Filed
Washington State
Court of Appeals
Division Two
February 1, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 55229-9-II
Respondent,
v.
BENITO SERVANDO MARQUEZ, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — Benito Marquez pleaded guilty to one count of murder in the first degree
and one count of assault in the first degree. The superior court found he was indigent and stated
that Marquez could not afford to pay discretionary legal financial obligations (LFOs). Marquez’s
judgment and sentence also contained a finding that he was indigent, but ordered a community
custody supervision fee (a discretionary LFO). Marquez appeals, arguing that the superior court
erred in imposing a supervision fee after finding him indigent. We agree and remand to the
superior court to strike the discretionary LFO.
FACTS
When he was 16 years old, Marquez lured his friend to the woods and killed him. He
pleaded guilty to murder in the first degree and assault in the first degree and the superior court
sentenced him to 320 months of confinement and 36 months of community custody. During his
sentencing hearing, the superior court determined Marquez was indigent and stated, “I will find
that he does not have the ability to pay on the discretionary [LFOs].” Report of Proceedings (Nov.
23, 2020) at 40. The court went on to state that it was imposing a $500 victim assessment, a $100
55229-9-II
DNA (deoxyribonucleic acid) collection fee, and restitution. In the judgment and sentence, the
court found that Marquez was indigent. The court also imposed a community custody supervision
fee. Marquez appeals the imposition of the supervision fee.
ANALYSIS
Marquez argues that the superior court erred when it imposed a community custody
supervision fee after finding he was indigent.
Before imposing costs and fees, RCW 10.01.160(3) requires a superior court to conduct,
on the record, an individualized inquiry into a defendant’s ability to pay. State v. Ramirez, 191
Wn.2d 732, 745-46, 426 P.3d 714 (2018). RCW 10.01.160(3) states in relevant part, “The court
shall not order a defendant to pay costs if the defendant at the time of sentencing is indigent as
defined in RCW 10.101.010(3) (a) through (c).”
The trial court may also impose discretionary fees under RCW 9.94A.703(2)(d). RCW
9.94A.703 states, “When a court sentences a person to a term of community custody, the court
shall impose conditions of community custody as provided in this section. . . . (2) Waivable
conditions. Unless waived by the court, as part of any term of community custody, the court shall
order an offender to: . . . (d) Pay supervision fees as determined by the department.” Therefore,
supervision fees are discretionary. RCW 9.94A.703(2)(d).
Supervision fees are not “costs” under RCW 10.01.160(3), and therefore a trial court may
impose them after a finding of indigency. State v. Spaulding, 15 Wn. App. 2d 526, 536-37, 476
P.3d 205 (2020). However, we reverse the imposition of discretionary LFOs when a trial court
states during sentencing that it intends to waive such fees but imposes them on the judgment and
sentence. State v. Bowman, No. 99062-0, slip op. at 23 (Wash. Nov. 10, 2021),
http://www.courts.wa.gov/opinions/pdf/990620.pdf.
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55229-9-II
Here, the superior court determined Marquez was indigent and stated he could not afford
to pay discretionary LFOs. The court then stated which LFOs it was imposing. The court did not
state it was imposing the supervision fee, but imposed it nonetheless in the judgment and sentence.
Under Bowman, we remand to the trial court to strike the supervision fee.
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.
Veljacic, J.
We concur:
Glasgow, A.C.J.
Price, J.
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