### FILED APRIL 13, 2017 In the Office ofthe ClerkofCourt WA StateCourt ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,


### v. JOSE LUIS AGUILAR, Appellant. 

### ) ) ) ) ) ) ) ) ) No. 34221-2-111

UNPUBLISHED OPINION

LAWRENCE-BERREY, A.CJ. -FollowingJose Aguilar's 2014 convictions for second degree murder and first degree rape ofa child, the trial court imposed a sentence that included $34,718.97 in discretionary legal financial obligations (LFOs). In 2016, Mr. Aguilarmovedthe trial court to terminate those LFOs onthe basis thathe neverreceived the requisite inquiry into his ability topayas required by 

### State v. Blazina, 182 Wn.2d 827,· 344 P.3d 680 (2015). The trial courtheld a new sentencinghearing and found Mr. Aguilarhad a minimalpresent ability to pay theLFOs. Mr. Aguilar appeals, arguing the trial court's finding was clearly erroneous. We agree andremand for the trial courtto strike the discretionary LFOs.No. 34221-2-III State v. Aguilar
FACTS In July 2014, Mr. Aguilarpleaded guilty to second degree murder and first degree rape ofa child. On September 24, 2014, the trial court imposed consecutive sentences of 357 months (for second degree murder) and 123 months to life (for first degree rape ofa child). Mr. Aguilar was 37 years old at the time ofthe sentencing hearing. The trial court also imposed $35,518.97 in LFOs. Ofthat sum, $34,718.97 were discretionary costs, which included a $60.00 sheriffs service fee, a $14,496.35 courtappointed attorney fee, and a $20,162.62 "special costs reimbursement" fee. Clerk's Papers (CP) at 16 (capitalization omitted). Thejudgmentand sentence did not contain a finding thatMr. Aguilarhadthe ability topaythe LFOs, nor didthe trial court conduct an on-the-record inquiry into Mr. Aguilar's financial resources or ability topay. The court also ordered $2,189.44 in restitution. There is no evidence in the record that Mr. Aguilar
ever appealed from the 2014judgmentand sentence. OnJanuary 20, 2016, Mr. Aguilar filed a motion in the trial court "to terminate legal financial obligation(s)." CP at 21 (capitalization omitted). Citing RCW 10.01.160(3) andBlazina, 182 Wn.2d 827, Mr. Aguilar argued he never received the requisite inquiry into his ability to pay and asked the courtto waive his discretionary LFOs. Mr. Aguilar attached a summary ofhis LFO accountto his motion.
2No. 34221-2-III State v. Aguilar
The State responded that terminatingthe LFOs was nottheproperremedy, but requested a new sentencing hearing so the court could comply withBlazina. The trial court agreed and orderedthat
a new sentencing hearing will beheld to ensure compliance bythe court with [Blazina], includingthat the court makes an individualized inquiry into the defendant's current and future ability to pay before the court imposes legal financial obligations and that said inquiry shall include the court's consideration ofimportant factors, such as incarceration and the defendant's other debts, includingrestitution, relative to determine the defendant's ability to pay. CP at 28. Citing the remission statute, the trial court also agreed to treatMr. Aguilar's motion in part as a motion to remit his LFOs, provided Mr. Aguilarbrought additional evidence to supporthis request. At the hearing, Mr. Aguilar statedhis main issue was that the Department of Corrections garnished 75 percent ofthe wages he earnedwhile incarcerated. He stated his gross monthly income was $150.00, buthis net income was only $40.00 after the garnishment. The State responded thatMr. Aguilarhad alreadypaid $193.99 toward his LFOs, which indicated he had the ability topay the remaining amount. The trial court found that Mr. Aguilarhad a "minimal"present ability to repay his LFOs, and that it did not "see a problem taking 75 percent of[h]is earnings fromjail." Report ofProceedings (RP) (Feb. 18, 2016) at 3. Thetrial court further concluded it
3No. 34221-2-111 State v. Aguilar
would be inappropriate to address or eliminate Mr. Aguilar's LFOs while he remained incarcerated, but stated it would consider

### Mr. Aguilar's request when he is released from pnson.The trial court then modified thejudgment and sentence to containthe following findings:

. . . The court finds that the defendant may have the future ability to paythe legal financial obligations imposed herein. RCW 9.94A.753. He has minimal ability to currentlypay.



### . . . It is appropriate to re-address the LFO issue when [defendant] is released from custody. CP at 34. Mr. Aguilartimely appealed. ANALYSIS Mr. Aguilar argues the trial court erred in finding he has the current or future ability to pay his discretionary LFOs. Mr. Aguilar filed his motion challenging his LFOs 16 months after the trial court entered the obligations. Ordinarily, this wouldpreclude Mr. Aguilar from challenging the 2014 sentencing court's decision imposingthose costs. See In re Pers. Restraint of Flippo, 187 Wn.2d 106, 110-11, 385 P.3d 128 (2016) (holding thatLFO errors do not render ajudgment and sentence facially invalid for purposes ofRCW 10.73.090(1), nor
was Blazina a significant changeinthe law requiring retroactive application under 4No. 34221-2-III 

### State v. Aguilar
RCW 10.73.100(6)). Because there is no record Mr. Aguilar ever appealedthe 2014 judgment and sentence, it became final the date it was entered and the trial court could have treated Mr. Aguilar's January 2016 motion solely as a motion to remit costs under RCW 10.01.160(4). 

### See City of Richlandv. Wakefield, 186 Wn.2d 596, 601, 380 P.3d 459 (2016) ("Wakefield acknowledges that she did not appeal the costs imposed as part of herjudgment and sentence, and thus she is not challenging the original decision imposing those costs."). However, because the trial court ordered a new sentencing hearing for the purpose ofdetermining Mr. Aguilar's ability to pay, Mr. Aguilar is entitled to review of that decision. 1 RCW 10.01.160(3)provides in part that a court "shall not order a defendant to pay costs unless the defendant is or will be able to pay them." Underthe plain language of this provision, a sentencing court does nothave authority to order a defendant to pay costs unless the defendant is or will be able to pay them, aftertaking into account the

1 The State appears to argue, citing 

### State v. Crook, 146 Wn. App. 24, 189 P.3d 811 (2008), that Mr. Aguilar's claim is not ripe because the State has notyet attempted to enforce payment. The 

### Blazina court rejected this argument. 

### See Blazina, 182 Wn.2d at 832 n.1. Moreover, 

### Crook involved an appeal from a motion for remission ofpayment under RCW 10.01.160(4)-itdid not involve the question ofwhetherthe trial court complied with RCW lG.01.160(3) in imposing discretionary LFOs. 

### See Crook, 146 Wn. App. at 27. 

### 5No. 34221-2-111 State v. Aguilar
defendant's financial resources. In re Pers. Restraint of Dove, 196 Wn. App. 148, 158, 381 P.3d 1280 (2016). A trial court's finding that the defendant has the ability to pay LFOs is essentially factual and this courtreviews this finding under the clearly erroneous standard. State v. Bertrand, 165 Wn. App. 393,404 n.13, 267 P.3d 511 (2011). A finding offact is clearly
erroneous when,'"although there is some evidence to support it, review ofall ofthe evidence leads to a definite and firm conviction that a mistake has been committed.'" State v. Lundy, 176 Wn. App. 96, 105, 308 P.3d 755 (2013) (internal quotation marks omitted) (quoting Schryvers v. Coulee Cmty. Hosp., 138 Wn. App. 648, 654, 158 P.3d 113 (2007)). Here, a review ofall the evidence meets this standard. Mr. Aguilarwill be in prison at least until his mid-70s. The trial court imposed $34,718.97 in discretionary LFOs. This amount began accruing interest at a 12 percent rate when the trial court entered thejudgment and sentence in September 2014. See RCW 10.82.090(1); RCW4.56.110(4); RCW 19.52.020(1). Mr. Aguilar's LFO account summary shows that by November 2015, $4,992.04 had accrued in interest, for a total balance of$40,225.00 (not including restitution).

6No. 34221-2-III 

### State v. Aguilar
The State contends Mr. Aguilar earns approximately $150permonth while incarcerated. Butthis isjust a fraction ofthe monthly interestthat accrues on his LFOs. Our Supreme Court has disapproved ofimposing LFOs when the defendant cannot orwill not be able to pay offthe principal amount. 

### See Wakefield, 186 Wn.2d at 607. Although RCW 10.01.160(3) does not expressly say what "costs"the defendant mustbe able to pay, the only rational interpretation ofthe statute is that it requires the defendantto be able to pay the total amount ofdiscretionary LFOs imposed, including interest. 

### See Wakefield, 186 Wn.2d at 607 (encouraging courts to remitLFOs ifthe person cannot "pay amounts that will 

### actuallypayoff theirLFOs" (emphasis added)). Because the evidence from the resentencinghearing does not supportthe trial court's finding thatMr. Aguilarhas the ability topaythe total discretionary costs of $34,718.97 plus interest, it was clearly erroneous for the trial courtto impose those costs.2 We therefore remand for the trial court to strike Mr. Aguilar's discretionary LFOs.

2 The dissent does not dispute thatMr. Aguilar can neverpaythe LFOjudgment. Despite the plain language ofRCW 10.01.160(3) thatprohibits imposition of discretionary LFOs ifa defendant lacks the current or likely future ability topay, the dissent would conclude that imposition ofdiscretionary LFOs was proper. In so holding, the dissent ignores the clear implication of

### Blazina, 182 Wn.2d 827: discretionaryLFOs are improper ifan individualized inquiry fails to establish thatthe defendanthas the present or likely future ability to pay LFOs. 7No. 34221-2-111 State v. Aguilar
A majority ofthe panel has determinedthis opinion will not be printed inthe Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. Lawrence-Berrey, A.CJ. I CONCUR: 

## j

Pennell, J.

8

### No. 34221-2-111 SIDDOWAY, J. (dissenting in part)-The legislature has required that the Department ofCorrections (DOC) make workprograms available to inmates. 

### See, e.g., RCW 72.09.100. It requires DOC to make deductions from an inmate's wages for costs ofincarceration, the crime victim's compensation fund, legal financial obligations (LFOs), any civiljudgment for assault, and an inmate savings account. RCW 72.09.11 l(a). The formula developed by the DOC for distributing inmate wages "shall not reduce the inmate account belowthe indigency level, as defined in RCW72.09.015." RCW 72.09.111. The deductions have beenheld constitutional. 

### In re Pers. Restraintof Metcalf, 92 Wn. App. 165, 176-83, 963 P.2d 911 (1998), 

### cert. denied, 527 U.S. 1041, 119 S. Ct. 2405, 144 L. Ed. 2d 803 (1999). The currentrate at which LFOs are withheld from an inmate's wages is 20 percent. RCW 72.09.11 l(a)(iv); DOCPolicy 200.00 attachment 2 (Deduction Matrix,
rev. 7/15). 1 

### At the hearing granted Mr. 

### Aguilar to engage in the 

### Blazina2 

### inquiry, the trial court was informed that in the 16 months or less in which Mr. Aguilarhad been in DOC custody,3 

### he had paid $193.99 toward his LFOs, suggestingthat he had earned wages of $969.95 ($193.99/.20). Clerk's Papers (CP}at 26. Based on that showing, the trial court

1

### http://www.doc.wa.gov/information/policies/files/200000a2.pdf[https://perma.cc /JL5Y-QS5N]. 2

### State v. 

### Blazina, 182 Wn.2d 827,344 P.3d 680 (2015). 3 

### The $193.99 received was as ofa submission dated January 22, 2016, Clerk's Papers (CP) at 26; hisjudgment and sentence was entered on September24, 2014. CP at 3.No. 34221-2-III 

### State v. Aguilar
found that Mr. Aguilar had a "minimal ability to currently pay." CP at 34. The court "[did not] see a problem" taking deductions from Mr. Aguilar's earnings in prison, adding, "Atthis point in time I don'tthink it's appropriate to address or elimina,te some LFO's. 

### It certainly wouldbe atthe time he is released." Report ofProceedings (RP) (Feb. 18, 2016) at 3-4 (emphasis added). In its order, the court wrote, "Itis appropriate to re-address LFO issue when Defis released from custody." 4 CP at 34. In recognizing the likelihood offuture remission ofany LFOs and interest thatMr. Aguilar is unable to pay through wage deductions while in prison, the trial court's decision is not inconsistent with 

### City of Richlandv. Wakefield, 186 Wn.2d 596,601,380 P.3d 459 (2016).

4

### See RCW 10.82.090 regarding postrelease reduction orwaiver ofinterest accruing during the period oftotal confinement. In its finding explaining amendment of the provision in 2011, the legislature stated: (1) The legislature finds that it is in the interest ofthe public to promote the reintegration into society ofindividuals convicted ofcrimes. Research indicates that legal financial obligations may constitute a significant barrier to successful reintegration. The legislature further recognizes that the accrual ofinterest on nonrestitution debt during the term ofincarceration results in many individuals leavingprison with insurmountable debt. These circumstances make it less likely that restitution will be paid in full and more likely that former offenders and their families will remain in poverty. In orderto foster reintegration, this act creates a mechanism for courts to eliminate interest accrued on nonrestitution debt during incarceration and improves incentives for payment oflegal financial obligations. (2) Atthe same time, the legislature believes thatpayment oflegal financial obligations is an importantpart oftaking personal responsibility for one's actions. The legislature therefore, supports the efforts ofcounty clerks in taking collection action against those who do not make a good faith effort to pay. LA

### ws OF 2011, ch. 106, §§ 1-2. Whatever ourpersonal views as appellatejudges, we must respect the actions ofthe legislature acting within its governmental sphere. 2No. 34221-2-111 State v. Aguilar


### The legislature has determined that inmates able to earn wages in DOC work programs should use up to 75 percentto apply to their obligations and savings, including applying 20 

### percentto LFOs imposed by the court. By ordering the trial courtto strike all ofMr. 

### Aguilar's discretionary legal financial obligations rather than reduce them, so that Mr. Aguilarwill be able to keep more ofhis wages (which is the principal reliefhe
was requesting5) 

### the majority apparently disagrees. While I am surprisedthat the trial court did not reduce the discretionary court costs, and I would have reached a different decision myself, I believe it usurps the policyjudgment ofthe legislature and the sentencing discretion ofthe trial court for us to strike the discretionary LFOs entirely, giving Mr. 

### Aguilarwhat is, effectively, a reprieve from the statutory wage deduction requirement. I therefore respectfully dissent.

5 

### As Mr. Aguilar's lawyer stated at the hearing, My client's main issue what is owing him in prison is that ultimately at the end ofthe day they take 75 percent ofhis earnings. As a result out ofa pay check that he gets per month approximately $150 

### realizing on the record that that fluctuates a little bit he winds up with about $40 

### a month. So that was part ofthe driving force in the matter, Your Honor. RP 

### (Feb. 18, 2016) 

### at 2-3. 3