FILED COURT OF APPEALS OW I STATE OF WASHINGTON 

### 20180CT 15 AM 8:56 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON,

Respondent, V. DOUGLAS JOSEPH MOORS,

Appellant. No.76937-5-1 DIVISION ONE UNPUBLISHED OPINION
FILED:October 15,2018 

### APPELWICK, C.J. — Moors appeals the imposition of a $200 criminal filing fee following his conviction for possession of heroin with intent to manufacture or deliver. He argues that criminal filing fees imposed under former RCW 36.18.020(2)(h)(2015)are discretionary and require an individualized inquiry into a defendant's ability to pay. Alternatively, Moors argues that the criminal filing fee violates his right to equal protection. Moors is entitled to benefit from House Bill 1783's amendmentto the criminal filing fee statute.1 We reverse and remand. FACTS On November 9,2016,the State charged Douglas Moors with one count of possession ofa controlled substance (heroin)with intentto manufacture ordeliver. Moors pleaded guilty to the charge on March 22, 2017. In the plea agreement, Moors agreed with the State's sentencing recommendation of 60 months,except for the State's recommendation for legal financial obligations (LF0s).


### ENGROSSED SECOND SUBSTITUTE H.B. 1783, § 17(2)(h), 65th Leg., Reg. Sess.(Wash.2018)(House Bill 1783).No 76937-5-1/2
The trial court imposed an 85 month sentence for the possession crime. Th trial court also imposed LF05,including a $200 criminal filing fee pursuant to for er RCW 36.18.020(2)(h). At the sentencing hearing, Moors did not object to th court's imposition ofthe criminal filing fee. Moors appealed. After he appealed, the Washington Legislature enacted House Bill 1783, which amends the criminal filing fee statute. See LAWS OF 2018, ch. 269, § 17 in LA

to 2)(h). The amendment prohibits courts from imposing the $200 filing fee on igentdefendants. Id. The amended statute iseffective as ofJune 7,2018. See NS OF 2018,at ii (see (5)(a)setting outthe effective date). DISCUSSION Moors contends that the trial court erred in failing to inquire into his ability pay the $200 criminal filing fee, imposed under former RCW 36.18.020(2)(h), because the filing fee is a discretionary legal financial obligation (LFO). Alternatively, he contends that the fee's imposition violates his right to equal protection, because civil litigants are permitted a waiver of filing fees based on incigency under GR 34. Moorsfailed to raise these objectionsto thetrial court. Thus,he haswaived th issues absent manifest constitutional error. RAP 2.5(a)(3). An error raised for the first time on appeal must be manifest and truly of constitutional dimension. Stte v. Kirkman, 159 Wn.2d 918,926,155 P.3d 125(2007). The defendant must show how the alleged error actually affected his rights at trial. Id. at 926-27. "If thefacts necessary to adjudicate the claimed errorare not in the record on appeal, no actual prejudice is shown and the error is not manifest." State v. McFarland, 2No.76937-5-1/3

127 Wn.2d 322,333,899 P.2d 1251 (1995). However,we need not address this threshold question, because Moors is entitled to benefit from House Bill 1783's amendment to the criminal filing fee statute. State v. Ramirez, No. 95249-3,slip op. at 22 (Wash. Sept. 20, 2018), http://www.courts.wa.gov/opinions/pdf/ 952493.pdf. Under the former criminal filing fee statute, upon conviction or a guilty plea, "an adult defendant in a criminal case shall be liable for a fee of two hundred dollars." Former RCW 36.18.020(2)(h). But,the current statute prohibits a court from imposing this fee "on a defendant who is indigent as defined in RCW 10.101.010(3)(a)through (c)." RCW 36.18.020(2)(h). In Ramirez, the State Supreme Court held that House Bill 1783 applied on appeal to invalidate a $200 criminal filing fee imposed on an indigent defendant. No. 95249-3, slip. op. at 23. On March 7, 2018, the court granted Ramirez's petition for review on the issue of discretionary LF0s.2 Id. at 6. House Bill 1783 was enacted on March 27,2018. Id. The court reasoned that,because House Bill 1783's amendments pertain to costs imposed upon conviction and Ramirez's case was not yet final when the amendments were enacted, he was entitled to benefit from the statutory change. Id.at22. Ramirezsatisfied the indigency requirements of RCW 10.101.010(3)(c)at the time of sentencing,so the court held that the trial court impermissibly imposed the criminal filing fee on him. Id. at 20,22.3

2 In addition to discretionary LF0s, the trial court had imposed a $200 criminal filing fee on Ramirez. Id. at 3.

3 The courtalso held that based on House Bill 1783's amendments,the trial court impermissibly imposed discretionary LFOs of$2,100 on Ramirez. Id. at 22. 3No. 76937-5-1/4
Moors filed his notice of appeal on June 5, 2017. When House Bill 1783's amendments were enacted on March 27,2018,his case was not yetfinal. Moors is therefore entitled to benefitfrom the statutory change. See Ramirez, No.95249- 3,slip. op.at 22. If Moorswas indigent asdefined in RCW 10.101.010(3)(a)-(c)atthe time of sentencing,thetrial courtimpermissibly imposed the criminalfiling fee on him. See RCW 36.18.020(2)(h); Ramirez, No. 95249-3, slip. op. at 22. Under those subsections, a person is "indigent" if he or she receives certain types of public assistance, is involuntarily committed to a public mental health facility, or receives an annual income, after taxes, of 125 percent or less of the current federally ' established poverty level. RCW 10.101.010(3)(a)-(c). In addition, RCW 10.101.010(3)(d),defines "indigent"as a person unable to pay the anticipated cost of counsel for the matter before the court. Atthe sentencing hearing,the trial court stated, I'll sentence Mr. Moors to 85 months, add 12 months of community custody on top of that, $500 victim penalty assessment, $100 DNA fee, $200 filing fee. All other fines, fees, costs, and assessments will be waived. I'll make that based on a finding of indigency. (Emphasis added.) And, the amended judgment and sentence established that the additionalfine forthe possession charge was "deferred due to indigency." But, we cannot ascertain from the record if the trial court found Moors indigent based on the definitions in RCW 10.101.010(3)(a)-(c). Because the record is unclear,we do not know if Moors satisfied the indigency requirement in RCW 36.18.020(2)(h).

4No.76937-5-1/5

We reverse the imposition of the criminal filing fee and remand for the trial court to determine whether Moors is indigent under RCW 10.101.010(3)(a)-(c).

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# V WE CONCUR: 7 

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