IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

ERNEST JAMES SORRELL,

Appellant.

)

)

)

)

)

)

)

)

)

No. 33032-0-III

PUBLISHED OPINION

FEARING, C.J. — In two recent decisions, the Washington Supreme Court 

announced a new regime for the imposition and remission of discretionary costs

imposed as legal financial obligations on convicted offenders. Beforehand, trial courts 

routinely and rotely imposed sums of discretionary legal financial obligations and 

appellate courts spurned review of the awards. In State v. Blazina, 182 Wn.2d 827, 344 

P.3d 680 (2015), the state high court directed superior courts to conduct an 

individualized inquiry into the financial circumstances of each offender before levying 

any discretionary legal financial obligations. The Supreme Court also bestowed 

discretion on this appeals court to review the superior court’s award of the financial 

obligations regardless of whether the offender objected to their assessment before the 

superior court. In City of Richland v. Wakefield, 186 Wn.2d 596, 380 P.3d 459 (2016),

FILED

JANUARY 25, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 33032-0-III

State v. Sorrell

2

the state high court instructed lower trial courts to carefully review the pecuniary status 

of the offender and consider the guidelines in GR 34 when resolving a motion for 

remission of discretionary legal financial obligations based on manifest hardship. 

Blazina and Wakefield departed from a long-standing jurisprudential view of legal 

financial obligations as a form of punishment and from an appellate practice of avoiding 

review of the obligations under the constructs of ripeness and waiver. The two decisions 

lamented a broken financial obligations system that disables an offender from 

successfully returning to society. Based on Blazina and Wakefield, financial obligations 

must no longer behave as an obsessed and possessed Police Inspector Javert shadowing

the offender for the rest of his or her life. 

Today, we must apply principles and guidelines from the two Supreme Court 

landmark decisions when determining whether the trial court erred when failing to 

directly address Ernest Sorrell’s motion for remission of financial obligations and when 

convicting him of intractably refusing to pay the obligations. In fairness to the trial 

court, the Supreme Court had yet to decide Blazina or Wakefield when it issued its 

decisions. We reverse and remand for a new hearing. 

FACTS

In 2009, a Douglas County jury found Ernest Sorrell guilty of two counts of third 

degree child molestation as a result of sexually abusing his early teen daughter. Based 

on an offender score of nine plus, the sentencing court imposed sixty months’
No. 33032-0-III

State v. Sorrell

3

confinement for both counts, with the counts to run concurrently. In an August 10, 2009 

judgment and sentence, the trial court also imposed $3,747.25 in legal financial 

obligations. The discrete obligations included a $500.00 victim assessment fee, $200.00

for the criminal case filing fee, $747.25 for witness costs, $250.00 for the jury demand 

fee, $450.00 for transcription costs, $1,000.00 for the cost of a court appointed attorney, 

a $500.00 fine resulting from a purported violation of the controlled substance act, and a 

$100.00 deoxyribonucleic acid (DNA) collection fee. The sentencing court entered a 

boilerplate finding that Sorrell had the ability or the likely future ability to pay the levied 

legal financial obligations. 

The August 2009 judgment and sentence ordered Ernest Sorrell to pay the legal 

financial obligations at the rate of $25.00 per month beginning immediately. Consistent

with all other judgment and sentences, Sorrell’s sentence imposed interest at the rate of 

twelve percent per annum on the financial obligations. Therefore, interest in the annual 

amount of $449.67 and the monthly amount of $37.47 accrued on the $3,747.25 in 

financial obligations. Payment at $25.00 per month would never retire the principal 

owed.

The 2009 judgment and sentence directed Ernest Sorrell to report to the clerk of 

the court any financial information requested. The judgment and sentence placed Sorrell 

on monetary supervision until he paid all legal financial obligations, ordered Sorrell to 

notify the clerk within two days of any change in his address, phone number or 
No. 33032-0-III

State v. Sorrell

4

employer’s name, and bade him to report to the superior court collections officer and to 

appear before any financial review hearings. 

Ernest Sorrell challenged his judgment and sentence. On July 14, 2011, this court 

reversed and dismissed one of the child molestation convictions on double jeopardy 

grounds, and this court remanded for resentencing. On May 7, 2012, the sentencing 

court, on remand, imposed an exceptional sentence of sixty months for the remaining 

conviction. The sentencing court also imposed the same amount of legal financial 

obligations. In essence, the judgment and sentence did not change. 

Ernest Sorrell appealed again by challenging his exceptional sentence. On 

November 22, 2012, and before this court entertained the merits of Sorrell’s second 

appeal, the State Department of Corrections (DOC) released Sorrell from prison. This 

appeals court, therefore, granted the State’s motion to dismiss the appeal as moot. This 

court added $2,169.35 in appellate costs to Sorrell’s financial obligations, despite 

dismissal on mootness rather than on the merits. 

Because of Ernest Sorrell’s release from prison on November 22, 2012, DOC 

filed a closure report on December 18, 2012. The report stated that Sorrell had paid 

$89.10 toward the $3,747.25 in legal financial obligations earlier imposed by the 

sentencing court. Sorrell’s last payment, on October 4, 2012, amounted to the sum of 

two cents. With accrued interest of $1,388.73, Sorrell owed, on November 22, 2012, the 

total sum of $5,046.88, not including the costs imposed by this appeals court. The DOC 
No. 33032-0-III

State v. Sorrell

5

closure report omitted any reference to appellate court costs. The closure report declared 

that the Douglas County clerk assumed the responsibility for collecting legal financial 

obligations. 

On December 24, 2012, the sentencing court confirmed and decreed the transfer 

of Ernest Sorrell’s legal financial obligations collection from DOC to the Douglas 

County Superior Court. The transfer order assessed $100 in collection costs on Ernest 

Sorrell. The order read, in part:

NOTICE: The defendant is ordered to contact the Financial 

Collections Officer for Douglas County Superior Court within seven (7) 

days of the date of this order by calling (509) 745-8529 ext. 5 or Direct 

line and voicemail 509-888-6433. Failure to contact the Financial 

Collections Officer as ordered will result in the issuance of an Order to 

Show Cause for your appearance in Court. Failure to appear at any court 

ordered hearing could result in the issuance of an arrest warrant.

Failure to make payments and notify of any change of address 

could result in the filing of a probation violation and imposition of up to 

sixty (60) days in jail per violation.

Clerk’s Papers (CP) at 92 (boldface omitted). 

Tristen Worthen, financial collections officer for Douglas County, scheduled a 

financial review hearing for Ernest Sorrell’s case for June 3, 2013. Sorrell had not paid 

any legal financial obligations since his release from prison a half year earlier. He then 

owed $7,706, which presumably included costs imposed on appeal. Worthen scheduled 

the hearing because Sorrell failed to respond to her request to verify job searches. 
No. 33032-0-III

State v. Sorrell

6

Ernest Sorrell, without legal counsel, attended the June 3, 2013 financial review 

hearing. During the hearing, financial officer Tristen Worthen acknowledged that 

Sorrell had contacted her by monthly e-mail and that Sorrell’s unemployment prevented 

him from paying. The sentencing court asked Sorrell to predict when he might obtain 

employment. Sorrell could render no prognostication. 

During the June 3 hearing, Ernest Sorrell orally motioned the court to dismiss all 

financial obligations. Sorrell disavowed any future ability to pay. He mentioned the 

difficulty in obtaining employment when employment applications required him to 

disclose any convictions for a crime and the nature of any crimes. Sorrell specifically 

uttered and the trial court responded:

DEFENDANT: —have any idea. I’m trying, Your Honor. I’d 

move the Court to dismiss the fines because I . . . The way things are 

standing, I don’t see any future ability to pay. 

THE COURT: Well, what we’re going to do at this particular time, 

Mr. Sorrell, is we’re going to continue this for about three months—

Report of Proceedings (RP) (June 3, 2013) at 4-5. The sentencing court did not directly 

address Sorrell’s motion and continued the hearing three months. The court directed 

Sorrell to monthly notify the county financial officer of his job search efforts. During 

the following eighteen months and during four additional review hearings, neither 

Sorrell nor the trial court mentioned Sorrell’s motion for remission of legal financial 

obligations. 
No. 33032-0-III

State v. Sorrell

7

On September 9, 2013, Ernest Sorrell appeared again without counsel for a 

financial review hearing. Sorrell announced to the sentencing court that, in July, he 

gained employment cleaning portable toilets for thirty hours a week. The distasteful 

occupation was the only work he could find. He mentioned that he moved to Toppenish, 

the locus of the employment. Sorrell added that child support garnished half of his 

wages. According to Sorrell, after the garnishment, he received only a couple hundred 

dollars to pay rent, utilities, and food. He borrowed money for travel expenses to 

Waterville for the financial review hearing. 

During the September 9 hearing and after Ernest Sorrell described his

circumstances, the following colloquy occurred between Sorrell, the State’s attorney, 

and the sentencing court: 

THE COURT: Alright. So when can we start making some

payments and how much can we make?

DEFENDANT: Well, I, I can’t really say that, Your Honor. I have 

about three years left on this child support with them taking half my 

wages, and until then I, I really can’t say—

THE COURT: Well, I don’t understand how child support takes 

half your wages. Why don’t you go get it modified?

DEFENDANT: I’ve attempted to that; several occasions.

. . . I actually had it—

. . . .

DEFENDANT: — stopped while I was in prison, and then as soon 

as I got out all the back support caught up to it.

THE COURT: How much—

DEFENDANT: I’ve attempted to have it completely wiped out 

because it’s not a duty owed to the State, it’s owed to Mrs.—my ex.

THE COURT: Okay. Well, we’re going to have to have some 

payments sometime, so tell me what you can make and when.
No. 33032-0-III

State v. Sorrell

8

DEFENDANT: (no audible response)

THE COURT: Start you with $10.00?

DEFENDANT: I, I just don’t see having that. I have to eat; I have 

to be able to go to work. I, I’m . . . I’m going under as it is. I . . .

THE COURT: Mr. Biggar [State’s Attorney]? Ms. Worthen?

MS. WORTHEN: His balance is $7,706.00—

. . . .

MR. BIGGAR: How much is your rent?

DEFENDANT: My rent is 475.

MR. BIGGAR: And how much do you bring home a month?

DEFENDANT: In the last two months I have brought home

$1,500.00, $1,586.00. I made—

. . . .

MR. BIGGAR: How much does support take?

DEFENDANT: Support is taking 200—or taking $500.00 a month.

MR. BIGGAR: $500.00 a month?

DEFENDANT: More than my rent.

MR. BIGGAR: So that’s . . . If my math is correct, that leaves you 

about 550 after rent and support for everything else.

DEFENDANT: For two months.

. . . .

THE COURT: I think the 1,500 was for two months.

MR. BIGGAR: Oh, for two months.

DEFENDANT: Yes.

THE COURT: So you average about 750 a month?

DEFENDANT: I, I’m left with about 650 a month, and I still have 

auto insurance, food—

THE COURT: Alright. Mr. Sorrell, you know, sooner or later 

we’re going to have to start getting some payments, but why don’t we 

knock this over ‘til December sometime, see how he’s doing then?

MR. BIGGAR: I’m fine with that, Your Honor. The problem for 

Mr. Sorrell is, of course, interest is accruing, but . . .

. . . .

MS. WORTHEN: His principal is $5,827.50 and his interest is 

approximately 1,819.

THE COURT: Alright. There’s some rules, Mr. Sorrell, that I can 

do with interest, but you have to start making payments, they have to be

consistent and all of those kinds of things, so let’s get you on your feet 

and, and do what you can to start making some payments.
No. 33032-0-III

State v. Sorrell

9

. . . .

THE COURT: Alright. See you back here January 6th.

RP (Sept. 9, 2013) at 8-13 (alterations in original). 

On January 6, 2014, Ernest Sorrell appeared without counsel for his third 

financial review hearing. Sorrell disclosed that he still worked in Toppenish but had not 

paid any legal financial obligations because of limited work hours. He explained that his 

job cleaning portable toilets revolved around agricultural work, so he worked few hours 

in the winter months. Sorrell fretted that a lawsuit brought to require public release of 

sexual offender information could lead to his loss of the job. Sorrell brought a paystub 

to the hearing, which stub showed a net income of $4,582.63 since July 2013, which 

amount averaged $917.00 per month. He reiterated that he rented an apartment at 

$475.00 per month. Sorrell claimed his mother paid for some of his groceries. He 

mentioned a struggle to keep from receiving welfare payments. Sorrell suggested folly 

behind his receiving welfare payments in order to pay financial obligations to the State. 

At the conclusion of the January 6 hearing, the sentencing court continued the 

case until April 7, 2014. We have no record of whether a hearing transpired on April 7. 

An e-mail typed by Ernest Sorrell referenced another financial review hearing on July 7. 

In an August 7, 2014 e-mail message from Ernest Sorrell to Tristen Worthen, 

Sorrell declared: 

My name is Ernest Sorrell, I have appeared in court on several 

occasions, [t]he most recent on July 7, 2014. 
No. 33032-0-III

State v. Sorrell

10

I make the same amount now that I did at the previous 5 hearings. 

With no change in income, and continually rising cost of living (fuel, 

healthcare, food) and Child Support Enforcement garnishing my wages, I 

am left in debt frequently, and forced to rely on “help” with food. I 

qualify for food stamps, but I feel that putting an additional burden on the 

State to support me is not in anybody’s best interest. . . . I hope it won[’]t 

be necessary to waste more fuel and more money to drive to Waterville to 

tell you there has been no change, when my circumstances improve the 

Douglas County Superior Court will be the first to know.

Thank you for your time and patience in this matter. 

CP at 97. Worthen replied on August 8, 2014, by stating:

Please provide me with a financial statement of exactly what is 

received and paid out on a monthly basis. This statement needs to arrive 

prior to 8/15/2014. I have attached a financial affidavit for your 

convenience.

CP at 97. 

On August 20, 2014, Ernest Sorrell responded by e-mail message to Tristen 

Worthen:

RCW 9.94A.760(13) gives county clerks access to Employment 

Security records for the purpose of wage and employment information. 

No where in the RCW you stated (9.94A.760) does it require me to give

evidence against myself. (5th amendment).

RCW 9.94B.040 clearly indicates “The state has the burden of 

showing noncompliance by a preponderance of the evidence.”

. . . .

There is no willful failure to pay on my part, only an inability. [A]t 

previous hearings the court has inquired as to my income and monthly 

living expenses. These are part of the record. There has not been a 

“willful violation” previously, and my circumstances have not changed. 

Because the court has not previously found a willful violation and there is 

no change in circumstance it would be inconsistent for the court to rule a 

willful violation occurred now. I feel that another summons to appear will 

gain nothing but to waste the court[’]s time and my fuel. Having me 
No. 33032-0-III

State v. Sorrell

11

arrested for being unable to pay will surely cost me my job, and my future 

ability to gain employment will be almost non-existent.

The information you seek I have already provided in open court 

(without the required assistance of counsel). If you failed to document the 

information, it is not my fault and I should not be forced to appear to 

answer the same questions with the same answers over and over again 

because you weren’t paying attention.

CP at 98. 

PROCEDURE

On September 11, 2014, the State of Washington filed a motion for an order 

requiring Ernest Sorrell to show cause as to why he should not be punished for failure to 

pay legal financial obligations as ordered in his 2009 judgment and sentence. The 

motion alleged Sorrell then owed $8,406.07 in financial obligations. Tristen Worthen 

signed a declaration in support of the motion to show cause. The declaration noted that 

Worthen gained information from the state Employment Security Department that 

showed Sorrell to make on average $1,390.19 per month. We do not know if the 

$1,390.19 constituted gross or net income. At an arraignment on October 14, 2014, the 

trial court appointed counsel to represent Ernest Sorrell on the charges that he willfully 

failed to pay legal financial obligations. 

During a contested hearing on December 8, 2014, Ernest Sorrell testified to his 

financial circumstances. He mentioned that, before the charges of sexual molestation of 

a child, he worked installing fire safety systems at $6,000 per month. He explained that 

he needs bonding to perform this form of work and he can no longer obtain the bonding 
No. 33032-0-III

State v. Sorrell

12

because of his conviction. He has since sought employment in the fast food industry and 

in landscaping, but employers will not hire him because he may be near children. 

During the December 8 hearing, Ernest Sorrell again described the only 

employment available to him and his recurring expenses. Sorrell worked for his uncle 

blowing feces and matted toilet paper from portable toilets. He could not deliver or 

retrieve the toilets from customers because of his conviction. His uncle paid him $13 

per hour. Sorrell averaged twenty to thirty hours per week leaving him with a monthly

net salary of approximately $1,000. A garnishment took money from his paycheck. A 

portion of his testimony suggested that child support is taken from the $1,000, but 

another portion of his testimony suggested that he received $1,000 after payment of 

support and taxes. Sorrell did not know the amount taken for child support. He was in 

arrears about $14,000 in support payments. Sorrell also owed fines to Grant County. 

According to Ernest Sorrell, he paid rent of $475 per month for his one bedroom 

apartment. Utilities cost from $50 to $150 a month depending on the season. He paid 

car insurance of $50 per month. Sorrell also paid for food, gas, and all other expenses of 

daily living. Sorrell indicated he suffers from Crohn’s disease, which randomly prevents 

him from working. The disease causes vomiting, defecation of blood, and cold sweats. 

Sorrell lacks medical insurance and recently paid $1,000 in medical bills. 

During the December 8 hearing, Ernest Sorrell further averred that he could not 

currently pay any amount toward legal financial obligations. Sorrell explained that he 
No. 33032-0-III

State v. Sorrell

13

wishes to forgo state assistance and the payment of legal financial obligations would 

require such assistance. He added that, during each trip from Toppenish to Waterville

and back, he collects cans on the side of the highway to procure gas money for the trips 

in order to avoid missing the review hearings and incurring jail time. Sorrell 

volunteered to perform community service to avoid jail time and earn money toward his 

financial obligations. Nevertheless, he questioned his ability to perform community 

service because of his conviction for molestation. 

The State of Washington requested that the sentencing court impose ten days of 

jail time for nonpayment and $50 in attorney’s fees. The State argued that Ernest Sorrell 

could “scrape up a few dollars a month to send to this Court.” RP (Dec. 8, 2014) at 28. 

The State also asserted that Sorrell should not have limited his collecting cans on the 

side of the road for the purpose of gas money for court travel, but that he should have 

constantly performed this task to raise money for his financial obligations. 

The sentencing court followed the State’s recommendation and ordered ten days 

in jail and imposed $50 in attorney’s fees. The court recognized that Ernest Sorrell 

encountered financial difficulties. Nevertheless, four hundred people in Douglas 

County, including some with similar convictions, paid financial obligations. The trial 

court mentioned that Sorrell might work thinning apples, picking apples, or pruning 

trees. The court concluded that Sorrell had the ability to pay, but chose otherwise. The 

court held the jail time in abeyance until a review hearing in March 2015. This appeal 
No. 33032-0-III

State v. Sorrell

14

further stayed the sentencing court’s order. 

LAW AND ANALYSIS

Issue 1: Whether this court should review Ernest Sorrell’s assignment that the 

trial court committed error by refusing to address his request for remission of legal 

financial obligations? 

Answer 1: Yes. 

Before answering the first issue, we review Washington’s system of financial 

obligations imposed on a convicted felon. Also, because our dissenting brother 

questions whether we should review Ernest Sorrell’s motion for remission, we 

extensively support our decision to afford review. 

The Washington code includes a maze of statutes, found in various titles, that 

creates a scheme of legal financial obligations assessed against an offender. This appeal 

centers around four such statutes: RCW 10.01.160 that addresses the assessment and 

remission of legal financial obligations, in the form of court costs, not mandatory fines,

by the superior court; RCW 10.73.160, which entails appellate costs imposed on losing 

criminal appellants and remission of those costs; RCW 9.94A.760, which 

comprehensively covers the imposition, administration, and collection of all costs, fees, 

fines and restitution ordered on conviction; and RCW 9.94B.040 that imposes penalties 

for a contumacious failure to pay costs imposed by the superior court and Court of 

Appeals. RCW 10.73.160(4) and RCW 10.01.160(4), the subsections on remission, are 
No. 33032-0-III

State v. Sorrell

15

nearly identical in language and are identical in meaning. State v. Shirts, 195 Wn. App. 

849, 854 n.4, 381 P.3d 1223 (2016). We attach the relevant sections of these statutes in 

an appendix. We will later quote portions of the statutes during our analysis. 

Under these four statutes and Washington’s system of legal financial obligations, 

the superior court, upon a conviction, may order the defendant to pay restitution, costs, 

fines, and other assessments labeled as legal financial obligations. RCW 9.94A.760(1). 

The financial obligations may include restitution to the crime victims, the cost of 

incarceration, the cost of medical care during incarceration, a crime penalty or victim 

assessment fee, a crime laboratory fee, the State’s criminal case filing fee, a DNA 

collection fee, a domestic violence assessment, the cost of a public defender, and a 

sheriff’s service fee, among other costs. RCW 7.68.035; RCW 9.94A.760(2); RCW 

10.01.160; RCW 10.99.080; RCW 36.18.020(2)(h); RCW 43.43.7541. From the date of 

judgment, legal financial obligations bear interest at a rate of twelve percent per annum. 

RCW 10.82.090; RCW 4.56.110(4); RCW 19.52.020(1). 

On the order imposing legal financial obligations, the trial court should impose a 

monthly payment required to retire the financial obligations, with payments being 

applied first to restitution. RCW 9.94A.760(1). The requirement that the offender pay a 

monthly sum toward a legal financial obligation constitutes a condition or requirement 

of a sentence, and the offender faces penalties for noncompliance. RCW 9.94A.760(10). 

To assist in collecting the financial obligations, the trial court may order a payroll 
No. 33032-0-III

State v. Sorrell

16

deduction from the defendant’s wages to pay for the obligations. RCW 9.94A.760(3). 

The judgment for financial obligations may also be enforced as a civil judgment. RCW 

9.94A.760(4). The State may add collection fees to the sum of the financial obligations. 

RCW 36.18.16(29); RCW 9.94A.780(7); RCW 9.94A.760. The trial court retains 

jurisdiction over the offender until the defendant completely satisfies the financial 

obligations, regardless of the statutory maximum for the crime. RCW 9.94A.760(4). 

The law distinguishes between discretionary and mandatory legal financial 

obligations. RCW 7.68.035, RCW 36.18.020(2)(h), and RCW 43.43.7541 respectively 

mandate that the court impose a $500 victim assessment fee, a $200 criminal case filing 

fee, and a $100 DNA collection fee regardless of the defendant’s ability to pay. Trial 

courts must impose such fees regardless of a 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 is not authorized to order a defendant to pay discretionary 

fees unless the defendant possesses or will possess the financial ability to pay. RCW 

10.01.160(3) 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.
No. 33032-0-III

State v. Sorrell

17

In recent years, the imposition of legal financial obligations by the trial court 

upon a criminal conviction has gained extensive press coverage, criticism by civil rights 

groups, critiques by legal commentators, challenges by appellants, and differing rulings 

by divisions of the Washington Court of Appeals. Many trial courts formerly routinely 

imposed discretionary financial obligations no matter the financial status of the 

defendant because RCW 10.01.160(3) encouraged imposition “unless the defendant is or 

will be able to pay them.” The statutory language implies that the trial court should 

consider the future ability of the defendant to pay, and no court can predict the future. 

After all, the defendant might win the lottery tomorrow or inherit from her rich aunt next 

week. 

Many criminal appellants assigned error to the superior court’s assessment of 

legal financial obligations without having complained about the imposition of 

obligations by the trial court. When the defendant failed to object before the superior 

court, this court formerly refused to entertain the assignment of error on appeal for 

various reasons. The defendant purportedly tactically omitted an objection with the 

hope that the trial court would consider him or her financially responsible and a 

productive member of society. State v. Duncan, 180 Wn. App. 245, 253, 327 P.3d 699 

(2014), rev’d in part, 185 Wn.2d 430, 374 P.3d 83 (2016). A challenge to financial 

obligations did not mature until the State began collection efforts. State v. Mahone, 98 

Wn. App. 342, 348, 989 P.2d 583 (1999). An indigent defendant held the option to seek 
No. 33032-0-III

State v. Sorrell

18

remission from the trial court at any time. State v. Smits, 152 Wn. App. 514, 522, 216 

P.3d 1097 (2009).

Under State v. Blazina, 182 Wn.2d 827 (2015), the trial court now holds an 

obligation to conduct an individualized inquiry into the ability of the offender to pay 

discretionary legal financial obligations. No longer may the superior court impose 

discretionary costs based on an inability to foresee the future. RCW 10.01.160(3) 

requires the trial court “do more than sign a judgment and sentence with boilerplate 

language stating that it engaged in the required inquiry.” State v. Blazina, 182 Wn.2d at 

838. Rather, the “record must reflect that the trial court made an individualized inquiry 

into the defendant’s current and future ability to pay.” State v. Blazina, 182 Wn.2d at 

838. This inquiry includes evaluating a defendant’s financial resources, incarceration, 

and other debts, including restitution. Our record does not disclose whether the 

sentencing court conducted a customized questioning of Ernest Sorrell before imposing 

discretionary obligations. 

The Washington Supreme Court, in State v. Blazina, observed ills associated with 

legal financial obligations imposed against indigent defendants. The harms include 

increased difficulty in reentering society, the doubtful recoupment of money by the 

government, and inequities in administration. Problematic consequences of automatic 

imposition of legal financial obligations entail accrual of interest at a rate of twelve 

percent and accumulation of collection fees when a defendant fails to timely pay 
No. 33032-0-III

State v. Sorrell

19

obligations. The Washington State Minority and Justice Commission reported in 2008 

that a person who pays $25 per month toward his or her legal financial obligations will 

typically owe the state more ten years after conviction than when the trial court assessed 

the obligations. KATHERINE A. BECKETT, ALEXES M. HARRIS & HEATHER EVANS,

WASH. STATE MINORITY & JUSTICE COMMISSION, THE ASSESSMENT AND 

CONSEQUENCES OF LEGAL FINANCIAL OBLIGATIONS IN WASHINGTON STATE 22 (2008) 

(Wash. State Minority & Justice Commission), http://www.courts.wa.gov/committee

/pdf/2008LFO_report.pdf. The trial court’s lengthy involvement in collecting 

obligations inhibits reentry of the offender to society regardless of whether the State 

actively seeks to collect the judgment. Legal or background checks will show an active 

criminal record in superior court for individuals who have not fully paid their financial 

obligations. The active record impairs the defendant’s access to employment, housing, 

and credit. Reentry obstacles increase the chances of recidivism. The requirement that 

the offender pay a monthly sum toward a legal financial obligation constitutes a 

condition or requirement of a sentence and the offender is subject to the penalties for 

noncompliance as provided in RCW 9.94B.040, RCW 9.94A.737, or RCW 9.94A.740 

pursuant to RCW 9.94A.760(10). The sentencing court continuously monitors the 

offender and often requires court attendance at hearings to disclose his or her financial 

condition with the attendant disruption in the offender’s schedule. Low collection rates 

of legal financial obligations call into question the utility of collection actions. Counties 
No. 33032-0-III

State v. Sorrell

20

with smaller populations impose higher legal financial obligations penalties than other 

counties. 

Statutory remission operates as an avenue for avoiding negative consequences of 

legal financial obligations. Ernest Sorrell seeks review of the trial court’s denial of, if 

not refusal to address, his motion for remission brought under RCW 10.01.160(4) and 

presumably RCW 10.73.160(4). The first sentence of each statutory subsection permits

a defendant to petition the superior court for remission of his legal financial obligations 

at any time so long as the defendant is not in “contumacious default.” State v. Shirts, 

195 Wn. App. at 859 (2016). 

Previously, this court, in State v. Mahone, 98 Wn. App. at 348 (1999), refused 

review of a motion for remission on the theory that the movant is not an aggrieved party 

under RAP 3.1 until the State seeks to enforce the legal financial obligations. RAP 3.1 

only permits an “aggrieved” person the right to appeal. The Mahone ruling ignored the 

collateral consequences of an order imposing financial obligations. The State, in 

Mahone, also contended that review by the Court of Appeals was not ripe, since 

Sylvester Mahone could, under RCW 10.73.160(4), file a motion for remission “at any 

time.” Presumably the State fathomed Mahone periodically or continuously filing 

motions, an act that would try the patience of the judicial system. The State’s argument 

could have prevented any and all review by the appellate courts of denials of motions for 

remission. In State v. Smits, 152 Wn. App. at 523 (2009), this court adopted the 
No. 33032-0-III

State v. Sorrell

21

argument that a denial of a motion for remission was not appealable since the offender 

could repeatedly file the motion. 

In State v. Shirts, 195 Wn. App. 849 (2016), this court, based on State v. Blazina, 

questioned the validity of State v. Mahone and addressed the merits of the trial court’s 

denial of Jason Shirts’ motions seeking remission of legal financial obligations while 

Shirts remained in jail. The State argued that Shirts was not an aggrieved party since the 

State had yet to seek collection of the legal financial obligations. In Blazina, the state 

Supreme Court rejected the State’s argument that the proper time for a defendant to 

challenge the imposition of legal financial obligations is when the State seeks to collect. 

In Shirts, this court considered Jason Shirts to be aggrieved for purposes of RAP 3.1. 

The Shirts court held that the trial court erred when refusing to address his motion for 

remission on the basis that the State had yet sought to enforce the legal financial 

obligations. Jason Shirts provided evidence that DOC denied him access to transitional 

classes and classification advances in prison. Obviously denying an offender 

transitional classes obstructs the offender’s chances of employment on release. The 

Shirts court did not mention the contrary ruling in State v. Smits. 

Ernest Sorrell assigns error to the trial court’s failure to address his oral motion 

for remission uttered during the financial review hearing on June 3, 2013. He claims the 

trial court ignored his motion. The State concedes that Ernest Sorrell brought a motion 

for remission. The State argues instead that the sentencing court denied the request. 
No. 33032-0-III

State v. Sorrell

22

We question whether the Ernest Sorrell’s trial court considered his motion for 

remission. The court never expressly addressed the motion. The trial court asked 

Sorrell about his employment opportunities, and Sorrell responded that he could not 

predict when he might obtain a job and mentioned the difficulty of a sexual offender 

gaining employment. The trial court inquired no further as to Sorrell’s financial 

condition and instead postponed the review hearing for three months. The sentencing 

court never later mentioned any pending motion for remission. The trial court never 

analyzed or issued a ruling as to whether payment of the legal financial obligations 

would cause “manifest hardship.” 

We request that a sentencing court conduct a thorough review of the offender’s 

financial circumstances and apply a “manifest hardship” standard when the offender 

seeks remission. Nevertheless, we agree with the State that other express rulings by the 

trial court confirm that the trial court would have denied the motion if Sorrell continued 

to press the motion. Therefore, we proceed as if the trial court denied Sorrell’s 

remission motion. The State does not argue on appeal that this court should refuse 

entertaining Sorrell’s assignment of error that the trial court wrongfully ignored or 

denied his motion. 

The State also does not argue on appeal that Ernest Sorrell failed to timely appeal 

the trial court’s refusal to entertain the motion for remission on June 3, 2013. Nor does 

the State contend that the denial of the motion is not ripe for review. 
No. 33032-0-III

State v. Sorrell

23

When the superior court held Ernest Sorrell in contempt, the denial or 

disregarding of the motion for remission transformed into serious consequences to 

Sorrell. By then, the State had sought to collect the legal financial obligations. Sorrell 

therefore gained status as an aggrieved party even under State v. Mahone such that he 

became entitled to appeal as a matter of right. An adjudication of contempt is a final 

determination of the rights of the parties to the proceedings in that the ruling determines

the contumacy of, and affords a basis for, a coercive remedy thereby establishing a right 

to an appeal. Arnold v. National Union of Marine Cooks & Stewards Association, 41 

Wn.2d 22, 27, 246 P.2d 1107 (1952). 

Issue 2: Whether the trial court should have granted Ernest Sorrell’s motion for 

remission? 

Answer 2: We do not answer whether the trial court erred when denying the 

motion. Nevertheless, we remand for a hearing on the merits. 

We now address the merits of Ernest Sorrell’s motion for remission. Under RCW 

10.01.160(4), an offender who has been ordered to pay legal financial obligations and 

who is not in “contumacious default” may petition for remission of costs “at any time.” 

RCW 10.01.160(4); State v. Shirts, 195 Wn. App. at 858-59 (2016). If the offender has 

not contumaciously defaulted, the trial court must determine whether the court’s 

imposition of financial obligations has created a “manifest hardship.” RCW 

10.01.160(4); City of Richland v. Wakefield, 186 Wn.2d at 605-06 (2016); State v. 
No. 33032-0-III

State v. Sorrell

24

Wilson, 198 Wn. App. 632, 636, 393 P.3d 892 (2017). If payment will impose manifest 

hardship on the defendant or the defendant’s immediate family, the court “may” remit all 

or part of the amount due or modify the method of payment under RCW 10.01.170. 

RCW 10.73.160(4); State v. Blank, 131 Wn.2d 230, 235, 930 P.2d 1213 (1997). 

We note again the distinction between mandatory and discretionary legal 

financial obligations. Mandatory legal financial obligations are not “costs” under RCW 

10.01.160(1) and (2), and, therefore, the mandatory obligations are not subject to a 

motion to remit under RCW 10.01.160(4). State v. Shirts, 195 Wn. App. at 859 n.7. 

The August 10, 2009 judgment against Ernest Sorrell levied $3,747.25 in legal financial 

obligations. This sum included the routine $800.00 in mandatory obligations of a 

$500.00 victim assessment fee, a $200.00 for the criminal case filing fee, and a $100.00

DNA collection fee. Any motion for remission could not remove the $800.00 in 

mandatory obligations. We do not address whether an offender may obtain remission of 

interest owed on mandatory legal financial obligations, since Ernest Sorrell has not 

raised this issue. 

Webster’s defines “contumacious” as “perverse in resisting authority” and 

“stubbornly disobedient.” WEBSTER’S THIRD INTERNATIONAL DICTIONARY 497 (1969);

State v. Shirts, 195 Wn. App. at 859 n.8. The trial court never expressly determined if 

Ernest Sorrell was in contumacious default. 

Ernest Sorrell’s first financial review hearing occurred on June 3, 2013, when he 
No. 33032-0-III

State v. Sorrell

25

moved for remission. At that time, Sorrell was unemployed. The financial officer 

present at the hearing reported that Sorrell kept in contact by monthly e-mail and 

disclosed his lack of employment and inability to pay. Sorrell explained to the court 

how his status as a convicted sex offender rendered his search for employment difficult 

and to date impossible. Under these undisputed facts, Sorrell was not in willful default. 

The State did not argue to the contrary then. Therefore, Sorrell was entitled to motion 

for relief pursuant to RCW 10.01.160(4). The trial court erred, on June 3, 2013, by 

failing to consider Ernest Sorrell’s request and conduct the “manifest hardship” test 

required by law. Therefore, we remand for the superior court to determine whether 

Sorrell met the test and whether the court should have exercised its discretion to remit 

the financial obligations on such date. In City of Richland v. Wakefield, 186 Wn.2d at 

605-06, our Supreme Court noted the typical remedy, when the trial court commits 

reversible error by not recognizing or applying the correct “manifest hardship” analysis, 

is a remand for the trial court to apply the proper standard. 

Neither party has briefed whether the superior court should now measure 

manifest hardship as of June 3, 2013 or the date of the remand hearing. Both parties 

should address this issue with the superior court. 

The term “manifest hardship” is undefined in RCW 10.01.160(4). City of 

Richland v. Wakefield, 186 Wn.2d at 606 (2016). One’s present inability to provide for 

one’s own basic needs, food, shelter, basic medical expenses, would meet that standard, 
No. 33032-0-III

State v. Sorrell

26

however. City of Richland v. Wakefield, 186 Wn.2d at 606. Possessing some ability to 

pay does not necessarily preclude payment from creating a “manifest hardship.” City of 

Richland v. Wakefield, 186 Wn.2d at 605-06. In determining manifest hardship, the trial 

court should use GR 34 as a guide. City of Richland v. Wakefield, 186 Wn.2d at 606. 

GR 34 is a court rule designed to simplify the process for determining whether a person 

is indigent for purposes of court and clerk’s fees and charges in civil cases. City of 

Richland v. Wakefield, 186 Wn.2d at 606-07. Under GR 34, courts must find a person 

indigent if his or her household income falls below 125 percent of the federal poverty 

guideline. City of Richland v. Wakefield, 186 Wn.2d at 607. If someone meets the GR 

34 standard for indigency, courts should seriously question that person’s ability to pay 

financial obligations. State v. Blazina, 182 Wn.2d at 839 (2015); City of Richland v. 

Wakefield, 186 Wn.2d at 607. 

To repeat, RCW 10.01.160(4) reads, in part: 

If it appears to the satisfaction of the court that payment of the 

amount due will impose manifest hardship on the defendant or the 

defendant’s immediate family, the court may remit all or part of the 

amount due in costs, or modify the method of payment under RCW 

10.01.170.

(Emphasis added.) We note the statute’s employment of the word “may.” The 

legislature’s use of the term “may” generally indicates the existence of an option that is a 

matter of discretion. Whatcom County v. Western Washington Growth Management 

Hearings Board, 186 Wn.2d 648, 694, 381 P.3d 1 (2016). If the superior court becomes 
No. 33032-0-III

State v. Sorrell

27

satisfied that the offender shows “manifest hardship,” the court holds discretion to 

“remit all or part of the amount due in costs.” State v. Shirts, 195 Wn. App. at 859-60. 

Therefore, the granting of remission may not automatically follow from a finding of 

hardship. 

Discretion is not unlimited, and the superior court should posit a sound reason if 

it denies the motion for remission. The trial court abuses its discretion when its exercise 

of discretion is manifestly unreasonable or based upon untenable grounds or reasons.

King County v. Vinci Construction Grands Projects/Parsons RCI/Frontier-Kemper, JV, 

188 Wn.2d 618, 632, 398 P.3d 1093 (2017); Allard v. First Interstate Bank of 

Washington, NA, 112 Wn.2d 145, 148, 768 P.2d 998, 773 P.2d 420 (1989). 

In City of Richland v. Wakefield, 186 Wn.2d 596 (2016), the Supreme Court 

ordered that the trial court remit Briana Wakefield’s discretionary legal financial 

obligations. The trial court had ordered Briana Wakefield to pay $15 each month toward 

her outstanding legal financial obligations. Unlike Ernest Sorrell, Wakefield was

homeless, disabled, and indigent. Her only income was $710 in social security disability 

payments each month, and, as a result, she struggled to meet her own basic needs. The 

city of Richland agreed that Wakefield suffered manifest hardship and asked the 

Supreme Court to reverse the trial court. The high court also noted that Wakefield’s 

only income was social security and, under federal law, no creditor could reach that 

income. Regardless the court noted that Wakefield had no present or future ability to 
No. 33032-0-III

State v. Sorrell

28

pay legal financial obligations and she struggled to obtain basic needs such as secure 

housing, food, and medical care. The high court observed that having some ability to 

pay does not necessarily preclude payment from creating a manifest hardship. City of 

Richland v. Wakefield, 186 Wn.2d at 605. 

Our gleaning of State v. Blazina and City of Richland v. Wakefield informs us that 

the superior court should not exercise its discretion by denying remission on the 

following grounds. The trial court should not use legal financial obligations as a form of 

punishment. The trial court should not deny remission on the basis that others in a 

similar situation may pay his or her obligations. The trial court should, at a minimum, 

waive interest owed if the amount the offender can pay retires no principal. 

We also conclude that the offender’s ability to pay a nominal amount should not 

preclude a finding of manifest hardship. Otherwise, remission would never be available 

and RCW 10.01.160(4) would be rendered meaningless. Everyone has some ability to 

pay. Ernest Sorrell could pay a penny a month, a dollar a month, or maybe even five 

dollars a month. He once paid the sum of two cents. Nevertheless, nominal payments 

create conditions under which the offender endlessly remains within the legal financial 

obligation system. The offender constantly suffers from the collateral consequences of 

the judgment, including frequent returns to court. 

Upon remand, we direct the trial court to carefully review whether Ernest Sorrell 

struggles to obtain basic needs such as housing, food and medical care and whether his 
No. 33032-0-III

State v. Sorrell

29

income deceeds 125 percent of the federal poverty level. If his income falls below this 

factor of the poverty level, the trial court must seriously consider remission. 

Someone may worry that Ernest Sorrell might win the lottery tomorrow and that 

remission of financial obligations does not recognize this possibility. Nevertheless, the 

state Supreme Court rejected a similar argument in State v. Blazina. The State had 

argued that no one knows what might lie in the defendant’s future, such that 

discretionary legal financial obligations should always be imposed. The law does not 

commit to speculation. If we wish to speculate, we could also speculate that Ernest 

Sorrell will incur substantial medical bills for which he cannot pay. Actually, such a 

large unaffordable debt may be more of a probability than speculation. 

We blame Ernest Sorrell in part for the trial court’s refusal to remit legal financial 

obligations. At one review hearing, Sorrell provided a paystub, but he otherwise 

brought no financial records. When testifying at the show cause hearing and when 

arguing his cause in earlier hearings, Sorrell sometimes spoke in generalities. He never 

fully accounted for all of his expenditures. He provided confusing testimony as to the 

amount of child support payments and provided no written confirmation of the 

payments. Although he testified under oath to his income and expenses, he never 

completed a financial form. 

RCW 9.94A.760(5) and (7) requires the defendant to provide information and 

documentation to DOC and later the court clerk. RCW 9.94A.760(7)(b) declares in part: 
No. 33032-0-III

State v. Sorrell

30

During the period of repayment, the county clerk may require the 

offender to report to the clerk for the purpose of reviewing the 

appropriateness of the collection schedule for the legal financial 

obligation. During this reporting, the offender is required under oath to 

respond truthfully and honestly to all questions concerning earning 

capabilities and the location and nature of all property or financial assets. 

The offender shall bring all documents requested by the county clerk in 

order to prepare the collection schedule. 

On remand, Ernest Sorrell must provide the court a full accounting for his income and 

expenses. 

Issue 3: Whether the trial court committed error when holding Ernest Sorrell in 

contempt for nonpayment of legal financial obligations? 

Answer 3: We do not directly address this question. Instead, in light of State v. 

Blazina, City of Richland v. Wakefield, and our opinion, we remand the case for a new 

hearing. 

Remanding Ernest Sorrell’s appeal request for remission does not end our 

inquiry. Even if the trial court remits all discretionary legal financial obligations, the 

trial court remains able to punish Sorrell, under RCW 9.94A.760 and RCW 9.94B.040,

for nonpayment of the mandatory legal financial obligations. The same considerations 

that apply in favor of remission of discretionary legal financial obligations also pertain 

to remission of mandatory legal financial obligations. The law, however, does not 

authorize the courts to cancel the mandatory obligations. 

To repeat, RCW 9.94B.040 declares in relevant part:
No. 33032-0-III

State v. Sorrell

31

(1) If an offender violates any condition or requirement of a 

sentence, the court may modify its order of judgment and sentence and 

impose further punishment in accordance with this section.

. . . .

(c) The state has the burden of showing noncompliance by a 

preponderance of the evidence. If the court finds that the violation has 

occurred, it may order the offender to be confined . . . .

The pertinent provisions of RCW 10.01.180 read as follows:

(1) A defendant sentenced to pay a fine or costs who defaults in the 

payment thereof or of any installment is in contempt of court as provided 

in chapter 7.21 RCW. The court may issue a warrant of arrest for his or 

her appearance.

. . . .

(3) If a term of imprisonment for contempt for nonpayment of a fine 

or costs is ordered, the term of imprisonment shall be set forth in the 

commitment order, and shall not exceed one day for each twenty-five 

dollars of the fine or costs, thirty days if the fine or assessment of costs 

was imposed upon conviction of a violation or misdemeanor, or one year 

in any other case, whichever is the shorter period. A person committed for 

nonpayment of a fine or costs shall be given credit toward payment for 

each day of imprisonment at the rate specified in the commitment order.

The court may order a noncomplying offender to be confined for not more than sixty 

days for each violation. RCW 9.94B.040(3)(c); State v. Woodward, 116 Wn. App. 697, 

702, 67 P.3d 530 (2003). Sanctions imposed under RCW 9.94B.040 are criminal 

sanctions added to the original sentence. State v. Nason, 168 Wn.2d 936, 947, 233 P.3d 

848 (2010). 

RCW 9.94B.040 does not expressly permit punishment only if the trial court 

finds a willful violation of failure to pay legal financial obligations. Nevertheless, due 

process mandates that the trial court find a failure to pay legal financial obligations to be 
No. 33032-0-III

State v. Sorrell

32

willful before imposing sanctions. State v. Stone, 165 Wn. App. 796, 816-17, 268 P.3d 

226 (2012). Due process precludes the jailing of an offender for failure to pay a fine if 

the offender’s failure to pay was due to his or her indigence. Bearden v. Georgia, 461 

U.S. 660, 667-68, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983); State v. Stone, 165 Wn. 

App. at 817. 

In a noncompliance proceeding, the State bears the burden of proving a 

defendant’s noncompliance with sentencing conditions, such as nonpayment of legal 

financial obligations. RCW 9.94B.040; State v. Peterson, 69 Wn. App. 143, 146, 847 

P.2d 538 (1993). If the State proves the defendant’s failure to comply, the burden shifts 

to the defendant to show a lack of willfulness. State v. Woodward, 116 Wn. App. at 702 

(2003); State v. Peterson, 69 Wn. App. at 146. 

When a defendant claims indigency, he or she must do more than simply plead 

poverty in general terms. State v. Woodward, 116 Wn. App. at 704; State v. Bower, 64 

Wn. App. 227, 233, 823 P.2d 1171 (1992). 

He should be prepared to show the court his actual income, his 

reasonable living expenses, his efforts, if any, to find steady employment, 

his efforts, if any, to acquire resources from which to pay his court ordered 

obligations, and, . . . [if relevant] . . . any lawful excuse he might have for 

his failure to report for community supervision. 

State v. Woodward, 116 Wn. App. at 704 (alterations in original) (quoting State v. 

Bower, 64 Wn. App. at 233). 
No. 33032-0-III

State v. Sorrell

33

In State v. Woodward, 116 Wn. App. 697, this court affirmed the trial court’s 

denial of a motion for remission. We characterized John Woodward’s finances as

“murky.” State v. Woodward, 116 Wn. App. at 704. Woodward submitted no financial 

affidavits. At his review hearing, he stated his income consisted of $340 a month from 

government assistance. Woodward alleged paying $175 in rent, more than $75 in 

electricity, utilities, and food each month. He also claimed that emphysema prevented 

him from working. Testimony showed he had approximately $90 a month left after 

other expenses. The trial court reasoned that, certainly Woodward is impoverished, but 

he could likely afford to pay something, “even if it’s five bucks a month.” State v. 

Woodward, 116 Wn. App. at 705. In upholding the trial court’s determination that 

nonpayment was willful, this court found the record to support the trial court’s 

assessments that Woodward had the ability to pay something, yet chose not to. 

We conclude that State v. Woodward does not survive scrutiny under the 

Supreme Court’s decisions in State v. Blazina and City of Richland v. Wakefield. We 

wonder how someone, even in 2003, could live on $340 per month. The amount would 

fall below the poverty level. Wakefield’s and Blazina’s teaching questions the utility of 

compelling someone to pay $5 a month or some other nominal amount when the legal 

system incurs expenses in continued efforts to enforce the financial obligations and 

when the payments do little, if anything, to retire principal owed. One wonders how 

much money an offender can make retrieving cans on the side of the road and how the 
No. 33032-0-III

State v. Sorrell

34

money from such efforts advances the criminal justice system other than to persistently 

punish an offender for wrongdoing. 

Washington’s legal financial obligations scheme illustrates the continual tension 

in the criminal law between retribution and rehabilitation, justice and mercy. Ernest 

Sorrell committed a horrendous crime that constituted a grave breach of trust with his 

daughter. In human terms, the crime is unforgettable and unforgiveable. On the one 

hand, Sorrell’s labor as an unskilled worker cleaning scat from portable toilets serves 

poetic justice. On the other hand, Sorrell served his jail time and the justice system need 

not follow and monitor his financial condition the rest of his life. A humane justice 

system seeks to afford the offender a fresh start in becoming a contributing, if not 

successful, member of society on release from prison. 

The Washington Supreme Court has directed superior courts to “use GR 34 as a

guide for determining whether someone has an ability to pay costs.” City of Richland v.

Wakefield, 186 Wn.2d at 606. Although Wakefield involved a motion for remission, the 

overlapping considerations behind a motion for remission and behind contempt 

proceedings for nonpayment of financial obligations compels the direction that the trial 

court also employ GR 34 when addressing a motion for contempt. Under GR 34 

guidelines, John Woodward would likely have been found indigent due to his reliance 

on government assistance. 
No. 33032-0-III

State v. Sorrell

35

We remand this appeal to the superior court to conduct another hearing to 

determine if Ernest Sorrell, in light of his difficult financial circumstances and in 

accordance with GR 34, willfully refused to pay mandatory legal financial obligations 

and any discretionary legal financial obligations that survive a remission hearing. When 

the trial court applies the wrong legal standard, the appropriate remedy is a remand. City 

of Richland v. Wakefield, 186 Wn.2d at 606. The trial court may exercise discretion in 

determining whether to conduct one hearing, in which it entertains the motion for 

remission and the motion for contempt, or to hold separate hearings. 

Ernest Sorrell volunteered to perform community service to avoid jail time and 

earn money toward his financial obligations. RCW 9.94B.040(3)(c) permits the court to 

substitute community service as a means of the avoidance of jail time. In the event the 

trial court, on remand, holds Sorrell in contempt, the court should consider community 

service, assuming such service is available to a sex offender. 

Contrary to the dissenting opinion we do not reverse and remand the contempt 

ruling solely because of the failure to hold a remission hearing. We would remand for a 

new hearing even if Ernest Sorrell had not moved for remission. 

Ernest Sorrell raises constitutional challenges to the trial court’s imposition of a 

sentence for his failure to pay legal financial obligations. He contends the due process 

clause demands that the State prove he possesses the ability to pay, rather than his 

carrying the burden of showing a lack of contumacious failure to pay. He argues that 
No. 33032-0-III 

State v. Sorrell 

RCW 9.94B.040 is unconstitutional because the statute lacks any guidance for equitably 

determining whether nonpayment results from willfulness or the result of indigency. 

Because we remand for further hearings, we elect not to address these constitutional 

challenges. Sorrell may raise his constitutional concerns with the superior court during 

the new hearings and on any additional appeal to this reviewing court. 

CONCLUSION 

We remand this case to the superior court for the purpose of conducting a hearing 

on Ernest Sorrell's motion for remission. We also reverse the conviction for 

nonpayment of legal financial obligations and remand for a new hearing on the motion 

for contempt. Both hearings should be conducted and decided in light of State v. 

Blazina, City of Richland v. Wakefield, and this opinion. 

F earini,cT. o' 

I concur. 

Lawrence-Berrey, J. 

36 
No. 33032-0-III

State v. Sorrell

37

APPENDIX

RCW 10.01.160 

(1) The court may require a defendant to pay costs. Costs may be 

imposed only upon a convicted defendant. . . . 

(2) Costs shall be limited to expenses specially incurred by the state 

in prosecuting the defendant. . . . Expenses incurred for serving of 

warrants for failure to appear and jury fees under RCW 10.46.190 may be 

included in costs the court may require a defendant to pay. . . . In no case 

may the court require the offender to pay more than one hundred dollars 

per day for the cost of incarceration. Payment of other court-ordered 

financial obligations, including all legal financial obligations and costs of 

supervision take precedence over the payment of the cost of incarceration 

ordered by the court. . . . Costs imposed constitute a judgment against a 

defendant and survive a dismissal of the underlying action against the 

defendant. . . . 

(3) 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.

(4) A defendant who has been ordered to pay costs and who is not 

in contumacious default in the payment thereof may at any time petition 

the sentencing court for remission of the payment of costs or of any unpaid 

portion thereof. If it appears to the satisfaction of the court that payment 

of the amount due will impose manifest hardship on the defendant or the 

defendant's immediate family, the court may remit all or part of the amount 

due in costs, or modify the method of payment under RCW 10.01.170.

. . . .
No. 33032-0-III

State v. Sorrell

38

RCW 10.73.160

(1) The court of appeals, supreme court, and superior courts may 

require an adult offender convicted of an offense to pay appellate costs.

(2) Appellate costs are limited to expenses specifically incurred by 

the state in prosecuting or defending an appeal or collateral attack from a 

criminal conviction. . . Expenses incurred for producing a verbatim report 

of proceedings and clerk’s papers may be included in costs the court may 

require a convicted defendant to pay.

(3) . . . An award of costs shall become part of the trial court 

judgment and sentence. 

(4) A defendant who has been sentenced to pay costs and who is not 

in contumacious default in the payment may at any time petition the court 

that sentenced the defendant or juvenile offender for remission of the 

payment of costs or of any unpaid portion. If it appears to the satisfaction 

of the sentencing court that payment of the amount due will impose 

manifest hardship on the defendant or the defendant's immediate family, 

the sentencing court may remit all or part of the amount due in costs, or 

modify the method of payment under RCW 10.01.170.
No. 33032-0-III

State v. Sorrell

39

RCW 9.94A.760

(1) Whenever a person is convicted in superior court, the court may 

order the payment of a legal financial obligation as part of the sentence.

The court must on either the judgment and sentence or on a subsequent 

order to pay, designate the total amount of a legal financial obligation and 

segregate this amount among the separate assessments made for 

restitution, costs, fines, and other assessments required by law. On the 

same order, the court is also to set a sum that the offender is required to 

pay on a monthly basis towards satisfying the legal financial obligation. . . 

. . . . 

(4) All other legal financial obligations for an offense . . . may be 

enforced at any time the offender remains under the court’s jurisdiction. 

[T]he court shall retain jurisdiction over the offender, for purposes of the 

offender’s compliance with payment of the legal financial obligations, 

until the obligation is completely satisfied, regardless of the statutory 

maximum for the crime. . . The county clerk is authorized to collect 

unpaid legal financial obligations at any time the offender remains under 

the jurisdiction of the court for purposes of his or her legal financial 

obligations.

(7) . . . 

(b) . . . During the period of repayment, the county clerk may 

require the offender to report to the clerk for the purpose of reviewing the 

appropriateness of the collection schedule for the legal financial 

obligation. During this reporting, the offender is required under oath to 

respond truthfully and honestly to all questions concerning earning 

capabilities and the location and nature of all property or financial assets. 

The offender shall bring all documents requested by the county clerk in 

order to prepare the collection schedule.

. . . . 

(10) The requirement that the offender pay a monthly sum towards 

a legal financial obligation constitutes a condition or requirement of a 

sentence and the offender is subject to the penalties for noncompliance as 

provided in RCW 9.94B.040, 9.94A.737, or 9.94A.740.

. . . .

(13) The county clerk may access the records of the employment 

security department for the purposes of verifying employment or income, 

seeking any assignment of wages, or performing other duties necessary to 

the collection of an offender’s legal financial obligations.
No. 33032-0-III

State v. Sorrell

40

RCW 9.94B.040

(1) If an offender violates any condition or requirement of a 

sentence, the court may modify its order of judgment and sentence and 

impose further punishment in accordance with this section.

. . . .

(3) If an offender fails to comply with any of the requirements or 

conditions of a sentence the following provisions apply:

. . . .

(b) . . . [U]pon the motion of the state, or upon its own motion, [the 

court] shall require the offender to show cause why the offender should not 

be punished for the noncompliance. The court may issue a summons or a 

warrant of arrest for the offender’s appearance;

(c) The state has the burden of showing noncompliance by a 

preponderance of the evidence. If the court finds that the violation has 

occurred, it may order the offender to be confined for a period not to 

exceed sixty days for each violation, and may (i) convert a term of partial 

confinement to total confinement, (ii) convert community restitution 

obligation to total or partial confinement, (iii) convert monetary 

obligations, except restitution and the crime victim penalty assessment, to 

community restitution hours at the rate of the state minimum wage as 

established in RCW 49.46.020 for each hour of community restitution, or 

(iv) order one or more of the penalties authorized in (a)(i) of this 

subsection. Any time served in confinement awaiting a hearing on 

noncompliance shall be credited against any confinement order by the 

court;

(d) If the court finds that the violation was not willful, the court 

may modify its previous order regarding payment of legal financial 

obligations and regarding community restitution obligations.
No. 33032-0-III

KORSMO, J. (dissenting) — Although we are reviewing a contempt ruling, the 

majority reverses the trial court’s decision due to an alleged failure to hold a remission 

hearing. This is very curious to me since Mr. Sorrell established that he does have a 

future ability to pay his legal financial obligations (LFOs), a fact that also defeats his 

remission request. It appears that the majority, unlike the trial judge who actually 

listened to Mr. Sorrell and was in the better position to judge his sincerity than this court, 

believes Mr. Sorrell will never have the ability to pay. Since the trial court concluded 

otherwise, and the record supports the trial judge’s decision, I dissent.

There is no doubt that Mr. Sorrell is in a difficult financial position, largely of his 

own making, and that in part the obligations owed to his child and to the court system put 

additional financial pressure on him. He currently is indigent. But that fact is only the 

starting point for analysis, rather than the endpoint. 

The constitution does not limit the ability of the states to impose financial 

obligations on convicted offenders. It only prohibits the enforced collection of financial 
No. 33032-0-III

State v. Sorrell—Dissent

2

obligations from those who cannot pay them. Fuller v. Oregon, 417 U.S. 40, 92 S. Ct. 

2116, 40 L. Ed. 2d 642 (1974); State v. Blank, 131 Wn.2d 230, 237-38, 930 P.2d 1213 

(1997); State v. Curry, 118 Wn.2d 911, 915-16, 829 P.2d 166 (1992); State v. Barklind, 

87 Wn.2d 814, 817-18, 557 P.2d 314 (1976). Accordingly, remission motions require 

that the court adjudge the offender’s current or future ability to pay those costs. Blank, 

131 Wn.2d at 242. However, punishment for failure to pay can only be imposed if the 

refusal is willful. Id. at 241-42. In addition, Washington has long directed trial judges to 

consider a defendant’s ability to pay prior to imposing discretionary court costs at 

sentencing. RCW 10.01.160(3). However, ability to pay need not be considered when 

imposing mandatory costs and need only be considered at the time of collection. State v. 

Lundy, 176 Wn. App. 96, 102-09, 308 P.3d 755 (2013). The same rule applies to 

appellate costs. Blank, 131 Wn.2d at 242. 

State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), did not change, nor could it 

change, constitutional standards or legislative policy. Two significant legal principles 

came out of Blazina. First, trial judges were reminded of their statutory obligation to 

consider RCW 10.01.160(3) before imposing discretionary LFOs and were given 

guidelines to consider while performing that task. 182 Wn.2d at 837-39. Second, 
No. 33032-0-III

State v. Sorrell—Dissent

3

appellate courts were granted discretionary authority to decide whether or not to consider 

LFO arguments that were not raised in the trial courts. Id. at 832-35.

1

 

In my personal opinion, the primary function of Blazina was to add our court’s 

voice to the national discussion of the problem that financial debt causes to convicted 

offenders as one of the primary barriers to reintegration into society. Id. at 835-36. The 

opinion also served to raise these important issues with our state legislature, although that 

body has not yet seen fit to grant any significant relief. How that impulse will play out in 

the future is unknown. However, the imposition of user fees on those haled into the 

criminal justice system is consistent with our state’s long held policies concerning taxes 

and fees in other arenas. Nearly every profession in this state is subject to licensing fees 

and many are also subject to additional fees for regulatory expenses.2

 See generally Title 

 1 In this regard, Blazina expanded the court’s common law “sentencing error” 

exception to the principle, currently found in RAP 2.5(a), that most arguments not 

presented in the trial court will not be considered on appeal. State v. Ford, 137 Wn.2d 

472, 973 P.2d 452 (1999); State v. McCorkle, 137 Wn.2d 490, 973 P.2d 461 (1999); State 

v. Moen, 129 Wn.2d 535, 543-48, 919 P.2d 69 (1996); In re McNutt v. Delmore, 47 

Wn.2d 563, 565, 288 P.2d 848 (1955). Although this approach can be utilized effectively 

when the factual record is sufficiently developed to permit full and fair consideration of 

the issue, that is typically not the case in situations, such as imposition of LFOs, that are 

heavily dependent on the factual circumstances of the case. 2 Indeed, the Washington Supreme Court applies a similar fee based system to 

lawyers practicing in this state. E.g., Graham v. Bar Association, 86 Wn.2d 624, 626-30, 

548 P.2d 310 (1976); ch. 2.48 RCW. 
No. 33032-0-III

State v. Sorrell—Dissent

4

18 RCW. Similarly, everyone who owns an automobile pays for the privilege, being 

required to have a driver’s license and to register the vehicle. Anyone who drives a 

vehicle pays some of the highest gasoline taxes in the country to maintain our state 

highway system. Numerous other examples abound. The progressive impulses that 

motivated our state’s constitutional convention did not anticipate an income tax nor 

permit progressive taxation.3

 E.g., Power, Inc. v. Huntley, 39 Wn.2d 191, 204, 235 P.2d 

173 (1951) (again rejecting idea of state income tax). Thus, we have a system whereby 

those who force the expenditure of criminal justice resources are expected to pay 

something to maintain the cost of that system. While that is less than ideal for many 

reasons,4 it is the normative condition in this state. 

These observations are of importance because courts have no criminal sentencing 

authority that has not been granted by the legislature. State v. Pillatos, 159 Wn.2d 459, 

469, 150 P.3d 1130 (2007) (no authority for courts to adopt sentencing procedure 

necessary to comply with United States Supreme Court mandate); State v. Ammons, 105 

Wn.2d 175, 180, 713 P.2d 719, 718 P.2d 796 (1986) (legislature has plenary authority 

 3 Nor did those who drafted our constitution foresee how the limited taxing 

abilities of our counties and cities would seriously hamper the financing of local criminal 

justice systems that typically account for well more than half of the budget of most 

governments. 

4 It is unrealistic to expect the poor to be able to pay for the system that punishes 

them and, too often, also serves to perpetuate poverty. 
No. 33032-0-III

State v. Sorrell—Dissent

5

over setting punishments).5 If the legislature ultimately is convinced that mandatory 

court costs do more harm than good, it undoubtedly will change its views on these 

matters. However, restitution has long been considered a rehabilitative tool rather than a 

punitive one.6

 In accordance with that view, the legislature also is quite free to conclude, 

as it apparently has, that proper reintegration into society should include at least some 

efforts to make financial amends to the victims of a defendant’s behavior. That 

deliberative body is also quite free to reason along the same lines with respect to some of 

the costs that a criminal offense imposes on society and expect the offender to make good 

efforts at paying back some of those costs. If a court does not agree with the 

consequences of legislative policy, the best (and only) way to address the problem is to 

ask that body to change its policy through additional legislation.

 5 “This argument fails to recognize that the trial court does not have absolute 

discretion to do whatever it pleases. The trial court’s discretion in sentencing is that 

which is given by the Legislature.” Ammons, 105 Wn.2d at 181 (rejecting argument that 

SRA violates judicial authority). That principle extends to the early days of our 

statehood: “The spirit of the law is in keeping with the acknowledged power of the 

legislature to provide a minimum and maximum term within which the trial court may 

exercise its discretion in fixing sentence, taking into consideration, as it should always, 

the character of the person as well as the probability of reformation; or the legislature

may take away all discretion and fix a penalty absolute, as it does in many instances.” 

State v. Le Pitre, 54 Wash. 166, 169, 103 P. 27 (1909). 

6 “Restitution, as a condition of probation, is primarily a rehabilitative tool. . . . 

Though partial compensation may be a concomitant result of restitution, it is not the 

primary purpose of such an order.” State v. Barr, 99 Wn.2d 75, 79, 658 P.2d 1247 (1983).
No. 33032-0-III

State v. Sorrell—Dissent

6

Rather than bow to that policy, the majority seeks to find an escape hatch in 

Blazina and City of Richland v. Wakefield, 186 Wn.2d 596, 380 P.3d 459 (2016). 

However, those cases provide no exit. Blazina involves a matter of statutory 

interpretation concerning the initial decision to impose discretionary LFOs. Wakefield

simply recognizes that the federal anti-attachment statute prevents states from seeking the 

proceeds of disability payments. Id. at 607-09. A person whose sole income is nonattachable federal disability payments does establish future inability to pay; hence, there 

is no expectation that the defendant will ever be able to pay the discretionary LFOs and 

they must be remitted. Id. at 610-11. 

Neither Blazina nor Wakefield created a new standard for resolving remission 

motions. Indeed, Wakefield expressly recites the constitutional standard relevant to such 

motions: “If a person has no present or future ability to pay amounts that will actually 

pay off their LFOs, remission in accordance with RCW 10.01.160(4) is a more 

appropriate and just option.” Id. at 607. As noted previously, this is the same standard 

long recognized for remission issues. Fuller, 417 U.S. 40; Blank, 131 Wn.2d at 237-38; 

Curry, 118 Wn.2d at 915-16; Barklind, 87 Wn.2d at 817-18. While undoubtedly 

Wakefield and Blazina inform trial court decisions on what both indigency and undue 

hardship mean, they simply have not altered the ultimate test dictated by the constitution 

that the trial courts must apply—does defendant have the current or future ability to pay 

the LFOs?
No. 33032-0-III

State v. Sorrell—Dissent

7

The trial court correctly considered the defendant’s ability to pay when adjudging 

his financial situation. The facts stated by the majority from this case record 

demonstrated, at a minimum, that Mr. Sorrell certainly had the ability to pay his LFOs in 

the future. He was employed.7

 He was paying at least $500 per month toward his child 

support obligations. He managed to come up with an additional $1,000 to pay medical 

bills. According to his testimony, his child support obligations were to end in 2016. 

Thus, by now Mr. Sorrell should have no difficulty paying a significant amount toward

his LFOs. Throughout this period of litigation, Mr. Sorrell has continuously 

demonstrated his ability to earn a living and pay down his obligations. By operation of 

the garnishment, his child support obligation had the highest priority and arguably left 

him unable to also make payments on his LFOs, but that was a question for the trial court 

to resolve. The record reflects that Mr. Sorrell had at least a future ability to pay given 

that he was employed and that his support obligation would soon be ending. 

Understandably, the trial court had no reason to remit the LFOs.

 7 The nature of his employment apparently horrifies the majority, as they mention

it at least three times in their opinion. However, that line of work has no bearing on any 

issue before the trial court or this court other than to demonstrate that he is employed and 

earning money. Since he was not using any of those proceeds to pay his LFOs, the LFO 

obligation cannot be blamed for the work he was doing.
No. 33032-0-III

State v. Sorrell—Dissent

8

The majority’s decision to even discuss the remission motion in this appeal from a 

contempt sanction also is curious for several reasons. First, the issue is not one from 

which an appeal can even be taken. State v. Smits, 152 Wn. App. 514, 523-24, 216 P.3d 

1097 (2009); accord State v. Shirts, 195 Wn. App. 849, 854, 381 P.3d 1223 (2016) 

(granting discretionary review of remission ruling). Second, even if we felt the need to 

grant discretionary review of this issue, it is moot in this case since the majority is 

already reversing the contempt ruling. Third, the question to be answered at the new 

contempt hearing is whether or not Mr. Sorrell’s refusal to pay is willful. The question at 

a remission hearing will be whether he has the future inability to pay. Both issues turn on 

the same factual point—can he (or could he previously) pay his obligations? The 

defendant’s own evidence has demonstrated that he does have the ability to earn a living 

and pay his obligations. His motion is lost before it is even reargued. Finally, the filing 

of a remission motion does not mandate an evidentiary hearing; that is a decision for the 

trial court to make. Shirts, 195 Wn. App. at 860-61.8

Although the analysis should end at this point, the decision to remand requires 

brief discussion of a few more items. For one, credibility matters in these types of issues 

and I feel that the majority is unduly crediting Mr. Sorrell and his evidence where it is 

 8 There are many cases, and this appears to be one of them, that demonstrate the 

wisdom of not acting immediately on every request and, instead, giving the defendant 

time to demonstrate whether he will have the future ability to pay. 
No. 33032-0-III

State v. Sorrell—Dissent

9

apparent to me that the trial court did not. While the majority views Mr. Sorrell as the 

victim of a heartless system bent on crushing him under needless financial obligations, I 

would suggest that view is not compelled by the evidence—even if it were our job to 

make that determination. It is quite possible to view Mr. Sorrell as a recalcitrant game 

player who is determined to fight back against his remaining obligations. According to 

the majority’s own statement of the record, nearly the first thing out of his mouth at the 

2013 hearing was a request to waive his LFOs even though he was just recently released 

from prison and still seeking work. He followed that up with an expression of hope that 

he would be able to get rid of his obligation to his “ex.” Rather than suggest an inability 

to pay these obligations, his statements suggest that his motivation simply was to avoid 

all of his obligations. The fact that he later was able to deal with unexpected medical 

expenses also suggests that perhaps his lifestyle was not as financially tight as he wanted 

the trial court to believe and that there were at least a few dollars available to him that 

might have been turned over to the court system. Whether that is true or not is a matter 

for the trial court to decide, not this court.9

 9 These are difficult matters for trial courts to resolve since the primary source of 

financial information is the offender who has every incentive to overstate costs and 

understate resources. There probably is need for uniform financial reporting forms that 

would assist busy trial judges as well as provide a template for those making good faith 

remission arguments. 
I 

I 

I 

I 

l 'I 

J 

l 

l 

l 

l 

No. 33032-0-111 

State v. Sorrell-Dissent 

Just as appellate courts do not decide these issues, neither should we send cases 

back for reconsideration where the trial court has applied the correct standards. Since 

Mr. Sorrell has a demonstrated ability to pay his debts, the trial court did not err in 

concluding that he will be able to do so. No matter how much the majority wants to find 

Mr. Sorrell unable to pay his debts, it is not the job of this court to do so. Thus, I 

commend to appellate judges the serenity prayer: 

God, grant me the serenity to accept the things I cannot change, 

Courage to change the things I can, 

And wisdom to know the difference. 10 

The legislature will change our LFO standards if and when it wants to. Trial 

judges will interpret the facts as they see fit, not as we want them to do. Thus, we have to 

accept the laws the way they are written and the facts as they are found. 

I believe the rulings should be affirmed. 

10 Attributed to theologian and philosopher Reinhold Niebuhr (1892-1971). See 

Laurie Goodstein, Serenity Prayer Skeptic Now Credits Niebuhr, N.Y. TIMES (Nov. 27, 

2009), http://www.nytimes.com/2009/l l/28/us/28prayer.htm1. 

10