State of Washington v. Magdaleno Cruz Tellez (Majority)

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FILED MARCH 5, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, v. MAGDALENO CRUZ TELLEZ, Appellant. ) ) ) ) ) ) ) ) ) No. 33552-6-111 UNPUBLISHED OPINION SIDDOWAY, J. -In June 2015, Magdaleno Cruz Tellez was convicted in a stipulated facts trial before the Benton County Superior Court of violating a protective order, a gross misdemeanor. On appeal, he challenges the superior court's imposition of discretionary legal financial obligations (LFOs). He contends (1) the trial court failed to make an individualized determination of his present and future ability to pay, and (2) his counsel provided ineffective assistance of counsel by failing to object to the LFOs. Because Mr. Tellez did not raise the LFO issue before the trial court at sentencing, we exercise our discretion under RAP 2.5(a) and decline to address this contention. We also No. 33552-6-111 State v. Tellez conclude that Mr. Tellez does not establish ineffective assistance of counsel on this record. Thus, we affirm. FACTS During the sentencing phase of Mr. Tellez's stipulated facts trial, the court asked Mr. Tellez about his projected financial situation, and then imposed LFOs: THE COURT: I'll ask you, were you employed at the time you were arrested on this? THE DEFENDANT: Yes. THE COURT: What were you doing at that time? THE DEFENDANT: Forklift driver at Pasco Processing. THE COURT: Has anything changed to where you're physically or unable at this time to work? THE DEFENDANT: No. I have the opportunity. I'm ready to go back to work. THE COURT: All right then. Is there any other reason why you would not be able to pay legal-financial obligations associated with this judgment and sentence? THE DEFENDANT: No. THE COURT: Ok. So, I'll assess a $500.00 victim assessment, $860.00 in costs, a $100.00 domestic violence assessment. Report of Proceedings at 10. Neither Mr. Tellez nor defense counsel objected. The trial court imposed mandatory fees of $500 for the victim assessment (RCW 7.68.035), $100 for the domestic violence penalty assessment (RCW 10.99.080) and $200 for the criminal filing fee, for a total of $800. See State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013) (the criminal filing fee is mandatory). The trial court also imposed discretionary fees of $60 for the sheriffs service fee and $600 for attorney fees, for a total of $660. Upon Mr. Tellez's motion after trial, the trial court found he lacked 2 No. 33552-6-III State v. Tellez sufficient funds to seek an appeal, and entered an order of indigency granting him the right to review at public expense. DISCRETIONARY LFOS In March 2015, two months before Mr. Tellez was sentenced, the Washington Supreme Court decided State v. Blazina, 182 Wn.2d 827, 344 P .3d 680 (2015), which made clear that under RCW 10.01.160(3 ), 1 a sentencing court must make an individualized inquiry on the record into the defendant's present and future ability to pay LFOs. Blazina, 182 Wn.2d at 838. Citing Blazina, Mr. Tellez contends for the first time on appeal that the trial court violated RCW 10.01.160(3) because it ordered him to pay discretionary LFOs without considering his current or future ability to pay. Mr. Tellez did not challenge the LFOs or the sufficiency of the individualized inquiry at his sentencing. Consequently, he is not automatically entitled to review. Blazina, 182 Wn.2d at 832. RAP 2.5(a) grants appellate courts discretion whether to review a defendant's LFO challenge raised for the first time on appeal. Id. at 833. Here, the sentencing court heeded Blazina and engaged in some individualized inquiry. Because only the sufficiency of the inquiry could arguably be the basis for appeal, we decline to review his unpreserved challenge. 1 The provision states the court "shall not order a defendant to pay costs unless the defendant is or will be able to pay them." RCW 10.01.160(3). In its inquiry, the court must take into account the defendant's financial resources and the burden of the costs. RCW 10.01.160(3). 3 No. 33552-6-III State v. Tellez INEFFECTIVE ASSISTANCE OF COUNSEL Mr. Tellez contends his trial counsel provided ineffective assistance of counsel by failing to challenge the LFOs. Based on this record, we do not find prejudicial error. Our review of ineffective assistance of counsel claims is de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prove ineffective assistance of counsel, Mr. Tellez must show with a preponderance of the evidence that his trial counsel's performance fell below an objective standard of reasonableness, and that this deficiency actually prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 68788, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 33435, 899 P.2d 1251 (1995). We will find prejudice ifit is reasonably probable that, but for the deficient performance, the outcome of the trial would have been different. McFarland, 127 Wn.2d at 335. Mr. Tellez fails to show either deficient performance or prejudice. First, he does not show that trial counsel had any reason to object to the imposition ofLFOs. As Blazina established, the trial court must make an individualized inquiry into a defendant's current and future ability to pay. 182 Wn.2d at 838. Additionally, if the defendant meets the GR 34 standard for indigency, a court "should seriously question that person's ability to pay LFOs." See id. at 838-39 (under GR 34, the court must find a person indigent ifhe or she receives assistance from a needs-based program or if he or she has a household income below 125 percent of the federal poverty guideline). Here, 4 No. 33552-6-III State v. Tellez although Mr. Tellez apparently met the GR 34 standard for indigency, the sentencing court's inquiry into his ability to pay was sufficient to establish that Mr. Tellez thought he would be able to pay off his LFOs. Before imposing the LFOs, the court asked whether he would be able to return to his work as a forklift driver and allowed Mr. Tellez to give any other reasons why he would not be able to pay. Under these circumstances, defense counsel reasonably did not object to the imposition of LFOs. Second, the record also suggests that any objection raised would have been unsuccessful. Mr. Tellez contends defense counsel should have informed the court that he had outstanding LFOs from other convictions totaling over $12,000. See Appellant's Brief, Appendix 1. This information does not appear in the record and is not properly before this court on appeal. See State v. Grier, 171 Wn.2d 17, 29, 246 P.3d 1260 (2011) (when ineffective assistance is raised on appeal, the court may consider only facts within the record). Moreover, even with knowledge of his other debts, Mr. Tellez assured the court that he would be able to pay the LFOs associated with his judgment and sentence. He simply does not show that an objection raised by defense counsel likely would have changed the trial court's decision to impose the discretionary fees. Consequently, his claim of ineffective assistance of counsel fails. Affirmed. 5 No. 33552-6-111 State v. Tellez A majority of the panel has determined 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. WE CONCUR: Pennell, J. 6

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