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State v. Sorrell

Court of Appeals of Washington, Division 3

January 25, 2018

STATE OF WASHINGTON, Respondent,
v.
ERNEST JAMES SORRELL, Appellant.

          FEARING, C.J.

         In two recent decisions, the Washington Supreme Court announced a new regime for the imposition and remission of discretionary costs imposed as legal financial obligations on convicted offenders. Beforehand, trial courts routinely and rotely imposed sums of discretionary legal financial obligations and appellate courts spurned review of the awards. In State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), the state high court directed superior courts to conduct an individualized inquiry into the financial circumstances of each offender before levying any discretionary legal financial obligations. The Supreme Court also bestowed discretion on this appeals court to review the superior court's award of the financial obligations regardless of whether the offender objected to their assessment before the superior court. In City of Richland v. Wakefield, 186 Wn.2d 596, 380 P.3d 459 (2016), the state high court instructed lower trial courts to carefully review the pecuniary status of the offender and consider the guidelines in GR 34 when resolving a motion for remission of discretionary legal financial obligations based on manifest hardship.

         Blazina and Wakefield departed from a long-standing jurisprudential view of legal financial obligations as a form of punishment and from an appellate practice of avoiding review of the obligations under the constructs of ripeness and waiver. The two decisions lamented a broken financial obligations system that disables an offender from successfully returning to society. Based on Blazina and Wakefield, financial obligations must no longer behave as an obsessed and possessed Police Inspector Javert shadowing the offender for the rest of his or her life.

         Today, we must apply principles and guidelines from the two Supreme Court landmark decisions when determining whether the trial court erred when failing to directly address Ernest Sorrell's motion for remission of financial obligations and when convicting him of intractably refusing to pay the obligations. In fairness to the trial court, the Supreme Court had yet to decide Blazina or Wakefield when it issued its decisions. We reverse and remand for a new hearing.

         FACTS

         In 2009, a Douglas County jury found Ernest Sorrell guilty of two counts of third degree child molestation as a result of sexually abusing his early teen daughter. Based on an offender score of nine plus, the sentencing court imposed sixty months' confinement for both counts, with the counts to run concurrently. In an August 10, 2009 judgment and sentence, the trial court also imposed $3, 747.25 in legal financial obligations. The discrete obligations included a $500.00 victim assessment fee, $200.00 for the criminal case filing fee, $747.25 for witness costs, $250.00 for the jury demand fee, $450.00 for transcription costs, $1, 000.00 for the cost of a court appointed attorney, a $500.00 fine resulting from a purported violation of the controlled substance act, and a $100.00 deoxyribonucleic acid (DNA) collection fee. The sentencing court entered a boilerplate finding that Sorrell had the ability or the likely future ability to pay the levied legal financial obligations.

         The August 2009 judgment and sentence ordered Ernest Sorrell to pay the legal financial obligations at the rate of $25.00 per month beginning immediately. Consistent with all other judgment and sentences, Sorrell's sentence imposed interest at the rate of twelve percent per annum on the financial obligations. Therefore, interest in the annual amount of $449.67 and the monthly amount of $37.47 accrued on the $3, 747.25 in financial obligations. Payment at $25.00 per month would never retire the principal owed.

         The 2009 judgment and sentence directed Ernest Sorrell to report to the clerk of the court any financial information requested. The judgment and sentence placed Sorrell on monetary supervision until he paid all legal financial obligations, ordered Sorrell to notify the clerk within two days of any change in his address, phone number or employer's name, and bade him to report to the superior court collections officer and to appear before any financial review hearings.

         Ernest Sorrell challenged his judgment and sentence. On July 14, 2011, this court reversed and dismissed one of the child molestation convictions on double jeopardy grounds, and this court remanded for resentencing. On May 7, 2012, the sentencing court, on remand, imposed an exceptional sentence of sixty months for the remaining conviction. The sentencing court also imposed the same amount of legal financial obligations. In essence, the judgment and sentence did not change.

         Ernest Sorrell appealed again by challenging his exceptional sentence. On November 22, 2012, and before this court entertained the merits of Sorrell's second appeal, the State Department of Corrections (DOC) released Sorrell from prison. This appeals court, therefore, granted the State's motion to dismiss the appeal as moot. This court added $2, 169.35 in appellate costs to Sorrell's financial obligations, despite dismissal on mootness rather than on the merits.

         Because of Ernest Sorrell's release from prison on November 22, 2012, DOC filed a closure report on December 18, 2012. The report stated that Sorrell had paid $89.10 toward the $3, 747.25 in legal financial obligations earlier imposed by the sentencing court. Sorrell's last payment, on October 4, 2012, amounted to the sum of two cents. With accrued interest of $1, 388.73, Sorrell owed, on November 22, 2012, the total sum of $5, 046.88, not including the costs imposed by this appeals court. The DOC closure report omitted any reference to appellate court costs. The closure report declared that the Douglas County clerk assumed the responsibility for collecting legal financial obligations.

         On December 24, 2012, the sentencing court confirmed and decreed the transfer of Ernest Sorrell's legal financial obligations collection from DOC to the Douglas County Superior Court. The transfer order assessed $100 in collection costs on Ernest Sorrell. The order read, in part:

NOTICE: The defendant is ordered to contact the Financial Collections Officer for Douglas County Superior Court within seven (7) days of the date of this order by calling (509) 745-8529 ext. 5 or Direct line and voicemail 509-888-6433. Failure to contact the Financial Collections Officer as ordered will result in the issuance of an Order to Show Cause for your appearance in Court. Failure to appear at any court ordered hearing could result in the issuance of an arrest warrant.
Failure to make payments and notify of any change of address could result in the filing of a probation violation and imposition of up to sixty (60) days in jail per violation.

Clerk's Papers (CP) at 92 (boldface omitted).

         Tristen Worthen, financial collections officer for Douglas County, scheduled a financial review hearing for Ernest Sorrell's case for June 3, 2013. Sorrell had not paid any legal financial obligations since his release from prison a half year earlier. He then owed $7, 706, which presumably included costs imposed on appeal. Worthen scheduled the hearing because Sorrell failed to respond to her request to verify job searches.

         Ernest Sorrell, without legal counsel, attended the June 3, 2013 financial review hearing. During the hearing, financial officer Tristen Worthen acknowledged that Sorrell had contacted her by monthly e-mail and that Sorrell's unemployment prevented him from paying. The sentencing court asked Sorrell to predict when he might obtain employment. Sorrell could render no prognostication.

         During the June 3 hearing, Ernest Sorrell orally motioned the court to dismiss all financial obligations. Sorrell disavowed any future ability to pay. He mentioned the difficulty in obtaining employment when employment applications required him to disclose any convictions for a crime and the nature of any crimes. Sorrell specifically uttered and the trial court responded:

DEFENDANT: -have any idea. I'm trying, Your Honor. I'd move the Court to dismiss the fines because I . . . The way things are standing, I don't see any future ability to pay.
THE COURT: Well, what we're going to do at this particular time, Mr. Sorrell, is we're going to continue this for about three months-

         Report of Proceedings (RP) (June 3, 2013) at 4-5. The sentencing court did not directly address Sorrell's motion and continued the hearing three months. The court directed Sorrell to monthly notify the county financial officer of his job search efforts. During the following eighteen months and during four additional review hearings, neither Sorrell nor the trial court mentioned Sorrell's motion for remission of legal financial obligations.

         On September 9, 2013, Ernest Sorrell appeared again without counsel for a financial review hearing. Sorrell announced to the sentencing court that, in July, he gained employment cleaning portable toilets for thirty hours a week. The distasteful occupation was the only work he could find. He mentioned that he moved to Toppenish, the locus of the employment. Sorrell added that child support garnished half of his wages. According to Sorrell, after the garnishment, he received only a couple hundred dollars to pay rent, utilities, and food. He borrowed money for travel expenses to Waterville for the financial review hearing.

         During the September 9 hearing and after Ernest Sorrell described his circumstances, the following colloquy occurred between Sorrell, the State's attorney, and the sentencing court:

THE COURT: Alright. So when can we start making some payments and how much can we make?
DEFENDANT: Well, I, I can't really say that, Your Honor. I have about three years left on this child support with them taking half my wages, and until then I, I really can't say-
THE COURT: Well, I don't understand how child support takes half your wages. Why don't you go get it modified?
DEFENDANT: I've attempted to that; several occasions.
. . . I actually had it-
. . . .
DEFENDANT: - stopped while I was in prison, and then as soon as I got out all the back support caught up to it.
THE COURT: How much-
DEFENDANT: I've attempted to have it completely wiped out because it's not a duty owed to the State, it's owed to Mrs.-my ex.
THE COURT: Okay. Well, we're going to have to have some payments sometime, so tell me what you can make and when.
DEFENDANT: (no audible response)
THE COURT: Start you with $10.00?
DEFENDANT: I, I just don't see having that. I have to eat; I have to be able to go to work. I, I'm . . . I'm going under as it is. I . . .
THE COURT: Mr. Biggar [State's Attorney]? Ms. Worthen?
MS. WORTHEN: His balance is $7, 706.00-
. . . .
MR. BIGGAR: How much is your rent?
DEFENDANT: My rent is 475.
MR. BIGGAR: And how much do you bring home a month?
DEFENDANT: In the last two months I have brought home $1, 500.00, $1, 586.00. I made-
. . . .
MR. BIGGAR: How much does support take?
DEFENDANT: Support is taking 200-or taking $500.00 a month.
MR. BIGGAR: $500.00 a month?
DEFENDANT: More than my rent.
MR. BIGGAR: So that's . . . If my math is correct, that leaves you about 550 after rent and support for everything else.
DEFENDANT: For two months.
. . . .
THE COURT: I think the 1, 500 was for two months.
MR. BIGGAR: Oh, for two months.
DEFENDANT: Yes.
THE COURT: So you average about 750 a month?
DEFENDANT: I, I'm left with about 650 a month, and I still have auto insurance, food-
THE COURT: Alright. Mr. Sorrell, you know, sooner or later we're going to have to start getting some payments, but why don't we knock this over 'til December sometime, see how he's doing then?
MR. BIGGAR: I'm fine with that, Your Honor. The problem for Mr. Sorrell is, of course, interest is accruing, but . . .
. . . .
MS. WORTHEN: His principal is $5, 827.50 and his interest is approximately 1, 819.
THE COURT: Alright. There's some rules, Mr. Sorrell, that I can do with interest, but you have to start making payments, they have to be consistent and all of those kinds of things, so let's get you on your feet and, and do what you can to start making some payments.
. . . .
THE COURT: Alright. See you back here January 6th. RP (Sept. 9, 2013) at 8-13 ...

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