IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
SHERMAN IRWIN PULLEY,
Appellant.
No. 28922-2-III
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Division Three
UNPUBLISHED OPINION
Siddoway, J. — Sherman Pulley appeals an order denying his motion to terminate
legal financial obligations imposed as part of the court’s sentence following his
conviction for first degree burglary. He argues that he has satisfied these obligations, and
that in the alternative the superior court erred by not remitting payment due either to his
indigency or a loss of jurisdiction. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Mr. Pulley was sentenced to life without parole in 1998 after being convicted for
first degree burglary. As part of his sentence, he was ordered to pay the mandatory $500
victim assessment penalty and $110 in court costs. Acting pro se, he filed a motion in
No. 28922-2-III
State v. Pulley
Spokane County Superior Court to terminate these legal financial obligations (LFOs) as
well as his obligations to the crime victims’ compensation account in February 2010.1
His accompanying brief argued only that pursuant to In re Personal Restraint of
Sappenfield, 138 Wn.2d 588, 980 P.2d 1271 (1999), jurisdiction to collect on these
obligations had lapsed since 10 years had passed without entry of an order extending
jurisdiction.
In support of his motion, Mr. Pulley introduced a Department of Corrections
(DOC) trust account statement indicating that he owes an “unlimited” amount of money
on his LFOs and to the crime victims’ compensation account. Clerk’s Papers at 42. This
statement indicates that he has paid $1,385.03 toward his LFOs and at least $453.47
toward the crime victims’ compensation account. It also indicates that he had an account
balance of $227.21 as of February 18, 2010. Mr. Pulley earns $1.60 per hour for sewing
officer uniforms while incarcerated.
Mr. Pulley’s motion to terminate his LFOs was denied. The superior court found,
inter alia, that he had failed to establish a manifest hardship under RCW 10.01.160(4).
This appeal followed.
ANALYSIS
1
Mr. Pulley incorrectly filed his motion pursuant to RCW 9.94A.7605; he was not
subject to a payroll deduction within the meaning of that statute. See RCW 9.94A.7604.
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No. 28922-2-III
State v. Pulley
Mr. Pulley’s arguments on appeal are threefold. He argues that he has paid his
LFOs in full and that the DOC continues to wrongfully deduct funds from his inmate
account because his trust account statement reflects that he owes an “unlimited” amount
on his LFOs and to the crime victims’ compensation account. He also presents two
arguments in the alternative, claiming that the trial court erred by not finding him indigent
and thereby relieving his obligation to pay LFOs under RCW 10.01.160(4), and that in
any event jurisdiction has lapsed over the court’s ability to enforce collection on these
obligations.2
I. Payment of LFOs
The superior court did not issue any findings regarding whether Mr. Pulley had
paid his LFOs because the argument was never made below. His trial brief made no
mention that his LFOs had been paid, nor does anything else in the record suggest this
issue was considered. Such arguments raised for the first time on review may be denied
consideration by this court. RAP 2.5(a). We nevertheless exercise our discretion to
2
We note that the instant case is distinguishable from State v. Smits, 152 Wn.
App. 514, 216 P.3d 1097 (2009), which held that an order denying a motion to terminate
LFOs was not appealable as a matter of right under either RAP 2.2(a)(1) or (9). Smits so
held because the State had yet to attempt collection on the LFOs in that matter, and the
appellant was therefore free to file subsequent petitions at any time under RCW
10.01.160(4) prior to collection. 152 Wn. App. at 523-24. Here, Mr. Pulley claims he
has already paid all of his LFOs and is being subjected to excessive deductions beyond
the court’s jurisdiction.
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State v. Pulley
address Mr. Pulley’s concerns in an attempt to aid his understanding of the situation.
Despite his claim that his LFOs have been paid three times over, the record simply
does not establish that Mr. Pulley has paid off his LFOs owed to Spokane County. Mr.
Pulley’s inmate trust account statement does not reflect that his payments have been
attributed to Spokane County, nor does it specify his remaining balance.3 Any person
owing LFOs may contact the county clerk’s office of the county in which he or she was
sentenced to find out the balance owed. In October 2009, Mr. Pulley attempted to do so
by sending a letter to the Spokane County Clerk requesting his balance. Our record
somewhat conspicuously does not contain any reply from the clerk’s office or any
complaints from Mr. Pulley in this regard.
Mr. Pulley’s objection to his LFOs being described as “unlimited” on his inmate
trust account statement is understandable but also explainable. The word “unlimited”
will always appear as the “amount owing” on the trust account statement until all LFOs
for all cause numbers are paid in full. See Seattle Univ. Sch. of Law, Legal Financial
Obligations (LFOs): Understanding How LFOs Work 6 (2009).4 Thus, his LFOs are not
actually limitless, despite what his statement suggests.
3
LFOs accrue interest at a rate of 12 percent per year, beginning from the date of
judgment until the LFOs and the interest are paid in full. RCW 10.82.090.
4
This helpful guide can be found in full at
http://www.lawhelp.org/documents/472551SULFOBrochure.pdf?stateabbrev=/WA/ (last
visited Mar. 10, 2011).
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State v. Pulley
However, the DOC’s classification of Mr. Pulley’s amount owed toward the crime
victims’ compensation account as “unlimited” is accurate. The amount paid to this
account is not set by the court at sentencing and is therefore not considered an LFO; it is
a perpetual wage deduction determined by how much income Mr. Pulley earns while
incarcerated. See RCW 9.94A.760 (defining LFOs); RCW 72.09.110, .111(1)(a)(i)
(specifying that the DOC must deduct five percent of an inmate’s wages for deposit in
this account). He has demonstrated no error here.
II. Remittance of LFOs Due To Indigency
RCW 10.01.160(4) provides that if “payment of the amount due will impose
manifest hardship on the defendant . . . , the court may remit all or part of the amount due
in costs.”5 Mr. Pulley assigns error to the trial court’s finding that he has not established
manifest hardship under this provision. Citing Utter v. Department of Social and Health
Services, 140 Wn. App. 293, 303-04, 165 P.3d 399 (2007), he argues that his LFOs may
not be imposed because there is no likelihood that his indigency will end due to his
permanent incarceration. We review the denial of a defendant’s motion for a reduction of
costs for abuse of discretion. State v. Campbell, 84 Wn. App. 596, 600-01, 929 P.2d
1175 (1997).
5
RCW 10.01.160 does not permit the court to remit the mandatory victim
assessment penalty upon a showing of manifest hardship because it is not a “cost” within
the meaning of the statute.
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State v. Pulley
Mr. Pulley’s motion was properly denied. The superior court correctly determined
that payment of court costs would not create a manifest hardship for Mr. Pulley because
all of his basic needs are provided for by the State. Furthermore, Mr. Pulley has
apparently been making payments on his LFOs for several years without incident.
Recognizing a manifest hardship under such circumstances would have the practical
effect of excusing all or substantially all incarcerated offenders from payment of court
costs.
Mr. Pulley’s constitutional argument that his alleged perpetual indigence justifies
excusing his LFOs is unpersuasive. His wages earned while incarcerated are subject to
statutorily mandated deductions, including a deduction for payment of LFOs. RCW
72.09.111; RCW 72.11.020 (specifying that “court-ordered legal financial obligations
shall be paid” by incarcerated offenders).
These mandatory deductions do not constitute collection actions by the State that
would trigger a constitutionally mandated inquiry into a defendant’s financial status.
State v. Crook, 146 Wn. App. 24, 27-28, 189 P.3d 811 (2008), review denied, 165 Wn.2d
1044 (2009). It is only 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. Curry, 62 Wn. App.
676, 681, 814 P.2d 1252 (1991) (internal quotation marks omitted) (quoting United States
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State v. Pulley
v. Pagan, 785 F.2d 378, 382 (2d Cir.), cert. denied, 479 U.S. 1017 (1986)), aff’d, 118
Wn.2d 911, 829 P.2d 166 (1992). Mr. Pulley’s claims of ongoing indigency therefore
have no bearing on the DOC’s authority to withhold deductions from his wages.6
III. Statement of Additional Grounds
Mr. Pulley’s statement of additional grounds is clearly without merit. He argues
that pursuant to RCW 9.94A.760(4), the court’s jurisdiction over him has lapsed for
purposes of collecting LFOs. That statute provides in part that “[a]ll other legal financial
obligations for an offense committed prior to July 1, 2000, may be enforced at any time
during the ten-year period following the offender’s release from total confinement or
within ten years of entry of the judgment and sentence, whichever period ends later.”
RCW 9.94A.760(4). He suggests that because he will never be released from
confinement, that portion of the statute is inapplicable and the court lost jurisdiction over
him in October 2008, 10 years after entry of his judgment and sentence.
RCW 9.94A.760(4) is unambiguous. If the offender is never released, the court
will never lose jurisdiction. The DOC has authority to take deductions from an
offender’s wages in order to pay LFOs throughout the duration of the offender’s
incarceration. RCW 72.09.111(1)(a). Interpreting RCW 9.94A.760 to permit the court to
6
Mr. Pulley does not claim that the DOC’s deductions have rendered him an
“indigent inmate” within the meaning of former RCW 72.09.015(13) (2009).
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State v. Pulley
lose jurisdiction over an offender while incarcerated would lead to an unnecessary
conflict between statutes and ignore the plain language of this provision.
The superior court’s order is affirmed.
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
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Siddoway, J.
WE CONCUR:
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Korsmo, A.C.J.
____________________________________
Sweeney, J.
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