FILED 

May 5, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

v. 

RONALD A. MALONE, 

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~~~~~~~~~A~p~p_e_lla_n_t.~~) 

NO. 32781-7-111 

PUBLISHED OPINION 

PRICE, J.P.T.*- Ronald Malone pied guilty to possession of a controlled 

substance-methamphetamine. At sentencing the judge imposed both mandatory and 

discretionary legal financial obligations {LFOs) upon Malone. On appeal, Malone 

presents four arguments: (1) the trial court erred when it imposed discretionary LFOs 

without an on the record inquiry into Malone's ability to pay, (2) the mandatory DNA 1 

collection fee violates substantive due process, (3) the mandatory DNA collection fee 

violates equal protection, and ( 4) the trial court abused its discretion by ordering Malone 

to submit a DNA sample. We reach and agree only with Malone's first contention, and 

remand for resentencing. 

* Judge Michael P. Price is serving as a judge pro tempore of the court pursuant to 

RCW 2.06.150. 

1 Deoxyribonucleic acid. 
No. 32781-7-III 

State v. Malone 

FACTS 

On May 29, 2014, Ronald Malone pled guilty to the crime of felony possession of a 

controlled substance-methamphetamine. Additional facts are not relevant to the 

assignments of error in this case, except to note that Malone has prior felony convictions 

from the time period after the mandatory DNA assessment began. Clerk's Papers (CP) at 16. 

PROCEDURE 

Malone pled guilty to possession of a controlled substance as part of a plea bargain 

that dropped charges for two charges of bail jumping. He was sentenced to the low end 

of the 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 

of incarceration 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 of indigence the judge may defer or 

suspend it. RCW 69.50.430; State v. Mayer, 120 Wn. App. 720, 727, 86 P.3d 217 (2004). 

2 
No. 3 2 7 81-7 -III 

State v. Malone 

The judgment 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, including the defendant's 

financial resources and the likelihood that the defendant's status will change." CP at 17. 

The judgment and sentence also stated the "defendant shall have a biological 

sample collected for purposes of DNA 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 of discretionary 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 not raise 

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 of the alleged error in the 

imposition of discretionary 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 of this argument. See id. at 835-38. 

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No. 3 2 7 81-7 -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 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. 

RCW 10.01.160(3). Blazina interprets this to impose a duty on the trial court judge to 

conduct an on the record, individualized inquiry of the 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. But the record does not reflect any 

consideration of incarceration, job status, debts, or other indicators of ability to pay. 

Nonetheless the trial court ordered discretionary LFOs. In light of the recent clarification 

of the requirements ofRCW 10.01.160(3) we remand the judgment 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 of discretion for the trial 

4 
No. 32781-7-III 

State v. Malone 

court to order him to submit a DNA sample if one 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 if a sample is already on file. RCW 43.43.754(2). Like his 

challenge to the LFOs above, these arguments are being put forth for the first time on 

appeal, meaning we must also consider whether to grant discretion to review these 

arguments. 

As we stated earlier, we have authority under the rules to accept review of an 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 of the strong policy concerns outlined in Blazina but 

also importantly because that case outlines a duty of the trial court judge to conduct an 

inquiry into the defendant's ability to pay. That differs from the constitutional arguments 

being presented now where Malone would bear the burden. Under general discretion we 

decline to hear these claims of error now because they were not preserved below. 

Separate from our discretion to hear any argument for the first time on appeal, 

RAP 2.5(a) also affirmatively allows a party to raise an error for the first time on appeal 

for a variety of reasons, the relevant one being if it 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 of manifest error is identical to the argument 

presented in State v. Stoddard which we declined to review. State v. Stoddard, 192 Wn. 

5 
No. 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 of the 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, but the record does not show Malone presenting evidence that he 

cannot pay the mandatory $100 assessment fee. We decline to hear constitutional 

argument on the mandatory DNA collection fee. 

Malone also argues that because he has been convicted in Washington in the past, 

his DNA sample has already been collected by the Washington State Patrol pursuant to 

RCW 43.43.754, and it is error to require him to submit a new sample. In a similar vein 

to his arguments of poverty, the record before us does not reflect that Malone's DNA was 

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 court to conduct an individualized Blazina inquiry on 

Ronald Malone's ability to pay discretionary LFOs. Otherwise we affirm the sentence. 

I CONCUR: 

&ffce, J.P.T . ./ 

6 
32781-7-III 

KORSMO, J. ( dissenting in part) - Except for the decision to remand for a new 

hearing on the discretionary legal financial obligations, I agree with the majority opinion. 

For the reasons stated previously, we should decline to exercise our discretion in this 

instance, particularly since RCW 10.01.160 gives Mr. Malone the 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'd and remanded, No. 90188-1 (Wash. April 28, 2016). We have reached 

the curious circumstance where an alleged violation of a statutory obligation is given 

review while a constitution-based claim is not reviewed. That practice certainly stands 

the RAP 2.5(a)(3) exception on its head. 

As there is adequate relief available for this statutory claim, I would affirm.