State v. Blazina

Fairhurst, J.

¶23 (concurring in the result) — I agree with the majority that RCW 10.01.160(3) requires a sentencing judge to make an individualized determination into a defendant’s current and future ability to pay before the *840court imposes legal financial obligations (LFOs). I also agree that the trial judges in these cases did not consider either defendant’s ability to pay before imposing LFOs. Because the error was unpreserved, I also agree that we must determine whether it should be addressed for the first time on appeal. RAP 2.5(a).

¶24 I disagree with how the majority applies RAP 2.5(a). RAP 2.5(a) contains three exceptions on which unpreserved errors can be raised for the first time on appeal. While the majority does not indicate which of the three exceptions it is applying to reach the merits, it is likely attempting to use RAP 2.5(a)(3), “manifest error affecting a constitutional right.”5 However, the majority fails to apply the three part test from State v. O’Hara, 167 Wn.2d 91, 98-100, 217 P.3d 756 (2009), that established what an appellant must demonstrate for an appellate court to reach an unpreserved error under RAP 2.5(a)(3).

¶25 In O’Hara, we found that to meet RAP 2.5(a)(3) and raise an error for the first time on appeal, an appellant must demonstrate the error is manifest and the error is truly of constitutional dimension. Id. at 98. Next, if a court finds a manifest constitutional error, it may still be subject to a harmless error analysis. Id.

¶26 Here, the error is not constitutional in nature and thus the unpreserved error cannot be reached under a RAP 2.5(a)(3) analysis. In analyzing the asserted constitutional interest, we do not assume the alleged error is of constitutional magnitude but instead look at the asserted claim and assess whether, if correct, it implicates a constitutional interest as compared to another form of trial error. Id.

¶27 The trial court judges in Blazina and Paige-Colter did not inquire into the defendants’ ability to pay LFOs, which violates RCW 10.01.160(3). RCW 10.01.160(3) provides:

*841The 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.

Failing to determine a defendant’s ability to pay LFOs violates the statute but does not implicate a constitutional right.

¶28 Although the unpreserved error does not meet the RAP 2.5(a)(3) standard from O’Hara, I would hold that this error can be reached by applying RAP 1.2(a), which states that the “rules will be liberally interpreted to promote justice and facilitate the decision of cases on the merits.” RAP 1.2(a) is rarely used, but this is an appropriate case for the court to exercise its discretion to reach the unpreserved error because of the widespread problems, as stated in the majority, associated with LFOs imposed against indigent defendants. Majority at 834-36.

¶29 The consequences of the State’s LFO system are concerning, and addressing where courts are falling short of the statute will promote justice. In State v. Aho, 137 Wn.2d 736, 740-41, 975 P.2d 512 (1999), we held that the Supreme Court “has the authority to determine whether a matter is properly before the court, to perform those acts which are proper to secure fair and orderly review, and to waive the rules of appellate procedure when necessary ‘to serve the ends of justice.’ ” (Quoting RAP 1.2(c).) I agree with the majority that RCW 10.01.160(3) requires sentencing judges to take a defendant’s individual financial circumstances into account and make an individual determination of the defendant’s current and future ability to pay. In order to ensure that indigent defendants are treated as the statute requires, we should reach the unpreserved error.

¶30 For the foregoing reasons, I concur in the result only.

Stephens, J., concurs with Fairhurst, J.

The other two exceptions, “(1) lack of trial court jurisdiction” and “(2) failure to establish facts upon which relief can be granted,” are not applicable. RAP 2.5(a).