### FILED OCTOBER3,2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. LONNIE LEE PRZESPOLEWSKI, Appellant. ) ) ) ) ) ) ) ) ) No. 

### 34776-1-111

UNPUBLISHED OPINION

FEARING, C.J. -LonniePrzespolewski appeals from a conviction ofunlawful possession ofa firearm. He asks us to reverse his conviction onthe basis ofprosecutorial misconduct. He requests that we overturn his sentence withinthe standardrange because ofcomments bythe sentencing court. He solicits us to remandthe case to the trial court to conduct an individualized inquiry as to his ability to pay legal financial obligations. We deny Przespolewski his first two requests, but grant his lastrequest. FACTS OnJune 

### 25, 2016, Lonnie Przespolewski drove his mother's NissanRogue to TownNissan, a local cardealership in East Wenatchee, to be serviced. An issue attrial

was whetherPrzespolewski knowingly possessed a gun located inside the Rogue. OurNo. 34776-1-111 State v. Przespolewski

facts focus ontrial testimony relevantto this issue. These facts provide a context under whichtheprosecutor and the trial courtutteredtheir respective commentsthat Przespolewski challenges on appeal. David Ward, Przespolewski's stepfather, testifiedthatweeks before June 25, 2016, heplaced a Raven .25 caliber firearm in the Nissan Rogue's glovebox. Ward deposited the gun in his wife's cartwo weeks before Przespolewski cameto live at the Wards' home. We do not know how long Przespolewski lived withhis stepfather and mother before June 25. Przespolewski hadrecently beenreleased from incarceration. Stepfather Ward further testified thatPrzespolewski was notpresentwhenhe placedthe gun inthe glovebox. Przespolewski testified that he knew not ofthe presence ofthe gun inthe car. When Lonnie Przespolewski arrived atthe TownNissan dealership, onthe morning ofJune 25, the dealership service manager informed Przespolewski thatthe service department lacked an opening for an appointmentuntil noon. Accordingly, Przespolewski crossed the streetto the TownFord dealership to ask for an earlier appointment. TownFord also could not service the caruntil noon. Kristy Taylor, a TownFord salesman, then noticed Przespolewski perusing cars inthe Ford dealership lot. She deemed him fidgety because he quickly moved from one carto another. Przespolewski spent forty-five minutes looking at TownFordvehicles for sale. While still awaiting a noon appointment, Lonnie Przespolewski visited a residence located next doorto TownFord and inquired abouttrailers advertised for sale inthe front 2No. 34776-1-111 State v. Przespolewski yard. The trailer owners offered Przespolewski camper sleepers for free ifhepaidto transfer title. Przespolewski returned to Town Ford to ask about using a pickup truck to transport the campers to a friend's house. Salesperson Kristy Taylor directed himto Sergio AvilaMorales, another salesperson. Taylor, however, now concerned about Przespolewski's behavior, texted her friend, East Wenatchee Police SergeantJames Marshall and asked Marshall whether she should worry about Przespolewski. Sergio AvilaMorales showed Lonnie Przespolewski a flatbed truck. When Avila and Przespolewski walkedtoward the flatbed truck, Avila observed Przespolewski carrying a wallet with an object in its middle. Avila suspectedthe object to be a gun. Avila lacked concern about the gun because Przespolewski stated he served in the military and deployed two days earlier. Avila assumed Przespolewski held apermit for the firearm. Lonnie Przespolewski testified that he retrieved a shirt from the glovebox ofhis mother's vehicle to take with him on a test drive ofthe truck. According to Przespolewski, a gun was then inside his shirt, although he insisted that he lacked knowledge ofthe presence ofthe gun. He did not explain how the gun enteredthe inside ofhis shirt. As he entered the passenger side ofthe flatbed truck, Przespolewski threw the shirt onto the seat. Avila enteredthe driver's side and the two gentlemen spoke for three minutes. While inside the truck, Przespolewski told Avila: "[T]ake my car, I'll take the truck." Report Proceedings (RP) at 87. Avila concluded that Przespolewski wanted 3No. 34776-1-111 State v. Przespolewski

to trade the Nissan Rogue for the flatbed truck. As Lonnie Przespolewski and Sergio AvilaMorales talked in the flatbed truck, Przespolewski noticed Kristy Taylorphotographing the Nissan Rogue and its license plate. Przespolewski exited the truck and accosted Taylor. Przespolewski testified that,

as he departed the truck, he grabbed his shirt, which likely still enfolded the gun. Avila testified that Przespolewski left his wallet, with a gun therein, onthe truck's seat. Avila

saw a silver, semi-automatic, .25 caliberweapon. Lonnie Przespolewski confronted Kristy Taylor. Taylor insisted to Przespolewski that she did notphotographthe license, but, at trial, Taylortestified that she textedthe license numberto SergeantJames Marshall. Przespolewski enteredthe Nissan Rogue as Taylor stood near. Sergio Avila Morales, carrying Przespolewski's wallet and the unacknowledged gun,joinedTaylor and Przespolewski at the Nissan Rogue. According to Avila, he remarkedto Przespolewski, "[H]ey, you forgot this," as he restedthe gun on the Rogue'spassenger seat. RP at 80. According to Avila, Przespolewski movedthe gun to the side ofthe seat. Kristy Taylortestified that she saw Sergio Avila carrying a walletwith a gun's silverbarrel protruding from the wallet as Avila approached Lonnie Przespolewski and her. Accordingto Taylor, Avilatold Przespolewski, "[H]ere's your gun, sir. You forgot it in the car." RP at 65. Przespolewski replied: "[T]hanks, man." RP at 66. Przespolewski testified contrary to Kristy Taylor and Sergio Avila. Przespolewski 4No. 34776-1-111 State v. Przespolewski

declared that although Avilaplaced something on the seatthrough the passengerwindow, he did not notice any gun. Kristy Taylor went inside the dealership as Przespolewski and Avila continuedto speak. Taylor asked the sales manager to page Avila, because she wantedAvilato leave Przespolewski's proximity since Przespolewski possessed a gun. Taylor also updated Sergeant James Marshall that the disquieting man possessed a weapon. Lonnie Przespolewski leftthe Ford Nissan dealership in the Nissan Rogue and retrieved his wife, Renee Michelle Przespolewski, at the Valley Mall Parkway. Przespolewski testified that his wife moved items from the front seat ofthe Rogue to the back seat to make more room in whichto sit. Przespolewski then first noticed a gun wrapped in the shirt. East Wenatchee Sergeant James Marshall responded to Kristy Taylor'stext messages. When SergeantMarshall learned ofthe firearm possession, he searched the ownership ofthe carthrough its license plate. He recognized the vehicle and Lonnie Przespolewski's association to the vehicle. Marshall knew Przespolewski. Sergeant Marshall inquired and learned that Przespolewski was currently under Department of Corrections' supervision, whichprohibited him from possessing firearms. Marshall notified the Douglas County Sheriffs Office ofPrzespolewski's possession ofa gun since the Town Ford building was outside East Wenatchee city limits. An off-duty Douglas County deputy visited Town Ford to interview Kristy Taylor and Sergio Avila 

### 5No. 34776-1-III State v. Przespolewski

Morales. In the meantime, SergeantJames Marshall and other law enforcement officers searched for Lonnie Przespolewski. Afterperusing Przespolewski's residence and the Town Nissan lot, Sergeant Marshall parked near the Town Nissan lot. Przespolewski drove past Marshall in the Nissan Rogue. Marshall noticed the car andrecognized Przespolewski. Marshall directed Przespolewski to park in the Town Nissan dealership lot. Marshall arrested Przespolewski for driving with a revoked driver's license. Marshall noted, during the arrest, that Przespolewski fidgeted, rambled, and sweated. Sergeant James Marshall testified at trial that after the arrest, Lonnie Przespolewski commented that his father's gun lay in the back seat ofthe car. Marshall averred that Przespolewski asked him not to retrieve the gunbecause the retrieval would "lock [him] up." RP at 98. According to Marshall, Przespolewski, onthe trip tojail, claimed he needed the firearm to protecthis son after a recent altercation when others attacked the son in an alley. Przespolewski countered in his testimony thathe did not recall making the statements to Marshall and thathe never intended to possess a firearm. Marshall procured a search warrant to comb the Nissan Rogue. Marshall found the firearm in the back ofthe vehicle, the location purportedly identified by Przespolewski. Afterhis arrival injail, Lonnie Przespolewski telephonedhis mother on a recorded line. Przespolewski told his mother:

6No. 34776-1-III State v. Przespolewski

I wasn'tbrandishingthat firearm at that time either. I wasn'traising it, didn'thave it swinging around or doing nothing wrong. That's what I'm pissed offabout. That fucking lady had no reasonto fucking call the cops onme in the first place. She was around my own fucking car and I got pissed offbecause I seen her fucking takingpictures ofthe license plate. I didn't even pickthat fucking gun up out ofthe fucking pick-up to bring it backto your car, he did. RP at 152. PROCEDURE The State ofWashington charged Lonnie Przespolewski with unlawful possession ofa firearm in the second degree and driving while license suspended orrevoked inthe first degree. Przespolewski conceded guiltto the driving while license revoked charge, but asked thejuryto acquithim ofunlawful possession ofa firearm. Przespolewski stipulatedto the fact thathehadpreviously been convicted ofa felony. He argued he

never knowingly possessedthe gun. In rebuttal closing argument, the prosecutor stated, in part: Ladies and gentlemen, frankly, the Defendant's story is pretty much-well, there's not really words for it otherthan it's a complete lie. First, you have to take into fact thatthe Defendantwhere he testified-one, his testimony has a number ofcrimes ofdishonesty which considerably factor and weigh onhis credibility ofboth felony convictions-Taking a MotorVehicle Without Permission in the 2nd Degree, Theft in the 2nd Degree, two counts ofPossession ofStolen Property in the 2nd Degree, a Theft in the 3rdDegree. We need to take all those criminal convictions into account when you're weighing his credibility. Butyoureally don't needthose prior convictions to determine that everything, pretty much everything the Defendant said up on the stand was a lie. Essentially, Defendant's argument is still difficult to grasp how, how he could make this right, butthat-his argument is that unbeknownst to 7No. 34776-1-III State v. Przespolewski him, he grabbed his shirt out ofthe glovebox andjusthappened topick up a firearm without knowing it. You should be allowed to take backthe gun that was admitted into evidence and you should be allowed to feel the gun, feel how heavy it is. This gun is certainly not light. So, the fact thathe's saying that hejustpicked up a shirt and oop[s], 

### I didn'tknow there was a gun in there when 

### I pickedthe shirtup. It'sjust, it'sjust not realistic. The Defendant's completely-andthe other, the otherthing that you need to consider whenyou're discussing is thathe completely contradicts every single other witness that you heard today. It's shockingthat every otherperson who sees the Defendant knows the Defendantwas running around with a firearm. Kristy Taylor is concerned. 

### I was scared he had a gun. Let's get Sergio back in here. 

### I don'tthink he's safe out there. Sergio Avilaknows he's got a gun, he's like, yeah, 

### I wasjustreturned the guy's wallet and gun to him. OfficerMarshall knows he's got a gun because the Defendant admits to OfficerMarshall that he has a gun in the vehicle and that he wasjusttaking it out because he didn'twant to leave it in the vehicle. And finally, the Defendant himselfagain and finally admits that he was possessing a gun on that audio call. So, the Defendant's entire defense and the entire testimony should be completely disregarded. And again, 

### I would askthat you find the Defendant guilty ofboth ofthese charges. Thankyou. RP at 175-77. Thejury found Lonnie Przespolewski guilty ofunlawful possession ofa firearm in the second degree and driving while license suspended orrevoked in the first degree. The standard sentencing range for unlawful possession ofa firearm is fifty-one to sixty months, and the range for driving with a suspended or revoked license is ninety to three hundred and sixty-four days. Przespolewski requested a sentence at the low end ofthe range. The court sentencedhim to a mid-range sentence offifty-five months for unlawful possession, and ninety days' confinement for driving with license suspended with the sentences to run concurrently. Atthe sentencing hearing, the courtremarked: 8No. 34776-1-III State v. Przespolewski

Mr. Przespolewski, Ijustdon'tunderstand all ofit, to be honest with you. I mean, you're, you'repleasant enough in Court and Iunderstand that you're not overly pleasantto your mother sometimes from the telephone calls, but you'repleasant enough in Court. I mean, this isjust silly. This is absolutely silly. And I hate sending you backto prison since that's something that's so silly for almost five years. It'sjustabsolutely amazing to me. And I also can'tbelieve and it's amazing to me that you wentto trial andto a 3.5Hearing on circumstances where you had no chance. And I'm assuming that your attorney told you had no chance, butyou took [twelve] people out of(indiscernible) and missed theirjobbecause they had to come up here and you had no defense. I don'tunderstand your thought process. RP at 186. During the sentencing hearing, the court asked Lonnie Przespolewski how much he could afford to pay in legal financial obligations on release from prison. Przespolewski responded: I'm disabled. I'vejust got my SSI settlement and I-$25.00, a month, I'll shoot for thatright now. RP at 187. The trial court ordered $2,115.10 in legal financial obligations as follows: $500.00 $200.00 $65.10 $250.00 $400.00 $500.00 $100.00 $100.00 Victim assessment Criminal filing fee Witness costs Jury demand fee Fees for court appointed attorney Fine under RCW 9A.20.021 Deoxyribonucleic acid (DNA) collection fee Collection fee

9No. 34776-1-111 State v. Przespolewski

Thejudgmentand sentence read that Przespolewski mustpaynot less than $25 permonth beginning immediately. Przespolewski did not objectto any imposition offinancial obligations. LAWAND ANALYSIS On appeal, Lonnie Przespolewski requests that we reverse his conviction and remand for a new trial due to prejudice resulting from the prosecutor commenting on his credibility as a witness. Alternatively, Przespolewskirequests we remand for resentencing because the trial court rejected Przespolewski's sentencingrequest on the impermissible basis thathe exercised his constitutional rightto ajurytrial. Lastly, Przespolewski requests this court strike all discretionary legal financial obligations because he lacks the current or likely future ability to pay such costs. We review each contention in tum. Prosecutor Comments Lonnie Przespolewski argues that the prosecution engaged in misconduct during rebuttal closing argument whenthe prosecutorpurportedly personally opined as to the lack ofPrzespolewski's credibility. The State counters thatthe prosecutorpermissibly commented on the evidencerather than uttering an expression ofopinion. We agree with the State. An appellate court reviews allegations ofprosecutorial misconductunder an abuse ofdiscretion standard. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014); State 10No. 34776-1-III State v. Przespolewski

v. Brett, 126 Wn.2d 136, 174-75, 892 P.2d 29 (1995). A defendant alleging prosecutorial misconduct bears the burden ofdemonstrating that the conduct was both improper and prejudicial. State v. Lindsay, 180 Wn.2d at 430. Prejudice is established only ifthere is a substantial likelihood that the instances ofmisconduct affected thejury'sverdict. State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008). We conclude the prosecuting attorney's conductto be acceptable and do not address any alleged prejudice. Lonnie Przespolewski argues that the prosecutor committed misconductby expressing his personal opinion as to Przespolewski's credibility. The prosecuting attorney should not express a personal opinion as to the credibility ofa witness orthe guilt ofa defendant. State v. Lindsay, 180 Wn.2d at 437. This conductviolates the advocate-witness rule, whichprohibits attorneys from appearing as both a witness and an advocate in the same litigation. State v. Lindsay, 180 Wn.2d at 437. Nevertheless, prosecutors have wide latitude in closing argument to draw reasonable inferences from the evidence and may freely comment on witness credibility based on the evidence. State

v. Lewis, 156 Wn. App. 230, 240, 233 P.3d 891 (2010). This latitude more strongly applies when the prosecutorrebuts an issue the defendant raised in his closing argument. State v. Lewis, 156 Wn. App. at 240. Unless it is clearthat the prosecutor did not argue

an inference from the evidence, the prosecutor's closing argument does not constitute impropervouching for or devouching ofa witness. State v. Lewis, 156 Wn. App. at 240. Lonnie Przespolewski rests his misconduct claim on the first sentence ofthe 11No. 34776-1-III State v. Przespolewski prosecutor's rebuttal closing argument to thejurywhich stated: Ladies and gentlemen, frankly, the Defendant's story is pretty much-well, there's notreally words for it otherthan it's a complete lie. RP at 175-76. Nevertheless, the prosecuting attorney did not couch his sentence as a personal opinion. More importantly, Przespolewski disregards the prosecutor's subsequent statements in which he discredits Przespolewski's testimony by emphasizing evidence contradicting Przespolewski's argument. Theprosecutor asked thejuryto consider, when weighingPrzespolewski's credibility: (1) Przespolewski's history of crimes ofdishonesty, (2) the unlikelihood ofthe veracity ofPrzespolewski's testimony that he unknowingly grabbed a shirt, containing a heavy gun inside, from the Nissan glovebox, (3) Kristy Taylor's and Sergio Avila'stestimony that Przespolewskipossessed

a gun, (4) Sergeant James Marshall's testimony that Przespolewski conceded having a gun in the vehicle, and (5) Przespolewski's admission on thejailphone call ofpossessing

a gun. Afterreviewing these pieces ofevidence and inferences therefrom, the prosecutor asked thejuryto disregard Przespolewski's testimony and defense. In a related argument, Lonnie Przespolewski contends he never experiencedthe opportunity to presenthis defense theory to an untaintedjury since the prosecutor personally opined on his credibility and guilt. Nevertheless, a prosecuting attorney may

even call a defendant a liar ifthe prosecuting attorney ties the accusation with evidence that challenges the defendant's story. State v. Copeland, 130 Wn.2d 244,291, 922 P.2d

12No. 34776-1-111 State v. Przespolewski

1304 (1996); State v. Adams, 76 Wn.2d 650,660,458 P.2d 558 (1969), rev'don other grounds by, 403 U.S. 947, 91 S. Ct. 2273, 29 

### L. Ed. 2d 855 (1971). Przespolewski's prosecutor never labeledhim a liar. Instead, the prosecuting attorney characterized Przespolewski's story as a lie. As previously noted, the State's counsel supported the commentby evidence and inferences drawn from the evidence that Przespolewski's account ofthe events was not credible because it conflicted with the testimony ofall other witnesses. Trial Court Comments Lonnie Przespolewski challenges his standard range sentence by contending the sentencingjudgepenalizedhim for exercising his constitutional right to ajurytrial. According to Przespolewski, the trial court abused its discretion by rejecting his request for a low-end standard range sentence on this impermissible basis. We disagree. The trial court sentenced Lonnie Przespolewski to a mid-range sentence offiftyfive months on count one and ninety days on counttwo with the sentences running concurrently. A defendant cannot appeal a standard range sentence unless the error presents an issue ofconstitutional magnitude or is otherwise contrary to the law. State v. Sandefer, 79 Wn. App. 178, 180-81, 900 P.2d 1132 (1995). A sentencing court's punishment ofa defendant for exercising his right to a trial instead ofaccepting a plea bargain constitutes an error ofconstitutional magnitude that may be appealed. State v. Sandefer, 79 Wn. App. at 181. When a decision to impose costs is based solely on a 13No. 34776-1-111 State v. Przespolewski

defendant's exercise ofhis right to go to trial, reversal ofthe order is appropriate. State v. Richardson, 105 Wn. App. 19, 22, 19 P.3d 431 (2001). Przespolewski emphasizes this excerpt from the trial court's remarks during the sentencing hearing: It'sjust absolutely amazing to me. And I also can'tbelieve and it's amazing to me that you wentto trial and to a 3.5 Hearing on circumstances where you had no chance. And I'm assuming that your attorney toldyou had no chance, but you took twelve people out of(indiscernible) and missed theirjobbecause they hadto come up here andyou had no defense. I don'tunderstand your thought process. RP at 186. The State counters that Przespolewski uses the court's comments out of context. The State suggests that the trial court remarked on Przespolewski's thought process in committing the crime and the silliness ofa career criminal possessing a firearm after recently leavingprison and being under supervision ofthe Department of Corrections. Thejudge expressed discontent that Przespolewski would return to prison for almost five years on such a charge. To support his assignment oferror, Lonnie Przespolewski reasons thathis case resembles Herbert Richardson's case in State v. Richardson, 105 Wn. App. 19 (2001). Przespolewski's reliance onRichardson, however, is mistaken. In State v. Richardson, the trial court changed its mind regarding imposing costs and fees after learning that Richardson rejected the State'splea offerto plead guilty to a fourth degree assault charge priorto trial, the charge ofwhich thejury convicted him. At sentencing, the trial court

14No. 34776-1-III State v. Przespolewski initially stated that it would not impose costs. When changing its mind, the sentencing court commented: Okay. I was asking

...whetherthe state had made that offer. And the state had made that offer, so that means something to me. So under those circumstances I am imposing court costs. 105 Wn. App. at 21 (second alteration in original). The appellate court concluded that the record showed that the trial court imposed costs only because HerbertRichardson rejected the plea offer. In reversing the costs imposed by the trial court, the appellate court distinguished the Richardson facts from those found in State v. Sandefer, 79 Wn. App. 178 (1995). In State v. Sandefer, the trialjudge, during a sentencing hearing, commentedthat he frequently, when sentencing within the standard range, conferred a defendant a lower sentence ifthe defendant entered a plea ofguilty. Thejudge explained that he did not seek to be kind to the defendant butrecognized that a guilty plea spares the parent and child griefin a child molestation prosecution. Paul Sandefer challenged his high-end standard range sentence by arguing that thejudge'sremarks indicated improper consideration ofhis refusal to plead guilty. This courtread the sentencing court's remarks as nothing more than a fair response to Sandefer's objection to the State's recommendation.

15No. 34776-1-111 State v. Przespolewski

As in Sandefer, Lonnie Przespolewski's sentencing court commented on Przespolewski's decision to submit to a trial. Nevertheless, the remarks did not affirmatively indicate that the court considered Przespolewski's decision to go to trial when choosing a mid-range sentence rather than a low-end sentence. Taken in context, the remarks were not vindictive or punitive. The court observedthat Przespolewski had "no chance" and "no defense." RP at 186. Butthe sentencing court did not indicate Przespolewski's decision influenced the sentence. Accordingly, we affirm Przespolewski's mid-range standard sentence. Legal Financial Obligations Lonnie Przespolewski challenges the imposition ofdiscretionary legal financial obligations because he lacks the present or future ability to pay. Przespolewski failed to objectto the imposition ofany legal financial obligations at sentencing. Nevertheless, he argues that he can still challenge the obligations for the first time on appeal, while citing RAP 2.5(a), State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015). The State contends that Lonnie Przespolewski failed to preserve any error for review on appeal. The State also argues that the trial court committedno error because the court inquired into Przespolewski's ability to pay and Przespolewski volunteered an amount thathe could pay. Upon a conviction in superior court, the court may orderthe defendantto pay restitution, costs, fines, and other assessments labeled as legal financial obligations. 16No. 34776-1-111 State v. Przespolewski

RCW 9.94A.760(1). The law distinguishes between discretionary and mandatory legal financial obligations. RCW 7.68.035, RCW 36.18.020(2)(h), and RCW43.43.7541 respectively mandate that the court impose a victim assessment fee, a criminal case filing fee, and the DNA collection fee regardless ofthe defendant's ability topay. The amount ofthese costs is $800. Trial courts must impose such fees regardless ofa defendant's indigency. State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013). Other legal financial obligations imposed by the trial court, besides restitution; are discretionary. By statute, the court may not order a defendant to pay discretionary legal financial obligations unless the defendantpossesses or will possess the financial ability to pay. RCW 10.01.160(3); State v. Curry, 118 Wn.2d 911,914, 829 P.2d 166 (1992). RCW 10.01.160(3)proscribes: 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 burdenthatpayment of costs will impose. In State v. Blazina, 182 Wn.2d at 838 (2015), our Supreme Court clarifiedthat RCW 10.01.160(3) requires the trial courtto do more than sign ajudgment and sentence with boilerplate language statingthat it engaged in the required inquiry. Rather, the record must reflect that the trial court made an individualized inquiry into the defendant's current and future ability to pay. "'[T]he court shall take into accountthe financial

resources ofthe defendant and the nature ofthe burden thatpayment ofcosts will 17No. 34776-1-III State v. Przespolewski impose."' State v. Blazina, 182 Wn.2d at 838 (quoting RCW 10.01.160(3)). '"[T]he court shall not order a defendant to pay costs unless the defendant is orwill be able to pay them."' State v. Blazina, 182 Wn.2d at 838 (quoting RCW 10.01.160(3)). Ifa defendant is found indigent, such as when his income falls below 125 percent ofthe federal poverty line or he receives need-based assistance such as Social Security, thereby automatically meeting the GR 34 standard ofindigency, courts should seriously question that persons' ability to pay LFOs. State v. Blazina, 182 Wn.2d at 839; City of Richlandv. Wakefield, 186 Wn.2d 596, 606-07, 380 P.3d 459 (2016). This court must first decide whether to address this assignment oferror since Lonnie Przespolewski did not object to the imposition oflegal financial obligations at sentencing. RAP 2.5(a) provides, in relevant part: "The appellate courtmay refuse to review any claim oferror which was not raised in the trial court." Withregard to unpreserved challenges to financial obligations, ourhigh court clarified: "Adefendant who makes no objectionto the imposition ofdiscretionary [legal financial obligations] at sentencing is not automatically entitled to review." State v. Blazina, 182 Wn.2d at 832. "Each appellate court must make its own decision to accept discretionary review." State

v. Blazina, 182 Wn.2d at 835. A majority ofthis court determines to exercise its discretion to grantreview in this appeal because ofthe high amount oflegal financial obligations imposed and because Przespolewski's only source ofincome may be Supplemental Security Income benefits. 18No. 34776-1-III State v. Przespolewski

The following colloquy occurred between Lonnie Przespolewski and the sentencing court: THE COURT: Yes. Mr. Przespolewski, how much can you afford to pay once you get out? MR. PRZESPOLEWSKI: I'm disabled. I'vejustgot my SSI settlement and I-$25.00, a month, I'll shoot for that right now. THE COURT: You can afford to pay $25.00, a month? All right. RP at 187. The court's inquiry ended there. The courtthen imposed $2,115.10 in financial obligations, $1,315.10 ofwhichwere discretionary. The discretionary financial obligations included a $65.10 witness fee, a $250.00jury demand fee, a $400.00 court appointed attorney fee, a $500.00 fine under RCW 9A.20.021, and a $100.00 collection fee. The court directed Przespolewski to start makingpayments ofnot less than $25.00 per month immediately, not on release from incarceration. Although the trial court did more than enter a boilerplatejudgment and sentence, the court did not conduct an individualized inquiry into Lonnie Przespolewski's ability to pay presently or in the future. The inquiry did not address Przespolewski's individual circumstances or seek information about his financial assets, income, or debts. Even when Przespolewski informed the court he was disabled andrecently received a settlement from the Social Security Administration, the court did not further its inquiry. CONCLUSION We affirm Lonnie Przespolewski'sjudgment ofguilt. We remand the case to the trial court to conduct an inquiry into Przespolewski's financial ability to pay legal 19No. 34776-1-III State v. Przespolewski

financial obligations now and in the future, including an inquiry as to whetherhis sole income is Social Security income. We otherwise affirm Przespolewski's sentence. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

Fearing, C.J. WE CONCUR: 

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Lawrence-Berrey, J. 

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