State v. Kuster

306 P.3d 1022, 175 Wash. App. 420
CourtCourt of Appeals of Washington
DecidedJuly 11, 2013
DocketNo. 30548-1-III
StatusPublished
Cited by37 cases

This text of 306 P.3d 1022 (State v. Kuster) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kuster, 306 P.3d 1022, 175 Wash. App. 420 (Wash. Ct. App. 2013).

Opinion

Siddoway, A.C.J.

¶1 Louis Kuster challenges two terms of the sentence imposed for his conviction of second degree rape: a restriction on any access to pornography and what he characterizes as an implicit finding that he has the [422]*422ability to pay $800 in legal financial obligations (LFOs), which he contends is unsupported by the record.

¶2 The State concedes that the pornography restriction is unconstitutionally vague in light of State v. Bahl, 164 Wn.2d 739, 193 P.3d 678 (2008), a concession we accept. We conclude that the LFOs at issue are largely mandatory fees, as to which Mr. Kuster’s arguments have no application. To the extent the court imposed costs, we decline to consider Mr. Kuster’s argument for the first time on appeal that the court made an unsupported, implicit finding of his ability to pay. We remand for the limited purpose of the trial court’s striking or narrowing the access to pornography condition. We otherwise affirm.

FACTS AND PROCEDURAL BACKGROUND

¶3 The jury found Louis Kuster guilty of second degree rape in November 2011. At sentencing, the court imposed $800 in LFOs, consisting of a $500 victim assessment fee, $200 in court costs, and a $100 DNA1 collection fee.

¶4 The judgment included boilerplate language that the court had “considered the total amount owing, the defendant’s past, present and future ability to pay [LFOs], including the defendant’s financial resources and the likelihood that the defendant’s status will change.” Clerk’s Papers (CP) at 31. It did not include any explicit finding that Mr. Kuster had the past, present, or future ability to pay the LFOs. The record of the sentencing hearing does not reveal the presentation or consideration of any information about Mr. Kuster’s ability to pay other than the following statements by the court about his prospects for earnings during incarceration:

I will set a minimum monthly payment of $5 per month. I do that because you are going to be in the institution. I would expect at some point you will get employment within the [423]*423institution, but you are going to be at the bottom of the list as ... a new person coming in. It may take a while, number one, and number two they do not pay a whole lot. It is certainly substantially less than the minimum wage. I will make your first payment due on or before June 15th because you are going to have to go to classifications and that might take a couple months before you go to an institution. And then you may take some more months before you will be eligible to earn any money.

Report of Proceedings (Jan. 4, 2012) at 27. Mr. Kuster did not object at the sentencing hearing that his sentence included an unsupported implicit finding of his ability to pay the LFOs.

¶5 The trial court sentenced Mr. Kuster to 114 months with credit for time served, explaining to him that in light of the “determinate plus”2 sentencing provided by RCW 9.94A.507, 114 months would be his minimum sentence, with his maximum sentence (up to life) to be determined by the indeterminate sentencing review board.

¶6 The trial court’s judgment also included, as a condition of Mr. Kuster’s period of community custody (which is up to life), “[t]hat you do not view or possess pornography in any form.” CP at 27.

¶7 Mr. Kuster appeals the pornography restriction and what he characterizes as an implicit finding of his ability to pay his LFOs.

ANALYSIS

¶8 The State concedes that Mr. Kuster may challenge the condition restricting his access to pornography for the first time on appeal. It also concedes that the condition is unconstitutionally vague. See Bahl, 164 Wn.2d at 745. It [424]*424agrees that the condition must be stricken or narrowed. We accept the State’s concessions. With that, there is only one disputed issue, raised for the first time on appeal: whether, as Mr. Kuster argues, by ordering him to begin making monthly payments toward his LFOs in June 2012, the trial court implicitly found, without supporting evidence, that he had the ability to pay.

¶9 Whenever a person is convicted in superior court, the court may order the payment of LFOs as part of the sentence. RCW 9.94A.760(1). Among the financial obligations the court may impose are certain costs, including expenses specially incurred by the State in prosecuting the defendant. RCW 10.01.160(1), (2). By statute, the court is not authorized to order a defendant to pay costs unless he or she is or will be able to pay them. RCW 10.01.160(3). In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose. Id.

f 10 Two of the LFOs imposed by the trial court on Mr. Kuster are not discretionary costs governed by RCW 10.01.160. They are, instead, statutorily mandated financial obligations. The $500 victim assessment is mandated by RCW 7.68.035, and the $100 DNA collection fee is mandated by RCW 43.43.7541. Neither statute requires the trial court to consider the offender’s past, present, or future ability to pay. Monetary assessments that are mandatory may be imposed on indigent offenders at the time of sentencing without raising constitutional concern because “ ‘[constitutional 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,’ ” and “ ‘[i]t is at the point of enforced collection . . . , where an indigent may be faced with the alternatives of payment or imprisonment, that he may assert a constitutional objection on the ground of his indigency.’ ” State v. Blank, 131 Wn.2d 230, 241, 930 P.2d [425]*4251213 (1997) (most alterations in original) (internal quotation marks omitted) (quotingState v. Curry, 118 Wn.2d 911, 917, 829 P.2d 166 (1992)); and see State v. Thompson, 153 Wn. App. 325, 336-38, 223 P.3d 1165 (2009) (DNA fee); State v. Williams, 65 Wn. App. 456, 460-61, 828 P.2d 1158, 840 P.2d 902 (1992) (victim penalty assessment).

¶11 The remaining $200 imposed was labeled “court costs,” and the specific cost the court had in mind is not known. It may well be the $200 criminal filing fee — another mandatory fee provided by RCW 36.18.020

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Bluebook (online)
306 P.3d 1022, 175 Wash. App. 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kuster-washctapp-2013.