FILED 


MAY 28, 2015 


In the Office of the Clerk of Court 


W A State Cou rt of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 32112-6-III 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

JOHN T. HAMRE, ) 

) 

Appellant. ) 

LAWRENCE-BERREY, J. - A jury found John Hamre guilty of attempting to elude 

a police vehicle. On appeal, he raises an issue he did not preserve below. He argues that 

the trial court improperly imposed legal financial obligations (LFOs) on him without first 

inquiring into his ability to pay. State v. Blazina, Wn.2d _,344 P.3d 680 (2015) 

confirms an appellate court's discretion on whether to allow the argument to be raised for 

the first time on review. Because the discretionary LFOs here are less than $750, we 

exercise our discretion against reviewing the waived error. 
No. 32112-6-III 

State v. Hamre 

FACTS 

Mr. Hamre was charged and convicted by a jury of attempting to elude a police 

vehicle. The sentencing court imposed discretionary costs of$198 and mandatory costs 

of $700, for a total LFO of $898. The court ordered Mr. Hamre to pay $25 per month 

commencing September 15,2014. The judgment and sentence contained, the following 

boilerp late language: 

2.5 Legal Financial Obligations/Restitution [RCW 9.94A.760]. The 

court has considered the total amount owing, the defendant's present and 

future ability to pay legal financial obligations, including the defendant's 

financial resources and the likelihood that the defendant's status will 

change. 

Clerk's Papers (CP) at 25. However, the record reveals no actual inquiry by the 

sentencing court concerning Mr. Hamre's present or future ability to pay the LFOs. Nor 

does the record reveal any objection by Mr. Hamre concerning imposition of the LFOs. 

Mr. Hamre nevertheless appeals. 

ANALYSIS 

Mr. Hamre challenges the trial court's imposition ofLFOs and scheduled payment. 

He contends that the trial court failed to take into account his present or future ability to 

pay, as required by RCW 10.01.160. 

2 

No. 32112-6-III 

State v. Hamre 

In State v. Duncan, 180 Wn. App. 245, 253, 327 P.3d 699 (20 14),petitionjor 

review filed, No. 90188-1 (Wash. Apr. 30,2014), we observed that whether a defendant 

will be unable to pay LFOs imposed at sentencing is not an issue that defendants 

overlook, it is one they reasonably waive. Further, we concluded that henceforth we 

would decline to address a challenge to consider that issue if raised for the first time on 

appeaL Id. (citing RAP 2.5(a)). Our position was consistent with that ofthe other 

divisions of our court. See State v. Blazina, 174 Wn. App. 906, 911,301 P.3d 492 (2013), 

remanded, 344 P.3d 680 (2015); State v. Calvin, 316 P.3d 496, 507,petitionjor review 

filed, No. 89518-0 (Wash. Nov. 12,2013). We consistently held, until our Supreme Court 

decided otherwise, that this was the rule we would follow. 

In Blazina, the Supreme Court held that RAP 2.5(a) provides appellate courts with 

discretion whether to review a defendant's LFO challenge raised for the first time on 

appeal. Blazina, 344 P.3d at 683. There, the Blazina court exercised its discretion in 

favor of allowing the LFO challenge. Id. In doing so, the Blazina court chronicled the 

myriad ofproblems associated with LFOs imposed against indigent defendants. Id. at 

683-85 

Here, Mr. Hamre failed to object to the trial court's imposition ofLFOs. We, 

therefore, have discretion to rely on our analysis in Duncan and not review the claimed 

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No. 32ll2-6-III 

State v. Hamre 

error. In determining whether to review the newly raised error, we weigh the 

administrative burden and expense of bringing Mr. Hamre to a new sentencing hearing 

against the likelihood that the LFO result would change. An important variable in this 

analysis is the dollar amount of discretionary LFOs imposed by the sentencing court. 

It is important to agree on a uniform standard to assist appellate counsel in 

advising their clients whether to raise the LFO issue for the first time on appeal. We note 

that if we declare that the issue was waived below, the defendant will be burdened with 

extra costs as the nonprevailing party. Toward announcing a uniform standard, we 

suggest that when discretionary LFOs are less than $750, we should be reluctant to decide 

the newly raised issue. 

Here, Mr. Hamre's discretionary LFOs are only $198. We, therefore, exercise our 

discretion and decide not to review this waived issue for the first time on appeal. In so 

holding, we do not countenance a sentencing court's failure to make the inquiry on the 

record necessitated by RCW 10.01.160. Rather, we reason that the administrative burden 

and expense of bringing Mr. Hamre back to court for a new hearing outweighs the 

likelihood that the relatively small discretionary costs imposed will be reduced. 

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No. 32112-6-111 

State v. Hamre 

Affinn. 

A majority ofthe panel has detennined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

WE CONCUR: 


Brown, A.C.J. 

Lawrence-Berrey, 1. 

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