FILED May 3, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 33198-9-111 ) Respondent, ) ) V. ) UNPUBLISHED OPINION ) CARLOS VALDEZ, ) ) Appellant. )
LAWRENCE-BERREY, J. -Carlos Valdez pleaded guilty to one count of murder in
the second degree while armed with a firearm, as an accomplice. He appeals his
sentence, and argues (1) the trial court erred in imposing nearly $6,000 of discretionary
legal financial obligations (LFOs) without conducting an individualized inquiry into his
current and future ability to pay, (2) the mandatory $100 DNA1 collection fee violates
substantive due process, and (3) the trial court failed to follow the procedural
requirements set forth in CrR 7 .8(c) when it denied his postjudgment motion to withdraw
his guilty plea. Mr. Valdez also filed a statement of additional grounds for review (SAG)
1 Deoxyribonucleic acid No. 33198-9-III State v. Valdez
requesting that he be allowed to withdraw his guilty plea because he pleaded guilty as an
accomplice, but was sentenced as a principal. We exercise our discretion and review the
claimed LFO error. We remand to the trial court for it to conduct an individualized
inquiry into Mr. Valdez's present and future ability to pay. In all other respects, we deny
his contentions and affirm.
FACTS
On January 9, 2014, the State charged Carlos Valdez with one count of first degree
murder. The certificate of probable cause indicated that on January 3, 2014, the body of a
20-year-old female was found on a riverbank. The victim had been shot and then thrown
or pushed down the riverbank. Mr. Valdez was implicated as the shooter. Apparently,
the victim owed a methamphetamine supplier an ounce of methamphetamine. The
supplier informed Mr. Valdez that he had two choices: either Mr. Valdez or the victim
needed to pay him, or the victim had to die.
On December 19, 2014, the State filed an amended information, charging Mr.
Valdez with second degree murder while armed with a firearm, either as a principal or an
accomplice. That day, Mr. Valdez pleaded guilty to the amended information, choosing
to plead as an accomplice. Mr. Valdez's plea statement indicated that the standard range
sentence was between 123-220 months, plus a 60-month enhancement. The State agreed
2 No. 33198-9-III State v. Valdez
to recommend 183 months. During the colloquy with the trial court at the plea hearing,
Mr. Valdez acknowledged:
On December 31, 2013, I did act as an accomplice to the intentional shooting of and killing of [the victim], a human being. This took place without premeditation. During the commission of this crime, my accomplice was armed with a firearm. This took place in Walla Walla County, Washington. I have been informed by my attorneys what it means to be an accomplice.
Report of Proceedings (RP) at 3-4.
On February 9, 2015, Mr. Valdez was sentenced for one count of second degree
murder while armed with a firearm. The trial court stated that it had an opportunity to
spend a "great deal of time" on the file, including the presentence investigation (PSI). RP
at 17. Based mostly on Mr. Valdez's lack of remorse, the trial court opted against
imposing the recommended sentence and instead imposed 280 months of incarceration.
During sentencing, the trial court did not make any comments concerning Mr.
Valdez's current or future ability to pay LFOs. On appeal, the State notes that the PSI
contains information concerning Mr. Valdez's current and future ability to pay. The PSI
notes that Mr. Valdez became involved in gangs, drugs, and alcohol and attended nine
different middle and high schools before dropping out completely. Since dropping out,
he worked one day as a laborer, and has supported himself by a variety of criminal means.
The PSI further notes that Mr. Valdez obtained "very few high school credits," but that
3 No. 33198-9-111 State v. Valdez
this was likely due to his truancy rather than any learning disability. Clerk's Papers (CP)
at 20. Mr. Valdez informed the author of the PSI of his intent to obtain his GED (general
education development) while in prison. Under a section entitled "Financial," the PSI
notes that Mr. Valdez "has been supporting himself ... via criminal means, primarily
drug dealing and retail thefts. He has no legal income source." CP at 20.
The trial court imposed LFOs of$11,680.61 on Mr. Valdez, which consisted of a
$100.00 DNA collection fee, $500.00 victim assessment fee, $5,099.01 in restitution,
$200.00 in court costs, a $100.00 crime laboratory fee, $249.10 in sheriff fees, $775.00 in
fees for the court-appointed attorney, and $4,657.50 in court-appointed defense experts
and other defense costs. The judgment and sentence contained the following boilerplate
language:
2.4 ABILITY TO PAY LEGAL FINANICAL OBLIGATIONS. (RCW 9.94A.760) The court has considered the defendant's past, present and future ability to pay legal financial obligations, including the defendant's financial resources and the likelihood that the defendant's status will change. The court specifically finds that the defendant has the ability or likely future ability to pay the legal financial obligations ordered herein.
CP at 27. The trial court informed Mr. Valdez that he would begin making payments "90
days after [his] release or when funds become available at not less than $50 per month."
RP at 17.
4 No. 33198-9-111 State v. Valdez
On February 17, 2015, Mr. Valdez filed a motion to withdraw his guilty plea. His
motion argued that the State failed to enthusiastically support the plea agreement, the plea
lacked an adequate basis in fact, the PSI was subjective, and he received ineffective
assistance of counsel. One week later, Mr. Valdez, prose, appealed his conviction,
asserting the same arguments contained in his yet to be considered motion. On March 16,
2015, Mr. Valdez filed another notice of appeal, requesting review of his February 9,
2015 judgment and sentence. On March 23, 2015, the trial court denied Mr. Valdez's
postjudgment motion to withdraw his guilty plea. The motion hearing was conducted ex
parte, without the presence of Mr. Valdez. Mr. Valdez did not file another notice of
appeal seeking review of the order denying his postjudgment motion to withdraw his
guilty plea.
ANALYSIS
A. Review of unpreserved LFO claim
Whenever a person is convicted, the trial court "may order the payment
of a legal financial obligation" as part of the sentence. RCW 9.94A.760(1); accord
RCW 10.01.160(1). From the date of judgment, LFOs bear interest at a rate of 12 percent
per annum. See RCW 4.56.110(4); see also RCW 19.52.020(1). Under RCW
10.01.160(3), "the court shall take account of the financial resources of the defendant and
5 No. 33198-9-III State v. Valdez
the nature of the burden that payment of costs will impose." In other words, "a trial court
has a statutory obligation to make an individualized inquiry into a defendant's current and
future ability to pay before the court imposes LFOs." State v. Blazina, 182 Wn.2d 827,
830, 344 P.3d 680 (2015).
Importantly, "the court must do more than sign a judgment and sentence with
boilerplate language stating that it engaged in the required inquiry." Id. at 838. The
individualized inquiry requires the court to "consider important factors ... such as
incarceration and a defendant's other debts, including restitution, when determining a
defendant's ability to pay." Id. "The record must reflect that the trial court made an
individualized inquiry into the defendant's current and future ability to pay." Id.
However, neither RCW 10.01.160 nor the Washington Constitution '"requires a trial
court to enter formal, specific findings regarding a defendant's ability to pay
[discretionary] court costs."' State v. Lundy, 176 Wn. App. 96, 105, 308 P.3d 755 (2013)
(quoting State v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992)).
This court "review[ s] a decision on whether to impose LFOs for abuse of
discretion." State v. Clark, 191 Wn. App. 369, 372, 362 P.3d 309 (2015). "The trial
court's determination 'as to the defendant's resources and ability to pay is essentially
factual and should be reviewed under the clearly erroneous standard.'" State v. Bertrand,
6 No. 33198-9-III State v. Valdez
165 Wn. App. 393, 404 n.13, 267 P.3d 511 (2011) (quoting State v. Baldwin, 63 Wn.
App. 303, 312, 818 P.2d 1116 (1991)).
Subject to three exceptions, RAP 2.5(a) provides that an "appellate court may
refuse to review any claim of error which was not raised in the trial court." In Blazina,
the Washington Supreme Court recently confirmed that an appellate court's discretion
under RAP 2.5(a) extends to review of a trial court's imposition of discretionary LFOs.
Blazina, 182 Wn.2d at 830. However, "[a] defendant who makes no objection to the
imposition of discretionary LFOs at sentencing is not automatically entitled to review."
Id. at 832.
"While such unpreserved LFO errors do not command review as a matter of right,
each appellate court is entitled to 'make its own decision to accept discretionary review.'"
State v. Munoz-Rivera, 190 Wn. App. 870, 895, 361 P.3d 182 (2015) (quoting Blazina,
182 Wn.2d at 835). One approach is to "consider the administrative burden and expense
of bringing [a defendant] to a new sentencing hearing and the likelihood that the LFO
result would change." State v. Arredondo, 190 Wn. App. 512, 538, 360 P.3d 920 (2015).
This is the approach favored by this author.
Here, the trial court imposed both mandatory and discretionary LFOs, and Mr.
Valdez failed to object to any LFO issues during sentencing. The $500.00 victim
7 No. 33198-9-III State v. Valdez
assessment, $100.00 DNA collection fee, and $5,099.01 in restitution apply irrespective
of Mr. Valdez's ability to pay. See Lundy, 176 Wn. App. at 102 ("For victim restitution,
victim assessments, DNA fees, and criminal filing fees, the legislature has directed
expressly that a defendant's ability to pay should not be taken into account."). However,
the $200.00 in court costs, $100.00 crime laboratory fee, $249.10 in sheriff fees, $775.00
in fees for the court-appointed attorney, and $4,657.50 in court-appointed defense experts
and other defense costs are all discretionary LFOs. See State v. Kuster, 175 Wn. App.
420, 425, 306 P.3d 1022 (2013) (ambiguous $200.00 "court costs" cannot be considered
mandatory fee); see also RCW 43.43.690(1) (crime laboratory fee may be suspended if
the court "finds that the person does not have the ability to pay the fee"); see also Munoz-
Rivera, 190 Wn. App. at 893 (sheriff fees and court-appointed attorney fees are
discretionary). The discretionary LFOs total almost $6,000.00.
Because of the relatively high amount of discretionary LFOs, the near quadrupling
of the LFO judgment due to over 20 years of interest while incarcerated, Mr. Valdez's
lack of a high school education, lack of any work history, and the sense that a convicted
murderer has limited job prospects on release, we exercise our discretion in favor of
reviewing the unpreserved error.
8 No. 33198-9-111 State v. Valdez
The record of the sentencing hearing does not reveal the presentation or
consideration of any information about Mr. Valdez's present or future ability to pay
LFOs. Although the PSI makes passing remarks about Mr. Valdez's past illegal income
sources, we do not consider such sources as relevant to the inquiry of one's present or
future ability to pay. Inherent in the required individualized inquiry, is Mr. Valdez's
potential to pay LFOs from gainful employment. We, therefore, remand this case to the
trial court with instructions to conduct an individualized inquiry into Mr. Valdez's present
and future ability to pay.
B. Substantive due process challenge to the DNA collection fee
Mr. Valdez next contends that the application ofRCW 43.43.7541 to defendants
who do not have the ability, or likely future ability, to pay the $100 DNA collection fee
violates substantive due process. RCW 43.43.754 demands a biological sample, for
purposes of DNA identification analysis, from every defendant convicted of a felony.
Pursuant to RCW 43.43.7541, "[e]very sentence imposed for a crime specified in
RCW 43.43.754 must include a fee of one hundred dollars" to create an offender DNA
sample. The statute "furthers the purpose of funding for the state DNA database and
agencies that collect samples." State v. Thornton, 188 Wn. App. 371, 375, 353 P.3d 642
(2015).
9 No. 33198-9-III State v. Valdez
"Statutes are presumed to be constitutional." State v. Blank, 131 Wn.2d 230, 235,
930 P.2d 1213 (1997). "A party challenging the constitutionality of a statute has the
heavy burden of proving its unconstitutionality beyond a reasonable doubt." Id. This
court reviews constitutional challenges de novo. Amunrud v. Bd. ofAppeals, 15 8 Wn.2d
208, 215, 143 P.3d 571 (2006).
The State responds that Mr. Valdez lacks standing to challenge the
constitutionality ofRCW 43.43.7541. RAP 3.1 provides that for appellate standing,
"[o]nly an aggrieved party may seek review by the appellate court." An aggrieved party
is "one whose proprietary, pecuniary, or personal rights are substantially affected" by the
trial court's order. Cooper v. City of Tacoma, 47 Wn. App. 315, 316, 734 P.2d 541
(1987).
The DNA collection fee is a mandatory LFO. See RCW 43.43.7541; see also
Lundy, 176 Wn. App. at 102. Washington has adopted the view that"' [ c] onstitutional
principles will be implicated ... only if the government seeks to enforce collection of the
assessments "at a time when [the defendant is] unable, through no fault of his own, to
comply.""' Lundy, 176 Wn. App. at 103 n.4 (some alterations in original) (quoting
United States v. Pagan, 785 F.2d 378, 381-82 (2d Cir. 1986)). "'It is at the point of
enforced collection ... , where an indigent may be faced with the alternatives of payment
10 No. 33198-9-III State v. Valdez
or imprisonment, that he may assert a constitutional objection on the grounds of his
indigency."' Kuster, 175 Wn. App. at 424-25 (quoting Blank, 131 Wn.2d at 241).
Here, any potential constitutional implications in the enforcement of
RCW 43.43.7541 as applied to Mr. Valdez will not arise until the State attempts to collect
the $100 DNA collection fee from him. When that occurs, Mr. Valdez will be able to
petition for remission of payments under RCW 10.01.160(4 ), if needed. Until the State
tries to collect the $100 DNA fee, Mr. Valdez lacks standing to challenge the
constitutionality ofRCW 43.43.7541. See Lundy, 176 Wn. App. at 103 n.4.
C. Postjudgment motion to withdraw guilty plea
Mr. Valdez next argues that the trial court erred by not complying with
CrR 7.8(c)(2) and (3). He argues that CrR 7.8(c)(2) requires a trial court to make a
specific finding that the motion is timely and fits within CrR 7.8(c)(2)(i) or (ii) before
issuing a substantive decision on the motion.
The State responds that Mr. Valdez did not properly appeal the March 23, 2015
order denying his postjudgment motion to withdraw his guilty plea. The State makes a
two-fold argument. First, both of Mr. Valdez's notices of appeal were ineffective
because they were filed before the trial court considered the motion or entered its order.
11 No. 33198-9-III State v. Valdez
Second, Mr. Valdez's March 16, 2015 notice of appeal was limited to his appeal of the
judgment and sentence.
RAP 7 .2(e) authorizes trial courts to consider postjudgment motions after an
appeal has been accepted. Further, RAP 7.2(e) generally requires any party wishing to
appeal the postjudgment order to timely file a separate notice of appeal. See RAP 5 .1 ( f)
(A party wishing to appeal a trial court decision entered pursuant to RAP 7 .2 must initiate
a separate review); see also Glass v. Windsor Navigation Co., 81 Wn.2d 726, 730, 504
P .2d 113 5 ( 1973) ("A premature notice of appeal is totally ineffective, not merely
defective."). Further, RAP 5.3(a)(3) specifies that a notice of appeal must "designate the
decision or part of decision which the party wants reviewed" and, in general, this court
will not review an order that was not designated in the notice of appeal. See RAP 2.4(a);
see also Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370,
378, 46 P.3d 789 (2002).
Here, Mr. Valdez failed to properly appeal the March 23, 2015 order denying his
motion to withdraw his guilty plea. His premature notices of appeal that did not identify
the yet to be entered order were ineffective in this regard. We therefore decline to review
the March 23, 2015 order.
12 No. 33198-9-III State v. Valdez
SAG issue: Vacation ofguilty plea because judgment and sentence failed to state that plea was for accomplice liability only
Mr. Valdez filed a SAG that indicated he pleaded guilty to complicity to second
degree murder, but was sentenced for actual second degree murder. According to Mr.
Valdez, he did not knowingly plead to second degree murder, and his guilty plea should
be withdrawn and his case remanded for a new trial to prevent this "manifest injustice."
"Due process requires that a defendant's guilty plea must be knowing, intelligent,
and voluntary." State v. Codiga, 162 Wn.2d 912, 922, 175 P.3d 1082 (2008). "The
defendant's burden when seeking to withdraw a plea is demanding because ample
safeguards exist to protect the defendant's rights before the trial court accepts the plea."
State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d 377 (2010). CrR 7.8 governs
postjudgment motions to withdraw guilty pleas. CrR 4.2(f). Where, as here, a criminal
defendant attempts to withdraw his guilty plea after judgment, the motion must meet the
requirements of both CrR 4.2(f) and CrR 7.8(b). See State v. Lamb, 175 Wn.2d 121, 128,
285 P.3d 27 (2012).
Under CrR 4.2(f), the trial court "shall allow a defendant to withdraw the
defendant's plea of guilty whenever it appears that the withdrawal is necessary to correct
a manifest injustice." "[A] 'manifest injustice' is 'an injustice that is obvious, directly
observable, overt, [and] not obscure."' State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505
13 No. 33198-9-III State v. Valdez
(1991) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). Courts have
found instances of manifest injustice where ( 1) effective assistance of counsel was
denied, (2) the plea was not ratified by the defendant, (3) the plea was not voluntary, or
(4) the plea agreement was not kept. Id. (quoting Taylor, 83 Wn.2d at 597). However,
"meeting only the manifest injustice standard of CrR 4.2(f) is insufficient when
considering a postjudgment motion to withdraw a guilty plea." Lamb, 175 Wn.2d at 129.
Under CrR 7 .8(b), a court may relieve a party from a final judgment based
on mistake, inadvertence, excusable neglect, newly discovered evidence, or the
CrR 7.8(b)(5) catchall "[a]ny other reason justifying relief from the operation of the
judgment." To obtain relief under CrR 7.8(b)(5), a defendant must show "extraordinary
circumstances" not covered by any other section of CrR 7 .8. State v. Aguirre, 73 Wn.
App. 682, 688, 871 P.2d 616 (1994). "'Extraordinary circumstances' must relate to
'irregularities which are extraneous to the action of the court or go to the question of the
regularity of its proceedings.'" Id. (internal quotation marks omitted) ( quoting Shum v.
Dep't ofLabor & Indus., 63 Wn. App. 405, 408, 819 P.2d 399 (1991)).
Mr. Valdez's SAG is an attempt to withdraw his guilty plea, and as indicated
above, he did not properly appeal the order denying his postjudgment motion to withdraw
his guilty plea. Moreover, his argument is unpersuasive. It is well established that
14 No. 33198-9-III State v. Valdez
"[t]here is no separate crime of being an accomplice; accomplice liability is principal
liability." State v. Toomey, 38 Wn. App. 831, 840, 690 P.2d 1175 (1984); see
RCW 9A.08.020(1). An accomplice has the same standard range sentence as a principal
under the Sentencing Reform Act of 1981, chapter 9.94A RCW, with variations only
coming into play when determining exceptional sentences. See e.g., State v. Moore, 73
Wn. App. 789, 798-99, 871 P.2d 642 (1994). The lack of any identifiable conviction and
sentencing consequences between principal liability and accomplice liability supports our
conclusions that Mr. Valdez has failed to demonstrate "extraordinary circumstances"
under CrR 7.8(b), let alone "manifest injustice" under CrR 4.2(f).
Affirmed in part, remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
l '--'r'-"'<,t .. '3 ~, Lawrence-Berrey, A.C.J.
WE CONCUR:
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