FILED
SEPT 8, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32839-2-111
Respondent, )
)
v. )
)
JOSHUA JAMES CLARK, ) OPINION PUBLISHED
) IN PART
Appellant. )
KORSMO, J. -Joshua Clark claims a right to have his unchallenged legal financial
obligations (LFOs) considered initially on appeal pursuant to RAP 2.5(a)(2). We reject
that argument and, in the unpublished portion of this case, also reject his CrR 3.3 challenge
to his convictions for attempting to elude and possession of a controlled substance.
FACTS
This action is a companion to State v. Clark, 191 Wn. App. 369, 362 P.3d 309
(2016) (published in part) (Clark I). As with this case, the issues presented on appeal in
Clark I involved an LFO challenge and a time for trial claim. The Clark I trial and
sentencing occurred after the trial and sentencing in this case. Id. at 371, 376. We noted
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State v. Clark
that scant attention was paid to LFOs at the sentencing in Clark I as the parties focused
on the question of concurrent or consecutive sentencing. Id. at 376.
The focus of this sentencing hearing was on the State's request for an exceptional
sentence on the attempting to elude charge. The jury had returned a special verdict that
others had been endangered by Mr. Clark's driving, resulting in a 12 month enhancement
to the base sentence. The State's sentencing memorandum urged an exceptional sentence
on the basis of the defendant's 24 unscored misdemeanor convictions. It also detailed the
financial costs and fines it was seeking. The prosecutor reiterated at sentencing most of
the costs and fines he was seeking.
Defense counsel then addressed the court on the financial matters and alerted the
judge that his client had been assaulted in the jail and would have additional medical
costs beyond the $95.41 mentioned in the State's briefing; he suggested the State might
need to set an additional hearing concerning the pending additional medical costs.
Counsel agreed that the $95.41 was currently owing for medical costs and then urged the
court to impose a midrange sentence within the enhanced range resulting from the special
verdict. Mr. Clark apologized for his behavior and asked for a treatment-based sentence
if possible. The trial court imposed a 30 month sentence at the top of the enhanced
sentence range rather than imposing an exceptional sentence. The court's oral remarks
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did not mention LFOs, but the judgment and sentence form imposed a total of $2,145.41 lI
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in costs and fines, including the $95.41 sought for medical expense reimbursement. The 't
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judgment and sentence form also contained pre-printed language indicating that the court
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had considered the defendant's "future ability to pay legal financial obligations, including I
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the defendant's financial resources." Clerk's Papers at 46.
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Mr. Clark timely appealed to this court. A panel considered the case without
argument.
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ANALYSIS I
Mr. Clark asserts a right to have his LFO argument heard in this court as well as II
urging that we exercise our discretion to consider his claim. After first characterizing one
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of the LFOs imposed by the trial court, we ultimately conclude that RAP 2.5(a)(2) does
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not support Mr. Clark's argument and decline to exercise discretion to consider his claim. l
As noted in Clark I, numerous appeals in recent years have addressed the
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imposition of LFOs without the record reflecting that the trial court first had undertaken i
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its RCW 10.01.160(3) obligation to consider the offender's ability to pay those costs.
191 Wn. App. at 372-73. The statutory obligation only extends to the decision to impose I
costs other than those mandated by the legislature. Id. at 373. Costs that are required by II
statute are not subject to this obligation. Among the mandatory costs are restitution, the
crime victim assessment, the DNA collection fee, and the criminal case filing fee. Id.
Most other costs, including witness costs, collection costs, and recoupment of the cost of
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trial counsel, are discretionary. Id. at 374. Clark I also determined that fines authorized
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by RCW 9A.20.021 are not "costs" subject to the statutory inquiry. Id. at 374-76. Ii
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Because the alleged error at issue in the LFO cases was the failure to comply with
a statutory requirement, and in nearly all cases there was no objection in the trial court,
the preliminary question was whether the belated challenge could even be raised on
appeal in light of Washington's policy of not entertaining arguments that had not been
presented to the trial court. RAP 2.5(a). All three divisions of this court concluded that
they could not be considered. Clark I, 191 Wn. App. at 373. Subsequently, the
Washington Supreme Court ruled the issue was not one that could be raised as a matter of
right and that the appellate courts had discretion to review or decline to review the issue.
State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d 680 (2015).
With this backdrop, we consider Mr. Clark's latest LFO challenge. Initially,
however, we need to resolve a preliminary question of how to characterize one of the
financial obligations imposed by the court. There were $800 in mandatory costs (filing
fee, crime victim assessment, DNA fee) and a $500 fine, thus placing $1,300 of the
assessments beyond reach of the statutory inquiry. Another $495.41 (attorney fee
recoupment, medical cost reimbursement) was assessed for clearly discretionary costs. It
is unclear to us whether the $250 jury demand fee is a mandatory or discretionary cost. 1
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Compare RCW 10.01.160(2), which indicates in relevant part that the jury fee
"under RCW 10.46.190 may be included in costs the court may require a defendant to pay"
with RCW 10.46.190, stating that "every person convicted ... shall be liable to all the costs
... including ... a jury fee ... for which judgment shall be rendered and collected." See
also State v. Diaz-Farias, 191 Wn. App. 512,524,362 P.3d 322 (2015) (concluding jury
demand fee could be imposed per RCW 10.01.160(2)) and State v. Munoz-Rivera, 190 Wn.
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As the parties do not directly address that fee in their briefing, we will assume for
purposes of this opinion that it is a discretionary cost. The remaining assessment is the
$100 crime laboratory fee.
RCW 43.43.690(1) provides:
When a person has been adjudged guilty of violating any criminal statute of
this state and a crime laboratory analysis was performed by a state crime
laboratory, in addition to any other disposition, penalty, or fine imposed, the
court shall levy a crime laboratory analysis fee of one hundred dollars for
each offense for which the person was convicted. Upon a verified petition
by the person assessed the fee, the court may suspend payment of all or part
of the fee if it finds that the person does not have the ability to pay the fee.
(emphasis added). The proceeds from this assessment are forwarded to the general fund
and are to be used only for the crime laboratories. RCW 43.43.690(3).
This assessment is mandatory if a laboratory analysis was conducted. Upon
conviction, the court "shall levy" the fee. Only on a "verified petition" by the offender
may the court suspend some or all of the fee if it determines there is no ability to pay.
Unlike discretionary costs, the laboratory fee is assessed and, then, perhaps, revised if the
defendant provides adequate proof. In contrast, the process is reversed under RCW
10.01.160(3). Under that provision, discretionary costs may only be imposed if the court
has first determined ability to pay.
App. 870,894,361 P.3d 182 (2015) (defendant considered jury demand fee as mandatory
cost).
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The crime laboratory fee is mandated by statute. Accordingly, $1,400 of the LFOs
assessed against Mr. Clark are not subject to initial challenge on appeal, while only $745
is subject to our discretionary decision whether or not to review the argument.
Mr. Clark, however, argues that RAP 2.5(a)(2) provides a vehicle to mandate that
we consider his challenges to the discretionary LFOs. That provision provides that "a
party may raise the following claimed errors for the first time in the appellate court: ...
(2) failure to establish facts upon which relief can be granted." This has long been the rule
in Washington. See O'Toole v. Faulkner, 29 Wash. 544, 548, 70 P. 58 (1902) (failure to
state a claim for relief could be raised for first time in the supreme court per statute). The
current text was considered to more accurately reflect modem practice than the former
"failure to state a claim" language. See RAP 2.5 cmt. a at 86 Wn.2d 1152 (1976).
Traditionally, this provision simply has been the basis for considering initially on
appeal a challenge to the prevailing party's evidence due to failure to establish some
element of its case. Thus, in Roberson v. Perez, 156 Wn.2d 33, 39-40, 123 P.3d 844
(2005), a tort judgment for negligent investigation was reversed on appeal because the
plaintiff had not been the subject of a police investigation nor to a harmful placement
decision. Similarly, a claim of unlawful age discrimination failed under RAP 2.5(a)(2)
when the defense pointed out on appeal that the plaintiff was too young to bring a claim
under the statute. Gross v. City ofLynnwood, 90 Wn.2d 395,400,583 P.2d 1197 (1978).
Accord, In re Adoption of TA. W., 188 Wn. App. 799, 808, 354 P.2d 46 (2015) (failure to
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prove compliance with Indian Child Welfare Act considered initially on appeal). RAP
2.5(a)(2) has not been applied in cases where the facts were unclear or agreed by the parties
in the trial court. E.g., Mukilteo Ret. Apts., L.L. C. v. Mukilteo Investors L.P., 176 Wn.
App. 244, 310 P.3d 814 (2013) (party who agreed at trial contract was valid could not use
RAP 2.5(a)(2) to argue lack of proof of element on appeal); Cole v. Harvey/and, L.L.C.,
163 Wn. App. 199, 258 P.3d 70 (2011) (unclear facts and uncertain burden of proof).
However, this rule also has been cited as the basis for addressing other issues on
appeal that had not been argued to the trial court. For instance, Division Two of this
court used the rule to dismiss a case where the appellant failed to establish her standing to
contest an adoption. Mitchell v. Doe, 41 Wn. App. 846, 848, 706 P.2d 1100 (1985). The
rule also has been cited as the basis for considering on appeal a statute and a local court
rule that were not cited to the trial court. Stedman v. Cooper, 172 Wn. App. 9, 24, 292
P.3d 764 (2012) (change in statute wrought by intervening supreme court decision was
dispositive on whether appellant had proved her entitlement to fees under the statute);
Batten v. Abrams, 28 Wn. App. 737,742,626 P.2d 984 (1981) (parties failed to comply
with mandatory local court rule, leaving trial court unable to impose discovery sanctions).
With particular emphasis on Stedman, Mr. Clark argues that insufficient facts
support the trial court's determination that he has the ability to pay his LFOs, thus leaving
the trial court without statutory authority to impose them. Brief of Appellant at 7-8.
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While creative, this expansion of the rule's meaning is unjustified and distorts the
purpose of the provision.
In each of the noted instances where RAP 2.5(a)(2) was applied, the "fact" in
question was one that went to an element of the case such as the age of the complainant
alleging age discrimination or the failure to comply with the Indian Child Welfare Act in
the adoption of a native American child. Gross, 90 Wn.2d at 400; T.A. W, 188 Wn. App.
at 799. Even where the argument was rejected, the "fact" in question still went to an
element of the cause of action. For instance, in Cole the fact in question was the number
of employees working for the defendant, a statutory element of an exemption from the
plaintiffs employment law claim. 163 Wn. App. at 205-12. In each of these instances,
the "fact" was one essential to the survival of the cause of action. 2 The Mitchell ruling on
standing similarly involved a "fact" essential to the ability to maintain the action-the
appellant's ability to challenge the adoption. 41 Wn. App. at 846.
The case factually most supportive of Mr. Clark's position is Batten. Properly
read, however, Batten is consistent with the other authorities. There the respondents had
failed to confer with the appellant's attorney, as required under the local court rules,
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Stedman is consistent with this reading, but is best understood as a retroactivity
case. The law changed while the case was on appeal, scrambling the "elements" of the
cause of action by revising what could be considered in determining which party
prevailed at a trial de novo following an arbitration award. The effect of the change in
law was to leave the respondent with insufficient evidence to support part of the damages
element of her case, a classic RAP 2.5(a)(2) concern. 172 Wn. App. at 24-25.
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before noting their motion for discovery sanctions. 28 Wn. App. at 742. Citing to Gross,
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this court concluded that RAP 2.5(a)(2) allowed appellant to raise the non-compliance
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argument despite failing to object in the trial court. Id. We viewed the rule as the cause l
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of action for pursuing the discovery sanctions and concluded that respondents had failed
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to prove a critical fact necessary for their recovery. Id. at 742-43.
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In contrast, the "fact" at issue here-whether the trial court complied with its
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statutory obligation before imposing the discretionary LFO component of the lI
sentence--