FILED
COURT OF APPEAL"
DIVISION -II
2015 JUL 10 AM 9: °4 7
STATE OF WASHINGTON
BY J20.
Ir UTY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46101 -3 -II
Respondent,
V.
IRVING B. LYLE, PUBLISHED OPINION
JOHANSON, C. J. — Irving B. Lyle appeals the legal financial obligations ( LFOs) the trial
court imposed following his bench trial conviction. for failure to register as a sex offender. He
argues that the trial court failed to make an individualized determination on his present and future
ability to pay before imposing the LFOs. He further argues that defense counsel provided
ineffective assistance by failing to object to the LFOs. We hold that ( 1) because Lyle failed to
challenge his. LFOs and was sentenced after we issued State v. Blazina, 174 Wn. App. 906, 301
P. 3d 492 ( 2013), remanded, 182 Wn.2d 827, 344 P. 3d 680 ( 2015), he has waived this issue, and
2) Lyle' s ineffective assistance of counsel claim fails because the record does not establish that
defense counsel' s failure to object was prejudicial. Accordingly, we affirm.
FACTS
Following a bench trial, the trial court convicted Lyle of failure to register as a sex offender.
At the March 14, 2014 sentencing hearing, the State requested various LFOs.
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During the course of the sentencing hearing, in the context of discussing his request for an
exceptional sentence downward, Lyle presented some evidence about his financial situation, his
alleged disabilities, and his work history prior to his arrest. But the defense never mentioned any
LFOs or discussed Lyle' s present or future ability to pay LFOs.
The State argued against the exceptional sentence downward and asserted that Lyle' s
claims about any disability or having been a prisoner of war were unsubstantiated. But the State
never discussed Lyle' s present or future ability to pay LFOs.
The trial court denied Lyle' s request for an exceptional sentence after acknowledging that
Lyle' s character witness had trusted Lyle to work on his property but noting that Lyle had not
presented any documentation supporting his other claims. The trial court sentenced Lyle to 44
months of total confinement. Although the trial court mentioned it was imposing the LFOs, it did
not say anything about Lyle' s current or future ability to pay those LFOs.
The only mention of Lyle' s ability to pay the LFOs was in a boilerplate section of Lyle' s
judgment and sentence, which stated,
ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS. The court has
considered the total amount owing, the defendant' 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.
Clerk' s Papers at 20.
Lyle appeals the LFOs.
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ANALYSIS
I. LFO ISSUE WAIVED
Lyle argues that the trial court failed to make an individualized determination on his ability
to pay before imposing the LFOs. The State argues that this issue is not ripe for review until the
State attempts to enforce the LFOs, that the issue was not preserved for appeal, and that the trial
court properly considered Lyle' s ability to pay.
Our Supreme Court recently rejected the State' s ripeness argument in Blazina, 182 Wn.2d
at 833 n. L Accordingly, the fact that the State may not yet be attempting to collect Lyle' s LFOs
does not preclude our review of this issue.
But Lyle did not challenge the trial court' s imposition of LFOs at his sentencing, so he may
not do so on appeal. Blazina, 174 Wn. App. at 911. Our decision in Blazina, issued before Lyle' s
March 14, 2014 sentencing, provided notice that the failure to object to LFOs during sentencing
waives a related claim of error on appeal.' 174 Wn. App. at 911. As our Supreme Court noted,
1 The dissent argues that our limiting review of unpreserved errors to those cases in which the
sentencing was held before our 2013 Blazina decision is inappropriate because we had in other
cases refused to address challenges to LFOs based on the ability to pay because the issue was not
ripe for review. Dissent at 7 ( citing State v. Lundy, 176 Wn. App. 96, 108, 308 P.3d 755 ( 2013)).
The dissent asserts that the use of the ripeness doctrine could have 'suggested to counsel that it
would be futile to object to the imposition of LFOs at trial. We disagree because a timely objection
would not be futile.
The ripeness doctrine addresses only when a court can review an issue— it is not relevant
to whether an issue was properly preserved for review. See Lee v. Oregon, 107 F. 3d 1382, 1387-
88 ( 9th Cir. 1997) ("[ T] he ripeness doctrine can be specifically understood ` as involving the
question of when may a party seek preenforcement review."' ( quoting Erwin Chemerinsky,
Federal Jurisdiction § 2. 4 at 100 ( 1989))). Even if the issue were to become ripe at a later date,
the defendant could not raise the issue unless it had been properly preserved at trial or review was
allowed under RAP 2. 5( a).
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an appellate court may use its discretion to reach unpreserved claims of error. Blazina, 182 Wn.2d
at 830. We decline to exercise such discretion here.
11. NO INEFFECTIVE ASSISTANCE OF COUNSEL,
Lyle further argues that defense counsel provided ineffective assistance of counsel by
failing to challenge the LFOs. Based on this record, we disagree.
We review an ineffective assistance claim de novo, beginning with a strong presumption
that trial counsel' s performance was adequate and reasonable. Strickland v. Washington, 466 U.S.
668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Grier, 171 Wn.2d 17, 33, 246 P. 3d
1260 ( 2011). To prevail on an ineffective assistance of counsel claim, the appellant must show
both deficient performance and resulting prejudice; failure to show either prong defeats this claim.
State v. McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002).
Lyle is correct that defense counsel did not challenge the LFOs based on Lyle' s current or
future ability to pay. Because the sentencing hearing was after we issued our opinion in Blazina,
counsel should have been aware that to preserve any issue related to the LFOs he was required to
object. Thus, Lyle has arguably shown deficient performance, and we must next examine whether
this deficient performance was prejudicial.
To show prejudice, Lyle must establish, " based on the record developed in the trial court,
that the result of the proceeding would have been different but for counsel' s deficient
representation." State v. McFarland, 127 Wn. 2d 322, 337, 899 P. 2d 1251 ( 1995). Although the
record contains some information about Lyle' s financial status, he fails to show prejudice on this
record.
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No. 46101 -3 -II
Lyle presented some evidence relevant to his financial situation during the sentencing
hearing. But this information was presented in the context of Lyle' s request for an exceptional
sentence downward, not to provide evidence related to Lyle' s current or future ability to pay.
These facts suggest that Lyle may be disabled but that he was able to do at least some work as
evidenced by the fact he had been working for several months before the sentencing. The trial
court stated that many of Lyle' s assertions were unsupported and there are no additional facts in
the record, such as whether Lyle has additional debt, which would allow us to determine whether
the trial court would have imposed fewer or no LFOs if defense counsel had objected. Because
Lyle must establish prejudice on this record and the record is not sufficient for us to determine
whether there is a reasonable probability that the trial court' s decision would have been different,
his ineffective assistance of counsel claim fails.2
Accordingly, we affirm Lyle' s sentence.
DdA—
N SbK, C. J.
I concur:
SUTTON, J.
2 We note that Lyle may be able to petition for remission of his LFOs under RCW 10. 0 1. 160( 4).
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BJORGEN, J. ( dissenting) — In State v. Blazina, 182 Wn.2d 827, 830, 833- 34, 344 P. 3d
680 ( 2015), our Supreme Court exercised its discretion under RAP 2. 5 to decide whether trial
courts must make an individualized inquiry into a defendant' s current and future ability to pay
before imposing discretionary legal financial obligations ( LFOs) under RCW 10. 0 1. 160( 3). The
court reached this issue, even though the defendant had not raised it at sentencing, because it
found that the pernicious consequences of "broken LFO systems" on indigent defendants
demand" that it reach the issue, even though it was not raised in the trial court. Blazina, 182
Wn.2d at 833- 34.
Before us, Lyle raises the same issue in the same posture: he, too, is an indigent who
failed to raise the issue below. The same effects of the LFO system that led the Supreme Court
to reach the issue in Blazina face Lyle as much as they faced Blazina. If those consequences
demanded that the Supreme Court reach the issue in Blazina, they surely demand the same of us
here.
As the majority points out, the Supreme Court ii i-Blazina held that this court properly
exercised its discretion to decline review when we issued our Blazina decision in 2013. Blazina,
182 Wn.2d at 833- 34. The doctrinal tectonics, however, have shifted -since our decision in
Blazina. In that decision we followed the well trampled path of declining to reach issues for the
first time on appeal if they did not fall within the exceptions of RAP 2. 5. Now, the Supreme
Court has concluded that the hazards of our LFO system demand consideration of this same
issue, even if not raised below. As an indigent, Lyle confronts those same hazards. Although
No. 46101 -3 -II
our declining of review in 2013 was a sound exercise of discretion then, it is on much shakier
grounds now, after the Supreme Court has spoken.
In addition, the Supreme Court' s holding that we properly declined review in Blazina in
2013 came at the close of its demonstration that Ford and its progeny do not create a right to
review unpreserved LFO errors. Blazina, 182 Wn.2d at 833- 34. Thus, this holding cannot serve
as a license to continue to decline review of the same issue, when the Supreme Court has also
made clear that these same circumstances demand the exercise of discretion to review.
Finally, the majority argues that any need to review unpreserved errors cannot extend to
sentencing proceedings held after our Blazina decision in 2013, since that decision categorically
required such errors to be raised at sentencing. However, during the interval between our
Blazina decision and that of the Supreme Court, the law was also clear that a challenge to LFOs
based on ability to pay was not generally " ripe for review until the State attempts to curtail a
defendant' s liberty by enforcing them." State v. Lundy, 176 Wn. App. 96, 107- 08, 308 P. 3d 755
2013); see also State v. Baldwin, 63 Wn. App. 303, 310, 818 P. 2d 1116 ( 1991), amended, 837
P. 2d 646 ( 1992), and State v. Blank, 131 Wn.2d 230, 242, 930 P. 2d 1213 ( 1997). The central
rationale behind this rule was that only at enforcement could the ability to pay be meaningfully
weighed. See, e. g., Blank, 131 Wn.2d at 242. The case law deviated from this rule in the face of
circumstances such as those presented in State v. Bertrand, 165 Wn. App. 393, 405, 267 P. 3d
511 ( 2011), where a disabled defendant was ordered to commence payment of LFOs within 60
days of entry ofjudgment and sentence while still incarcerated.
3 State v. Ford, 137 Wn.2d 472, 973 P. 2d 452 ( 1999).
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During the interval between the two Blazina decisions, RCW 10. 01. 160( 3) was also in
effect, stating that
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.
The case law, however, has interpreted this provision to be subject to Lundy' s ripeness
restriction. See State v. Thomas, 185 Wn. App. 1058, 2015 WL 728245, at * 6 ( 2015).
Thus, between the two Blazina decisions the law took the pose of a Janus, telling parties
both that they must raise the issue of ability to pay LFOs at sentencing and that it would be futile
to do so. This contradiction is not relieved by holding that a defendant must raise the issue at
sentencing, even though he may not know until some distant enforcement stage whether he
actually has a meaningful challenge. With this equivocation in the law after our Blazina
decision, that decision should not serve as the threshold beyond which this error cannot be raised
for the first time on appeal. Only with the Supreme Court' s Blazina decision is that threshold
crossed.
For these reasons, I would hold that Lyle is not barred from raising his challenge to LFOs
for the first time on appeal.
BRGEr'..--