State of Washington v. Dustin M. Birch

• Court: Court of Appeals of Washington
• Decided: March 1, 2022
• Docket: 37932-9
• Status: Unpublished

Opinion

FILED MARCH 1, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 37932-9-III Respondent, ) ) v. ) ) DUSTIN M. BIRCH, ) UNPUBLISHED OPINION ) Appellant. )

STAAB, J. — Dustin Birch entered a guilty plea in 2020 and the trial court imposed

sentence and community custody conditions. The trial court waived non-mandatory legal

financial obligations and imposed community custody supervision fees. The parties

jointly assert that the supervision fees should be struck. The record supports the trial

court’s intention to waive the supervision fees. Given the State’s concession, remand to

strike is appropriate. No. 37932-9-III State v. Birch

BACKGROUND

The State charged Dustin Birch with one count of failure to register as a sex

offender and two counts of bail jumping. On the day of trial, Mr. Birch entered an

Alford1 plea. In his plea, he agreed that he had the ability to pay the crime victim

assessment and $1,000 fine. The court found him guilty and imposed a sentence of 51

months with 9 months of community custody (including substance testing) for the bail

jumping counts and a concurrent sentence on the failure to register count. During

sentencing, the State asked the court to impose the mandatory $500 crime victim

assessment and a $1,000 fine. Defense counsel asked the trial court to waive financial

obligations in consideration of “what he’s able to pay” since he was “looking at a

significant amount of time in prison and is not currently working.” Report of

Proceedings (RP) at 29.

The court found that Mr. Birch “has the ability or likely future ability to pay the

legal financial obligations imposed herein,” but also indicated its intention to “follow the

state’s recommendation, except that I will impose only those legal/financial obligations

which are mandatory.” Clerk’s Papers (CP) at 28; RP at 30. No income evaluation

otherwise appears in the record.

1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

2 No. 37932-9-III State v. Birch

The parties provided the judgment and sentence and the court signed it without

objection. The judgment and sentence imposed the $500 crime victim assessment but

struck the $1,000 fine at paragraph 4.1. The court filled out the community custody

terms in paragraph 4.6 which included printed terms at section (B)(7) that the defendant

shall “pay supervision fees as determined by DOC[2][.]” CP at 30.

Mr. Birch appeals the imposition of the DOC supervision fee. For the purpose of

this appeal, he was found indigent.

ANALYSIS

RCW 9.94A.703(2)(d) provides that “[u]nless waived by the court, as part of any

term of community custody, the court shall order an offender to . . . [p]ay supervision

fees as determined by the [DOC].” “Community custody supervision fees are

discretionary LFOs because they are waivable by the court.” State v. Spaulding, 15 Wn.

App. 2d 526, 536, 476 P.3d 205 (2020). However, they are not subject to indigency

analysis. Id. at 537. Thus, they are of a subtly different character than other LFOs.

In this case, the trial court clearly intended to impose only legal financial

obligations that were mandatory while waiving any discretionary fees. The State

concedes that since the DOC supervision fees are discretionary, the record supports the

conclusion that the trial court intended to strike the DOC fees.

2 Department of Corrections.

3 No. 37932-9-III State v. Birch

We accept the State’s concession and grant Birch’s appeal. We remand with

instructions for the superior court to strike the DOC supervision fee from the judgment

and sentence.

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.

_________________________________ Staab, J. WE CONCUR:

_________________________________ Lawrence-Berrey, J.

_________________________________ Siddoway, A.C.J.