July 11,2013
In elre Office of the Clerk oFCourt
WA State Court of Appeals, Division 111
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, 1
1 No. 30548-1-111
Respondent, 1
1
v. 1
1
LOUIS VICTOR KUSTER 1 PUBLISHED OPINION
also known as LOUIS V. KUSTER, 1
1
Appellant. 1
SIDDOWAY, A.C.J. -Louis Kuster challenges two terms of the sentence imposed
for his conviction of second degree rape: a restriction on any access to pornography and
what he characterizes as an implicit finding that he has the ability to pay $800 in legal
financial obligations (LFOs), which he contends is unsupported by the record.
The State concedes that the pornography restriction is unconstitutionally vague in
light of State v. Bahl, 164 Wn.2d 739, 193 P.3d 678 (20081, a concession we accept. We
conclude that the LFOs at issue are largely mandatory fees, as to which Mr. Kuster's
arguments have no application. To the extent the court imposed costs, we decline to
consider Mr. Kuster's argument for the first time on appeal that the court made an
unsupported, implicit finding of his ability to pay. We remand for the limited purpose of
No. 30548-1-111
State v. Kuster
the trial court striking or narrowing the access to pornography condition. We otherwise
affirm.
FACTS AND PROCEDURAL BACICGROUND
The jury found Louis Icuster guilty of second degree rape in November 20 11. At
sentencing, the court imposed $800 in LFOs, consisting of a $500 victim assessment fee,
$200 in court costs, and a $100 DNA' collection fee.
The judgment included boilerplate language that the court had "considered the
total amount owing, the defendant's past, present and future ability to pay [LFOs],
including the defendant's financial resources and the likelihood that the defendant's
status will change." Clerk's Papers (CP) at 3 1. It did not include any explicit finding
that Mr. Kuster had the past, present, or future ability to pay the LFOs. The record of the
sentencing hearing does not reveal the presentation or consideration of any information
about Mr. Kuster's ability to pay other than the following statements by the court about
his prospects for earnings during incarceration:
I will set a minimum monthly payment of $5 per month. I do that because
you are going to be in the institution. I would expect at some point you will
get employ~nent within the institution, but you are going to be at the bottom
of the list as . . . a new person coming in. It may take a while, number one,
and number two they do not pay a whole lot. It is certainly substantially
less than the minimum wage. I will make your first payment due on or
before June 15th because you are going to have to go to classifications and
that might take a couple months before you go to an institution. And then
' Deoxyribonucleic acid,
NO. 30548-1-111
State v. Kuster
you may take some more months before you will be eligible to earn any
money.
Report of Proceedings (Jan. 4, 2012) at 27. Mr. Kuster did not object at the sentencing
hearing that his sentence included an unsupported implicit finding of his ability to pay the
LFOs.
The trial court sentenced Mr. Kuster to 114 inonths with credit for tiinc served,
explaining to hiin that in light of the "determinate plus"2 senlcncing provided by RCW
9.94A.507, 114 months would be his minimum sentence, with his inaxiinum sentence (up
to life) to be determined by the indcterminate sentencing review board.
The trial court's judgment also included, as a condition of Mr. ICustcr's period of
coinmunity custody (which is up to life), "That you do not view or possess pornography
in any form." CP at 27.
Mr. Kuster appeals the pornography restriction and what he characterizes as an
implicit finding of his ability to pay his LFOs.
ANALYSIS
The State concedcs that Mr. ICuster may challenge the condition restrictiilg his
access to pornography for the first time on appeal. It also concedes that the condition is
2
"Determinate plus" is a term used by state agencies to reflect the determinate and
indeterminate components of sentences imposed on nonpersistent sex offenders. WASH.
STATE CASELOAD FORECAST O ~ ~ N C I L , WASHINGTON
C 20 12 STATE ADIJLT SENTENCING
GUIDELINES 5
MANUAL 3, at 24-25 (version 2012123 1).
No. 30548-1-111
State v. Kuster
unconstitutionally vague. See Bahl, 164 Wn.2d at 745. It agrees that the condition must
be stricken or narrowed. We accept the State's concessions. With that, there is only one
disputed issue, raised for the first time on appeal: whether, as Mr. Kuster argues, by
ordering him to begin making monthly payments toward his LFOs in June 2012, the trial
court implicitly found, without supporting evidence, that he had the ability to pay.
Whenever a person is convicted in superior court, the court may order the payment
of LFOs as part of the sentence. RCW 9.94A.760(1). Among the financial obligations
the court may impose are certain costs, including expenses specially incurred by the State
in prosecuting the defendant. RCW 10.01.160(1), (2). By statute, the court is not
authorized to order a defendant to pay costs unless he or she is or will be able to pay
them. RCW 10.01.160(3). 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. Id.
Two of the LFOs imposed by the trial court on Mr. Kuster are not discretionary
costs governed by RCW 10.01.160. They are, instead, statutorily inandated financial
obligations. The $500 vietiin assessment is mandated by RCW 7.68.035 and the $100
DNA collection fec is mandated by RCW 43.43.7541. Neither statute requires the trial
court to consider the offender's past, present, or future ability to pay. Monetary
assessments that are mandatory may be imposed on indigent offenders at the time of
sentencing without raising constitutional concern because "'[c]onstitutional principles
No. 30548-1-111
State v. Kuster
will be implicated . . . only if the govern~nent
seeks to enforce collection of the
assessments at a time when [the defendant is] unable, through no fault of his own, to
comply,'" and "'[ilt is at the point of enforced collection . . .,where an indigent may be
faced with the alternatives of payment or imprisonment, that he may assert a
constitutional objection on the ground of his indigency.'" State v. Blank, 131 Wn.2d 230,
24 1, 930 P.2d 12 13 (1 997) (most alterations in original) (internal quotation marks
omitted) (quoting State v. Curry, 118 Wn.2d 91 1, 917, 829 P.2d 166 (1992)); andsee
State v. Thompson, 153 Wn. App. 325, 336-38,223 P.3d 1165 (2009) (DNA fee); State v.
E'illiams, 65 Wn. App. 456, 460-61, 828 P.2d 1158, 840 P.2d 902 (1992) (victim penalty
assessment).
The remaining $200 imposed was labeled "court costs" and the specific cost the
court had in mind is not known. It may well be the $200 criminal filing fee-another
mandatory fee provided by RCW 36.18.020(2)(h)-but for purposes of appeal we lnay
not rely on that assumption.
The State responds to Mr. Kuster's challenge to this alleged implicit finding by
arguing that the trial court's consideration of his prospects of prison e~nploy~nent
was
enough to support an implicit finding, given his 114-month minimum, ultimately
indeterminate sentence. The State does not address the fact that the trial court made no
explicit finding of ability to pay. It does not address State v. Crook, 146 Wn. App. 24,
189 P.3d 81 1 (2008), in which we held that Department of Corrections deductions from
No. 30548-1-111
State v. Kuslev
inmate wages-the mechanism for payment evidently contemplated by this court-are
not collection actions requiring review of ability to pay because statutory formulas for
payment ensure that inmate accounts will not be reduced below indigency levels. RCW
72.1 1.020; RCW 72.09.1 1l(1); former RCW 72.09.015(13) (2009). The State does not
address whether, if the court did err, we should consider it for the first time on appeal.
RAP 2.5(a) states the general rule for appellate dispositioil of issues not raised in
the trial court: appellate courts will not entertain them. State v. Guzman Nuiiez, 160 Wn.
App. 150, 157, 248 P.3d 103 (201 1) (citing State v. Scott, 110 Wn.2d 682,685,757 P.2d
492 (1988)), aff'd, 174 Wn.2d 707, 285 P.3d 21 (2012). We may decline to address an
issue under RAP 2.5(a) sua sponte. State v Kirkpatrick, 160 Wn.2d 873, 880 n. 10, 161
P.3d 990 (2007), overruled in part on other grounds by State v. Jasper, 174 Wn.2d 96,
271 P.3d 876 (2012). Given the likelihood that the $200 imposed in costs was a
mandatory fee and the ample protection for Mr. Kuster's constitutional rights that exist if
and when the State takes action to collect the LFOs. we decline to consider this
assignment of error further.
We remand to the trial court for the limited purpose of striking or narrowing the
access to pornography condition to satisfy the constitutional vagueness coilcerns
addresscd in Bahl, e.g., by revising the condition to prohibit Mr. Kuster from using or
NO. 30548-1-111
State v. Kuster
possessing any depictions of "sexually explicit coilduct" as defined in foriner RCW
9.68A.01l(3) (2002). We otherwise affirin.
WE CONCUR:
i/
Kulik, J.