# FILE-,**1~1** CLtoRKS OFFICE ', 8Uf'REM'; CGUR:r, STAll: OfWASI.tcm'lll DATE 

### MAR 1 2 

## 20 

## I

# ~ .J '

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 89028-5 Respondent, ) (consol. 

### wiNo. 89109-5) ) v. ) ) NICHOLAS PETERBLAZINA, ) ) Petitioner. ) EnBanc STATE OF WASHINGTON, ) ) Respondent, ) ) v. ) ) MAURICIO TERRENCE PAIGE-COLTER, ) Filed 

### MAR· 1 2 2015 ) Petitioner. )

MADSEN, C.J.-At sentencing,judges ordered Nicholas Blazina and Mauricio Paige-Colterto pay discretionary legal financial obligations (LFOs) under RCW 10.01.160(3). The records do not show that the trialjudges considered either defendant's ability to pay before imposing the LFOs. Neither defendant objected at the time. Forthe first time on appeal, however, both argued that a trialjudge must make an individualizedNo. 89028-5 (consol. wiNo. 89109-5) inquiry into a defendant's ability to pay and that thejudges' failure to make this inquiry warranted resentencing. Citing RAP 2.5, the Court ofAppeals declined to reach the issue because the defendants failed to object at sentencing and thus failed to preserve the issue for appeal. Although a defendant has the obligation to properly preserve a claim oferror, an appellate court may use its discretion to reach unpreserved claims oferror consistentwith RAP 2.5. In this case, we hold that the Court ofAppeals did not err in declining to reach the merits. However, exercising our own RAP 2.5 discretion, we reach the merits and hold that a trial courthas a statutory obligation to make an individualized inquiry into a defendant's current and future ability to pay before the court imposes LFOs. Becausethe trialjudges failed to make this inquiry, we remand to the trial courts for new sentence hearings. FACTS A. State 

### v. Blazina Ajury convicted Blazina ofone count ofsecond degree assault, and the trial court sentenced him to 20 months in prison. The State also recommended that the court impose

a $500 victim penalty assessment, $200 filing fee, $100 DNA (deoxyribonucleic acid) sample fee, $400 for the Pierce County Department ofAssigned Counsel, and $2,087.87 in extradition costs. Blazina did not object, and the trial court accepted the State's recommendation. The trial court, however, did not examine Blazina's ability to pay the discretionary fees on the record. Instead, Blazina'sjudgment and sentence included the following boilerplate language:
2No. 89028-5 (consol. wiNo. 89109-5) 2.5 ABILITY TO PAYLEGAL FINANCIAL OBLIGATIONS The court has considered the total amount owing, the defend[ant]'s past, 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. The court finds that the defendant has the ability or likely future ability to pay the legal financial obligations imposed herein. RCW 9.94A.753 Clerk's Papers at 29. Blazina appealed and argued thatthe trial court erred when it found him able to pay his LFOs. The Court ofAppeals declined to consider this claim because Blazina "did not object at his sentencing hearing to the finding ofhis current or likely future ability to pay these obligations." State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492 (2013). We granted review. State v. Blazina, 178 Wn. App. 1010, 311 P.3d 27 (2013). B. State v. Paige-Colter The State charged Paige-Colter with one count offirst degree assault and one count offirst degree unlawful possession ofa firearm. Ajury convictedPaige-Colter as charged. The trial court imposed the State's recommended 360-month sentence of confinement. The State also recommended that the court "impose
... standard legal financial obligations, $500 crime victim penalty assessment, $200 filing fee, $100 fee for the DNA sample, $1,500 Department ofAssigned Counsel recoupment ... [,and] restitution by later order." Paige-Colter Verbatim Report ofProceedings (Paige-Colter VRP) (Dec. 9, 2011) at 6. Paige-Colter made no objection. The trial court accepted the State's recommendation without examining Paige-Colter's ability to pay these fees on the record. Paige-Colter'sjudgment and sentence includedboilerplate language stating the court considered his ability to pay the imposed legal fees.
3No. 89028-5 (consol. wiNo. 89109-5) Paige-Colter appealed and argued that the trial court erred when it imposed discretionary LFOs without first maldng anindividualized inquiryinto his abilityto pay. The Court ofAppeals concludedthat Paige-Colterwaived these claims bynot objecting below. 

### State v. Paige-Colter, noted at 175 Wn. App. 1010,2013 WL 2444604, at 

### *1. We grantedreview onthis issue and consolidatedthe case with

### Blazina. State v. PaigeColter, 178 Wn.2d 1018,312 P.3d 650 (2013). ANALYSIS A defendant who makes no objectionto the imposition ofdiscretionary LFOs at sentencing is not automatically entitledto review. 1 

### It is well settledthat an "appellate court mayrefuse to review any claim oferror whichwas notraised inthe trial court." RAP 2.5(a). This rule exists to give the trial court an opportunityto correct the error and to give the opposingparty an opportunityto respond. 

### State v. Davis, 175 Wn.2d 287, 344,290P.3d43 (2012), 

### cert. denied,_U.S._, 134 S. Ct. 62, 187 L. Ed. 2d 51 (2013). The text ofRAP 2.5(a) clearly delineates three exceptions that allow an appeal as
a matter ofright. 

### See RAP 2.5(a).2 Blazina and Paige-Colter do not argue that one ofthe RAP 2.5(a) exceptions applies. Instead, they cite 

### State v. Ford, 137 Wn.2d472, 477-78, 973 P.2d452 (1999)

1The State argues that the issue is not ripe for reviewbecausethepropertime to challenge the imposition ofan LFO arises when the State seeks to collect. Suppl. Br. ofResp't (Blazina) at 5- 6. We disagree. "'Threerequirements compose a claim fit forjudicial determination: ifthe issues areprimarilylegal, do notrequire further factual development, and the challenged action is final."' State v. Bah!, 164 Wn.2d 739, 751, 193 P.3d 678 (2008) (quotingFirst United Methodist Church v. Hr'gExam 'r, 129 Wn.2d 238, 255-56, 916 P.2d 374 (1996)). A challenge to the trial court's entry ofan LFO orderunderRCW 10.01.160(3) satisfies all three conditions. 2 Bymle, "apartymayraise the following claimed errors for the first time in the appellate court: (1) lack oftrial courtjurisdiction, (2) failure to establish facts uponwhichreliefcanbe granted, and (3) manifest error affecting a constitutionalright." RAP 2.5(a). 4No. 89028-5 (consol. wiNo. 89109-5) and argue that "it is well established that illegal or erroneous sentences may be challenged for the first time on appeal," suggesting that they may challenge unpreserved LFO errors on appeal as a matter ofright. Suppl. Br. ofPet'r (Blazina) at 3. In State v. Jones, 182 Wn.2d 1, 338 P.3d 278 (2014), a recent unanimous decision bythis court, we said that Fordheld unpreserved sentencing errors "may be raised for the first time upon appeal because sentencing can implicate fundamental principles ofdue process ifthe sentence is based on information that is false, lacks a minimum indicia ofreliability, or is unsupported in the record." Jones, 182 Wn.2d at 6. However, we find the exception createdby Forddoes not apply in this case. Unpreserved LFO errors do not command review as a matter ofright underFord and its progeny. As stated in Ford and reiterated in our subsequent cases, concern about sentence conformity motivated our decision to allow review ofsentencing errors raised for the first time on appeal. See Ford, 137 Wn.2d at 478. We did not want to '"permit[] widely varying sentences to stand for no reason other than the failure ofcounsel to register aproper objection in the trial court."' Id. (quoting State v. Paine, 69 Wn. App. 873, 884, 850 P.2d 1369 (1993)). Errors in calculating offender scores and the imposition ofvague community custody requirements create this sort ofsentencing error and properly fall within this narrow category. See State v. Mendoza, 165 Wn.2d 913, 919-20, 205 P.3d 113 (2009) (prior convictions for sentencing range calculation); Ford, 137 Wn.2d at 475-78 (classification ofout ofstate convictions for offender score calculation); State v. Bahl, 164 Wn.2d 739, 743-45, 193 P.3d 678 (2008) (community custody conditions ofsentence). We thought itjustifiableto review these challenges
5No. 89028-5 (consol. wiNo. 89109-5) raised for the first time on appeal because the error, ifpermittedto stand, would create inconsistent sentences for the same crime and because some defendants would receive unjust punishment simply because his or her attorney failed to object. But allowing challenges to discretionary LFO orders would notpromote sentencing uniformity in the same way. The trial court must decide to impose LFOs and must consider the defendant's current or future ability to pay those LFOs based on the particular facts ofthe defendant's case. See RCW 10.01.160(3). The legislature did not intend LFO orders to be uniform among cases ofsimilar crimes. Rather, it intended each judge to conduct a case-by-case analysis and arrive at an LFO order appropriate to the individual defendant's circumstances. Though the statute mandates that atrialjudge consider the defendant's ability to pay and, here, the trialjudges erred by failing to consider, this error will nottaint sentencing for similar crimes in the future. The error is unique to these defendants' circumstances, and the Court ofAppeals properly exercised its discretion to decline review. Althoughthe Court ofAppeals properly declined discretionary review, RAP 2.5(a) governs the review ofissues not raised in the trial court for all appellate courts, including this one. While appellate courts normally decline to review issues raised for the first time

on appeal, see Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 844 (2005), RAP 2.5(a) grants appellate courts discretion to accept review ofclaimed errors not appealed as a matter ofright. 3 State v. Russell, 171 Wn.2d 118, 122, 249 P.3d 604 (2011). Each

3 RAP 2.5(a) states, "The appellate courtmay refuse to review any claim oferror which was not raised in the trial court." 6No. 89028-5 (consol. wiNo. 89109-5) 

### appellate court must make its own decision to accept discretionaryreview. National and local cries for refonn ofbroken LFO systems demand that this court exercise its RAP 2.5(a) discretion and reach the merits ofthis case. At anational level, organizations have chronicledproblems associated withLFOs imposed against indigent defendants. These problems include increased difficultyin reentering society, the doubtful recoupment ofmoneybythe government, and inequities in administration. In2010, the American Civil Liberties Union issued areportthat chronicledthe problems associated with LFOs in five states-includingWashingtonand recommendedreforms to state and to local officials. AM. CIVILLIBERTIES UNION, IN FORAPENNY: THE RISE OFAMERICA'S NEWDEBTORS' PRISONS (201 0) (ACLU), available at

### https://www.aclu.org/files/assets/InForAPenny_web.pdf. That same year, the Brennan Center for Justice atNew YorkUniversity School ofLaw published areport outlining the problems with criminal debt, most notably the impediment it creates to reentry and rehabilitation. ALICIABANNON, MITALINAGRECHA &

### REBEKAH DILLER, BRENNAN CTR. FORJUSTICE, CRIMINALJUSTICE DEBT: ABARRIERTO REENTRY (20 1 0), available at

### http://www.brennancenter.org/sites/default/files/legacy /Fees%20and%20Fines%20FINAL.pdf. Two years later, the Brennan Center followed up with "AToolkit for Action" thatproposed five specific reforms to combat the problems causedbyinequitable LFO systems. ROOPALPATEL & 

### MEGHNAPHILIP, BRENNAN CTR. FORJUSTICE, CRIMINALJUSTICE DEBT: ATOOLKIT FORACTION (20 12), available at

### http://www.brennancenter.org/sites/default/files/legacy/publications /Criminal%20Justice%20Debt%20Background%20for%20web.pdf. As part ofits second

7No. 89028-5 (consol. wiNo. 89109-5) 

### proposed reform, the Brennan Center advocated that courts must determine aperson's ability to paybefore the court imposes LFOs. 

### Id. at 14. Washingtonhas contributed its ownvoice to this national conversation. In2008, the Washington State Minority and Justice Commission issued areport that assessed the problems withthe LFO system in Washington. KATHERINE A. BECKETT, ALEXES M. HARRIS &

### HEATHEREVANS, WASH. STATEMINORITY &

### JUSTICE COMM'N, THE ASSESSMENTAND CONSEQUENCES OFLEGALFINANCIAL OBLIGATIONS INWASHINGTON STATE (2008) (WASH. STATEMINORITY &

### JUSTICE COMM'N), available at 

### http://www.courts.wa.gov/committee/pdf/2008LFO_report.pdf. This conversation remains important to our state and to our court system. As amici4 

### and the above-referencedreports point out, Washington's LFO system carries problematic consequences. To beginwith, LFOs accrue interest at arate of 12 percent and may also accumulate collection fees when they are not paid on time. RCW 10.82.090(1); Travis Stearns, LegalFinancial Obligations: Fulfilling the Promise of 

### Gideon byReducing the Burden, 

### 11 SEATTLEJ. Soc.JUST. 963, 967 (2013). Many defendants cannot afford these high sums and either do notpay at all or contribute a small amount everymonth. WASH. STATEMINORITY & 

### JUSTICE COMM'N, supra, 

### at 21. But on average, aperson who pays $25 per month toward their LFOs will owe the state more 10 years after conviction than they did when the LFOs were initially assessed. Id. 

### at 22.

4 This courtreceived ajoint amici curiaebrieffrom theWashington DefenderAssociation, the American Civil Liberties Union ofWashington, Columbia Legal Services, the Center for Justice, and the Washington Association ofCriminal Defense Lawyers. 8No. 89028-5 (consol. wiNo. 89109-5) Consequently, indigent offenders owe higher LFO sums than their wealthier counterparts because they cannot afford to pay, which allows interest to accumulate and to increase the total amount that they owe. See id. at 21-22. The inabilityto pay offthe LFOs means that courts retainjurisdiction over impoverished offenders long after they are released from prison because the court maintainsjurisdictionuntil they completely satisfy their LFOs. Id. at 9-11; RCW 9.94A.760(4) ("For an offense committed on or after July 1, 2000, the court shall retainjurisdiction over the offender, for purposes ofthe offender's compliance withpayment ofthe legal financial obligations, until the obligation is completely satisfied, regardless ofthe statutory maximum for the crime."). The court's long-term involvement in defendants' lives inhibits reentry: legal or background checks will show an active record in superior court for individuals who have not fully paid their LFOs. ACLU, supra, at 68-69. This active record can have serious negative consequences on employment, on housing, and on finances. Id. at 69. LFO debt also impacts credit ratings, making it more difficult to find secure housing. WASH. STATE MINORITY &JUSTICE COMM'N, supra, at 43. All ofthese reentry difficulties increase the chances ofrecidivism. Id. at 68. Moreover, the state cannot collect money from defendants who cannotpay, which obviates one ofthe reasons for courts to impose LFOs. See RCW 9.94A.030. For example, for three quarters ofthe cases sentenced in the first two months of2004, less than 20 percent ofLFOs had beenpaidthree years after sentencing. WASH. STATE MINORITY & JUSTICE COMM'N, supra, at 20.

9No. 89028-5 (consol. wiNo. 89109-5) Significant disparities also exist in the administration ofLFOs in Washington. For example, drug-related offenses, offenses resulting in trial, Latino defendants, and male defendants all receive disproportionately high LFO penalties. 

### !d. at 28-29. Additionally, counties with smallerpopulations, higher violent crime rates, and smallerproportions of their budget spent on law andjustice assess higher LFO penalties than other Washington counties. 

### !d. Blazina and Paige-Colter argue that, in order to impose discretionary LFOs under RCW 10.01.160(3), the sentencingjudge must consider the defendant's individual financial circumstances and make an individualized inquiry into the defendant's current and future ability to pay. Suppl. Br. ofPet'r (Blazina) at 8. They also argue that the record must reflect this inquiry. We agree. By statute, "[t]he courtshallnotorder a defendant to pay costs unless the defendant is or will be able to pay them." RCW 10.01.160(3) (emphasis added). To determine the amount and method for payingthe costs, "the court shalltake account ofthe financial resources ofthe defendant and the nature ofthe burden thatpayment ofcosts will impose." 

### !d. (emphasis added). As a general rule, we treat the word "shall" as presumptively imperative-we presume it creates a duty rather than confers discretion. State v. Bartholomew, 104 Wn.2d 844, 848, 710 P.2d 196 (1985). Here, the statute follows this general rule. Because the legislature used the word "may" 11 times and the word "shall" eight times in RCW 10.01.160, we hold that the legislature intended the two words to have different meanings, with "shall" being imperative.

10No. 89028-5 (consol. wiNo. 89109-5) Practically speaking, this imperative under RCW 10.01.160(3) means that the court must do more than sign ajudgment and sentence with boilerplate language stating that it engaged in the required inquiry. The record must reflect that the trial court made

an individualized inquiry into the defendant's current and future ability to pay. Within this inquiry, the court must also consider important factors, as amici suggest, such as incarceration and a defendant's other debts, including restitution, when determining a defendant's ability to pay. Courts should also look to the comment in courtrule GR 34 for guidance. This rule allows aperson to obtain a waiver offiling fees and surcharges on the basis of indigent status, and the commentto the rule lists ways that aperson may prove indigent status. GR 34. For example, under the rule, courts must find aperson indigent ifthe person establishes that he or she receives assistance from a needs-based, means-tested ) assistance program, such as Social Security or food stamps. 

### !d. (comment listing facts thatprove indigent status). In addition, courts must find aperson indigent ifhis or her household income falls below 125 percent ofthe federal poverty guideline. Id. Although the ways to establish indigent status remain nonexhaustive, 

### see id., ifsomeone does meet the GR 34 standard for indigency, courts should seriously question that person's ability to pay LFOs. CONCLUSION At sentencing,judges ordered Blazina and Paige-Colterto pay LFOs under RCW 1

0.01.160(3). The records, however, do not show thatthe trialjudges considered either defendant's ability to pay before imposing the LFOs. The defendants did not object at
11No. 89028-5 (consol. wiNo. 89109-5) sentencing. Instead, they raised the issue for the first time on appeal. Although appellate courts will normally decline to hear unpreserved claims oferror, we take this occasionto emphasize the trial court's obligationto considerthe defendant's ability to pay. We holdthatRCW 10.01.160(3) requires therecord to reflect thatthe sentencing judge made an individualized inquiry into the defendant's current and future ability to pay before the court imposes LFOs. This inquiry also requires the courtto consider important factors, such as incarceration and a defendant's other debts, including restitution, when determining a defendant's ability to pay. Becausethe records inthis

case do not showthatthe sentencingjudges made this inquiry into either defendant's abilityto pay, weremandthe cases to the trial courts for new sentence hearings.

12No. 89028-5 (consol. wiNo. 89109-5)

# ~,c.Y, WE CONCUR:**----~-··--'-----------**



### 13State v. Blazina; State v. Paige-Colter, No. 89028-5 (Fairhurst, J., concurring in the result)



### No. 89028-5 FAIRHURST, J. 

### (concurring in the result)-! agree with the majority that RCW 10.01.160(3) requires a sentencing judge to make an individualized determination into a defendant's current and future ability to pay before the court imposes legal financial obligations (LFOs). I also agree thatthe trialjudges in these

cases did not consider either defendant's ability to pay before imposing LFOs. Because the error was unpreserved, I also agree that we must determine whether 

### it should be addressed for the first time on appeal. RAP 2.5(a). I disagree with how the majority applies RAP 2.5(a). RAP 2.5(a) contains three exceptions on which unpreserved errors can be raised for the first time on appeal. While the majority does not indicate which ofthe three exceptions it is applying to reach the merits, it is likely attempting to use RAP 2.5(a)(3), "manifest

error affecting a constitutional right." 1 

### However, the majority fails to apply the three part test from 

### State v. O'Hara, 167 Wn.2d 91, 98-100, 217 P.3d 756 (2009), that established what an appellant must demonstrate for an appellate court to reach

an unpreserved error under RAP 2.5(a)(3).

1The other two exceptions, "(1) lack oftrial courtjurisdiction" and "(2) failure to establish facts upon whichreliefcan be granted," are not applicable. RAP 2.5(a). 

### 1State v. Blazina,· State v. Paige-Colter, No. 89028-5 (Fairhurst, J., concurring in the result)



### In 0 

### 'Hara, 

### we found thatto meetRAP 2.5(a)(3) andraise an error for the first time on appeal, an appellant must demonstrate the error is manifest and the error is truly of constitutional dimension. Id. 

### at 98. Next, if a court finds a manifest constitutional error, it may still be subjectto a harmless error analysis.Jd. Here, the error is not constitutional in nature and thus the unpreserved error cannot be reached under a RAP 2.5(a)(3) analysis. In analyzing the asserted constitutional interest, we do not assume the alleged error is of constitutional magnitude but instead look at the asserted claim and assess whether, ifcorrect, it implicates a constitutional interest as comparedto another form oftrial error.Id. 

### The trial courtjudges in Blazina 

### and Paige-Colter 

### did not inquire into the defendants' ability to pay LFOs, which violates RCW 10.01.160(3). RCW 10.01.160(3) provides: 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 ofthe defendant and the nature ofthe burdenthatpaymentof costs will impose. Failing to determine a defendant's ability to pay LFOs violates the statute but does not implicate a constitutional right. Although the unpreserved error does not meet the RAP 2.5(a)(3) standard from 

### 0 'Hara, 

### I would hold that this error can be reached by applying RAP 1.2(a),
2State v. Blazina,· State v. Paige-Colter, No. 89028-5 (Fairhurst, J., concurring in the result)



### which states that the "rules will be liberally interpreted to promote justice and facilitate the decision ofcases on the merits." RAP 1.2(a) is rarely used, butthis is

an appropriate case for the court to exercise its discretion to reach the unpreserved

error because ofthe widespread problems, as stated in the majority, associated with LFOs imposed against indigent defendants. Majority at 6. The consequences ofthe State's LFO system are concerning, and addressing where courts are falling short ofthe statutewill promotejustice. InState v. Aha, 

### 137 Wn.2d 736, 740-41, 975 P.2d 512 (1999), we held that the supreme court "has the authorityto determine whether amatterisproperlybeforethe court,to performthose acts which are proper to secure fair and orderly review, and to waive the rules of appellate procedure when necessary 'to serve the ends ofjustice.'" (quoting RAP 1.2(c)). I agree withthe majoritythatRCW 10.01.160(3)requires sentencingjudges to take a defendant's individual financial circumstances into account and make an individual determination into the defendant's current and future ability to pay. In orderto ensure that indigent defendants are treated as the statute requires, we should reach the unpreserved error. Forthe foregoing reasons, I concur in the result only.

3State v. Blazina,· State v. Paige-Colter, No. 89028-5 (Fairhurst, J., concurring in the result)



### 4