### FILED May 5, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III 

### IN THE COURT OFAPPEALS OFTHE STATE OFWASHINGTON DIVISION THREE
STATE OF WASHINGTON, Respondent,
v. RONALD A. MALONE, ) ) ) ) ) ) ) ) ) ~~~~~~~~~A~p~p_e_lla_n_t.~~) NO. 32781-7-111

PUBLISHED OPINION

PRICE, J.P.T.*- RonaldMalonepied guiltytopossession ofa controlled substance-methamphetamine. At sentencingthejudgeimposedbothmandatory and discretionary legal financial obligations {LFOs) uponMalone. On appeal, Malone presents four arguments: (1) thetrial court erredwhenitimposed discretionaryLFOs without an ontherecord inquiry into Malone's ability topay, (2) the mandatory DNA1 collection fee violates substantive dueprocess, (3) the mandatory DNA collection fee violates equalprotection, and (4)thetrial court abused its discretionby orderingMalone to submit a DNA sample. Wereach and agree onlywith Malone's first contention, and remand for resentencing.

*Judge Michael P. Price is serving as ajudgeprotempore ofthe courtpursuantto RCW2.06.150. 1Deoxyribonucleic acid.No. 32781-7-III State v. Malone
FACTS On May 29, 2014, Ronald Malone pled guilty to the crime offelony possession ofa controlled substance-methamphetamine. Additional facts are not relevant to the assignments oferror in this case, except to note that Malone has prior felony convictions from the time period afterthe mandatory DNA assessment began. Clerk's Papers (CP) at 16. PROCEDURE Malone pled guilty to possession ofa controlled substance as part ofapleabargain that dropped charges for two charges ofbailjumping. He was sentenced to the low end ofthe sentencing range, 12 months and one day. In addition, the court imposed LFOs,
some which are mandatory while others are discretionary. The mandatory financial obligations are: $500 victim assessment fee, $200 criminal filing fee, $100 DNA collection fee and $2,000 repeat offender fee2 for a total of$2,800 in mandatory fees. The discretionary financial obligations are: $600 court appointed attorney recoupment, $200 warrant fee, $250 drug enforcement fund, and $100 crime lab fee for a total of $1, 150 in discretionary fees. The court also ordered Malone to pay the unspecified costs ofincarceration with a cap of$500, as well as any future medical costs that Yakima County may incur upon his behalf.

2 This is a mandatory fine, but upon a finding ofindigence thejudge may defer or suspend it. RCW 69.50.430; State v. Mayer, 120 Wn. App. 720, 727, 86 P.3d 217 (2004). 2No. 3 2 781-7-III State v. Malone
Thejudgment and sentence included a standard boilerplate recitation about Malone's ability to pay, "The Court has considered the total amount owing, the defendant's past, present, and future ability to pay LFOs, includingthe defendant's financial resources and the likelihood that the defendant's status will change." CP at 17. Thejudgment and sentence also stated the "defendant shall have a biological sample collected for purposes ofDNA identification." CP at 18. Malone did not object to either the fees or the DNA collection at sentencing. The trial court record does not reflect an inquiry into Malone's individual present or future ability to pay. ANALYSIS I. Discretionary LFOs The first error Malone alleges is the imposition ofdiscretionary LFOs without the trial court conducting an individualized inquiry on the record into defendant's ability to pay. State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015). Malone did notraise this issue at the trial court, and we have discretionary authority to decline to hear arguments for the first time on appeal. RAP 2.5(a); State v. Russell, 171 Wn.2d 118, 122, 249 P.3d 604 (2011). Blazina does not mandate review ofthe alleged error in the imposition ofdiscretionary LFOs; instead it notes that "each appellate court must make its own decision to accept discretionary review." Blazina, 182 Wn.2d at 835. Persuaded by the policy concerns outlined in Blazina, we choose to exercise discretion in this case to review the merits ofthis argument. See id. at 835-38. 3No. 3 2 781-7 -III State v. Malone
Trial courts must impose mandatory LFOs, and may impose discretionary costs as well. RCW 9.94A.760; RCW 10.01.160(1). The statute uses mandatory 'shall' language that reads: The court shall not order a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method ofpayment ofcosts, the court shall take account ofthe financial resources ofthe defendant and the nature ofthe burdenthat payment ofcosts will impose. RCW 10.01.160(3). Blazina interprets this to impose a duty on the trial courtjudgeto conduct an on the record, individualizedinquiry ofthe defendant's present and future ability to pay before imposing discretionary fees, not use boilerplate standard language. Blazina, 182 Wn.2d at 838. In the present case the trial court included the insufficient standard language on Malone's ability to pay discretionary costs. CP at 17. Butthe record does not reflect any consideration ofincarceration,job status, debts, or other indicators ofability to pay. Nonetheless the trial court ordered discretionary LFOs. In light ofthe recent clarification ofthe requirements ofRCW 10.01.160(3) we remand thejudgment and sentence to the trial court with instructions to conduct the required inquiry into Malone's ability to pay to determine whether discretionary LFOs are still appropriate. II. Mandatory DNA assessment Malone also challenges the DNA collection fee on substantive due process and equal protection grounds. He also contends that it is an abuse ofdiscretion for the trial 4No. 32781-7-III State v. Malone

court to orderhim to submit a DNA sample ifone is already on record. The DNA assessment requires a mandatory $100 LFO and a biological sample. RCW 43.43.754(1). A new sample is not required ifa sample is already on file. RCW 43.43.754(2). Like his challenge to the LFOs above, these arguments are beingput forth for the first time on appeal, meaning we must also considerwhetherto grant discretion to review these arguments. As we stated earlier, we have authority under the rules to accept review ofan issue being raised for the first time on appeal. RAP 2.5(a). We chose to review the issue of discretionary LFOs in part because ofthe strongpolicy concerns outlined in Blazina but also importantly because that case outlines a duty ofthe trial courtjudgeto conduct an inquiry into the defendant's ability to pay. That differs from the constitutional arguments being presented now where Malone would bearthe burden. Under general discretion we decline to hearthese claims oferror now because they were notpreserved below. Separate from our discretion to hear any argument for the first time on appeal, RAP 2.5(a) also affirmatively allows aparty to raise an error for the first time on appeal for avariety ofreasons, the relevant one being ifit is "manifest error affecting a constitutional right." RAP 2.5(a)(3). To be "manifest" the record must reflect the facts necessary to adjudicate the claimed error on appeal. State v. Koss, 181 Wn.2d 493, 503, 334 P.3d 1042 (2014). This question ofmanifest error is identical to the argument presented in State v. Stoddardwhich we declined to review. State v. Stoddard, 192 Wn. 5No. 32781-7-111 State v. Malone App. 222, 228, 366 P.3d 474 (2016). In that case we found there was insufficient evidence on the record ofthe appellant's financial status to support a challenge to the mandatory $100 collection fee. Id. Likewise in the case at hand Malone's argument
assumes his poverty, butthe record does not show Malone presenting evidence that he cannotpay the mandatory $100 assessment fee. We decline to hear constitutional argument on the mandatory DNA collection fee. Malone also argues thatbecause he has been convicted in Washington in the past, his DNA sample has already been collected by the Washington State Patrol pursuantto RCW 43.43.754, and it is error to require him to submit a new sample. In a similarvein to his arguments ofpoverty, the record before us does not reflect that Malone's DNAwas actually taken by the Washington State Patrol Crime Laboratory or still is on file, and so is lacking in evidence. CONCLUSION We remand to the trial courtto conduct an individualizedBlazina inquiry on Ronald Malone's ability to pay discretionary LFOs. Otherwise we affirm the sentence.

I CONCUR: 

## &ffce, J.P.T
. ./

632781-7-III KORSMO, J. (dissenting in part)

- Except for the decision to remand for a new hearing onthe discretionary legal financial obligations, I agree withthe majority opinion. Forthe reasons statedpreviously, we should decline to exercise our discretion in this instance, particularly since RCW 10.01.160 gives Mr. Malonethe ability to raise the matter again at any time. See State v. Munoz-Rivera, 190 Wn. App. 870, 361 P.3d 182 (2015) (Siddoway, J., concurring); State v. Arredondo, 190 Wn. App. 512, 539-40, 360 P.3d 920 (2015) (Korsmo, J., dissenting); State v. Duncan, 180 Wn. App. 245, 327 P.3d 699 (2014), aff'dandremanded, No. 90188-1 (Wash. April 28, 2016). We have reached the curious circumstance where an alleged violation ofa statutory obligation is given review while a constitution-based claim is not reviewed. Thatpractice certainly stands the RAP 2.5(a)(3) exception on its head. As there is adequate reliefavailable for this statutory claim, I would affirm.