IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

STATE OF WASHINGTON, ) No. 79538-4-I

Respondent,

)

v. ) UNPUBLISHED OPINION

)

DARRELL JON COBB, )

)

Appellant. ) FILED: February 18, 2020

_________________________________________________________________________________ )

PER CURIAM — Darrell Jon Cobb appeals the supervision tees, accrued

interest on non-restitution tinancial obligations, and collection costs imposed as

part of his sentence for unlawtul possession ot a controlled substance. Cobb

contends, and the State concedes, that the supervision fees are discretionary

and should be stricken because they were imposed despite Cobb’s indigency

and were “likely inadvertently ordered.” The State further concedes that the

accrued interest on non-restitution tinancial obligations must be stricken under

RCW 10.82.090(2) (a) (“The court shall waive all interest on the portions ot the

legal financial obligations that are not restitution that accrued prior to June 7,

2018”). We accept the State’s concessions.

Cobb also argues for the tirst time on appeal that the sentencing court

erred in imposing collection costs under RCW 36.18.190. Cobb’s judgment and
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sentence requires him to “pay the cost of services to collect unpaid legal financial

obligations, which include monitoring fees for a monthly time payment plan

and/or collection agency fees if the account becomes delinquent.” Because

imposition of this cost is discretionary,1 and because Cobb is indigent, 2 he

contends collection costs are a prohibited “cost” under RCW 10.01.160(3) and

contrary to State v. Ramirez, 191 Wn.2d 732, 738, 426 P.3d 714 (2018).~

The State argues that Cobb’s collection costs are not properly before this

court because Cobb did not object to them below and because the issue is not

ripe since the costs may never be imposed. But in the wake of State v. Blazina,

182 Wn.2d 827, 832,344 P.3d 680 (201 5), our “appellate courts have heeded its

message and regularly exercise their discretion to reach the merits of

unpreserved LFO arguments.” State v. Glover, 4 Wn.App. 2d 690, 693, 423 P.3d

290 (2018). And Blazina rejected a ripeness argument similar to Cobb’s, holding

that a trial court’s entry of an LEO order under RCW 10.01.160 satisfied all the

1 Under RCW 36.18,190, “[t]he superior court may, at sentencing or at any time

within ten years, assess as court costs the moneys paid for remuneration for services or

charges paid to collection agencies or for collection services.” (Emphasis added). See

State v. Clark, 191 Wn. App. 369, 374, 362 P.3d 309 (2015) (financial collection costs

are discretionary financial obligations).

2 In 2018, the Legislature amended RCW 10.01.160(3) to prohibit the imposition

of discretionary costs on indigent defendants: “The court shall not order a defendant to

pay costs if the defendant at the time of sentencing is indigent as defined in ROW

10.101.010(3)(a) through (c).” State v. Ramirez, 191 Wn.2d 732, 748, 426 P.3d 714

(2018) (courts may not impose discretionary costs on indigent defendants). Here, the

sentencing court recognized Cobb’s indigence when it suspended court costs and the

crime lab fee and allowed Cobb to pursue his appeal at public expense. The State does

not challenge the finding of indigence.

~ The Ramirez court emphasized that while legal financial obligations are

sometimes discretionary, if a defendant meets the criteria for indigency “courts should

seriously question that person’s ability to pay LFOs.” Ramirez, 191 Wn.2d at 742-43

(quoting State v. Blazina, 182 Wn.2d 827, 839, 344 P.3d 680 (2015).

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No. 79538-4-1/3

conditions for ripeness. Blazina, 182 Wn.2d at 832 n.1. Furthermore, it appears

from the judgment and sentence that the “monitoring fees for a monthly time

payment plan” are highly likely to accrue since the court ordered Cobb “to enter

into a monthly payment plan . . . immediately after sentencing.”

Last, the State contends collection costs are not a ‘cost” under RCW

10.01.160(2),~ which limits costs “to expenses specially incurred by the state in

prosecuting the defendant or in administering the deferred prosecution program

or pretrial supervision,” and therefore RCW 10.01.160(3) does not prohibit

imposition of collection costs on an indigent defendant.

The State reads RCW 10.01.160(2) too narrowly. See State v. VanWyck,

No. 78316-5-I, slip op. at 12, 2019 WL 5955005 (Wash. Ct. App. Nov. 12, 2019)

(unpublished), http://www.courts.wa.qov/o~inions/pdf/783165jjdf, (in rejecting

argument that domestic violence penalty was not an expense incurred in

prosecuting the defendant and therefore was not a “cost” under RCW

10.01.160(2), court declined “to take such a narrow view of the term ‘costs.”).

And regardless of how “costs” are defined, we conclude that imposition of these

discretionary costs on an indigent defendant is an abuse of discretion.5

~ We review imposition of discretionary LFOs for abuse of discretion. Ramirez,

191 Wn.2d at 741-42; Clark, 191 Wn.App. at 372.

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We remand with instructions to strike the supervision fees, accrued

interest on non-restitution financial obligations, and collection costs from the

judgment and sentence.

FORTHECOURT: / i’2

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