Opinion
No. 38514-7-II.
January 6, 2011. UNPUBLISHED OPINION
Kevin L. Nash appeals the trial court's denial of his RCW 10.01.160(4) motion to remit his legal financial obligations (LFOs) imposed on his Lewis County conviction under cause number 98-1-00932-7 and challenges two community custody conditions under this same cause number as unconstitutionally vague. Because Nash does not show that the
The legislature amended RCW 10.01.160 in 2010 and 2008. Laws of 2010, ch. 54, § 1; Laws of 2008, ch. 318, § 2. These amendments did not affect subsection (4); accordingly, all citations are to the current version of the statute.
On February 9, 2010, Nash also filed a document purporting to be a statement of additional grounds for review (SAG), RAP 10.10. Although Nash asserted in this document that he was not asking for an extension of time in which to file a SAG, he raised no issues and, instead, asked us to allow him additional time to file a more complete SAG once he is released from confinement due to an "alleged probation violation." SAG at 1. Nash has not attempted to file another SAG. Because Nash did not raise any issues in the SAG we accepted for filing, we do not address any issues that were not raised by his counsel in his opening brief.
Department of Corrections (DOC) had required Nash to make payments on his outstanding LFOs, Nash's motion to remit LFOs was not ripe for review and we affirm the trial court's order denying Nash's LFO remission motion. But we accept the State's concession that community custody conditions 5 and 10 are improper and remand to the trial court to strike these conditions and for resentencing where it may impose other appropriate conditions.
On July 6, 2010, we accepted an amici curiae brief from the Washington Defender Association, American Civil Liberties Union of Washington, and Columbia Legal Services addressing the LFO remission issues. Because Nash had not shown that these issues were ripe for review, we do not directly address the amici brief unless otherwise noted.
FACTS
On February 4, 1999, a Lewis County jury convicted Kevin L. Nash of second degree rape of a child. The sentencing court ordered Nash to pay $3,976.00 in legal financial obligations (LFOs). These LFOs were subject to interest from the date of the judgment.
In addition to imposing LFOs, the sentencing court sentenced Nash to a term of confinement and a term of community custody. It ordered that while on community custody, Nash was required to "pay supervision fees as determined by the [DOC]." Clerk's Papers (CP) at 104 at ¶ 4.7(5). The sentencing court also imposed several community custody conditions including:
5. The defendant shall not possess or view pornographic material, as defined by Community Corrections Officer and sexual deviancy counselor, if any;
. . .
10. The defendant shall not possess or view pornographic material as defined by Community Corrections Officer and/or sexual deviancy counselor, or enter establishments where pornography is sold or available.
CP at 108-09. The DOC released Nash from total custody and into community custody status on November 10, 2007.
On February 25, 2008, Nash filed a motion in Lewis County Superior Court in which he argued, inter alia, that the trial court should relieve him from several community custody conditions and waive or terminate his LFOs (and the accrued LFO interest) and the requirement that he pay $50 a week for sexual deviancy "courses." CP 29-63, 32. He asserted that his LFOs and the weekly cost of his sexual deviancy "courses" were an "actual" or "extreme hardship" due to his unemployment and status as homeless. CP at 30-31. He also asserted that his inability to make his LFO payments or to pay for his required sexual deviancy "courses" meant that the DOC was "more likely to" find that he had violated his community custody conditions. CP at 32. And he asked the trial court to "waive or terminate" his LFOs under RCW 9.94A.7605. CP at 32-33. Nash did not, however, challenge the sentencing court's imposition of supervision costs or community custody conditions 5 and 10.
To support his claim that he was homeless, Nash attached copies of sex offender registration forms indicating that he did not have a "fixed residence." CP at 52-54. He also alleged in a supporting affidavit that he had been homeless from his date of release until at least December 20, 2007. In this same affidavit, Nash also alleged that he was "disabled" and that he had sought some assistance from the "Vancouver Veteran's Hospital." CP at 57-58.
Nash supported his motion with a copy of a January 17, 2008 DOC notice for the Lewis County conviction that stated:
Nash also attached a copy of a January 16, 2008 DOC notice for a Clark County conviction under cause number 97-1-01173-6. This notice showed that Nash owed a total of $3,035.08 under that cause number, that his scheduled monthly LFO payment was $20.00, and that he last paid $2.00 on May 23, 2007. This appeal does not address the Clark County LFOs.
You are late in making your supervision fee payment. Please pay immediately the full amount listed for "payment due now."
RCW[]10-82-920 [a]llows county clerks offices to assess interest on unpaid legal financial obligations from the date of sentence, at rate applicable to civil judgements [sic].
You have failed to make a payment for 7 months. Failure to pay is a violation of your court order and will result in action by the DOC. Please mail a payment immediately.
CP at 60 (emphasis added). The notice also showed that (1) Nash's outstanding LFO balance was $8,138.58 ($3,976.00 in "total sentenced [amount]", and $4,183.08 in accrued interest), (2) his LFO "MONTHLY PAYMENT SCHEDULE" was "$0," (3) his last LFO payment was on May 16, 2007, and (4) his last LFO payment was $2.00. CP at 60. In a separate section, the notice advised Nash that his monthly "COST OF SUPERVISION," was $20.00, that he last paid $20.00 on September 2, 1998, and that his "PAYMENT NOW DUE" was $40.00. CP at 60.
We recognize that these amounts do not equal the outstanding balance. The outstanding balance apparently reflects some payments.
On August 20, 2008, the trial court held a hearing on Nash's February 25, 2008 motion and other "various motions." Br. of Appellant at 9. Nash was pro se at this hearing.
Starting in 2002, Nash had filed several motions in the Lewis County Superior Court challenging the length of his sentence; several of his community custody conditions, not including conditions 5 and 10; and other issues. At the time of the August 20, 2008 hearing, the trial court had not addressed any of these other motions.
At the August 20, 2008 hearing, Nash also asserted that he had submitted two motions for remission of LFOs, one while still incarcerated and one after his release. Our record shows, however, that Nash filed at least two previous motions to terminate LFOs while he was still incarcerated, one on April 27, 2007, which he asserts the trial court did not consider, and one on September 10, 2007, which the trial court denied without a hearing as time barred under RCW 10.73.090. In its response, the State, apparently referring to the September 10, 2007 motion, concedes that the trial court erred in applying the time bar. Although we agree with the State's concession on this point, Nash is not appealing the trial court's ruling on his September 10, 2007 motion. Furthermore, any such error became moot once Nash filed another motion to remit or terminate his LFOs.
Nash filed various documents with the trial court before the August 20, 2008 hearing that suggest that he had been in and out of DOC custody due to community custody violations. One of these filings indicates that one of the violations may have related to a failed or missed polygraph exam. But none of these filings suggest that the community custody violations related to Nash's failure to make LFO payments.
Nash's argument focused on RCW 9.94A.7605, which allows an offender to move to quash, modify, or terminate payroll deductions allowed under chapter 9.94A RCW, if he can show that these deductions "cause[] extreme hardship or substantial injustice." He argued that under that statute, he was entitled to LFO remission based on "extraordinary circumstances" or "hardship," and asserted that he was homeless, that he was unemployed, that he was disabled, and that he was likely to remain unemployed because some of his community custody conditions and his status as a sex offender made it difficult for him to get medical treatment he needed to be employable or to find a job. Verbatim Report of Proceedings (VRP) at 5. Nash also asserted that his inability to meet his sexual deviancy treatment requirements and to pay his LFOs could subject him to DOC "penalties and sanctions" and that this would infringe on his right to be free from double jeopardy. VRP at 11-12. In addition, Nash asked the trial court to modify some of his community custody conditions, not including conditions 5 and 10, so he would be better able to seek medical care and, possibly, find employment and housing.
Nash also asserted that the deputy prosecutor had agreed to waive collection of the interest on his LFOs. The deputy prosecutor asserted that she had never agreed to waive interest.
When Nash stated that it was his inability to pay for the required sexual deviancy treatment that would subject him to violations, the trial court replied:
Well, but if I accept that argument, then every defendant could just sit back and say I don't have a job and so I don't have any income so you can't make me do anything. VRP at 11.
The State did not present any evidence directly contradicting any of Nash's assertions about his homelessness, his current unemployment, or his lack of financial resources. But it did suggest that it could "think of" some jobs that would not be precluded by Nash's sex offender status or community custody conditions. VRP at 17.
Apparently accepting his assertion that he was unemployed, the trial court rejected Nash's RCW 9.94A.7605 argument, noting that he could not be subject to any payroll deductions if he were unemployed. Although it recognized that some of Nash's community custody conditions and his sex offender status could make it hard for him to earn an income, the trial court stated that this did not mean it was impossible for Nash to find a job or that he might not be able to pay his LFOs in the future. Without any specific reference to RCW 10.01.160(4), the trial court denied Nash's motion for remission of LFOs.
Specifically, the trial court stated:
All right. Well, your motion to terminate your legal financial obligations is denied. The State doesn't have the authority to agree to terminate the interest. I doubt that happened.
About the only thing I can tell you is that on occasion when somebody pays all of their underlying obligations, paid them off, then I might consider waiving the interest.
. . .
But at this point I am not waiving your legal financial obligations. The fact that you have financial difficulties now does not mean that you don't have — that you're going to have them always, it doesn't mean that you won't — that your circumstances won't change sometime in the future. The Court has the authority to extend the jurisdiction over you for collecting legal financial obligations for an additional ten years.
. . .
. . . All right. So [the] motion for relief from your legal financial obligations is denied.
VRP at 6-7.
On September 17, 2008 the trial court issued a written order denying Nash's "various post-trial motions," including his "motion to terminate his financial obligations." CP at 3-4. Nash appeals the September 17, 2008 order denying his motion to remit his LFOs and challenges two community custody conditions that he did not challenge at the superior court.
ANALYSIS I. LFO Remission
Nash first challenges the trial court's denial of his RCW 10.01.160(4) LFO remission motion, arguing that (1) his August 20, 2008 hearing was not a "meaningful remission hearing" and, therefore, violated his due process rights; and (2) the trial court should have granted his motion for remission because he presented unrebutted evidence of his inability to pay and of hardship. Br. of Appellant at 15. He also contends that this issue is ripe for review because it is "a timely post-prison remission petition filed after the state enforces collection but before contumacious default." Br. of Appellant at 23. Regardless of the adequacy of Nash's hearing or the evidence he presented, Nash's LFO claims were not ripe for review.
Some of Nash's arguments could be construed as challenging the constitutionality of the remission statute. But that issue has already been resolved in State v. Blank, 131 Wn.2d 230, 239, 930 P.2d 1213 (1997), which stated:
We . . . conclude that the procedural guidelines required by the Constitution, and mandated by this court, need not be specifically enumerated in the statute so long as the courts adhere to those requirements. RCW 10.73.160 is not unconstitutional because it does not expressly contain such features. Accordingly, we do not address RCW 10.01.160(4)'s constitutionality.
"Contumacious conduct," is defined as "[a] willful disobedience of a court order." Black's Law Dictionary 315 (8th ed. 2004).
We note, as did Nash and the amici, that it appears that the trial court may have erroneously focused on Nash's future ability to pay rather than whether payment of the LFOs would create a "manifest hardship" as required under RCW 10.01.160(4). We further note that it is unclear from the record whether the trial court even considered RCW 10.01.160(4).
If a claim is speculative and hypothetical, it is not ripe for judicial resolution. See State v. McKee, 141 Wn. App. 22, 36-37, 167 P.3d 575 (2007), review denied, 163 Wn.2d 1049 (2008). Nash's claim under RCW 10.01.160(4) was speculative.
RCW 10.01.160(4) provides:
A defendant who has been ordered to pay costs and who is not in contumacious default in the payment thereof may at any time petition the sentencing court for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under RCW 10.01.170.
(Emphasis added.) This statute requires the trial court to evaluate the hardship caused by the defendant being required to pay a portion of his LFOs, but Nash never demonstrated that the DOC had required him to pay any portion of the LFOs related to his Lewis County conviction. At best, he demonstrated that the DOC (1) may have been attempting to collect LFOs in an unrelated Clark County conviction, which the Lewis County Superior Court would not have the authority to address; and (2) was possibly threatening to collect a "supervision fee" that Nash does not now assert is subject to the remission provisions provided in RCW 10.01.160(4). CP at 60. In fact, the documentation Nash provided shows that his scheduled monthly payment for his Lewis County LFOs was "$0." CP at 60. Without information showing that the DOC was requiring Nash to pay anything on the relevant LFOs, any conclusion that the payment of the LFO amounts due created a manifest hardship would have been purely speculative and Nash's motion to remit LFOs was therefore premature. See State v. Curry, 118 Wn.2d 911, 918 n. 3, 829 P.2d 166 (1992) (the imposition of a penalty assessment on an indigent defendant, standing alone, is not enough to raise constitutional concerns); State v. Phillips, 65 Wn. App. 239, 244, 828 P.2d 42 (1992) (citing United States v. Pagan, 785 F.2d 378, 381-82 (2d Cir.) (the imposition of assessments on an indigent defendant alone does not implicate the Constitution; constitutional principles are implicated only when the government seeks to enforce collection of the assessment when a defendant is unable to comply), cert. denied, 479 U.S. 1017 (1986)).
Nash does not argue that supervision fees are the type of "costs" subject to RCW 10.01.160(4), and he repeatedly states that he is challenging the LFOs the sentencing court imposed in his judgment and sentence and the interest on those LFOs. See Br. of Appellant at 13, 18 n. 13. RCW 10.01.160(2) provides: "Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant or in administering the deferred prosecution program under chapter 10.05 RCW or pretrial supervision." Community custody supervision fees do not appear to fall under this definition.
Nash argues that his ability to challenge his LFOs based on his inability to pay before he is actually in default is a vital part of his due process rights. But our holding that his current LFO issues were not ripe for review does not mean that Nash must wait until he has actually defaulted on his LFO payments before he can request relief from the courts — RCW 10.01.160(4) clearly allows him to move for remission when the DOC establishes a monthly payment plan but before he is actually in default.
In saying that Nash may move for remission once the DOC establishes a payment schedule, we are not expressing any opinion on whether an order denying such a motion is appealable if the DOC has not yet attempted to collect on any payments due under that schedule. Any opinion on that matter would be an advisory opinion. See Walker v. Munro, 124 Wn.2d 402, 414, 879 P.2d 920 (1994) (stating that Washington courts do not issue advisory opinions).
Because Nash's LFO issues were not ripe for review, the trial court did not err when it denied Nash's LFO remission motion and we do not address Nash's arguments.
Nor do we address the additional arguments presented by the amici.
II. Community Custody Conditions
Nash next argues that the sentencing court erred when it imposed community custody conditions 5 and 10, arguing that these conditions are unconstitutionally vague. The State concedes that community custody conditions 5 and 10 are "improper" under State v. Bahl, 164 Wn.2d 739, 193 P.3d 678 (2008), and State v. Sansone, 127 Wn. App. 630, 111 P.3d 1251 (2005). Br. of Resp't at 32 (all capitalization omitted). We accept the State's concession.
We note that the State concedes error and does not argue that Nash cannot raise this issue on appeal because he did not challenge these community custody conditions below.
Accordingly, we affirm the trial court's denial of Nash's February 25, 2008 motion to remit LFOs, but remand to the trial court to strike community custody conditions 5 and 10 and for resentencing where it may impose other appropriate conditions.
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 pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J. and PENOYAR, C.J., concur.