State Of Washington, V. Keith Townsend

• Court: Court of Appeals of Washington
• Decided: November 1, 2022
• Docket: 56688-5
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

November 1, 2022 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 56688-5-II

Respondent,

v.

KEITH ANTHONY TOWNSEND, UNPUBLISHED OPINION

Appellant.

GLASGOW, C.J.—A jury found Keith Anthony Townsend guilty of residential burglary and

felony violation of a no contact order—domestic violence. The trial court imposed a standard range

sentence and a $500 victim penalty assessment.

Townsend appeals his sentence, arguing that remand is necessary for the superior court to

modify his judgment and sentence to include language clarifying that payment of his legal financial

obligations (LFOs) may not be satisfied out of any Social Security Administration benefits. The

State agrees with Townsend that this case should be remanded. We disagree.

Pursuant to 42 U.S.C. § 407(a), LFOs may not be satisfied through application of Social

Security benefits. State v. Dillon, 12 Wn. App. 2d 133, 153, 456 P.3d 1199 (citing State v. Catling,

193 Wn.2d 252, 264, 438 P.3d 1174 (2019)), review denied, 195 Wn.2d 1022 (2020). However,

Townsend is not entitled to appellate relief on his claim of error.

First, Townsend did not raise this issue below and, therefore, it is not preserved for appeal.

“The general rule is that appellate courts will not consider issues raised for the first time on appeal.”

State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007) (citing RAP 2.5(a)). Although a claim No. 56688-5-II

of error may be raised for the first time on appeal if it is a manifest error affecting a constitutional

right, Townsend’s claim does not meet that standard. The prohibition against LFOs being satisfied

through Social Security benefits is derived from a federal statute. See 42 U.S.C. § 407(a).

Furthermore, the claimed error is not manifest because there is no indication in the record that

Townsend receives Social Security benefits. See State v. McFarland, 127 Wn.2d 322, 333, 899

P.2d 1251 (1995). As such, Townsend fails to show that he was actually prejudiced by the absence

of language in the judgment and sentence providing that the LFOs imposed by the superior court

could not be satisfied through Social Security benefits. See Kirkman, 159 Wn.2d at 926-27.

Second, because nothing in the record suggests that Townsend receives Social Security

benefits, this case is distinguishable from Dillon and Catling. In Dillon, we remanded the case to

the trial court “to amend the judgment and sentence to indicate that the $500 victim assessment

fee may not be satisfied out of any funds subject to 42 U.S.C. § 407(a).” 12 Wn. App. 2d at 153.

We did so because the record in that case indicated that “Dillon’s sole source of income [was] his

Social Security disability funds.” Id. Likewise, in Catling, our Supreme Court remanded the case

“to the trial court to revise the judgment and sentence and repayment order . . . to indicate that [an]

LFO may not be satisfied out of any funds subject to . . . 42 U.S.C. § 407(a).” 193 Wn.2d at 266.

During the sentencing hearing in that case, “Catling’s attorney argued that . . . Catling’s sole source

of income was Social Security disability benefits.” Id. at 255.

Here, the record does not contain any evidence that Townsend receives Social Security

benefits. If evidence that Townsend receives Social Security benefits exists outside the record,

Townsend may consider bringing a personal restraint petition. See McFarland, 127 Wn.2d at 338

n.5. If at a future date, Townsend receives income from Social Security benefits and the State

2 No. 56688-5-II

attempts to collect in violation of the antiattachment statute, nothing prevents Townsend from

asking the trial court for relief from any improper attempts at collection at that time.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

Glasgow, C.J. We concur:

Lee, J.

Cruser, J.