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State v. Conway

Court of Appeals of Washington, Division 2

April 9, 2019


          SUTTON, J.

         Karen Ann Conway appeals a superior court commissioner's[1] order denying her motion to remit mandatory legal financial obligations (LFOs) and her motion to reconsider.[2]She argues that (1) the superior court has broad authority to remit mandatory LFOs under three statutes and its inherent authority, (2) we should extend the holding in Fuller v. Oregon[3] to mandatory LFOs, (3) the Clark County Court Clerk's office took enforcement action against her without conducting an inquiry into her ability to pay under State v. Blank, [4] (4) the superior court's findings of fact 1, 5, and 6 are clearly erroneous, and (5) the superior court's failure to remit the mandatory LFOs violates her equal protection and substantive due process rights. Conway requests that we vacate the superior court's orders and remand for entry of an order striking the victim penalty assessment fee and the criminal filing fee. We reject all of her arguments and affirm.


         In March 2007, Conway pleaded guilty in the Clark County Superior Court to one count of maintaining a dwelling for controlled substances. The superior court sentenced her and ordered her to pay various LFOs, including two mandatory LFOs: a $500 victim penalty assessment fee (VPA) under former RCW 7.68.035 (2000) and a $200 criminal filing fee under former RCW 9.94A.505 (2002).

         Conway, who was receiving Supplemental Security Income (SSI) due to a disability, made some, but not all, of the ordered payments toward the judgment and sentence. The Clark County Superior Court's Collections Unit periodically sent Conway notices to appear for a payment review and either make a payment or explain why she could not do so. These notices stated that if she failed to pay or appear, she could be placed in custody. At one point, the clerk's office e-mailed Conway, explaining that she would be required to provide an annual letter to verify her SSI status.

         In 2016, Conway filed a motion to remit all LFOs except the VPA fee and the criminal filing fee based on her indigency and SSI status. The superior court conducted a hearing and entered written findings of fact and conclusions of law. The court found that Conway was indigent and had been on SSI for 27 years.

         In its order, the superior court remitted the balance of interest owing, the criminal fine, the court appointed attorney fee, the deoxyribonucleic acid (DNA) fee (which was discretionary at the time), the crime lab fee, the drug fund fee, and the balance of collection fees. As to the two remaining mandatory LFOs, the VPA fee and the criminal filing fee, the court ruled that Conway owed a balance of $493.55 for the VPA fee and $197.41 for the criminal filing fee, but it ordered that "the court cannot require her to pay on the remaining mandatory LFOs at this time." Clerk's Papers (CP) at 378.

         Conway filed a motion to reconsider in December 2016, arguing for the first time that the imposition of the two mandatory LFOs violated her equal protection and substantive due process rights. The superior court denied the motion and entered the following additional relevant findings:

1. . . . [T]he Clark County Clerk's office did not unlawfully collect statutorily authorized collection fees and that the [c]ourt has no authority to direct the [c]ounty [c]lerk as to application of payments received from Ms. Conway.
. . . .
5. . . . [T]his [c]ourt can conceive of circumstances wherein Ms. Conway may be able to pay the fees and assessments in the future.
6. . . . The [c]ourt finds that there has never been enforcement in Ms. Conway's case. Ms. Conway has never been brought to court on a [m]otion for nonpayment. Sanctions have never been sought or imposed against her for nonpayment. The [c]ourt declines to find, as requested by Ms. Conway, that the State/Clark County Clerk's office was on notice and therefore required to conduct an inquiry regarding payment of LFO's when Ms. Conway was brought to court on probation violations unrelated to LFO's. Again, no enforcement sanctions were sought against Ms. Conway to trigger a Blank inquiry.

CP at 399-400.

         Conway appeals both orders; a commissioner of this court granted discretionary review.


         I. Legal Principles

         Our court has recognized that the effects on an indigent defendant remain the same whether the LFOs are mandatory or discretionary. State v. Mathers, 193 Wn.App. 913, 916, 376 P.3d 1163 (2016). "However, until there are legislative amendments or Supreme Court changes in precedent, we must recognize these distinctions and adhere to the principles of stare decisis." Mathers, 193 Wn.App. at 916. The court's authority to impose LFOs is statutory. Mathers, 193 Wn.App. at 917 (citing RCW 10.01.160(3)). The legislature has authorized the courts to impose a VPA fee and a criminal filing fee as mandatory LFOs.

         The VPA fee is authorized under former RCW 7.68.035(1)(a) (2000) which states:

When any person is found guilty in any superior court of having committed a crime . . . there shall be imposed by the court upon such convicted person a penalty assessment. The assessment shall be in addition to any other penalty or fine imposed by law and shall be five hundred dollars for each case or cause of action that includes one or more convictions of a felony or gross misdemeanor and two hundred fifty dollars for any case or cause of action that includes convictions of only one or more misdemeanors.

(Emphasis added).

         The criminal filing fee is authorized under former RCW 36.18.020(2)(h) (2005) which states:

Upon conviction or plea of guilty, upon failure to prosecute an appeal from a court of limited jurisdiction as provided by law, or upon affirmance of a conviction by a court of limited jurisdiction, a defendant in a criminal case shall be liable for a fee of two hundred dollars.

(Emphasis added).

         II. Legislative Intent

         Washington courts have consistently held that a trial court need not consider a defendant's past, present, or future ability to pay when it imposes either the VPA fee or the criminal filing fee. See State v. Curry, 118 Wn.2d 911, 917-18, 829 P.2d 166 (1992) (VPA fees are mandatory notwithstanding defendant's ability to pay); see also State v. Clark, 191 Wn.App. 369, 374, 362 P.3d 309 (2015) (VPA fees and criminal filing fees are mandatory obligations not subject to a defendant's ability to pay); State v. Lundy, 176 Wn.App. 96, 102, 308 P.3d 755 (2013); State v. Kuster, 175 Wn.App. 420, 424-25, 306 P.3d 1022 (2013); State v. Thompson, 153 Wn.App. 325, 337, 223 P.3d 1165 (2009); State v. Williams, 65 Wn.App. 456, 460, 828 P.2d 1158, 840 P.2d 902 (1992).

         "Washington courts consistently treat the [mandatory LFO] statutes as separate and distinct from the discretionary LFO statute and the restitution statute." Mathers, 193 Wn.App. at 919. "Where the legislature has had time to correct a court's interpretation of a statute and has not done so, we presume the legislature approves of our interpretation." Mathers, 193 Wn.App. at 918.

         III. Authority To Remit Mandatory LFOs

         A. Statutory Authority To ...

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