Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,
                             Respondent,                         No.  39912-1-II
                                                                Consolidated with
       v.                                                        No.  40549-1-II

JAMES MICHAEL STONE,                                        PUBLISHED OPINION
                             Appellant.

       Van Deren, J.  --  James Stone appeals from the trial court's March 23 and October 2, 

2009, orders imposing jail time because he failed to make payments on his legal financial 

obligations (LFOs).  He argues that (1) the Jefferson County Superior Court policy of placing 

defendants who owe LFOs as a result of a criminal sentence on a pay or appear calendar and 

requiring them to defend themselves without appointment of counsel violates fundamental due 

process, (2) the trial court denied him his right to counsel at the March 23 show cause hearing, 

(3) the trial court erred in admitting the pay or appear program coordinator's unsworn testimony 

at the March 23 hearing, (4) the trial court erred in its March 23 order by imposing jail time 

without finding that his failure to pay was willful, and (5) the trial court erred at the October 2 

hearing in finding that his failure to pay was willful. The State argues on appeal that the 

enforcement procedure was governed by chapter 7.21 RCW and RCW 10.01.180(1), the civil  

No.  39912-1-II, consolidated with No.  40549-1-II

contempt statutes, instead of RCW 9.94B.040(1).  

       We hold that enforcement proceedings for LFO payment obligations arising from criminal 

sentences, which may result in incarceration, triggered a fundamental due process right to 

appointed counsel denied Stone at the March 23 hearing.  We also hold that the trial court 

violated Stone's due process rights by imposing jail time without inquiring at the March 23 

hearing into Stone's ability to pay and without making a finding at the October 2 hearing of his 

willful failure to pay.  We reverse and vacate the March 23 and October 2 orders and remand for 

further proceedings consistent with this opinion.

                                            FACTS

       In 2001, Stone pleaded guilty to unlawful possession of a controlled substance, to-wit: 

methamphetamine, and second degree theft.  On September 28, 2001, the trial court sentenced 

him to 105 days in jail and 12 months of community custody and imposed a $2,860 LFO.  

       On October 29, 2003, the State of Washington Department of Corrections (DOC) sent the 

trial court notice that Stone did "not meet the criteria for continued supervision by [DOC]," so it 

was closing its supervision interest in his case.  Clerk's Papers (CP) at 26.  The notice stated that 

DOC would cease sending billing statements to Stone and would forward his contact information 

to the Jefferson County Superior Court clerk's office "for purposes of billing, monitoring, and 

collection of [LFOs] and Restitution." CP at 27.  According to DOC, Stone's last payment was 

on October 2, 2003, and to date he had paid $290.00 on his LFOs.  After application of his 

payments, he still owed $3179.81, including $110.00 court costs; $500.00 crime victim 

compensation;1 $200.00 attorney fees; $2000.00 "[o]ther" costs; and $659.81 interest.  CP at 27

1 This was separate from restitution, which the notice indicated Stone did not owe.  

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No.  39912-1-II, consolidated with No.  40549-1-II

(boldface omitted).     

       On December 8, 2003, without counsel being appointed for him, Stone signed an "Order 

Placing Defendant on Jefferson County Pay or Appear Program." CP at 29 (some capitalization 

omitted).  The order set Stone's minimum monthly LFO payments at $25.00 per month and 

provided in part: 

       Payment is due by the last business day of each month.  If payment is not made by
       that day, Defendant must appear in Court the second Friday of the following 
       month . . . or call the court clerk's office . . . prior to that Friday.  
       If Defendant has not made the minimum payments in the preceding calendar month 
       and does not appear on the second Friday of the following month at the Pay or 
       Appear calendar, a warrant will be issued for Defendant's arrest.    

CP at 29 (boldface omitted).  

       The trial court docket reflects that for 29 consecutive months, Stone made his monthly 

payments and the trial court struck the scheduled hearings.  On June 9, 2006, the trial court held a 

hearing at which Stone did not appear.  The record reflects that the pay or appear program 

coordinator testified, without being sworn under oath, that Stone's last payment was made in 

April 2006.  The trial court issued a warrant for his arrest.  

       The trial court docket also shows that Stone resumed making LFO payments in June 

2007, and the trial court resumed striking the hearings.  But Stone remained in warrant status due 

to his failure to appear on June 9, 2006.  On December 26, 2007, the pay or appear coordinator 

sent him a letter informing him that he was on warrant status and she enclosed an order quashing 

his warrant, which he was to sign and return.  

       In Stone's absence, on January 3, 2008, the trial court entered another order re pay or 

appear.  The order set Stone's minimum monthly LFO payment at $25.00, quashed his warrant, 

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No.  39912-1-II, consolidated with No.  40549-1-II

and set a date for his next hearing.  This order also stated, "If payments have been made 

defendant need not appear for review hearing.  If defendant is not in compliance the Court may 

either convert LFOs to jail time or turn LFOs over to collection agency." CP at 33 (emphasis 

added).

       Throughout the remainder of the year, Stone made no payments and failed to appear for 

hearings on several occasions.  Twice, the trial court issued bench warrants for his arrest.  Each 

time, the trial court entered an order substantially similar to the January 3, 2008, order re pay or 

appear.  After his arrest on the second warrant, Stone appeared in custody, without counsel and 

without being advised of a right to counsel for the hearing, and the trial court stated, "[I]f you 

appear by phone just call in and talk to [the pay or appear coordinator].  You can avoid all this 

stuff.  I don't expect you to come all the way over from Spokane, but, let us know."2 Report of 

Proceedings (RP) at 15.  The pay or appear coordinator stated, "I'd like to also let Mr. Stone 

know that this is his third warrant.  So, . . . after this one we will be asking for conversion of your 

(inaudible) posted jail time." RP at 15.  

       Stone again failed to make a payment or appear at a hearing and, on March 23, 2009, he 

appeared in custody without counsel on the resulting arrest warrant.  A prosecuting attorney 

represented the State at the hearing.  The record contains an acknowledgement of defendant's 

rights that he and an unidentified3 person signed.  The document stated, "AMONG OTHERS, the 

2 At argument during a later hearing on October 2, 2009, the trial court agreed with defense 
counsel that it did not know whether a telephone call would have stopped the issuance of a 
warrant if Stone did not make payments and defense counsel was sure that it would not.  At oral 
argument before this court, the prosecutor also stated that he did not know that a telephone call 
would have stopped the issuance of a bench warrant.

3 At oral argument before this court, neither party could identify who signed for the sheriff or 
prosecuting attorney or who were identified as persons who signed on behalf of the State; nor 
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rights of a person accused of a crime include . . . [t]o be represented by a lawyer, and if [they]

cannot afford to pay for a lawyer, to have one provided at public expense." CP at 46.  But the 

document also listed inapplicable rights concerning questioning of defendants, trial rights, the 

right to appeal a guilty finding after trial, and rights concerning guilty pleas.  The document 

concluded by stating, "I have read or have had read to me and I understand all of the numbered 

paragraphs above.  I have no further questions to ask of the Court." CP at 46.   The State argues 

that this document adequately informed Stone of his right to counsel at the LFO hearings.  

       The trial court did not orally advise Stone of a right to counsel or ask him whether he 

wished to have an attorney appointed.  The pay or appear coordinator testified at the March 23 

hearing, without being sworn under oath, that Stone had not made payments since June 2008 and 

requested that the trial court order him to serve 10 days in jail.  

       The trial court asked Stone whether there was "anything [he would] like to say[.]" RP at 

18.  Stone stated that he had been evicted from his home, that he had a shoulder injury that might 

require surgery, and that he "didn't just blatantly want to blow off the Court and not make [his] 

payments," but there had been "a lot of things [he had] been dealing with." RP at 19.  The trial 

court replied, "I understand you've had problems, but this is an absolute mandatory obligation 

you have and the only type of response that can be done is to let you understand how serious it is 

and that apparently requires jail time." RP at 19.  

       Without reference to the actual pay or appear order that indicated that nonpayment would 

result in jail time credited against the LFOs or in a collection agency action, and without counsel 

appointed for Stone, the trial court entered another order re pay or appear imposing 10 days in 

could anyone identify who gave the form to Stone to sign.
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No.  39912-1-II, consolidated with No.  40549-1-II

jail, but otherwise substantially similar to such previous orders.  The trial court's order, contrary 

to the pay or appear coordinator's earlier statement that she would ask to convert the jail time as 

credit against his LFOs and contrary to the orders to pay or appear, did not provide that the 10 

days were to be credited toward his LFO debt, nor did it provide that he could be released if he 

made a payment on the LFOs.4  

       Stone again failed to make a payment or appear and, on September 24, 2009, appeared in 

custody on an arrest warrant.  The trial court continued the matter until September 25.  Although 

the record does not reflect the trial court asking Stone whether he desired counsel or Stone's 

request for such, on September 24, the trial court entered an order appointing counsel, partially at 

public expense.  

       On September 25, Stone appeared with counsel.  The pay or appear coordinator testified, 

without being sworn, that Stone had last made a payment in June 2008 and had not contacted the 

clerk's office since March 23, 2009; and she requested the trial court impose 30 days in jail.  She 

did not ask the court to convert any of his LFOs to jail time, thereby reducing his payment 

obligation by time served in jail.  Defense counsel requested that the trial court "afford [Stone] 

some due process" and make a finding on whether his failure to pay was willful.  RP at 26.  The 

trial court set a fact finding hearing and advised Stone of his rights, including the right to counsel 

and the right to require the State to prove the sentence violation by a preponderance of the 

evidence.  

       On October 2, 2009, at the fact finding hearing, the pay or appear coordinator testified 

under oath at defense counsel's request.  She testified that since Stone's release from jail in 

4 Also, at oral argument before this court, it was uncontested that Stone has not received credit 
toward his LFOs for any of the 55 days in jail eventually imposed by the trial court.  
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No.  39912-1-II, consolidated with No.  40549-1-II

March, he had not made any payments, had not appeared in court, and had not contacted the 

clerk's office by telephone.  Stone testified that he was homeless; that he was left-handed and 

limited to 25 percent use of that hand; that the Department of Social and Health Services paid his 

medical bills; that his only source of income was monthly net payments of $339 from a "[General 

Assistance-Unemployable (GAU)] program . . . due to [his] disability with [his] shoulder 

[injury]"; and that he spent this money on shelter, cigarettes, and "a few other necessities" like 

food.  RP at 39-40.  He also testified that it cost him approximately $100 to travel to Jefferson 

County for court appearances.  Both the pay or appear coordinator and the prosecutor mentioned 

that previously Stone had served 10 days in jail and still was not making payments.  

       The trial court ruled:  

       Okay.  I am going to find Mr. Stone that your failure to pay or appear was willful.  
       You could have made a phone call, sent a letter, [or] made some attempt to 
       contact Superior Court here in Jefferson County.  As a result of your failure to do 
       that the County[ ha]s had to issue a warrant, there's been state expense picking 
       you up, putting you in jail, . . . all because you couldn't pick up the phone or send 
       a letter.  And, that's not right and your failure is willful and I'm imposing forty-five 
       days in jail.  If you get picked up again it'll be sixty days, and if you get picked up 
       again there'll be another fifteen days every time that you don't make an effort to 
       contact this Court.  Do you understand?  
              . . . . 
       Forty-five days.  

RP at 43.  The trial court did not make a finding or comment on Stone's income or ability to pay 

the LFOs.  It entered another order re pay or appear imposing 45 days in jail.  The order did not 

grant Stone credit against his LFOs for either time he served in jail.  He appeals.

                                          ANALYSIS

       We first address the nature of Stone's LFO enforcement proceedings and whether they

were civil or criminal because the parties disagree about whether Stone was entitled to counsel at 

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No.  39912-1-II, consolidated with No.  40549-1-II

the hearings.  We hold that the LFO enforcement proceedings are criminal in nature and,

regardless of the proceedings' nature, the State denied Stone his right to counsel at his LFO 

hearings, with the exception of the October 2 hearing, under this case's facts. We further hold 

that the trial court violated Stone's due process rights by modifying his criminal sentence and 

ordering him to serve jail time based on a willful failure to contact the trial court, instead of a 

willful failure to make his LFO payments.     

I.     Governing Statutes for Financial Obligation Enforcement

       The State argues on appeal that the LFO enforcement proceedings in Jefferson County 

were conducted under chapter 7.21 RCW and RCW 10.01.180 because Stone signed the 

December 8, 2003, "Order Placing Defendant on Jefferson County Pay or Appear Program." CP 

at 29 (some capitalization omitted). It concludes that the right to counsel does not attach because 

these were civil proceedings and Stone was not denied any due process right.  We disagree.

       A.  Standard of Review

       We review de novo the interpretation of statutes, including their application.  State v. 

Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005).  

       B.  Order To Pay or Appear Conflated Civil and Criminal Statutes

       Here, the State sought to compel Stone to pay his LFOs5 by entering orders requiring his 

5 The two versions of RCW 9.94A.030 applicable to Stone defined a "[l]egal financial obligation"
as 
       a sum of money that is ordered by a superior court of the state of Washington . . . 
       for legal financial obligations which may include restitution to the victim, 
       statutorily imposed crime victims' compensation fees as assessed pursuant to RCW 
       7.68.035, court costs, county or interlocal drug funds, court-appointed attorneys'
       fees, and costs of defense, fines, and any other financial obligation that is assessed
       to the offender as a result of a felony conviction.  
Former RCW 9.94A.030(28) (2009); former RCW 9.94A.030(31) (2008).

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No.  39912-1-II, consolidated with No.  40549-1-II

payment or appearance.  The December 2003 order informed him that a bench warrant would 

issue if he failed to pay or appear in the future.  The January 2008 order (and subsequent orders), 

entered in Stone's absence and without the appointment of counsel for him, stated, "If payments 

have been made defendant need not appear for review hearing.  If defendant is not in compliance 

the Court may either convert LFOs to jail time or turn LFOs over to collection agency." CP at 

33 (emphasis added).

       RCW 9.94A.760(10) (2008)6 provides that "[t]he requirement that the offender pay a 

monthly sum towards a legal financial obligation constitutes a condition or requirement of a 

sentence" and refers to RCW 9.94B.040 regarding sanctions for noncompliance.7  (Emphasis 

added.)  RCW 9.94B.040(1) provides, "If an offender violates any condition or requirement of a 

sentence, the court may modify its order of judgment and sentence and impose further 

punishment in accordance with this section."  (Emphasis added.)  RCW 9.94B.040(3)(a)(i) 

provides, "Following the violation . . . the department may impose sanctions such as . . . jail 

time."  (Emphasis added.)  RCW 9.94B.040(3) provides in pertinent part:  

              (b) . . . the court, upon the motion of the [S]tate, or upon its own motion, 
       shall require the offender to show cause why the offender should not be punished 
       for the noncompliance. The court may issue a summons or a warrant of arrest for 
       the offender's appearance;
              (c) The [S]tate has the burden of showing noncompliance by a 
       preponderance of the evidence. If the court finds that the violation has occurred, it 
       may order the offender to be confined for a period not to exceed sixty days for 

6 Both parties cited to statutes in effect at the time Stone appealed.  While the case was on appeal, 
the legislature amended RCW 9.94A760.  See Substitute S.B. 5423, 62nd Leg., Reg. Sess. 
(Wash. 2011); Laws of 2011, ch. 106, § 3.  As the amendments did not substantially affect the 
statute, we refer to the current version for the sake of convenience.

7 RCW 9.94A.760(10) also refers to RCW 9.94A.737 and RCW 9.94A.740, which address 
community custody violations.  Because Stone was no longer subject to DOC supervision and, 
thus, was not subject to community custody, these statutes do not apply.    

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No.  39912-1-II, consolidated with No.  40549-1-II

       each violation, and may (i) convert a term of partial confinement to total 
       confinement, (ii) convert community restitution obligation to total or partial 
       confinement, (iii) convert monetary obligations, except restitution and the crime 
       victim penalty assessment, to community restitution hours at the rate of the state 
       minimum wage as established in RCW 49.46.020 for each hour of community 
       restitution, or (iv) order one or more of the penalties authorized in (a)(i) of this 
       subsection. Any time served in confinement awaiting a hearing on noncompliance 
       shall be credited against any confinement order by the court;
              (d) If the court finds that the violation was not willful, the court may 
       modify its previous order regarding payment of legal financial obligations and 
       regarding community restitution obligations.

None of the referenced statutes provides that trial courts may credit jail time imposed toward

LFO payments.

       In contrast, RCW 10.01.180 provides civil contempt sanctions for nonpayment of fines

and costs.  State v. Nason, 168 Wn.2d 936, 947, 233 P.3d 848 (2010); see also Smith v. Whatcom 

County Dist. Ct., 147 Wn.2d 98, 105, 52 P.3d 485 (2002).  RCW 10.01.180(1) provides, "A 

defendant sentenced to pay a fine or costs who defaults in the payment thereof or of any 

installment is in contempt of court as provided in chapter 7.21 RCW."  RCW 10.01.180(3)

provides:  

       If a term of imprisonment for contempt for nonpayment of a fine or costs is 
       ordered, the term of imprisonment shall be set forth in the commitment order, and 
       shall not exceed one day for each twenty-five dollars of the fine or costs, thirty 
       days if the fine or assessment of costs was imposed upon conviction of a violation 
       or misdemeanor, or one year in any other case, whichever is the shorter period.  A 
       person committed for nonpayment of a fine or costs shall be given credit toward 
       payment for each day of imprisonment at the rate specified in the commitment 
       order.

(Emphasis added.)  Thus, RCW 10.01.180(3) requires the trial court to credit a defendant for 

time imposed for nonpayment of a fine or cost.    

       Accordingly, the January 2008 and subsequent pay or appear orders, stating that the trial 

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No.  39912-1-II, consolidated with No.  40549-1-II

court could either convert the LFOs to jail time or turn them over to a collection agency, notified 

Stone that the trial court would impose civil contempt sanctions under RCW 10.01.180 and not 

jail time as a modification of Stone's original sentence under RCW 9.94B.040.  Nason, 168 

Wn.2d at 946-47.  In doing so, those orders conflated criminal sentence modifications with the 

civil contempt sanctions available under RCW 10.01.180.  The issue was further confused when 

Stone appeared before the trial court on the bench warrants and the trial court imposed sanctions 

under RCW 9.94B.040, i.e., jail time without credit against his LFOs, even though the pay or 

appear coordinator told Stone and the court -- consistent with the January 2008 and subsequent 

pay or appear orders -- that she would request credit against his LFOs for his time served.8  This 

conflation appears to be the source of the ensuing disagreement about whether Stone had a due 

process right to appointed counsel.  

       C.  RCW 9.94B.040 Governs LFO Proceedings

       Our Supreme Court, however, resolved the issue of whether RCW 10.01.180 or RCW 

9.94B.040 apply in LFO proceedings in Nason, 168 Wn.2d at 946-47. Nason argued that the 

State was required to give him credit for time served under RCW 10.01.180 for his failure to pay 

his LFOs.  Nason, 168 Wn.2d at 946-47.  Our Supreme Court observed that "RCW 9.94A.760 

governs LFOs" and rejected Nason's argument, stating:

              With regard to imposing sanctions for nonpayment of LFOs, RCW 
       9.94A.760 directs us to RCW 9.94B.040.         The sanctions levied under RCW 
       9.94B.040 are explicitly referred to as modifications of the original judgment and 

8 The avoidance of confusion or conflation of civil and criminal procedures, rules, and statutes is 
but one of the several issues that the appointment of counsel for individuals faced with court 
sanctions helps achieve.  Here, it is clear that the State told Stone that he would be subject to civil 
contempt in a matter arising from his felony conviction.  But the trial court imposed criminal 
sanctions by modifying Stone's original sentence when it imposed 55 days of jail time without 
credit against his LFOs.

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No.  39912-1-II, consolidated with No.  40549-1-II

       sentence.  RCW 9.94B.040(1).  Modifications are similar to probation revocation, 
       which we have recognized "should be deemed punishment for the original crime."
       State v. Watson, 160 Wn.2d 1, 8 -- 9, 154 P.3d 909 (2007).  The Court of Appeals 
       in [State v. ]Prado[, 86 Wn. App. 573, 577, 937 P.2d 636 (1997)] recognized that 
       the predecessor statute to RCW 9.94B.040 "intend[ed] the violation of the 
       condition to relate to the original prosecution, rather than constitute a new 
       prosecution."  Therefore, sanctions imposed under RCW 9.94B.040 are criminal 
       sanctions added to the original sentence.
              In contrast, RCW 10.01.180 is explicitly couched in terms of contempt.
       RCW 10.01.180(1), (3).  We have recognized that "[t]he contempt proceeding 
       authorized by RCW 10.01.180 is civil." Smith, 147 Wn.2d at 105.  We have also 
       recognized that under RCW 10.01.180 "[t]he jail time imposed for nonpayment is 
       not part of the sentence." Smith[, 147 Wn.2d] at 110.  RCW 10.01.180 describes 
       a civil method of enforcing payment that is separate from the sentence modification 
       described in RCW 9.94B.040.  Accordingly, RCW 10.01.180 does not apply in 
       this case, and Nason need not receive credit against his LFO for time served.

Nason, 168 Wn.2d at 944, 947 (first alteration in original) (citation, footnote, and internal 

quotation marks omitted). Thus, the State's argument that Stone had no right to counsel because 

LFO hearings are pursuant to the civil contempt powers of the trial court under chapter 7.21 

RCW and RCW 10.01.180(1), based on the December 2003 order placing defendant on Jefferson 

County pay or appear program, fails.9  

II.    Right to Counsel at LFO Hearings 

       Stone argues that the Jefferson County policy of placing convicted felons on a pay or 

appear calendar and requiring them to represent themselves violates fundamental due process 

rights.  Under Stone's circumstances, we agree.10

9 Even if we were to accept the State's characterization of the enforcement hearings as falling 
under the civil contempt statutes, civil contempt proceedings conditionally provide the right to 
counsel under both the federal and the state constitutional right to counsel at public expense.  
Tetro v. Tetro, 86 Wn.2d 252, 253, 255, 544 P.2d 17 (1975).

10 It is possible that the December 2003 order should be vacated based on the trial court's failure 
to provide notice to Stone of his right to counsel, but the validity of this order is not raised in this 
appeal.

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No.  39912-1-II, consolidated with No.  40549-1-II

       A.  The Right to Counsel

       We review a claim of denial of constitutional rights de novo.  State v. Drum, 168 Wn.2d 

23, 31, 225 P.3d 237 (2010).  Our federal and state constitutions both guarantee a criminal 

defendant the right to effective counsel.  U.S. Const. amend. VI; Wash. Const. art. I, § 22.  

Furthermore, under certain circumstances, due process guarantees under both constitutions 

require appointment of defense counsel at public expense to indigent parties.  Tetro v. Tetro, 86 

Wn.2d 252, 253, 544 P.2d 17 (1975).  We are guided by the purpose of counsel, ensuring the 

fairness of proceedings, in giving the right its meaning.  Strickland v. Washington, 466 U.S. 668, 

686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  

       In Gagnon v. Scarpelli, 411 U.S. 778, 788-90, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973),

the United States Supreme Court considered whether the right to appointed counsel for indigent 

defendants extended to probation and parole revocation hearings.  The Court observed, "'Parole 

arises after the end of the criminal prosecution, including imposition of sentence. . . . Revocation 

deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the 

conditional liberty properly dependent on observance of special parole restrictions.'"  Scarpelli, 

411 U.S. at 781 (alteration in original) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. 

Ct. 2593, 33 L. Ed. 2d 484 (1972)).  Thus, it reasoned that parole and probation revocation 

proceedings do not involve "the right of an accused to counsel in a criminal prosecution, but . . . 

the more limited due process right of one who is a probationer or parolee only because he has 

been convicted of a crime." Scarpelli, 411 U.S. at 789.  It furthered reasoned that revocation 

proceedings were distinguishable from the adversarial characteristics of a criminal trial, including 

the State's representation by a parole officer instead of a prosecutor.  Scarpelli, 411 U.S. at 789.  

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Accordingly, the Court concluded that "[t]he need for counsel at revocation hearings derives, not 

from the invariable attributes of those hearings, but rather from the peculiarities of particular 

cases."  Scarpelli, 411 U.S. at 789.  It held that trial courts must determine on "a case-by-case 

basis" whether appointment of counsel for revocation proceedings is appropriate.  Scarpelli, 411 

U.S. at 790.

       As in parole and probation revocation hearings, LFO enforcement proceedings arise after 

criminal prosecutions, including the imposition of sentences.  As Scarpelli indicates, however, 

such proceedings are not immune from due process concerns and "fundamental fairness -- the 

touchstone of due process" -- may require appointment of counsel at public expense in certain 

cases.  411 U.S. at 790.  Further, in Washington, RCW 9.94B.040(1) makes it clear that LFO 

enforcement proceedings subject the convicted felon to a modification of his original 

sentence -- i.e., imprisonment -- and trigger due process concerns.11 Nason, 168 Wn.2d at 945.  

We turn now to whether due process required appointment of counsel at public expense at

Stone's LFO enforcement hearings.

       In Tetro, 86 Wn.2d at 252-53, our Supreme Court considered whether the right to 

appointed counsel for indigent individuals extended to contempt proceedings for failure to pay 

child support. The court stated that the right applied to circumstances involving "criminal charges 

punishable by loss of liberty."  Tetro, 86 Wn.2d at 253.  But, citing Scarpelli, it observed that "in 

cases where the individual's right to remain unconditionally at liberty is not at issue -- such as child 

11 We note that Stone correctly observes that CrR 7.6 establishes a procedural right to counsel at 
public expense for probation revocation hearings even without a case-by-case consideration of the 
facts and circumstances of the hearings.  At a minimum, Washington provided Stone a procedural 
right to appointed counsel at the LFO hearings to the extent those hearings are analogous to 
probation revocation hearings.
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No.  39912-1-II, consolidated with No.  40549-1-II

neglect or parole revocation hearings -- the right to counsel turns on the particular 

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nature of the proceedings and questions involved."  Tetro, 86 Wn.2d at 254.

       The Tetro court observed that, even in civil contempt proceedings, the "proceedings 

ha[ve] all the trappings of criminal trials.  Defendants [a]re complained against by the county 

prosecutor, required to appear and defend against charges of past illegal conduct, and, most 

importantly, faced with the possibility of imprisonment if their defenses [a]re not successful."  

Tetro, 86 Wn.2d at 254.  It stated that "insofar as the right to counsel is concerned, the label put 

on proceedings is less important than the threat of imprisonment they entail."  Tetro, 86 Wn.2d at 

254.  The court further stated:

              Whatever due process requires when other types of deprivation of liberty 
       are potentially involved, when a judicial proceeding may result in the defendant 
       being physically incarcerated, counsel is required regardless of whether the trial is 
       otherwise  "criminal" in nature. The grim reality of a threatened jail sentence 
       overshadows the technical distinctions between "criminal," "quasi-criminal," and 
       "civil" violations and demands that the protection of legal advice and advocacy be 
       given all persons faced with it.

Tetro, 86 Wn.2d at 254-55.  Thus, the Tetro court held that the right to appointed counsel 

extended to contempt proceedings whenever they "may result in incarceration."12 86 Wn.2d at 

12 We note that the United States Supreme Court recently considered the right to counsel under 
the federal constitution for indigent defendants in civil contempt proceedings.  Turner v. Rogers, 
__ U.S. __, 131 S. Ct. 2507, 2512, 180 L. Ed. 2d. 452 (2011).  It reasoned that, although an 
indigent defendant's potential loss of personal liberty "argue[d] strongly" for a right to counsel in 
such proceedings, other considerations, including the opposing party's lack of representation by 
counsel, mitigated against a categorical right to counsel.  Turner, 131 S. Ct. at 2518-20.  Thus, it 
held: 
       [T]he Due Process Clause does not automatically require the provision of counsel 
       at civil contempt proceedings to an indigent individual who is subject to a child 
       support order, even if that individual faces incarceration[;] . . . [i]n particular, that 
       Clause does not require the provision of counsel where the opposing parent or 
       other custodian (to whom support funds are owed) is not represented by counsel 
       and the State provides alternative procedural safeguards equivalent to those we 
       have mentioned.
Turner, 131 S. Ct. at 2520. 
       But the Turner court specifically stated that it was not addressing "civil contempt 
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No.  39912-1-II, consolidated with No.  40549-1-II

255.  It noted, however, that "[t]he threat of imprisonment upon which we hold the right to 

counsel turns must be immediate.  The mere possibility that an order in a hearing may later serve 

as the predicate for a contempt adjudication is not enough to entitle an indigent party therein to 

free legal assistance."  Tetro, 86 Wn.2d at 255 n.1.  

       Here, DOC had terminated its supervision of Stone.  Thus, his liberty interest was not 

limited by parole, probation, or community custody requirements.  Like Tetro, the State's 

jurisdiction over Stone depended on an order requiring him to make monetary payments.  Stone's 

failure to comply with the ordered payments required him to appear in a proceeding, in which a 

prosecuting attorney represented the State, and to argue why the court should not punish him for 

noncompliance.  Stone's lack of counsel during these proceedings created an "asymmetry of 

representation" because a prosecuting attorney represented the State in this adversarial 

proceeding.  Turner v. Rogers, __ U.S. __ , 131 S. Ct. 2507, 2519, 180 L. Ed. 2d 452 (2011).  

As the United States Supreme Court has observed, "'[T]he average defendant does not have the 

professional legal skill to protect himself when brought before a tribunal with power to take his 

life or liberty, wherein the prosecution is presented by experienced and learned counsel.'"  

Turner, 131 S. Ct. at 2520 (quoting Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S. Ct. 1019, 82 

L. Ed. 1461 (1938)).  

proceedings where the underlying child support payment is owed to the State," observing that 
"[t]hose proceedings more closely resemble debt-collection proceedings" where "[t]he 
government is likely to have counsel or some other competent representative." 131 S. Ct. at 
2520.  
       Stone's case falls under the distinguishable circumstances identified in Turner.  He owed 
LFO payments to the State, he lacked representation by counsel, and a prosecuting attorney 
represented the State at the hearing ordering his confinement.  Regardless of the extent, if any, 
that Turner affects Tetro under different facts, under these facts we continue to follow Tetro as 
our Supreme Court's binding precedent.                        

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       Finally, and most importantly, Stone faced the possibility of imprisonment for an 

unsuccessful defense.  This possibility was immediate, as RCW 9.94B.040(3)(a)(i) and RCW 

9.94B.040(3)(c) allowed the trial court to impose jail time and, prior to the March 23 hearing, the 

pay or appear coordinator informed Stone that she intended to recommend jail time.  Thus, we 

conclude that the characteristics of the LFO enforcement proceedings here were analogous to 

those of the civil contempt hearing in Tetro.  Accordingly, regardless of whether we label the LFO 

enforcement proceedings as civil or criminal, Stone had a due process right to appointed counsel 

at public expense that was abrogated by the trial court proceedings.13

       B.  No Valid Waiver of Counsel

       Stone also argues that the trial court erred by not appointing an attorney for him at the 

March 23, 2009, hearing.  The State counters that the acknowledgement of defendant's rights 

document that Stone signed sufficiently informed him of his right to counsel and that he waived 

this right.  

       We review a waiver of a constitutional right de novo.  State v. Robinson, 171 Wn.2d 292, 

301, 253 P.3d 84 (2011). Waiver of a constitutional right must be "knowing, intelligent, and 

13 Stone, citing In re Pers. Restraint of Boone, 103 Wn.2d 224, 230-31, 691 P.2d 964 (1984), 
argues that the trial court violated his due process rights by not giving him notice of the 
allegations against him before the March 23 and October 2 hearings.  Even assuming that Boone, 
a probation revocation case, applies here, the multiple orders to pay or appear -- predating these 
hearings and signed by Stone -- clearly stated his payment obligations and stated that converting 
his LFOs to jail time or collection action could result from his noncompliance.  See CP at 33, 43, 
55 ("If defendant is not in compliance the Court may either convert LFOs to jail time or turn 
LFOs over to collection agency.").  The trial court provided him sufficient written notice, and his 
claim fails.  See Smith, 147 Wn.2d at 112-113 (civil contempt case stating, "A defendant must 
have notice that failure to pay a fine may be contempt of court and may result in being sent to 
jail.").  We note, however, that the orders to pay or appear did not inform Stone that he also 
faced jail time without credit against his LFOs, a consequence different from conversion of his 
LFOs into jail time as stated in the orders.  This issue is not raised in this appeal.

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voluntary."  State v. Stegall, 124 Wn.2d 719, 724, 881 P.2d 979 (1994).  In order to establish 

waiver, the State must prove "'an intentional relinquishment or abandonment of a known right or 

privilege.'"  Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977) 

(quoting Johnson, 304 U.S. at 464).  The right to counsel does not depend upon a request by the 

defendant, and this court may not presume waiver of counsel from a silent record.  Carnley v. 

Cochran, 369 U.S. 506, 513, 516, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962).  We indulge in "'every 

reasonable presumption against a defendant's waiver of his or her right to counsel.'"  State v. 

Madsen, 168 Wn.2d 496, 504, 229 P.3d 714 (2010) (internal quotation marks omitted) (quoting 

In re Det. of Turay, 139 Wn.2d 379, 396, 986 P.2d 790 (1999)).  

       Here, the document Stone signed was an amalgamation of rights applicable to various 

proceedings, such as a trial, many of which were likely inapplicable to the LFO enforcement

hearing.  Further, although it listed a right to counsel, it never expressly stated that signing the 

document constituted a waiver of that right.  It stated only that signing the document certified that 

he understood the enumerated rights and "ha[d] no further questions" for the trial court.14 CP at 

46.  Finally, the trial court never orally advised him of his right to counsel or engaged in a 

colloquy about whether he understood and waived it.  Faced with a record silent on waiver, this 

court cannot presume that he intentionally waived his right to counsel by failing to request or 

question the trial court about it.  Carnley, 396 U.S. at 513, 516.  

       In certain circumstances involving the right to counsel, we presume prejudice, including 

14 Stone also argues that the trial court violated his rights by failing to inform him of his right to 
appeal.  Although this issue is moot because we allowed Stone to appeal from both orders, the 
trial court must inform defendants orally or in writing of their right to appeal after the hearing.  
CrR 7.2(b).

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the "'complete denial of counsel.'"  In re Pers. Restraint of Davis, 152 Wn.2d 647, 673-74, 101 

P.3d 1 (2004) (internal quotation marks omitted) (quoting Visciotti v. Woodward, 288 F.3d 1097, 

1106 (9th Cir. 2011)). Here, the trial court did not provide counsel for Stone in a proceeding to 

which the right applied.  Thus, we reverse and vacate the trial court's March 23 order.15

III.   Lack of Finding of Willful Nonpayment

       Stone also appeals the trial court's failure to find willful nonpayment on March 23 and its 

finding of willfulness on October 2.  We agree that due process mandates that the trial court 

address whether a failure to pay LFOs is willful before imposing sanctions and that neither order 

satisfied this mandate.

       In Nason, our Supreme Court elaborated on what constitutes willful nonpayment: 

              Due process precludes the jailing of an offender for failure to pay a fine if 
       the offender's failure to pay was due to his or her indigence.  However, if an 
       offender is capable of paying but willfully refuses to pay, or if an offender does not 
       "make sufficient bona fide efforts to seek employment or borrow money in order 
       to pay," the State may imprison the offender for failing to pay his or her LFO.  The 
       burden is on the offender to show that his nonpayment is not willful.  Although the 
       offender carries the burden, due process still imposes a duty on the court to inquire 
       into the offender's ability to pay.  Inquiry into the offender's ability to pay comes 
       at "the point of collection and when sanctions are sought for nonpayment."

168 Wn.2d at 945 (citations omitted) (quoting Smith, 147 Wn.2d at 98; State v. Blank, 131 

Wn.2d 230, 242, 930 P.2d 1213 (1997)).

       Here, the trial court imposed 10 days in jail in its March 23 order without inquiring into

Stone's ability to pay and without making a finding of willful nonpayment, despite Stone's 

testimony that he had been evicted from his home and might require shoulder surgery.  The trial 

15 Because we vacate the March 23 order, we do not discuss Stone's claim that the trial court 
erred in admitting the pay or appear coordinator's unsworn testimony at the March 23 hearing.  
The State concedes this error, but contends that it was harmless.  
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No.  39912-1-II, consolidated with No.  40549-1-II

court stated in its ruling only that "I understand you've had problems, but this is an absolute 

mandatory obligation you have and the only type of response that can be done is to let you

understand how serious it is and that apparently requires jail time." RP at 19.  It then imposed 

another 45 days in jail in its October 2 order following Stone's testimony about his homelessness, 

the injury to his dominant hand, the fact that DSHS was paying his medical bills, and that his only 

money came from GAU payments in the amount of $339 a month. It ruled that Stone's "failure 

to pay or appear was willful" because he "could have made a phone call, sent a letter, [or] made 

some attempt to contact" the trial court.  RP at 43.  

       The record does not support the trial court's orders requiring Stone's further confinement 

for willful nonpayment.  The trial court based its March 23 order on its statement that Stone had 

an "absolute mandatory obligation" to make LFO payments, but it failed to inquire into Stone's 

ability to pay as required by due process.  RP at 19. Likewise, it appears that the trial court based 

its October 2 order solely on Stone's failure to contact the court.  It did not address his economic 

circumstances, his ability to work, or any other factor showing that he had willfully refused to pay 

money.    

       Thus, the trial court violated Stone's due process rights by imposing jail time in its March 

23 and October 2 orders without making the required inquiries and findings.  We vacate the 

March 23 and October 2 orders and remand the matter for further proceedings consistent with 

this opinion.    

                                                 Van Deren, J.
I concur:

Johanson, J.

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                                               22 

No.  39912-1-II, consolidated with No.  40549-1-II

       Penoyar, C.J. (concurring in part; dissenting in part)   --  I completely agree with the 

majority's analysis of the right to counsel issue and holding that the trial court violated Stone's 

due process rights by imposing jail time in its March 23 order without making the required 

inquiries and findings.  I respectfully dissent, however, from its conclusion that on October 2, 

2009, the trial court improperly sentenced James Michael Stone to jail time for failing to appear or 

to make payments on his legal financial obligations.

       The trial court found that Stone's "failure to pay or appear was willful" because he "could 

have made a phone call, sent a letter, [or] made some attempt to contact" the trial court.  Report 

of Proceedings at 43.  My view is that sufficient evidence in the record supports those findings.  

On the payment issue, Stone had the burden to explain his lack of payment.  See Smith v. 

Whatcom County Dist. Court, 147 Wn.2d 98, 112, 52 P.3d 485 (2002).  The trial court heard 

Stone's explanation but rejected it.  See State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 

(2004) ("Credibility determinations are for the trier of fact and are not subject to review.").  On 

this record of Stone's years of nonpayment, the trial court was free to find that Stone had failed to 

meet his burden to show that he was unable to make any payment.  On the appearance issue, 

Stone does not contest that the trial court had the authority to sentence him for failure to appear, 

only offering an explanation for why he did not physically appear in Jefferson County.  But the 

order here allowed Stone to report by phone16 and Stone offered no reason why he could not have 

found a way to at least report by phone.  Again, on this record, the trial court was free to find that 

Stone's lack of appearance was willful.

16 "If payment is not made by [the last business day of each month], Defendant must appear in 
Court the second Friday of the following month . . . or call the clerk's office . . . prior to that 
Friday." Clerk's Papers at 29.
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No.  39912-1-II, consolidated with No.  40549-1-II

       I see no error in the trial court's proceedings on October 2, 2009 and would affirm the 

sentence entered at that hearing.

                                                           Penoyar, C.J.

                                               24