A recent decision from the Washington Court of Appeals once again highlights the importance of trial courts’ following proper procedures before they impose non-mandatory legal financial obligations, or LFOs, on criminal defendants. Washington law requires courts to make a customized inquiry specific to the defendant standing trial, in which the court assesses the defendant’s ability to pay any potential LFO. In this recent case, the trial judge did not make that kind of inquiry, and, as a result, the defendant’s appeal of the obligation was successful.
The defendant in this case was accused of one count of assault in the second degree–domestic violence. The jury convicted the man of committing the charged crime against his girlfriend. During the sentencing phase of the man’s trial, he testified that he was out of work and had been unemployed for more than three months. Based upon these facts, he asked the court to refrain from imposing any monetary penalties that were not mandatory. Ultimately, the trial court handed out a nine-month sentence of incarceration, as well ordering the man to pay $700. $500 of that was a mandatory victim penalty assessment, and $100 was a mandatory biological sample fee. The final $100 was a “discretionary domestic violence penalty.” The judge waived all other non-mandatory LFOs.
The man appealed his sentence, specifically challenging the imposition of the $100 discretionary domestic violence penalty. At the appeal, the state argued that the discretionary penalty should stand because the defendant had not properly objected to it during the sentencing phase of the trial. In a criminal case, there are certain actions or inactions you can take that amount to a waiver of an issue, meaning that you forfeit the right to argue about that issue in an appeal.
Last December, the Court of Appeals made it clear that failing “to challenge discretionary LFOs at sentencing waives a challenge on appeal.” Despite that ruling, the appeals court allowed the defendant in this case to argue his LFO issue. What was the difference between that case and this very recent case? In this defendant’s case, while he did not object to the imposition of the LFO during his sentencing hearing (just as the previous defendant had not), he did make a request to the judge explicitly asking for the court to “waive any non-mandatory financial penalties.” That request was sufficient to keep the issue alive and allow the man to pursue his appeal.
The $100 penalty at issue in this case was authorized under RCW Section 10.99.080(1). This penalty could only be imposed on defendants convicted of felony domestic violence. This meant that the penalty fit the definition of a discretionary LFO. The Washington Supreme Court has created some very clear rules regarding what trial courts must do before they impose optional LFOs. Specifically, the law requires a trial court to make an “individual assessment” of that particular defendant’s ability to pay the LFO. If that defendant lacks the financial ability to to pay a particular discretionary LFO, the trial court should not impose it.
In this case, the trial judge never made an individualized inquiry into the man’s ability to pay the $100 discretionary penalty. Without that inquiry and assessment, the court’s imposition of the discretionary LFO was improper.
In a domestic violence case, there are very specific steps you must take, or avoid taking, in order to put on a strong defense and also preserve your appellate rights. The Tacoma domestic violence attorneys at Smith & White, PLLC have many years of experience in defending the accused and are here to help you ensure that your rights are protected. Call us today at 253-363-8662 to schedule your initial consultation. The first consultation is free.