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## ) UNPUBLISHED OPINION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

_________________________________________________________________________________

## ) PERCURIAM

— 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 acceptthe 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 andNo. 79538-4-1/2

sentence requires him to “paythe cost ofservices to collect unpaid legal financial obligations, which include monitoring fees fora monthlytime payment plan and/orcollection agencyfees ifthe account becomes delinquent.” Because imposition ofthis 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 contraryto 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 objectto them below and because the issue is not ripe since the costs may never be imposed. But in the wake of Statev. 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 similarto Cobb’s, holding that a trial court’s entry ofan LEO order under RCW 10.01.160 satisfied all the

1 Under RCW36.18,190, “[t]he superiorcourt may, atsentencing orat anytime within ten years, assess as court coststhe moneys paid for remuneration forservices or charges paid to collection agencies orforcollection services.” (Emphasis added). See Statev. Clark, 191 Wn. App. 369, 374, 362 P.3d 309 (2015) (financial collection costs are discretionaryfinancial obligations).

2 In 2018, the Legislature amended RCW 10.01.160(3) to prohibitthe imposition ofdiscretionary costs on indigent defendants: “The courtshall not ordera defendantto pay costs ifthe defendant atthetime ofsentencing is indigent as defined in ROW 10.101.010(3)(a) through (c).” Statev. 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 labfee and allowed Cobbto pursue his appeal at publicexpense. The State does not challengethefinding of indigence.

~The Ramirez court emphasized thatwhile legal financial obligations are sometimes discretionary, ifa defendant meetsthe criteriafor indigency “courts should seriouslyquestion that person’s abilityto pay LFOs.” Ramirez, 191 Wn.2d at742-43 (quoting Statev. Blazina, 182 Wn.2d 827, 839, 344 P.3d 680 (2015). 2No. 79538-4-1/3

conditions for ripeness. Blazina, 182 Wn.2d at 832 n.1. Furthermore, it appears from thejudgment and sentencethatthe “monitoring fees fora monthlytime payment plan” are highly likelyto 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 bythe 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 ofcollection 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 argumentthat domesticviolence penaltywas not an expense incurred in prosecuting the defendant and therefore was not a “cost” under RCW 10.01.160(2), courtdeclined “to take such a narrowview ofthe term ‘costs.”). And regardless of how “costs” are defined, we conclude that imposition ofthese discretionary costs on an indigent defendant is an abuse ofdiscretion.5

~ We review imposition ofdiscretionary LFOsforabuse ofdiscretion. Ramirez, 191 Wn.2d at 741-42; Clark, 191 Wn.App. at 372.
3No. 79538-4.1/4

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: 

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