
    STATE of Washington, Respondent, v. Benjamin G. SMITH, Appellant.
    No. 35708-2-III
    Court of Appeals of Washington, Division 3.
    FILED JUNE 6, 2019
    Lisa Elizabeth Tabbut, Attorney at Law, Po Box 1319, Winthrop, WA, 98862-3004, for Appellant.
    Rea Lynn Culwell, Life Law, PLLC, 108 Assumption Dr., Walla Walla, WA, 99362-2609, C. Dale Slack, Columbia County Prosecuting Attorney, 215 E Clay St., Dayton, WA, 99328-1344, for Respondent.
    OPINION PUBLISHED IN PART
    Pennell, A.C.J.
    ¶1 Benjamin Smith appeals several legal financial obligations (LFOs) imposed at sentencing: a criminal filing fee, sheriff's fee, court-appointed counsel fee, domestic violence penalty assessment, and medical expenses characterized as restitution. Based on recent changes to Washington's LFO scheme, Mr. Smith is entitled to relief from the first three of the challenged LFOs. However, the domestic violence assessment was not impacted by LFO reform. In addition, although the medical expenses should not have been characterized as restitution, LFO reform also does not prohibit recovery of medical costs. We therefore grant Mr. Smith's request for LFO relief in part and remand for further proceedings.
    FACTS
    ¶2 Benjamin Smith pleaded guilty to six counts of child molestation and one count of child rape. Each count included a domestic violence allegation. Mr. Smith's offenses involved two victims, both of whom lived in Mr. Smith's household. Mr. Smith's guilty plea was supported by a post-arrest confession.
    ¶3 The court imposed an exceptional sentence, requiring Mr. Smith to serve a minimum term of 347 months of confinement before becoming eligible for release. The court also imposed both mandatory and discretionary LFOs. Those obligations included a $ 200.00 criminal filing fee, $ 100.00 sheriff's fee, $ 750.00 in fees for a court-appointed attorney, a $ 100.00 domestic violence penalty assessment, and $ 466.03 in restitution to the Columbia County Sheriff's Office. The restitution order pertained to the cost of medication Mr. Smith received while in custody pending adjudication.
    ¶4 The judgment and sentence was entered on November 1, 2017. Mr. Smith has filed a timely appeal.
    ANALYSIS
    LFOs
    ¶5 Mr. Smith raises several challenges to his LFOs. Our review of his claims is two-fold. Legal issues are reviewed de novo. State v. Ramirez , 191 Wash.2d 732, 741-42, 426 P.3d 714 (2018). But a trial court's ultimate decision of whether to impose LFOs is reviewed for abuse of discretion. Id . As explained below, several of Mr. Smith's legal arguments require amending the trial court's imposition of LFOs. We do not reverse any of the trial court's discretionary decisions.
    Criminal filing fee
    ¶6 Citing Ramirez , Mr. Smith has filed supplemental briefing requesting we strike the $ 200 criminal filing fee imposed by the trial court at sentencing. Ramirez was decided after the close of briefing in this case. The decision held that amendments to Washington's LFO scheme enacted in 2018 apply prospectively to cases on direct appellate review at the time of enactment. Ramirez , 191 Wash.2d at 747, 426 P.3d 714. Among other things, the 2018 statutory amendments prohibit imposition of a criminal filing fee on a defendant who is "indigent" at the time of sentencing as that term is defined by RCW 10.101.010(3)(a)-(c). RCW 36.18.020(2)(h).
    ¶7 The 2018 LFO amendments adopted a specific definition of indigence. Under the amendments, it is not enough that a defendant is indigent for purposes of appointment of counsel. Instead, a defendant must show one of three types of indigence: (a) receipt of a qualifying form of public assistance, (b) involuntary commitment in a public mental health facility, or (c) an annual income, after taxes, of 125 percent or less of the current federally established poverty level. See RCW 36.18.020(2)(h) (adopting indigence as defined by RCW 10.101.010(3)(a)-(c) but not including RCW 10.101.010(3)(d) ).
    
      
      Laws of 2018, ch. 269.
    
   ¶8 Mr. Smith meets the requisite definition of indigence based on his income. See RCW 10.101.010(3)(c). As a result, Mr. Smith's case is controlled by the changes to the LFO scheme and Ramirez . Accordingly, we grant Mr. Smith his requested relief on this issue and direct the trial court to strike the $ 200 criminal filing fee from Mr. Smith's judgment and sentence.

The sheriff's and court-appointed counsel fees

¶9 The $ 100 sheriff's fee and $ 750 court-appointed counsel fee meet the same fate as the $ 200 criminal filing fee. The sheriff's fee and the court-appointed counsel fee are both discretionary costs of prosecution imposed under RCW 10.01.160. Under the 2018 LFO amendments, such costs cannot be imposed against a defendant who is indigent, as defined in RCW 10.101.010(3)(a)-(c), at the time of sentencing. RCW 10.01.160(3). Pursuant to Ramirez , Mr. Smith is entitled to the benefit of the current law. Accordingly, the $ 100 sheriff's fee and $ 750 court-appointed counsel fee must be struck.

Domestic violence penalty assessment

¶10 The $ 100 domestic violence penalty assessment differs from the aforementioned discretionary fees. Although the domestic violence assessment is not mandatory, RCW 10.99.080(1) (penalty assessment "may"

be imposed), it is not a cost of prosecution under RCW 10.01.160. Instead, it is a penalty assessment governed by RCW 10.99.080. Unlike the statutes governing filing fees and costs, the domestic violence penalty assessment statute was not amended by the 2018 LFO legislation, and does not prohibit imposition of an assessment against indigent defendants. RCW 10.99.080. Thus, Mr. Smith's indigence does not dictate the applicability of the fee.

¶11 We turn then to whether the trial court abused its discretion in imposing the assessment. The discretionary focus of the domestic violence penalty assessment is dissimilar to that of prosecution costs under RCW 10.01.160. Instead of looking to the hardships that a financial obligation may have on a defendant, RCW 10.01.160, the domestic violence assessment focuses on hardships to the victim, which often includes members of the defendant's family. RCW 10.99.080(5).

¶12 There was no evidence here indicating that imposition of the $ 100 domestic violence penalty assessment would pose a hardship on the victims or other members of Mr. Smith's family. By the time of sentencing, Mr. Smith's family had severed ties with him. No restitution was owing to Mr. Smith's family. Thus, imposition of the $ 100 penalty assessment did not pose a hardship as contemplated by RCW 10.99.080. Accordingly, the trial court acted within its discretion in imposing the assessment.

Medical expenses characterized as restitution

¶13 "Restitution is allowed only for losses [or costs] that are 'causally connected' to the crimes charged." State v. Tobin , 161 Wash.2d 517, 524, 166 P.3d 1167 (2007) (quoting State v. Kinneman , 155 Wash.2d 272, 286, 119 P.3d 350 (2005) ). Costs are causally connected when the charged crime is the "but for" cause of the loss. Id .

¶14 Here, the $ 466.03 ordered as restitution to the sheriff's office was for the cost of medication Mr. Smith received during his time in local custody pending resolution of his plea and sentencing. The parties agree that the medical expenses incurred in this case do not constitute restitution. Instead, the expenses are medical costs that may be recovered under RCW 70.48.130(5). Because the trial court mischaracterized the medical expenses as restitution, remand is required for resentencing.

¶15 Mr. Smith claims that remand is unnecessary because trial courts hold discretionary authority not to impose medical costs based on indigence. See State v. Leonard , 184 Wash.2d 505, 358 P.3d 1167 (2015). While we agree with Mr. Smith that the trial court has discretion to waive medical costs based on indigence, we are not at liberty to mandate the court's exercise of discretion. Unlike the statutes governing filing fees and prosecution costs, the statute authorizing recoupment of medical costs was not amended by the 2018 LFO reform bill. Although a trial court "must find whether the defendant has the ability to pay" prior to ordering repayment of medical costs, Leonard , 184 Wash.2d at 507, 358 P.3d 1167, the fact that Mr. Smith meets the statutory definition of indigence under RCW 10.101.010(3)(c) does not preclude the trial court from requiring reimbursement. Instead, any imposition of medical costs depends on the trial court's individualized assessment of Mr. Smith's ability to pay, pursuant to the standard set by Supreme Court jurisprudence. Id . at 508, 358 P.3d 1167.

¶16 We therefore remand this matter for a determination of whether recovery of medical costs is appropriate in light of Mr. Smith's claimed inability to pay. In assessing the appropriateness of medical costs on remand, the trial court shall conduct an individualized inquiry into Mr. Smith's current and future ability to pay LFOs, as set forth in Ramirez and State v. Blazina , 182 Wash.2d 827, 344 P.3d 680 (2015), given the current term of incarceration. See Leonard , 184 Wash.2d at 508, 358 P.3d 1167. As part of this inquiry, the court shall inquire of the following: "(1) employment history, (2) income, (3) assets and other financial resources, (4) monthly living expenses, and (5) other debts." Ramirez , 191 Wash.2d at 744, 426 P.3d 714. The ultimate determination of whether Mr. Smith has the ability to reimburse medical costs shall be guided by the comment to GR 34. Id . Because Mr. Smith meets the GR 34 standard for indigence based on lack of income, the trial court should " 'seriously question [Mr. Smith's] ability to pay LFOs.' " Id . at 743, 426 P.3d 714 (quoting Blazina , 182 Wash.2d at 839, 344 P.3d 680 ).

¶17 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR:

Siddoway, J.

Fearing, J.  