IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 81098-7-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION MICHAEL B. DEVINE,
Appellant.
SMITH, J. — This case involves questions of law with regard to an
individual’s legal financial obligations (LFOs). Michael Devine pleaded guilty to
first degree possession of depictions of a minor engaged in sexually explicit
conduct. At sentencing, the trial court imposed, among others fees, a $1,000 fee
for possession of a sexually explicit photograph or video pursuant to
RCW 9.68A.107. On appeal, Devine contends that the trial court erred in
imposing the fee because he is indigent. He further asserts that his judgment
and sentence must be amended to ensure that the government cannot collect
Devine’s LFOs from his protected funds, including disability payments.
Because the $1,000 fee is nondiscretionary, the court did not err in
imposing it. However, because the court failed to add language limiting the
State’s ability to collect Devine’s LFOs from his Social Security benefits, we
remand to the trial court to correct the error.
FACTS
In April 2019, the State charged Devine with two counts of possession of
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81098-7-I/2
depictions of a minor engaged in sexually explicit conduct in the first degree.
Devine pleaded guilty to one count of possession of depictions of a minor
engaged in sexually explicit conduct in the first degree, and the State agreed to
dismiss the second charge. In Devine’s statement of defendant on plea of guilty,
the State agreed to recommend that Devine serve “13 months in custody, pay
$500 victim penalty, $100 DNA [(deoxyribonucleic acid)] fee, $1,000 mandatory
fine, and restitution,” plus other conditions specific to sex offenders. Under the
plea agreement, Devine could ask for a lesser sentence and for the court to
waive the $1,000 fine. The parties agreed that Devine was indigent but
disagreed as to whether the $1,000 fine was discretionary.
At sentencing, the court did not order restitution, and it waived court costs
and recoupment. However, it imposed the $100 DNA collection fee, the
mandatory $500 victim penalty assessment, and the $1,000 fine “pursuant to
RCW 9.68A.107.” Orally, the court stated that Devine would not be required to
use his Social Security payments to satisfy the LFOs. The order did not provide
a limiting clause regarding the State’s ability to collect LFO payments from
Devine’s Social Security earnings. Devine appeals.
ANALYSIS
RCW 9.68A.107
Devine contends that the trial court erred in imposing the $1,000 fine
under RCW 9.68A.107. Because the fine is nondiscretionary, we disagree.
We interpret a statute de novo. State v. Gonce, 200 Wn. App. 847, 855,
403 P.3d 918 (2017). And our primary objective is to give effect to the
2 No. 81098-7-I/3
legislature’s intent. Gonce, 200 Wn. App. at 855. “We do not attempt to interpret
a statute that is unambiguous, as we assume the Legislature means exactly what
it says.” State v. A.S., 116 Wn. App. 309, 312, 65 P.3d 676 (2003).
And “the Legislature’s use of the word ‘shall’ in a statute is presumptively
mandatory.” A.S., 116 Wn. App. at 312.
Under RCW 9.68A.107(1), “a person who is convicted of violating
RCW 9.68A.070 shall be assessed a fee of one thousand dollars for each
depiction or image of visual or printed matter that constitutes a separate
conviction.”
RCW 9.68A.107(1) is unambiguous and leaves no discretion to the trial
court. By stating that the court “shall” assess a $1,000 fee on a person convicted
of violating RCW 9.68A.070, the statute unambiguously requires that the court
impose the fee in this situation. See A.S., 116 Wn. App. at 314-15 (holding that
the statute stating that “‘the court shall not suspend . . . the . . . disposition’”
unless an exception applies, “unambiguously forbids the court from doing so in
all” cases where an exception does not apply) (quoting RCW 13.40.160(7)). Like
the legislative statements in RCW 7.68.035,1 the legislative findings of Laws of
2015, ch. 279, § 1 make clear that a defendant convicted of possession of
sexually explicit material of minors must pay the cost of investigation and
prosecution of these crimes. Specifically, the enacting legislation states:
The legislature finds that due to a lack of dedicated resources, only two percent of known child exploitation offenders
See, e.g., LAWS OF 2018, ch. 269, §§ 8(5) (“The crime victim penalty 1
assessment under RCW 7.68.035 may not be reduced, revoked, or converted to community restitution hours.”).
3 No. 81098-7-I/4
are being investigated. The legislature finds that additional funding sources are needed to ensure that law enforcement agencies can adequately investigate and prosecute offenders and victims can receive necessary services, including mental health treatment. Finally, the legislature finds that offenders convicted of crimes relating to child pornography should bear the high cost of investigations and prosecutions of these crimes and also the cost of providing services to victims.
LAWS OF 2015, ch. 279 § 1 (emphasis added). Accordingly, both the
unambiguous language of RCW 9.68A.107(1) and the legislative findings require
the imposition of the $1,000 fine on every defendant convicted under
RCW 9.68A.070. Therefore, the trial court did not err when it required Devine to
pay the fine.
Devine disagrees and relies on RCW 10.01.160(3) and State v. Blazina2
to support his assertion that the court cannot impose the fee on him, an indigent
defendant. RCW 10.01.160(3) states that a court “shall not order a defendant to
pay costs if the defendant at the time of sentencing is indigent.” And Blazina
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 81098-7-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION MICHAEL B. DEVINE,
Appellant.
SMITH, J. — This case involves questions of law with regard to an
individual’s legal financial obligations (LFOs). Michael Devine pleaded guilty to
first degree possession of depictions of a minor engaged in sexually explicit
conduct. At sentencing, the trial court imposed, among others fees, a $1,000 fee
for possession of a sexually explicit photograph or video pursuant to
RCW 9.68A.107. On appeal, Devine contends that the trial court erred in
imposing the fee because he is indigent. He further asserts that his judgment
and sentence must be amended to ensure that the government cannot collect
Devine’s LFOs from his protected funds, including disability payments.
Because the $1,000 fee is nondiscretionary, the court did not err in
imposing it. However, because the court failed to add language limiting the
State’s ability to collect Devine’s LFOs from his Social Security benefits, we
remand to the trial court to correct the error.
FACTS
In April 2019, the State charged Devine with two counts of possession of
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81098-7-I/2
depictions of a minor engaged in sexually explicit conduct in the first degree.
Devine pleaded guilty to one count of possession of depictions of a minor
engaged in sexually explicit conduct in the first degree, and the State agreed to
dismiss the second charge. In Devine’s statement of defendant on plea of guilty,
the State agreed to recommend that Devine serve “13 months in custody, pay
$500 victim penalty, $100 DNA [(deoxyribonucleic acid)] fee, $1,000 mandatory
fine, and restitution,” plus other conditions specific to sex offenders. Under the
plea agreement, Devine could ask for a lesser sentence and for the court to
waive the $1,000 fine. The parties agreed that Devine was indigent but
disagreed as to whether the $1,000 fine was discretionary.
At sentencing, the court did not order restitution, and it waived court costs
and recoupment. However, it imposed the $100 DNA collection fee, the
mandatory $500 victim penalty assessment, and the $1,000 fine “pursuant to
RCW 9.68A.107.” Orally, the court stated that Devine would not be required to
use his Social Security payments to satisfy the LFOs. The order did not provide
a limiting clause regarding the State’s ability to collect LFO payments from
Devine’s Social Security earnings. Devine appeals.
ANALYSIS
RCW 9.68A.107
Devine contends that the trial court erred in imposing the $1,000 fine
under RCW 9.68A.107. Because the fine is nondiscretionary, we disagree.
We interpret a statute de novo. State v. Gonce, 200 Wn. App. 847, 855,
403 P.3d 918 (2017). And our primary objective is to give effect to the
2 No. 81098-7-I/3
legislature’s intent. Gonce, 200 Wn. App. at 855. “We do not attempt to interpret
a statute that is unambiguous, as we assume the Legislature means exactly what
it says.” State v. A.S., 116 Wn. App. 309, 312, 65 P.3d 676 (2003).
And “the Legislature’s use of the word ‘shall’ in a statute is presumptively
mandatory.” A.S., 116 Wn. App. at 312.
Under RCW 9.68A.107(1), “a person who is convicted of violating
RCW 9.68A.070 shall be assessed a fee of one thousand dollars for each
depiction or image of visual or printed matter that constitutes a separate
conviction.”
RCW 9.68A.107(1) is unambiguous and leaves no discretion to the trial
court. By stating that the court “shall” assess a $1,000 fee on a person convicted
of violating RCW 9.68A.070, the statute unambiguously requires that the court
impose the fee in this situation. See A.S., 116 Wn. App. at 314-15 (holding that
the statute stating that “‘the court shall not suspend . . . the . . . disposition’”
unless an exception applies, “unambiguously forbids the court from doing so in
all” cases where an exception does not apply) (quoting RCW 13.40.160(7)). Like
the legislative statements in RCW 7.68.035,1 the legislative findings of Laws of
2015, ch. 279, § 1 make clear that a defendant convicted of possession of
sexually explicit material of minors must pay the cost of investigation and
prosecution of these crimes. Specifically, the enacting legislation states:
The legislature finds that due to a lack of dedicated resources, only two percent of known child exploitation offenders
See, e.g., LAWS OF 2018, ch. 269, §§ 8(5) (“The crime victim penalty 1
assessment under RCW 7.68.035 may not be reduced, revoked, or converted to community restitution hours.”).
3 No. 81098-7-I/4
are being investigated. The legislature finds that additional funding sources are needed to ensure that law enforcement agencies can adequately investigate and prosecute offenders and victims can receive necessary services, including mental health treatment. Finally, the legislature finds that offenders convicted of crimes relating to child pornography should bear the high cost of investigations and prosecutions of these crimes and also the cost of providing services to victims.
LAWS OF 2015, ch. 279 § 1 (emphasis added). Accordingly, both the
unambiguous language of RCW 9.68A.107(1) and the legislative findings require
the imposition of the $1,000 fine on every defendant convicted under
RCW 9.68A.070. Therefore, the trial court did not err when it required Devine to
pay the fine.
Devine disagrees and relies on RCW 10.01.160(3) and State v. Blazina2
to support his assertion that the court cannot impose the fee on him, an indigent
defendant. RCW 10.01.160(3) states that a court “shall not order a defendant to
pay costs if the defendant at the time of sentencing is indigent.” And Blazina
acknowledged the limitations of this statute, highlighting that RCW 10.01.160(3)
requires that the sentencing court consider a defendant’s “ability to pay the
discretionary fees.” 182 Wn.2d at 831, 837-38 (emphasis added); State v.
Ramirez, 191 Wn.2d 732, 744, 426 P.3d 714 (2018) (discussing Blazina’s
instructions “for determining whether someone has an ability to pay discretionary
costs”). As discussed above, the $1,000 fine is nondiscretionary. Therefore,
Devine’s assertion fails.
Devine also contends that a sentencing court “must look at the context of
the statute and the words and provisions of related statutes.” To this end, he
2 182 Wn.2d 827, 344 P.3d 680 (2015).
4 No. 81098-7-I/5
contends that we should look to RCW 9.94A.753 and RCW 43.43.7541 as
examples of when a court cannot waive a fee. In both statutes, the legislature
explicitly stated that the at-issue fee was nonwaivable. RCW 9.94A.753(4) (“The
court may not reduce the total amount of restitution ordered because the offender
may lack the ability to pay the total amount.”); RCW 43.43.7541 (“Every sentence
imposed for a crime specified in RCW 43.43.754 must include a fee of one
hundred dollars unless the state has previously collected the offender’s DNA as a
result of a prior conviction.”). However, we presume that the legislature’s use of
“shall” is mandatory, whether or not the legislature provides an additional
statement of nonwaivability. Therefore, Devine’s contention is unpersuasive.
Finally, Devine contends “[u]npaid and unpayable legal financial
obligations can impose significant burdens on people with legal financial
obligations,” in particular, for defendants with disabilities. We appreciate the
struggles that will follow Devine’s inability to pay his court fines. However, the
legislature was clear, and Devine’s crimes were not victimless.3 Thus, we are
without authority to eliminate this mandatory LFO.
3 See, e.g., LAWS OF 2015, ch. 279 § 1 (“The legislature finds that sexual abuse and exploitation of children robs victims of their childhood and irrevocably interferes with their emotional and psychological development. Victims of child pornography often experience severe and lasting harm from the permanent memorialization of the crimes committed against them. Child victims endure depression, withdrawal, anger, and other psychological disorders. Victims also experience feelings of guilt and responsibility for the sexual abuse as well as feelings of betrayal, powerlessness, worthlessness, and low self-esteem. Each and every time such an image is viewed, traded, printed, or downloaded, the child in that image is victimized again.”).
5 No. 81098-7-I/6
Social Security Benefits
Devine asserts that the trial court erred when it failed to limit the State’s
ability to collect LFOs from his Social Security disability benefits, his only source
of income. The State concedes that the court erred in not specifying the
exemption in Devine’s judgment and sentence. The Social Security
antiattachment statute, 42 U.S.C. § 407(a), states that “none of the moneys paid
or payable or rights existing under this subchapter shall be subject to execution,
levy, attachment, garnishment, or other legal process.” That is, “no Social
Security disability benefits are available to satisfy a debt,” including Devine’s
mandatory LFOs. See State v. Catling, 193 Wn.2d 252, 264, 438 P.3d 1174
(2019) (concluding that the defendant was required to pay the $500 victim fund
assessment but that the debt could not be satisfied from their Social Security
disability benefits). For this reason, we agree that the trial court erred.
Therefore, we affirm the imposition of the $1,000 fine but remand to the
trial court to amend the judgment and sentence to specify that the mandatory
LFOs may not be satisfied out of any funds subject to the antiattachment statute.
WE CONCUR: