Catling challenges mandatory legal financial obligations
(LFOs) imposed following his conviction for delivering a
controlled substance, heroin, arguing both that (1) no LFOs
should have been imposed because his sole legal source of
income is Social Security disability and (2) the superior
court should have held a hearing to determine if his mental
health condition required waiver of some mandatory LFOs even
though he never requested a hearing. We conclude that (1)
although the LFO order remains valid, the judgment and
sentence must be modified to specify that repayment cannot be
made from the proceeds of Social Security disability payments
and (2) the failure to raise the mental health argument to
the trial court precludes our review of that claim.
Catling was charged in the Spokane County Superior Court with
two counts of delivery of heroin resulting from sales of the
drug to a police informant over a three month period. An
agreement was reached and Mr. Catling pleaded guilty to one
charge; the second count was dismissed. The parties jointly
asked the court to impose a residential drug offender
sentencing alternative (DOSA) sentence.
ensuing evaluation recommended treatment. The trial court
agreed and imposed the suspended 24-month residential DOSA
sentence requested by the parties at the sentencing hearing
held September 23, 2016. Discussion then ensued concerning
LFO payments. Defense counsel told the court about a decision
issued a day earlier, City of Richland v. Wakefield,
186 Wn.2d 596, 380 P.3d 459 (2016). He argued that although
Wakefield only involved discretionary LFOs, its
reasoning that federal law prohibited attachment of social
security payments should also apply to mandatory LFOs and
they should not be assessed against his client. Mr. Catling,
age 36, told the court that he had been receiving the
disability payments for about 10 years. His mother told the
court that the payments had been received for more than 10
years. When asked about her son's condition, she
described it as "based mostly on medical, but also some
mental issues." Report of Proceedings (Sept. 23, 2016)
(RP) at 9. She told the court that he had been born with his
bladder turned inside out and that multiple surgeries to
address the problem had caused her son pain and prevented him
having read Wakefield, the court took the matter
under advisement. By order entered the following Monday, the
court imposed mandatory LFOs totaling $800-a $500 victim
penalty assessment, a $200 filing fee, and a $100 DNA fee,
payable at the sum of $25 per month. Clerk's Papers (CP)
at 35. Two weeks later the defendant sought reconsideration
of the LFOs on the basis of Wakefield. The motion
reiterated counsel's sentencing argument that
Wakefield's reasoning should prevent imposition
of any LFOs. The court denied reconsideration.
Catling timely appealed to this court, raising two challenges
to the LFO rulings. A panel heard oral argument on the
Catling alleges that LFOs cannot be imposed against him nor
collected from him because his sole source of income is a
nonattachable federal disability payment. He also argues that
the court erred in not considering whether his mental
disability required remission of some of his LFOs under RCW
9.94A.777. We consider those contentions in the order listed.
LFOs and Disability Income
Catling argues that mandatory LFOs are invalid under the
supremacy clause for those, such as himself, whose only legal
source of income is Social Security disability. We disagree
with his contention that mandatory LFOs cannot be imposed in
his case, but we agree that the federal anti-attachment
statute precludes a court from collecting LFO payments where
the sole source of income is social security.
constitution does not limit the ability of the states to
impose financial obligations on convicted offenders; it only
prohibits the enforced collection of financial obligations
from those who cannot pay them. Fuller v. Oregon,
417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974); State
v. Blank, 131 Wn.2d 230, 237-38, 930 P.2d 1213 (1997);
State v. Curry, 118 Wn.2d 911, 915-16, 829 P.2d 166
(1992); State v. Barklind, 87 Wn.2d 814, 817-18, 557
P.2d 314 (1976). Thus, ability to pay is not considered when
imposing mandatory costs and need only be considered at the
time of collection. State v. Lundy, 176 Wn.App. 96,
102-09, 308 P.3d 755 (2013). However, Washington has long
directed trial judges to consider a defendant's ability
to pay prior to imposing discretionary court costs
at sentencing. RCW 10.01.160(3). A motion to remit costs
requires that trial courts adjudge the offender's current
or future ability to pay those costs, but punishment for
failure to pay can only be imposed if the refusal is willful.
Blank, 131 Wn.2d at 241-42.
The social security anti-attachment statute at issue here
The right of any person to any future payment under this
subchapter shall not be transferable or assignable, at law or
in equity, and 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, or to the operation of any bankruptcy or
42 U.S.C. § 407(a) (emphasis added).
italicized language sets forth the basic premise of the
statute-neither current nor future social security payments
are subject to seizure by any process of law. The underscored
language ("other legal process") is key to
appellant's argument. That language was authoritatively
construed by the United States Supreme Court in an earlier
case arising from this state. Wash. State Dep 't of
Soc. & Health Srvs. v. Guardianship Estate of Danny
Keffeler, 537 U.S. 371, 123 S.Ct. 1017, 154 L.Ed.2d 972
issue in Keffeler was the State's practice of
using Social Security benefits paid to children in foster
care. The foster children contended that the State's use
of the money for foster care expenses was invalid under
§ 407(a) as an "other legal process." 537 U.S.
at 383-84. The court disagreed, stating:
Thus, "other legal process" should be understood to
be process much like the processes of execution, levy,
attachment, and garnishment, and at a minimum, would seem to
require utilization of some judicial or quasi-judicial
mechanism, though not necessarily an elaborate one, by which
control over property passes from one person to another in
order to discharge or secure discharge of an allegedly
existing or anticipated liability.
Id. at 385. In other words, "other legal
process" involves some means of transfer akin to
garnishment or attachment.
applied this understanding of "other legal process"
to discretionary LFOs imposed against a homeless offender
whose sole income consisted of Social Security disability
payments. 186 Wn.2d at 599. The trial court had directed that
she pay $15 a month from her social security. Id. at
609. The court overturned the monthly payment, concluding its
analysis of the "other legal process" language:
Accordingly, we hold that federal law prohibits courts from
ordering defendants to pay LFOs if the person's only
source of income is social security disability.
Id. The court directed that Ms. Wakefield's
remission motion be granted. Id. at 611.
application of § 407(a) to an existing financial
obligation also was at issue in a case cited by
Wakefield, In re Lamport, 306 Mich.App. 226, 856
N.W.2d 192 (2014). There a mother was directed to make
restitution for her juvenile son, who had committed arson.
856 N.W.2d at 194. Two years later, the mother suffered a
heart attack, became unable to work, and started receiving
Social Security disability payments. Id. Two years
after the heart attack, the court conducted a hearing
concerning her finances and reduced the payments by $100 per
month due to the change in circumstances, while also ruling
that enforcing the restitution order did not violate 42
U.S.C. § 407(a). Id. at 194-95. The following
year, the mother challenged the restitution order by filing
for relief from judgment, arguing that enforced collection of
the restitution order violated § 407(a). Id. at
195. The trial court denied the motion, concluding that
enforcement of the restitution order did not constitute
"other legal process" under § 407(a).
appeal, the mother contended that (1) the Social Security
benefits were exempt and could not be used to repay the
obligation and (2) the restitution order should be canceled
due to the fact that her sole income was the Social Security
disability payment. Id. 196. Applying
Keffeler, the appellate court agreed with her first
contention. The court concluded that a judicial mechanism was
being used to attempt to transfer the Social Security
benefits away from the recipient in order to satisfy a debt.
When the contempt power is used to enforce the payment, it is
an "other legal process" akin to attachment.
Id. at 198-200.
court then turned to the question of whether or not the
restitution obligation should have been stricken. Noting that
disability income is not a need-based benefit, the court
nonetheless cautioned that disability proceeds were still not
attachable due to § 407(a). Id. at 202-03.
However, the mother was not exempt from having to account for
other income or assets that might be used to pay the debt.
Id. at 201-03. It would not be a violation of §
407(a) to require the mother periodically to appear at a
contempt hearing in order to allow the court to ascertain her
income. Id. at 201. Although it would violate §
407(a) to make the mother pay the court from her disability
we decline to conclude that the mere specter of a contempt
hearing necessarily constitutes such "other legal
process." That is, although we recognize that there is
some level of threat and coercion inherent in a prospective
contempt proceeding itself, the specter of contempt also can
serve the legitimate purpose of providing a mechanism by
which an obligor's assets and income can be determined.
Id. at 202. Thus, the court concluded that the
restitution order remained valid. Id. at 203.
and Lambert answer Mr. Catling's appeal.
Consistent with Wakefield, we agree that the order
that Mr. Catling pay $25 per month cannot be enforced against
his disability income per § 407(a). However, as in
Lambert, there is nothing in § 407(a) that
invalidates the underlying financial obligation. The
anti-attachment provision prevents levying against social
security disability proceeds, but it does not address the
debt itself. The statute distinguishes between the
imposition of LFOs and compelled payment of
LFOs from the exempt proceeds of a Social Security payment.
remand the case to superior court to amend its judgment and
sentence to indicate that the LFOs may not be satisfied out
of any funds subject to 42 U.S.C. §
Health Condition and LFOs
Catling also briefly argues that his mother's remark
about his mental health problems triggered an obligation for
the trial court to inquire further about his ability to pay.
We disagree. The offhand remark by a third party did not put
the court on notice that a mental health disability was
behind Mr. Catling's inability to pay or that he was
prepared to establish that fact. He may raise the claim on
remand if he so desires.
issue is a provision added to the Sentencing Reform Act of
1981, chapter 9.94A RCW, during a 2010 overhaul of the
Involuntary Treatment Act, chapter, 71.05 RCW.
financial obligations-Defendants with mental health
(1) Before imposing any legal financial obligations upon a
defendant who suffers from a mental health condition, other
than restitution or the victim penalty assessment under RCW
7.68.035, a judge must first determine that the defendant,
under the terms of this section, has the means to pay such
(2) For the purposes of this section, a defendant suffers
from a mental health condition when the defendant has been
diagnosed with a mental disorder that prevents the defendant
from participating in gainful employment, as evidenced by a
determination of mental disability as the basis for the
defendant's enrollment in a public assistance program, a
record of involuntary hospitalization, or by competent expert
Catling contends that his mother's passing mention of a
mental health component to his disability meant that the
court was required to inquire further. We disagree. Neither
Mr. Catling nor his counsel invoked § 777 or indicated
that they had the necessary proof to satisfy the statute.
While there was an indication from his mother that Mr.
Catling may have been diagnosed with a mental disorder, there
was no indication his unidentified condition prevented him
"from participating in gainful employment." RCW
9.94A.777(2). His mother's statement expressly
indicated that mental health was a small part of his problem
and that his disability award was "based mostly on
medical" due to his birth defects.
we are remanding for the court to clarify the payment order.
Mr. Catling is free to raise a § 777 claim to the trial
court if he believes he has the evidence to satisfy RCW