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1~1 CLtoRKS OFFICE ', 

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DATE MAR 1 2 20 I 

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, ) 

) No. 89028-5 

Respondent, ) (consol. wiNo. 89109-5) 

) 

v. ) 

) 

NICHOLAS PETER BLAZINA, ) 

) 

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-Colter to pay discretionary legal financial obligations (LFOs) under RCW 

10.01.160(3). The records do not show that the trial judges considered either defendant's 

ability to pay before imposing the LFOs. Neither defendant objected at the time. For the 

first time on appeal, however, both argued that a trial judge must make an individualized 
No. 89028-5 (consol. wiNo. 89109-5) 

inquiry into a defendant's ability to pay and that the judges' failure to make this inquiry 

warranted resentencing. Citing RAP 2.5, the Court of Appeals 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 of error, an 

appellate court may use its discretion to reach unpreserved claims of error consistent with 

RAP 2.5. In this case, we hold that the Court of Appeals 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 court has a statutory obligation to make an individualized inquiry into a 

defendant's current and future ability to pay before the court imposes LFOs. Because the 

trial judges failed to make this inquiry, we remand to the trial courts for new sentence 

hearings. 

FACTS 

A. State v. Blazina 

A jury convicted Blazina of one count of second 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 of Assigned 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's judgment and sentence included the 

following boilerplate language: 

2 
No. 89028-5 (consol. wiNo. 89109-5) 

2.5 ABILITY TO PAY LEGAL 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 that the trial court erred when it found him able to 

pay his LFOs. The Court of Appeals declined to consider this claim because Blazina "did 

not object at his sentencing hearing to the finding of his 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 of first degree assault and one 

count of first degree unlawful possession of a firearm. A jury convicted Paige-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 of Assigned Counsel recoupment ... [,and] 

restitution by later order." Paige-Colter Verbatim Report of Proceedings (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's judgment and sentence included boilerplate language stating the 

court considered his ability to pay the imposed legal fees. 

3 
No. 89028-5 (consol. wiNo. 89109-5) 

Paige-Colter appealed and argued that the trial court erred when it imposed 

discretionary LFOs without first maldng an individualized inquiry into his ability to pay. 

The Court of Appeals concluded that Paige-Colter waived these claims by not objecting 

below. State v. Paige-Colter, noted at 175 Wn. App. 1010,2013 WL 2444604, at *1. 

We granted review on this issue and consolidated the case with Blazina. State v. PaigeColter, 178 Wn.2d 1018,312 P.3d 650 (2013). 

ANALYSIS 

A defendant who makes no objection to the imposition of discretionary LFOs at 

sentencing is not automatically entitled to review. 1 It is well settled that an "appellate 

court may refuse to review any claim of error which was not raised in the trial court." 

RAP 2.5(a). This rule exists to give the trial court an opportunity to correct the error and 

to give the opposing party an opportunity to respond. State v. Davis, 175 Wn.2d 287, 

344,290 P.3d 43 (2012), cert. denied,_ U.S._, 134 S. Ct. 62, 187 L. Ed. 2d 51 

(2013). The text of RAP 2.5(a) clearly delineates three exceptions that allow an appeal as 

a matter of right. See RAP 2.5(a).2 

Blazina and Paige-Colter do not argue that one of the RAP 2.5(a) exceptions 

applies. Instead, they cite State v. Ford, 137 Wn.2d 472, 477-78, 973 P.2d 452 (1999) 

1 The State argues that the issue is not ripe for review because the proper time to challenge the 

imposition of an LFO arises when the State seeks to collect. Suppl. Br. ofResp't (Blazina) at 5-

6. We disagree. "'Three requirements compose a claim fit for judicial determination: if the 

issues are primarily legal, do not require further factual development, and the challenged action 

is final."' State v. Bah!, 164 Wn.2d 739, 751, 193 P.3d 678 (2008) (quoting First United 

Methodist Church v. Hr'g Exam 'r, 129 Wn.2d 238, 255-56, 916 P.2d 374 (1996)). A challenge 

to the trial court's entry of an LFO order under RCW 10.01.160(3) satisfies all three conditions. 

2 By mle, "a party may raise the following claimed errors for the first time in the appellate court: 

(1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, 

and (3) manifest error affecting a constitutional right." RAP 2.5(a). 

4 
No. 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 of right. Suppl. Br. ofPet'r (Blazina) at 3. In State v. 

Jones, 182 Wn.2d 1, 338 P.3d 278 (2014), a recent unanimous decision by this court, we 

said that Ford held unpreserved sentencing errors "may be raised for the first time upon 

appeal because sentencing can implicate fundamental principles of due process if the 

sentence is based on information that is false, lacks a minimum indicia of reliability, or is 

unsupported in the record." Jones, 182 Wn.2d at 6. However, we find the exception 

created by Ford does not apply in this case. 

Unpreserved LFO errors do not command review as a matter of right under Ford 

and its progeny. As stated in Ford and reiterated in our subsequent cases, concern about 

sentence conformity motivated our decision to allow review of sentencing 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 of counsel to 

register a proper 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 of vague community custody requirements create this sort of sentencing 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 of out of state convictions for offender score 

calculation); State v. Bahl, 164 Wn.2d 739, 743-45, 193 P.3d 678 (2008) (community 

custody conditions of sentence). We thought it justifiable to review these challenges 

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

raised for the first time on appeal because the error, if permitted to 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 not promote 

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 of the defendant's case. See RCW 10.01.160(3). The legislature did not 

intend LFO orders to be uniform among cases of similar 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 a trial judge 

consider the defendant's ability to pay and, here, the trial judges erred by failing to 

consider, this error will not taint sentencing for similar crimes in the future. The error is 

unique to these defendants' circumstances, and the Court of Appeals properly exercised 

its discretion to decline review. 

Although the Court of Appeals properly declined discretionary review, RAP 2.5(a) 

governs the review of issues 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 of claimed 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 court may refuse to review any claim of error which was not 

raised in the trial court." 

6 
No. 89028-5 (consol. wiNo. 89109-5) 

appellate court must make its own decision to accept discretionary review. National and 

local cries for refonn of broken LFO systems demand that this court exercise its RAP 

2.5(a) discretion and reach the merits ofthis case. 

At a national level, organizations have chronicled problems associated with LFOs 

imposed against indigent defendants. These problems include increased difficulty in 

reentering society, the doubtful recoupment of money by the government, and inequities 

in administration. In 2010, the American Civil Liberties Union issued a report that 

chronicled the problems associated with LFOs in five states-including Washingtonand recommended reforms to state and to local officials. AM. CIVIL LIBERTIES UNION, IN 

FOR A PENNY: THE RISE OF AMERICA'S NEW DEBTORS' PRISONS (20 1 0) (ACLU), 

available at https://www.aclu.org/files/assets/InForAPenny_web.pdf. That same year, 

the Brennan Center for Justice at New York University School of Law published a report 

outlining the problems with criminal debt, most notably the impediment it creates to 

reentry and rehabilitation. ALICIA BANNON, MITALINAGRECHA & REBEKAH DILLER, 

BRENNAN CTR. FOR JUSTICE, CRIMINAL JUSTICE DEBT: A BARRIER TO REENTRY (20 1 0), 

available at http://www .brennan center .org/ sites/ default/files/legacy 

/Fees%20and%20Fines%20FINAL.pdf. Two years later, the Brennan Center followed 

up with "A Toolkit for Action" that proposed five specific reforms to combat the 

problems caused by inequitable LFO systems. ROO PAL PATEL & MEGHNA PHILIP, 

BRENNAN CTR. FOR JUSTICE, CRIMINAL JUSTICE DEBT: A TOOLKIT FOR ACTION (20 12), 

available at http://www. brennan center .org/ sites/ default/files/legacy/publications 

/Criminal %20Justice%20Debt%20Background%20for%20web.pdf. As part of its second 

7 
No. 89028-5 ( consol. wiNo. 891 09-5) 

proposed reform, the Brennan Center advocated that courts must determine a person's 

ability to pay before the court imposes LFOs. I d. at 14. 

Washington has contributed its own voice to this national conversation. In 2008, 

the Washington State Minority and Justice Commission issued a report that assessed the 

problems with the LFO system in Washington. KATHERINE A. BECKETT, ALEXES M. 

HARRIS & HEATHER EVANS, WASH. STATE MINORITY & JUSTICE COMM'N, THE 

ASSESSMENT AND CONSEQUENCES OF LEGAL FINANCIAL OBLIGATIONS IN WASHINGTON 

STATE (2008) (WASH. STATE MINORITY & 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-referenced reports point out, Washington's LFO system 

carries problematic consequences. To begin with, LFOs accrue interest at a rate of 12 

percent and may also accumulate collection fees when they are not paid on time. RCW 

10.82.090(1); Travis Stearns, Legal Financial Obligations: Fulfilling the Promise of 

Gideon by Reducing the Burden, 11 SEATTLE J. Soc. JUST. 963, 967 (2013). Many 

defendants cannot afford these high sums and either do not pay at all or contribute a small 

amount every month. WASH. STATE MINORITY & JUSTICE COMM'N, supra, at 21. But on 

average, a person 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 court received a joint amici curiae brief from the Washington Defender Association, the 

American Civil Liberties Union of Washington, Columbia Legal Services, the Center for Justice, 

and the Washington Association of Criminal Defense Lawyers. 

8 
No. 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 inability to pay off the LFOs means 

that courts retain jurisdiction over impoverished offenders long after they are released 

from prison because the court maintains jurisdiction until 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 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 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 of these reentry difficulties increase the 

chances of recidivism. I d. at 68. 

Moreover, the state cannot collect money from defendants who cannot pay, which 

obviates one of the reasons for courts to impose LFOs. See RCW 9.94A.030. For 

example, for three quarters of the cases sentenced in the first two months of 2004, less 

than 20 percent of LFOs had been paid three years after sentencing. WASH. STATE 

MINORITY & JUSTICE COMM'N, supra, at 20. 

9 
No. 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 smaller populations, higher violent crime rates, and smaller proportions of 

their budget spent on law and justice 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 sentencing judge 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 court shall not order 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 paying the 

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." !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. 

10 
No. 89028-5 (consol. wiNo. 89109-5) 

Practically speaking, this imperative under RCW 10.0 1.160(3) means that the 

court must do more than sign a judgment 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 court rule GR 34 for guidance. This 

rule allows a person to obtain a waiver of filing fees and surcharges on the basis of 

indigent status, and the comment to the rule lists ways that a person may prove indigent 

status. GR 34. For example, under the rule, courts must find a person indigent if the 

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 

that prove indigent status). In addition, courts must find a person indigent if his or her 

household income falls below 125 percent of the federal poverty guideline. Id. Although 

the ways to establish indigent status remain nonexhaustive, see id., if someone 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-Colter to pay LFOs under RCW 

1 0. 0 1.160(3). The records, however, do not show that the trial judges considered either 

defendant's ability to pay before imposing the LFOs. The defendants did not object at 

11 
No. 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 of error, we take this occasion to 

emphasize the trial court's obligation to consider the defendant's ability to pay. 

We hold that RCW 10.01.160(3) requires the record to reflect that the 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 court to consider 

important factors, such as incarceration and a defendant's other debts, including 

restitution, when determining a defendant's ability to pay. Because the records in this 

case do not show that the sentencing judges made this inquiry into either defendant's 

ability to pay, we remand the cases to the trial courts for new sentence hearings. 

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

~,c.Y, 

WE CONCUR: 

----~-··--'-----------

13 
State 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 1 0. 0 1.160(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 that the trial judges 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 of the 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). 

1

The other two exceptions, "(1) lack of trial court jurisdiction" and "(2) failure to establish 

facts upon which relief can be granted," are not applicable. RAP 2.5(a). 

1 
State v. Blazina,· State v. Paige-Colter, No. 89028-5 

(Fairhurst, J., concurring in the result) 

In 0 'Hara, we found that to meet RAP 2.5(a)(3) and raise 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 subject to 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, if correct, it 

implicates a constitutional interest as compared to another form of trial error.Id. 

The trial court judges 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 of the defendant and the nature of the burden that payment of 

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), 

2 
State 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 of cases on the merits." RAP 1.2(a) is rarely used, but this is 

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

error because of the widespread problems, as stated in the majority, associated with 

LFOs imposed against indigent defendants. Majority at 6. 

The consequences of the State's LFO system are concerning, and addressing 

where courts are falling short of the statute will promote justice. In State v. Aha, 137 

Wn.2d 736, 740-41, 975 P.2d 512 (1999), we held that the supreme court "has the 

authority to determine whether a matter is properly before the court, to perform those 

acts which are proper to secure fair and orderly review, and to waive the rules of 

appellate procedure when necessary 'to serve the ends of justice.'" (quoting RAP 

1.2(c)). I agree with the majority that RCW 10.01.160(3) requires sentencing judges 

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 

order to ensure that indigent defendants are treated as the statute requires, we should 

reach the unpreserved error. 

For the foregoing reasons, I concur in the result only. 

3 
State v. Blazina,· State v. Paige-Colter, No. 89028-5 

(Fairhurst, J., concurring in the result) 

4