Filed Washington State Court of Appeals Division Two
September 20, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56013-5-II
Respondent,
v.
VICTORIA ANN PURYEAR, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — Victoria Ann Puryear appeals the $500 court-appointed attorney fee that
the trial court imposed during her sentencing. Puryear argues that the trial court erred in imposing
the court-appointed attorney fee because the court failed to make an adequate, individualized
inquiry into her current and future ability to pay prior to imposing this discretionary legal financial
obligation (LFO). Accordingly, Puryear requests that we vacate the court-appointed attorney fee
and remand to the trial court to conduct a proper inquiry into Puryear’s current and future ability
to pay. The State argues that RAP 2.5 bars our ability to address Puryear’s appeal because she
failed to raise the court-appointed attorney fee issue at trial. We exercise our discretion to reach
the issue and conclude that the trial court erred in imposing the discretionary LFO because the
court failed to conduct an adequate inquiry into Puryear’s financial circumstances and ability to
pay. Accordingly, we reverse the court-appointed attorney fee and remand this case to the trial
court to make an adequate inquiry into Puryear’s current and future ability to pay before
determining whether to impose a court-appointed attorney fee. 56013-5-II
FACTS
On June 1, 2021, a jury convicted Puryear of forgery and theft in the second degree.
Puryear was previously found to be indigent and was represented by appointed counsel at trial.
At the sentencing hearing, defense counsel requested that no additional sanctions beyond
mandatory LFOs and restitution be imposed, asserting Puryear’s financial status has remained
unchanged. The trial court made the following statement regarding LFOs:
Let me take this in a bit of reverse order, and it’s this: As far as [LFOs], I’m going to impose those that have been requested. $500 plus the $100 for DNA. I’m going to waive all but the $500 DAC recoupment. Here’s my analysis on that: I understand that Ms. Puryear has a financial hardship and may continue that way in the future, but she received excellent service for the equivalent of $500 going through a two-plus-day trial. If this had come to me on a plea in the beginning, I would consider, you know, there are different circumstances. There is certainly value and no better deal than $500 for an attorney to represent their client through the trial. I’m going to impose $500 in DAC recoupment.
Report of Proceedings (RP) (July 9, 2021) at 9.
The court did not inquire into Puryear’s ability to pay. In particular, the court made no
inquiry into the recognized considerations bearing on indigency for purposes of imposing
discretionary LFOs. The LFOs imposed on Puryear at the sentencing hearing were a $500 court-
appointed attorney fee, a $500 crime victim assessment, and a $100 DNA testing fee. The $200
filing fee was waived. Puryear appeals.
ANALYSIS
I. THE STATE’S RAP 2.5 ARGUMENT
The State argues that we should deny review because Puryear failed to preserve an alleged
LFO error by not raising the issue at trial. We disagree.
2 56013-5-II
We may refuse to review any claim of error which was not raised in the trial court. RAP
2.5(a). “A defendant who makes no objection to the imposition of discretionary LFOs at
sentencing is not automatically entitled to review. . . . This rule exists to give the trial court an
opportunity to correct the error and to give the opposing party an opportunity to respond.” State
v. Blazina, 182 Wn.2d 827, 832-33, 344 P.3d 680 (2015) (footnote omitted). However, although
unpreserved LFO errors do not command review as a matter of right, an appellate court may make
its own decision to accept discretionary review. State v. Malone, 193 Wn. App. 762, 765, 376
P.3d 443 (2016). The rules of appellate procedure are interpreted “liberally ‘to promote justice
and facilitate the decision of cases on the merits.’” State v. Glover, 4 Wn. App. 2d 690, 693, 423
P.3d 290 (2018) (quoting RAP 1.2(a)). While Puryear did not object to the trial court’s imposition
of the discretionary LFO without inquiry, we nonetheless review the issue.
II. LEGAL FINANCIAL OBLIGATIONS
A. Legal Principles
The trial court’s decision to impose discretionary LFOs is reviewed for abuse of discretion.
State v. Ramirez, 191 Wn.2d 732, 741, 426 P.3d 714 (2018). A court has the authority to impose
costs on convicted defendants. RCW 9.94A.760(1). However, a court shall not order a convicted
defendant to pay costs if the court finds that the offender at the time of sentencing is indigent as
defined in RCW 10.101.010(3)(a) through (c). RCW 10.01.160(3). Under that statute, “indigent”
is defined as receiving public assistance, involuntary commitment to a public mental health
facility, or receiving an annual income, after taxes, of 125 percent or less of the current federally
established poverty level. RCW 10.101.010(3)(a) through (c). Under this specific definition of
indigency, it is not enough that a defendant is indigent for purposes of appointment of counsel.
State v. Smith, 9 Wn. App. 2d 122, 126, 442 P.3d 265 (2019).
3 56013-5-II
Washington decisions have long recognized that the cost of a court-appointed lawyer for
an indigent defendant is one that can be imposed under RCW 10.01.160. State v. Diaz-Farias,
191 Wn. App. 512, 521, 362 P.3d 322 (2015). Under RCW 10.01.160(2), a court may impose
costs on a convicted criminal defendant at the time of sentencing, with “costs” for this purpose
being “limited to expenses specially incurred by the state in prosecuting the defendant.”
While the trial court’s ultimate decision whether to impose discretionary LFOs is
discretionary, we review de novo a trial court’s alleged legal error in failing to conduct an adequate
inquiry prior to imposing discretionary LFOs. Ramirez, 191 Wn.2d at 741-42. Even if a defendant
is not indigent, the court must conduct an individualized, on-the-record inquiry concerning the
defendant’s current and future ability to pay discretionary LFOs. Id. at 742, 750; Blazina, 182
Wn.2d at 838-39. There are certain factors that must be considered for an individualized inquiry
to be adequate, such as consideration of the effects of incarceration, other debts, and whether the
Free access — add to your briefcase to read the full text and ask questions with AI
Filed Washington State Court of Appeals Division Two
September 20, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56013-5-II
Respondent,
v.
VICTORIA ANN PURYEAR, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — Victoria Ann Puryear appeals the $500 court-appointed attorney fee that
the trial court imposed during her sentencing. Puryear argues that the trial court erred in imposing
the court-appointed attorney fee because the court failed to make an adequate, individualized
inquiry into her current and future ability to pay prior to imposing this discretionary legal financial
obligation (LFO). Accordingly, Puryear requests that we vacate the court-appointed attorney fee
and remand to the trial court to conduct a proper inquiry into Puryear’s current and future ability
to pay. The State argues that RAP 2.5 bars our ability to address Puryear’s appeal because she
failed to raise the court-appointed attorney fee issue at trial. We exercise our discretion to reach
the issue and conclude that the trial court erred in imposing the discretionary LFO because the
court failed to conduct an adequate inquiry into Puryear’s financial circumstances and ability to
pay. Accordingly, we reverse the court-appointed attorney fee and remand this case to the trial
court to make an adequate inquiry into Puryear’s current and future ability to pay before
determining whether to impose a court-appointed attorney fee. 56013-5-II
FACTS
On June 1, 2021, a jury convicted Puryear of forgery and theft in the second degree.
Puryear was previously found to be indigent and was represented by appointed counsel at trial.
At the sentencing hearing, defense counsel requested that no additional sanctions beyond
mandatory LFOs and restitution be imposed, asserting Puryear’s financial status has remained
unchanged. The trial court made the following statement regarding LFOs:
Let me take this in a bit of reverse order, and it’s this: As far as [LFOs], I’m going to impose those that have been requested. $500 plus the $100 for DNA. I’m going to waive all but the $500 DAC recoupment. Here’s my analysis on that: I understand that Ms. Puryear has a financial hardship and may continue that way in the future, but she received excellent service for the equivalent of $500 going through a two-plus-day trial. If this had come to me on a plea in the beginning, I would consider, you know, there are different circumstances. There is certainly value and no better deal than $500 for an attorney to represent their client through the trial. I’m going to impose $500 in DAC recoupment.
Report of Proceedings (RP) (July 9, 2021) at 9.
The court did not inquire into Puryear’s ability to pay. In particular, the court made no
inquiry into the recognized considerations bearing on indigency for purposes of imposing
discretionary LFOs. The LFOs imposed on Puryear at the sentencing hearing were a $500 court-
appointed attorney fee, a $500 crime victim assessment, and a $100 DNA testing fee. The $200
filing fee was waived. Puryear appeals.
ANALYSIS
I. THE STATE’S RAP 2.5 ARGUMENT
The State argues that we should deny review because Puryear failed to preserve an alleged
LFO error by not raising the issue at trial. We disagree.
2 56013-5-II
We may refuse to review any claim of error which was not raised in the trial court. RAP
2.5(a). “A defendant who makes no objection to the imposition of discretionary LFOs at
sentencing is not automatically entitled to review. . . . This rule exists to give the trial court an
opportunity to correct the error and to give the opposing party an opportunity to respond.” State
v. Blazina, 182 Wn.2d 827, 832-33, 344 P.3d 680 (2015) (footnote omitted). However, although
unpreserved LFO errors do not command review as a matter of right, an appellate court may make
its own decision to accept discretionary review. State v. Malone, 193 Wn. App. 762, 765, 376
P.3d 443 (2016). The rules of appellate procedure are interpreted “liberally ‘to promote justice
and facilitate the decision of cases on the merits.’” State v. Glover, 4 Wn. App. 2d 690, 693, 423
P.3d 290 (2018) (quoting RAP 1.2(a)). While Puryear did not object to the trial court’s imposition
of the discretionary LFO without inquiry, we nonetheless review the issue.
II. LEGAL FINANCIAL OBLIGATIONS
A. Legal Principles
The trial court’s decision to impose discretionary LFOs is reviewed for abuse of discretion.
State v. Ramirez, 191 Wn.2d 732, 741, 426 P.3d 714 (2018). A court has the authority to impose
costs on convicted defendants. RCW 9.94A.760(1). However, a court shall not order a convicted
defendant to pay costs if the court finds that the offender at the time of sentencing is indigent as
defined in RCW 10.101.010(3)(a) through (c). RCW 10.01.160(3). Under that statute, “indigent”
is defined as receiving public assistance, involuntary commitment to a public mental health
facility, or receiving an annual income, after taxes, of 125 percent or less of the current federally
established poverty level. RCW 10.101.010(3)(a) through (c). Under this specific definition of
indigency, it is not enough that a defendant is indigent for purposes of appointment of counsel.
State v. Smith, 9 Wn. App. 2d 122, 126, 442 P.3d 265 (2019).
3 56013-5-II
Washington decisions have long recognized that the cost of a court-appointed lawyer for
an indigent defendant is one that can be imposed under RCW 10.01.160. State v. Diaz-Farias,
191 Wn. App. 512, 521, 362 P.3d 322 (2015). Under RCW 10.01.160(2), a court may impose
costs on a convicted criminal defendant at the time of sentencing, with “costs” for this purpose
being “limited to expenses specially incurred by the state in prosecuting the defendant.”
While the trial court’s ultimate decision whether to impose discretionary LFOs is
discretionary, we review de novo a trial court’s alleged legal error in failing to conduct an adequate
inquiry prior to imposing discretionary LFOs. Ramirez, 191 Wn.2d at 741-42. Even if a defendant
is not indigent, the court must conduct an individualized, on-the-record inquiry concerning the
defendant’s current and future ability to pay discretionary LFOs. Id. at 742, 750; Blazina, 182
Wn.2d at 838-39. There are certain factors that must be considered for an individualized inquiry
to be adequate, such as consideration of the effects of incarceration, other debts, and whether the
defendant meets the GR 34 standard for indigency. Blazina, 182 Wn.2d at 838. Other important
factors in evaluating a defendant’s ability to pay an LFO are employment history, income, assets,
other financial resources, and monthly living expenses. Ramirez, 191 Wn.2d at 744. Before a trial
court can impose discretionary LFOs, the record must reflect that the trial court inquired into all
of these categories.1 Id. If the trial court fails to conduct an individualized inquiry into the
defendant’s financial circumstances and still imposes discretionary LFOs, the trial court has per se
abused its discretionary power. Id. at 741.
1 The reader will correctly note that striking of discretionary LFOs does not require such an inquiry.
4 56013-5-II
B. The Trial Court Improperly Imposed the Contested LFO
Puryear argues that the trial court improperly imposed a discretionary LFO despite her
continued indigency. We disagree. Puryear was classified as indigent for the purposes of
appointing counsel. This indigency is not equivalent to the indigency definition under RCW
10.101.010(3), which requires receipt of public assistance, involuntary commitment to a mental
health facility, or receiving an annual income of 125 percent or less of the current federally
established poverty level. RCW 10.101.010(3)(a) through (c). The indigency finding entitling a
defendant to court-appointed counsel does not similarly prohibit imposition of discretionary LFOs
under Blazina.
But we agree with Puryear’s argument that the trial court erred in failing to make an
adequate inquiry prior to imposing the discretionary LFO. The trial court did not inquire into the
enumerated Ramirez factors. At sentencing, the court simply stated that it understood “that Ms.
Puryear has a financial hardship and may continue that way in the future.” RP (July 9, 2021) at 9.
This is insufficient under Blazina and Ramirez because it is a “boilerplate statement” that fails to
“reflect that the trial court made an individualized inquiry into the defendant’s current and future
ability to pay.” Blazina, 182 Wn.2d at 838.
The record does not establish that the court considered the effects of incarceration, whether
Puryear meets the standard for indigency under RCW 10.101.010(3)(a) through (c), or Puryear’s
other debts. See Blazina, 182 Wn.2d at 838. Additionally, there is no information in the record
regarding Puryear’s employment history, income, assets, or monthly living expenses at the time of
imposition of the LFO. See Ramirez, 191 Wn.2d at 744. The inquiry made into Puryear’s
individual financial circumstances was insufficient. We reverse the court-appointed attorney fee
5 56013-5-II
and remand for the trial court to conduct an adequate inquiry into Puryear’s current and future
ability to pay before imposing the challenged discretionary LFO.
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.
Veljacic, J.
We concur:
Lee, J.
Cruser, A.C.J.