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v. ) UNPUBLISHED OPINION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.
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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 of the 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 of problems 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 of the 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.
Lawrence-Berrey, 1.
WE CONCUR:
Brown, A.C.J.
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