Filed
Washington State
Court of Appeals
Division Two
June 15, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53843-1-II
Respondent,
v.
TIMOTHY LLOYD MENZIES JR, UNPUBLISHED OPINION
Appellant.
CRUSER, J. – Timothy Lloyd Menzies, Jr. appeals the sentencing court's imposition of
community custody supervision fees and the costs of collections following resentencing on his
convictions of two counts of first degree rape of a child- domestic violence. He argues that the
sentencing court should have waived the community custody supervision fees and the costs of
collections because (1) they are discretionary costs that the sentencing court imposed
inadvertently. Menzies (2) raises several additional challenges to his conviction and sentence in a
statement of additional grounds.
We hold that the community custody supervision fees and collections costs are not “costs”
within the meaning of RCW 10.01.160(2), but the record indicates that the trial court inadvertently
imposed the community custody supervision fees and collections costs. With respect to the issues
Menzies raises in his SAG, we hold that they either cannot be addressed, or they fail on the merits.
No. 53843-1-II
Accordingly, we reverse and remand the imposition of community custody supervision
fees and collection costs and remand for clarification of the sentencing court’s intent to impose
those costs.
FACTS
I. INITIAL SENTENCING
Menzies was charged with two counts of first degree rape of a child and two counts of first
degree child molestation for sexually assaulting his daughter. He was also charged with three
counts of first degree rape of a child and one count of second degree rape of a child for sexually
assaulting his stepdaughter.
Menzies and the State negotiated a plea agreement, and the State reduced the charges to
two total counts of first degree rape of a child, one for each victim, with three aggravating factors
for each count. The aggravating factors included abuse of a position of trust, multiple victims, and
multiple offenses per victim. Menzies pleaded guilty to the charges as amended and stipulated to
facts that supported the sentencing enhancements. He did not stipulate to an exceptional sentence.
Menzies’s standard range sentence for each count of first degree rape of a child was an
indeterminate sentence of 120-160 months confinement. The sentencing court sentenced Menzies
to an exceptional sentence of 240 months to life confinement on the State’s recommendation. The
sentencing court found that Menzies “stipulated to the existence of three aggravating
circumstances,” and considered Menzies’s conduct, the lack of prior criminal history, the standard
range sentences, and the argument presented by Menzies in imposing the sentence. Clerk’s Papers
(CP) at 66.
2
No. 53843-1-II
II. FIRST APPEAL
Menzies appealed his exceptional sentence. We held that the trial court could not properly
rely on the multiple victims aggravating factor because Menzies was convicted of separate counts
charged for each victim. State v. Menzies, No. 51431-1-II, slip op. at 8 (Wash. Ct. App. June 18,
2019) (unpublished), https://www.courts.wa.gov/opinions/. We remanded for resentencing
because we could not determine, based on the record, whether the sentencing court would have
imposed the same exceptional sentence if it had not considered the multiple victims aggravating
factor. Id. at 8-9.
In his first appeal, Menzies also challenged the trial court’s imposition of the $200 criminal
filing fee and the interest accrual provision. Id. at 9. We noted that the sentencing court intended
to impose only mandatory legal financial obligations (LFOs) and instructed the sentencing court
to reconsider the criminal filing fee and interest accrual provisions when it held Menzies’s
resentencing hearing. Id.
III. REMAND AND RESENTENCING
On remand, the sentencing court explained that each of the aggravating factors
independently supported the exceptional sentence it previously imposed. While it considered
Menzies’s attempt at making some positive changes since his incarceration, the sentencing court
focused on the egregiousness of Menzies’s actions and maintained that the exceptional sentence
was warranted. The trial court found that Menzies was the biological father of one victim and the
stepfather of the other, supporting the position of trust aggravating factor. In addition, the
sentencing court found that the abuse was “excessive, lasted for years, occurred on a daily or more
than once daily basis and included threats of violence,” supporting the multiple acts aggravating
3
No. 53843-1-II
factor. CP at 81. Consequently, the sentencing court again found substantial and compelling
reasons to impose a 240 month indeterminate exceptional sentence.
With respect to the LFOs, the sentencing court struck the $200 filing fee and provision
requiring the payment of interest on nonrestitution LFOs. In so ruling, the sentencing court
explained, “the thing that will be changed, and it's only because the statute changed . . . legal
financial obligations, and only those obligations that are not -- you are indigent and you will be for
some time, those, only those matters will be changed.” Verbatim Report of Proceedings (VRP) at
8. The trial court confirmed that Menzies had not been previously convicted of a felony before
imposing the DNA database fee.
The State then referred to the total LFOs as amounting to $1,679.65, which included
restitution, the crime victim assessment, and the DNA database fee. The sentencing court agreed
that this amount was appropriate. In Menzies’s judgment and sentence, the expressly listed LFO’s
included the $500 crime victim assessment, $100 DNA database fee, and $1,079.65 in crime victim
restitution. The sentencing court did not strike the boilerplate provisions regarding the cost of
collections or the provisions regarding community custody supervision fees.
Menzies appeals.
DISCUSSION
I. LFOS
Menzies argues that the community custody supervision fee and the collections costs are
discretionary costs that the trial court imposed in violation of RCW 10.01.160(3) due to his
indigency status. In addition, Menzies argues that because the trial court intended to limit his LFOs
4
No. 53843-1-II
to mandatory LFOs, and the challenged LFOs are discretionary, the community custody
supervision fee and the collections costs were imposed inadvertently and should be stricken.
The community custody supervision fee and the collections costs are not “costs” as defined
in RCW 10.01.160(2). We agree that these LFOs are discretionary, and that the record indicates
the sentencing court’s likely intent to limit Menzies’s LFOs to mandatory LFOs. However, the
record is not sufficiently clear on this point to allow us to strike the fees.
As provided in RCW 10.01.160(3), a sentencing court shall not order a defendant to pay
costs if a defendant is indigent as defined in RCW 10.101.010(3)(a) through (c). An additional
statute, RCW 9.94A.760(1), states that the sentencing court cannot impose “costs” as described in
RCW 10.01.160 if the defendant is indigent as defined in RCW 10.101.010(3)(a) through (c).
Under RCW 10.01.160(2) “costs” are defined as follows: “Costs shall be limited to expenses
specially incurred by the state in prosecuting the defendant or in administering the deferred
prosecution program under chapter 10.05 RCW or pretrial supervision.” (Emphasis added).1
We have previously held that community custody supervision fees are not costs under
RCW 10.01.160(2) because the expense is incurred post-conviction. State v. Starr, 16 Wn. App.
1
Menzies argues that RCW 10.01.160(2) does not define “costs,” and only states the type of cost
that a sentencing court may permissibly impose. Br. of Appellant 10. Menzies contends that even
if community custody supervision fees and collections costs do not fall within the enumerated
categories in RCW 10.01.160(2), they are still costs because all discretionary LFOs are costs, and
imposing costs on an indigent defendant violates RCW 10.01.160(3). Menzies’s argument lacks
merit. Taking Menzies’s assertion to its logical conclusion, a sentencing court could never impose
community custody supervision fees or collections costs because the only permissible “costs” are
those that fall within the enumerated categories. Consequently, community supervision fees and
collections fees would be prohibited under RCW 10.01.160(2) because regardless of a defendant’s
indigency status, they are not “expenses specially incurred by the state in prosecuting the defendant
or in administering the deferred prosecution program under chapter 10.05 RCW or pretrial
supervision.”
5
No. 53843-1-II
2d 106, 109, 479 P.3d 1209 (2021); State v. Spaulding, 15 Wn. App. 2d 526, 536-37, 476 P.3d 205
(2020). The costs of collection are imposed under RCW 36.18.190 and are meant to allow the court
to recoup the expense of collecting past due LFOs. Therefore, like the community custody
supervision fee, collection costs are incurred post-conviction and do not fit within one of the three
categories of costs enumerated in RCW 10.01.160(2). Because neither the community custody
supervision fee nor the collections costs meet the statutory definition of costs in RCW
10.01.160(2), the trial court did not violate RCW 10.01.160(3) in imposing these LFOs on Menzies
despite his indigency status.
Although the community custody supervision fees and costs of collections are not “costs”
within the meaning RCW 10.01.160(2), they are discretionary LFOs. The community custody
supervision fees are discretionary because they are waivable under RCW 9.94A.703(2)(d). Starr,
16 Wn. App. 2d at 109. Similarly, a superior court’s authority to impose collection costs arises
under RCW 36.18.190, which states that “[t]he superior court may, at sentencing or at any time
within ten years, assess as court costs the moneys paid . . . to collection agencies or for collection
services.” (Emphasis added.) Imposition of collections fees under RCW 36.18.190 is thus a matter
of the superior court’s discretion.
The trial court here evinced an intent to impose only mandatory LFOs and to exclude
discretionary LFOs, though its intent was not clearly expressed or memorialized in its written
order. On Menzies’s first appeal, we noted that “[t]he trial court declined to impose any
discretionary LFOs, but it imposed mandatory LFOs.” Menzies, slip op. at 5. During Menzies’s
resentencing hearing, the trial court struck the nonrestitution interest provision and $200 criminal
filing fee that Menzies challenged in his first appeal. It explained that it was doing so due to
6
No. 53843-1-II
Menzies’s indigency status and the recent changes in the law. The trial court then ensured that
Menzies had not been previously convicted of a felony before imposing the DNA filing fee.
Given the first appeal and the sentencing court’s statements during the resentencing hearing
on remand, the trial court indicated that it did not intend to impose nonmandatory LFOs on
Menzies due to his indigency status. See id. However, the challenged LFOs appear in several
boilerplate provisions in Menzies’s judgment and sentence, and the trial court did not mark or
otherwise affirmatively indicate its intent either to impose or to strike these LFOs. The record is
thus inconclusive. Because LFOs “should not be imposed lightly merely because the legislature
has not dictated that judges conduct the same inquiry required for discretionary costs,” we remand
this issue for clarification by the trial court. See State v. Clark, 191 Wn. App. 369, 376, 362 P.3d
309 (2015).
II. SAG ISSUES
In his SAG, Menzies argues that he was deprived of effective assistance of counsel; that
he did not knowingly, intelligently, and voluntarily agree to the sentencing enhancements when he
pleaded guilty to the underlying offenses; and that he was deprived of his constitutional right to be
charged by a grand jury. We decline to review these issues because they were not raised on his
first appeal and were outside the scope the issues before the trial court on remand. Menzies also
argues that his exceptional sentence was excessive. Although the panel may address this issue, we
hold that Menzies’s argument lacks merit.
A. NON-APPEALABLE ISSUES
As a general matter, a defendant may not raise issues on a second appeal that were raised
or could have been raised in the first appeal. State v. Mandanas, 163 Wn. App. 712, 716, 262 P.3d
7
No. 53843-1-II
522 (2011). However, we may, at our discretion, address issues that were not previously raised in
an earlier appeal so long as “‘the trial court, on remand, exercised its independent judgment,
reviewed and ruled again on such issue.’” State v. Wheeler, 183 Wn.2d 71, 78, 349 P.3d 820 (2015)
(quoting State v. Barberio, 121 Wn.2d 48, 50, 846 P.2d 519 (1993)); see also RAP 2.5(c)(1). The
limitation on considering issues in a second appeal that were not previously addressed in an earlier
appeal extends to issues “of constitutional import” Mandanas, 163 Wn. App. at 717.
Here, aside from the LFO issues, Menzies’s appeal was limited to whether the trial court
could consider the multiple acts and multiple victims aggravating factors at sentencing. Menzies,
slip op. at 7-8. We instructed the trial court to resentence Menzies without considering the multiple
victims aggravating factor. Id. at 9. And the trial court’s ruling on remand was limited to whether
the remaining aggravating factors supported Menzies’s exceptional sentence. Therefore, issues
pertaining to ineffective assistance of counsel, the voluntariness of Menzies’s plea agreement, and
Menzies’s right under the United States Constitution to be charged by a grand jury were not before
us on direct appeal, nor did the trial court exercise its independent judgment and consider these
issues on remand. These issues do not raise appealable questions, and we decline to consider them
on their merits. See RAP 2.5(c)(1).
B. EXCESSIVE EXCEPTIONAL SENTENCE
Menzies contends that his sentence was excessive because the trial court was prejudiced
against him and failed to consider his mental state after he was charged or the positive changes he
had made while incarcerated in making its sentencing determination. Because the trial court
exercised independent discretion during Menzies’s resenting on remand, we may reach this issue.
See RAP 2.5(c)(1).
8
No. 53843-1-II
A sentencing court is permitted to impose an exceptional sentence where it finds that
“substantial and compelling reasons” justify punishment beyond the standard range. Former RCW
9.94A.535 (2016); State v. Suleiman, 158 Wn.2d 280, 288, 143 P.3d 795 (2006). We may reverse
an exceptional sentence upward if (a) the court's reasons for imposing an exceptional sentence are
not supported or do not warrant a sentence outside the standard range, or (b) the sentence imposed
was “clearly excessive.” RCW 9.94A.585(4).
Here, the trial court imposed Menzies’s exceptional sentence based on the position of trust
aggravating factor, RCW 9.94A.535(3)(n), and the multiple incidents of sexual assault aggravating
factor, RCW 9.94A.535(g). These aggravating factors support an exceptional sentence upward.
RCW 9.94A.535(3). Menzies stipulated to facts that supported each aggravating factor in his plea
agreement. The trial court found facts supporting each aggravating factor in its written findings
following resentencing. The trial court further explained that any one of the two aggravating
factors supported Menzies’s exceptional sentence. Menzies has not shown that his sentence was
clearly excessive or that that the court’s reasons for imposing an exceptional sentence were
unsupported or did not justify an exceptional sentence. See RCW 9.94A.585(4). Therefore, we
decline to reverse Menzies’s exceptional sentence.
CONCLUSION
We hold that because (1) the community custody supervision fees and collections costs are
not “costs,” the trial court did not abuse its discretion in imposing these LFOs on Menzies due to
his indigency status. However, (2) the record indicates that the trial court may have inadvertently
imposed the community custody supervision fees and collections costs. With respect to the issues
Menzies raises in his SAG, (3) we hold that the issues either cannot be reviewed or lack merit.
9
No. 53843-1-II
Accordingly, we reverse the imposition of community custody supervision fees and
collections costs and remand this case to the trial court for clarification of its intent to impose the
discretionary LFOs.
With respect to the issues Menzies raises in his SAG, we decline to review the ineffective
assistance of counsel, voluntariness of his plea agreement, and right to a grand jury issues on their
merits because they are not appealable issues in this case. We hold that Menzies’s challenge to his
exceptional sentence fails on its merits.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
CRUSER, J.
We concur:
WORSWICK, J.
LEE, C.J.
10