
    [No. 32928-3-III.
    Division Three.
    November 19, 2015.]
    The State of Washington, Respondent, v. Joshua James Clark, Appellant.
    
    
      
      Tanesha L. Canzater, for appellant.
    
      Steven M. Clem, Prosecuting Attorney, and Ryan S. Valaas, Deputy, for respondent.
   Korsmo, J.

¶1 — Joshua Clark challenges the timeliness of his trial for possession of a stolen motor vehicle and the court’s imposition of legal financial obligations. Addressing the latter issue in the published portion of this opinion, we conclude that a fine is not a “court cost” that is subject to challenge initially on appeal. The conviction and judgment are affirmed.

FACTS

¶2 Mr. Clark was charged with possessing a stolen vehicle that he previously had owned. The vehicle had been impounded in late 2013 and eventually sold after it went unclaimed at the impound lot. The new owner reported the vehicle stolen three months after purchase. Two months after that report, the vehicle was seen in Mr. Clark’s backyard. A complaint was filed and a summons issued.

¶3 The original July 28, 2014 arraignment was continued to August 4, 2014, at defense request. Clerk’s Papers (CP) at 11. Mr. Clark was arraigned on August 4, and trial was scheduled for October 9, 2014; the 90th day from arraignment was determined to be November 3,2014. CP at 14, 24. Mr. Clark remained out of custody on this charge. Defense counsel on September 22,2014 sought and successfully obtained a continuance of the trial to October 23, 2014 in order to attend a prescheduled event in Burien. Mr. Clark did not personally agree to the continuance. Report of Proceedings (RP) at 9-10. Trial could not be held on October 23, however, as another case with higher time for trial priority proceeded to trial instead of Mr. Clark’s. His case was rescheduled to November 6.

¶4 The case proceeded to jury trial as scheduled on November 6 and concluded that same day. Mr. Clark offered no defense and the jury convicted him as charged. Sentencing was held four days later; by that time Mr. Clark was in jail after having been convicted and sentenced to nearly three years in prison on another offense. A primary consideration at sentencing was whether this sentence would be served concurrently with that in the other case. With respect to the legal financial obligations, the prosecutor asked for “standard fines and fees” plus witness costs, totaling $1,846.62. RP at 37. Defense counsel’s only mention of financial obligations was to request that payments be made at the rate of $25.00 per month upon release from custody “since he has the other payment in the other trial.” RP at 40.

¶5 The trial court imposed the requested financial payments, including a $500 fine pursuant to RCW 9A.20.021. The court also ordered a 38-month prison sentence to be served consecutively to the earlier offense. Mr. Clark then timely appealed to this court.

ANALYSIS

¶6 The sole issue we address in this portion of the opinion is Mr. Clark’s contention that we should exercise our discretion to consider his legal financial obligation challenge. We address that argument first, before turning to his time for trial and statement of additional grounds arguments in the unpublished portion of this opinion.

Legal Financial Obligations

¶7 Mr. Clark’s request that we consider his legal financial obligations (LFOs) argument in this appeal initially presents the question of whether the $500 fine imposed by the trial court is a “court cost” that could be reviewed in this court’s discretion. We conclude that it is not a court cost and do not review his LFO challenge.

¶8 Initially, we note some of the basic principles governing this topic. Appellate courts review a decision on whether to impose LFOs for abuse of discretion. State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116 (1991). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The trial court’s factual determination concerning a defendant’s resources and ability to pay is reviewed under the “clearly erroneous” standard. State v. Bertrand, 165 Wn. App. 393, 403-404, 267 P.3d 511 (2011); Baldwin, 63 Wn. App. at 312.

¶9 Even the most casual reader of Washington appellate cases cannot but have noticed that LFO challenges present the most frequent issue raised to this court in the past several years. Since 1976, RCW 10.01.160(3) has provided:

The 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.

See Laws of 1976, 2d Ex. Sess, ch. 96, § 1(3). Despite this long-standing requirement, the topic of the defendant’s ability to pay is seldom voluntarily raised at sentencing even though the defendant should have incentive to discuss the issue and is the best, and often only, source of the information the trial court needs to comply with the legislative command.

¶10 The statutory inquiry is required only for discretionary LFOs. State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013) (mandatory fees, which include victim restitution, victim assessments, DNA fees, and criminal filing fees, operate without the court’s discretion by legislative design); State v. Kuster, 175 Wn. App. 420, 424, 306 P.3d 1022 (2013) (victim assessment and DNA collection fee mandatory). Trial courts are not required to enter formal, specific findings. Lundy, 176 Wn. App. at 105.

¶11 After the three divisions of this court had concluded that LFO decisions unchallenged in the trial court could not be raised initially on appeal due to RAP 2.5(a)(3), the Washington Supreme Court addressed the topic in State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). There the court agreed that the LFO issue is not one that can be presented for the first time on appeal because this aspect of sentencing is not one that demands uniformity. Id. at 830. To that end, the appellate courts retain discretion whether or not to consider the issue initially on appeal. Id. The Blazina court then decided to exercise its discretion in favor of accepting review due to the nationwide importance of the general issue concerning LFOs and to provide guidance to our trial courts. Id. The court noted that trial judges have a statutory obligation to consider RCW 10.01.160(3) at sentencing and make an individualized determination of the defendant’s ability to pay discretionary LFOs. Id. at 837.

¶12 With these considerations in mind, we now turn to the LFOs imposed in this case. The trial court ordered that Mr. Clark pay a $500 crime victim’s assessment, a $200 filing fee, $46.62 in witness costs, $400 for his appointed counsel, a $100 DNA collection fee, a $500 fine, and $100 for “financial collection costs.” CP at 125-126. These assessments total $1,846.62. The $800 ordered for the victim assessment, filing fee, and DNA collection fee are mandatory obligations not subject to RCW 10.61.160(3). Lundy, 176 Wn. App. at 102. The “witness costs,” appointed counsel, and “financial collection costs” are discretionary assessments that total $546.62.

¶13 The remaining question is how to categorize the $500 fine imposed pursuant to the authority granted by RCW 9A.20.021 (authorizing maximum fines for each class of crimes). Washington long has recognized fines and costs as representing different obligations. For instance, the definition of “legal financial obligation” under the Sentencing Reform Act of 1981

means a sum of money that is ordered by a superior court of the state of Washington for legal financial obligations which may include restitution to the victim, statutorily imposed crime victims’ compensation fees as assessed pursuant to RCW 7.68.035, court costs, county or interlocal drug funds, court-appointed attorneys’ fees, and costs of defense, fines, and any other financial obligation that is assessed to the offender as a result of a felony conviction.

Former RCW 9.94A.030(30) (2012). This definition distinguishes among different types of costs, other financial obligations, and fines.

¶14 The term “costs” is generally defined in the first two sentences of RCW 10.01.160(2):

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. They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.

The statute then goes on to list a series of “costs” that may or may not be imposed, including warrant service costs, jury fees, costs of administering deferred prosecution or pretrial supervision, and incarceration costs. RCW 10.01.160(2). The very next provision of the rule declares that a court “shall not order a defendant to pay costs unless the defendant is or will be able to pay them” and requires trial judges to conduct inquiries concerning the defendant’s financial circumstances. RCW 10.01.160(3). This was the provision at issue in Blazina.

¶15 The decision to impose a fine pursuant to RCW 9A.20.021 appears to be discretionary with the trial court. E.g., State v. Young, 83 Wn.2d 937, 941, 523 P.2d 934 (1974); State v. Newton, 29 Wash. 373, 382, 70 P. 31 (1902); 13 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice and Procedure § 4813, at 376 (3d ed. 2004). However, the fact that imposing a fine under this general statute is a discretionary act does not make the fine a discretionary “cost” within the meaning of RCW 10.01.160(3). The definition of “costs” in RCW 10.01.160(2) does not include “fines.” Accordingly, we hold that a fine is not a court cost subject to the strictures of RCW 10.01.160(3) and the trial court is not required to conduct an inquiry into the defendant’s ability to pay. Therefore, a previously unchallenged fine is not subject to review initially on appeal. RAP 2.5(a). Nonetheless, we strongly urge trial judges to consider the defendant’s ability to pay before imposing fines. The barriers that LFOs impose on an offender’s reintegration to society are well documented in Blazina and should not be imposed lightly merely because the legislature has not dictated that judges conduct the same inquiry required for discretionary costs. Moreover, conducting such an inquiry may protect a timely challenged decision to impose a fine by establishing a tenable basis for the fine.

¶16 The remaining discretionary costs subject to challenge under Blazina amount to $546.62. We exercise the discretion recognized in that decision and decline to consider Mr. Clark’s LFO argument despite the fact the LFO discussion at sentencing may be the sparsest record we have reviewed. The record suggests that the understated LFO discussion was by design. The critical issue for Mr. Clark was whether his sentences would run concurrently or consecutively, so counsel understandably directed his attention to that issue. When given the opportunity to address the LFOs, counsel simply asked that a minimal monthly amount be imposed given the LFOs in the other case. Since the sentencing in the other matter had been shortly before this case, it appears that Mr. Clark’s financial situation may have been more fully discussed on that occasion. But, even if it was not, counsel had the opportunity to make an argument if he desired to do so. On balance, this does not appear to be a situation that calls for us to exercise our discretion to review the matter more fully.

¶17 The judgment is affirmed.

¶18 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.

Siddoway, C.J., and Fearing, J., concur. 
      
       According to Mr. Clark’s pro se statement of additional grounds, he was in custody on the other case pending that trial and remained in custody throughout both trials. Nothing in the record of this case confirms or dispels that allegation, although his statement would explain why no bail was required in this case. The summons issued in this case was sent to Mr. Clark’s residence in East Wenatchee.
     
      
       Deoxyribonucleic acid.
     
      
       Class A felonies are subject to a $50,000 maximum fine, class B felonies to a $20,000 fine, class C felonies to a $10,000 fine, gross misdemeanors to a $5,000 fine, and misdemeanors to a $1,000 maximum fine. RCW 9A.20.021.
     
      
      
         See, e.g., Bergman v. State, 187 Wash. 622, 625, 60 P.2d 699 (1936); Foster v. Territory, 1 Wash. 411, 25 P. 459 (1890). In Bergman, the court was considering whether the State could seek judgment against marital property for costs imposed against the defendant husband. 187 Wash, at 623-624. In considering precedent from another state regarding a similar issue for a fine, the court recognized the distinction between fines and costs:
      A fine is a sum of money exacted, as a pecuniary punishment, from a person guilty of an offense, while costs are but statutory allowances to a party for his expenses incurred in an action. The former is, in its nature at least, a penalty, while the latter approaches more nearly a civil debt.
      
        Id. at 625. In Foster, a court assessed a $500 fine and $20 in costs at sentencing. 1 Wash. at 412. The defendant argued on appeal that this essentially amounted to a $520 fine in violation of the $500 statutory maximum. Id. at 414. The court rejected this argument, noting that fines and costs are distinct in the code. Id.
      
     
      
      
         But see City of Seattle v. Fuller, 177 Wn.2d 263, 278, 300 P.3d 340 (2013) (suggesting that either fine or imprisonment mandatory under RCW 9A.20.020).
     