the State 

in prosecuting the defendant. RCW 10.01.160(1), (2). By statute, the court is not 

authorized to order a defendant to pay costs unless he or she is or will be able to pay 

them. RCW 10.01.160(3). In determining the amount and method of payment of 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. 

Two of the LFOs imposed by the trial court on Mr. Kuster are not discretionary 

costs governed by RCW 10.01.160. They are, instead, statutorily inandated financial 

obligations. The $500 vietiin assessment is mandated by RCW 7.68.035 and the $100 

DNA collection fec is mandated by RCW 43.43.7541. Neither statute requires the trial 

court to consider the offender's past, present, or future ability to pay. Monetary 

assessments that are mandatory may be imposed on indigent offenders at the time of 

sentencing without raising constitutional concern because "'[c]onstitutional principles 
No. 30548-1-111 

State v. Kuster 

will be implicated . . . only if the govern~nent seeks to enforce collection of the 

assessments at a time when [the defendant is] unable, through no fault of his own, to 

comply,'" and "'[ilt is at the point of enforced collection . . ., where an indigent may be 

faced with the alternatives of payment or imprisonment, that he may assert a 

constitutional objection on the ground of his indigency.'" State v. Blank, 13 1 Wn.2d 230, 

24 1, 930 P.2d 12 13 (1 997) (most alterations in original) (internal quotation marks 

omitted) (quoting State v. Curry, 118 Wn.2d 91 1, 917, 829 P.2d 166 (1992)); andsee 

State v. Thompson, 153 Wn. App. 325, 336-38,223 P.3d 1165 (2009) (DNA fee); State v. 

E'illiams, 65 Wn. App. 456, 460-61, 828 P.2d 1158, 840 P.2d 902 (1992) (victim penalty 

assessment). 

The remaining $200 imposed was labeled "court costs" and the specific cost the 

court had in mind is not known. It may well be the $200 criminal filing fee-another 

mandatory fee provided by RCW 36.18.020(2)(h)-but for purposes of appeal we lnay 

not rely on that assumption. 

The State responds to Mr. Kuster's challenge to this alleged implicit finding by 

arguing that the trial court's consideration of his prospects of prison e~nploy~nent was 

enough to support an implicit finding, given his 114-month minimum, ultimately 

indeterminate sentence. The State does not address the fact that the trial court made no 

explicit finding of ability to pay. It does not address State v. Crook, 146 Wn. App. 24, 

189 P.3d 81 1 (2008), in which we held that Department of Corrections deductions from 
No. 30548-1-111 

State v. Kuslev 

inmate wages-the mechanism for payment evidently contemplated by this court-are 

not collection actions requiring review of ability to pay because statutory formulas for 

payment ensure that inmate accounts will not be reduced below indigency levels. RCW 

72.1 1.020; RCW 72.09.1 1 l(1); former RCW 72.09.015(13) (2009). The State does not 

address whether, if the court did err, we should consider it for the first time on appeal. 

RAP 2.5(a) states the general rule for appellate dispositioil of issues not raised in 

the trial court: appellate courts will not entertain them. State v. Guzman Nuiiez, 160 Wn. 

App. 150, 157, 248 P.3d 103 (201 1) (citing State v. Scott, 110 Wn.2d 682,685,757 P.2d 

492 (1988)), aff'd, 174 Wn.2d 707, 285 P.3d 21 (2012). We may decline to address an 

issue under RAP 2.5(a) sua sponte. State v Kirkpatrick, 160 Wn.2d 873, 880 n. 10, 161 

P.3d 990 (2007), overruled in part on other grounds by State v. Jasper, 174 Wn.2d 96, 

271 P.3d 876 (2012). Given the likelihood that the $200 imposed in costs was a 

mandatory fee and the ample protection for Mr. Kuster's constitutional rights that exist if 

and when the State takes action to collect the LFOs. we decline to consider this 

assignment of error further. 

We remand to the trial court for the limited purpose of striking or narrowing the 

access to pornography condition to satisfy the constitutional vagueness coilcerns 

addresscd in Bahl, e.g., by revising the condition to prohibit Mr. Kuster from using or 
NO. 30548-1-111 

State v. Kuster 

possessing any depictions of "sexually explicit coilduct" as defined in foriner RCW 

9.68A.01 l(3) (2002). We otherwise affirin. 

WE CONCUR: 

i/ 

Kulik, J.