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FILED June 18, 2013
In the Office of the Clerk of Court W A State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, v. SCOTT T. HURLEY, Appellant.
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No. 30605-4-III (consolidated with No. 30606-2-111, No. 30607-1-111, No. 30608-9-111, No.30609-7-II1)t

UNPUBLISHED OPINION

SIDDOWAY, A.C.J. -

Scott Hurley, who owes over $15,000 in restitution and

other legal financial obligations (LFOs) ordered in connection with sentences imposed following his pleas of guilty in 2002 and 2004, challenges the method by which Spokane County punished his failure to comply with financial reporting practices adopted by the county clerk: it imposed 60 days' jail time for each willful failure to comply with the clerk's procedures.

t The 2012 orders that are the subject matter of this appeal imposed sanctions for violations related to legal financial obligations ordered by five judgment and sentences entered on the basis of plea agreements by Scott Hurley. Mr. Hurley's 2002 judgment and sentences addressed two original charges (Spokane County Superior Court Cause Nos. 02-1-01896-4 and 02-1-01409-8); his 2004 judgment and sentences addressed three (Cause Nos. 03-1-02132-7, 03-1-03732-1, and 03-1-03872-6). Mr. Hurley therefore filed five notices of appeal that were consolidated for decision.

Nos. 30605-4-111, 30606-2-111; 30607-1-111; 30608-9-111, 30609-7-111
State v. Hurley

Mr. Hurley concedes that Washington statutes authorize the superior court to jail him for 60 days for a willful failure to pay the LFOs, since paying them is a condition of his sentence. He disputes the court's authority to multiply that sanction, in his case threefold, by treating every failure to comply with county reporting requirements as if those requirements were also conditions of his sentence. By the time these consolidated appeals were presented for our decision, Mr. Hurley had served the confinement time imposed as a sanction, so his appeal is moot. While he makes a reasonable case that the issue he presents will recur, we conclude that the record and briefing in this matter (though not the fault of Mr. Hurley) makes this case .a poor vehicle for deciding the issues presented. We dismiss the appeal as moot.

FACTS AND PROCEDURAL BACKGROUND
In 2002, Scott Hurley pleaded guilty to conspiracy to manufacture methamphetamine, attempt to elude, and possession of methamphetamine. In addition to a term of confinement, the court ordered Mr. Hurley to pay $4,757 in LFOs. A "legal financial obligation" is defined as "a sum of money that is ordered by a superior court of the state of Washington for legal financial obligations," and may include "restitution to the victim, statutorily imposed crime victims' compensation fees ... , court costs, county

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Nos. 30605-4-111, 30606-2-111; 30607-1-111; 30608-9-111, 30609-7-111 State v. Hurley

or interlocal drug funds, court-appointed attorneys' fees, ... costs of defense, [and] fines." RCW 9.94A.030(30).
1

In 2004, Mr. Hurley pleaded guilty to conspiracy to manufacture methamphetamine, first degree theft, third degree assault, and second degree possession of stolen property. In addition to a term of confinement, the court ordered him to pay $3,370 in LFOs. The judgment and sentences provided that "payments shall be made in accordance with the policies of the clerk and on a schedule established by the [Department of Corrections], commencing immediately, unless the court specifically sets forth the rate here." Clerk's Papers (CP) at 5, 67,129,192,250. The 2002 judgment and sentences provided that the monthly amount would be determined "per [community corrections officer]." CP at 5, 67. The 2004 judgment and sentences established a $30 per month payment amount, to commence within 30 days of release. CP at 129, 192,250. Before 2012 and the orders at issue in this appeal, Mr. Hurley's failures to report to the county clerk, provide financial information, and make payment toward his LFOs

a result of continual modification of chapters 9.94A and 9.94B RCW, a number of their provisions cited in this opinion have been recodified over the II-year time span between the first of Mr. Hurley's offenses at issue and the 2012 orders under review. Because the changes have not been significant or substantive, we generally cite the current statutes.
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1 As

Nos. 30605-4-111, 30606-2-111; 30607-1-111; 30608-9-111, 30609-7-111 State v. Hurley had resulted in numerous orders "enforcing sentence" and imposing additional jail time. 2 Each order was entered after the clerk's office submitted a violation report to the court, Mr. Hurley was given notice requiring him to appear for hearing, and he elected to enter into an agreed order. In the last three cases, Mr. Hurley had first been arrested for his violations and was in custody. Mr. Hurley's lawyer in the 2012 proceeding at issue in this appeal would later describe the system in operation in Spokane County as follows: [O]ffenders arrested on failure to pay LFO[s] are set for a hearing on the next Friday docket. Prior to the hearing the prosecutor usually makes them an offer regarding jail time, immediate dollar release amount, and future
2 The

orders were entered on the following dates: Violations noted Failing to report, failing to pay, failing to complete financial assessment form Failing to complete financial assessment form, failing to comply with 5/25/07 order, failing to report to jail per auto-jail provision Sanction 30 days' jail time

Date of order

5/25/2007 3/27/2008

60 days' j ail time (except in cause number 03-1 037321, in which the sanction was 30 days) 60 days' jail time (except in cause number 03-1 037321, in which the sanction was 45 days) 60 days' jail time
!

2/4/2009

Failing to comply with 5/25/07 order, failing to comply with 3/27/08 order, failing to report to jail per auto-jail provision

8/9/2010

Failing to pay

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Nos. 30605-4-111, 30606-2-111; 30607-1-111; 30608-9-111, 30609-7-111 State v. Hurley

monthly payments. Before this offer is tendered, the prosecutor requires the offender provide a financial declaration to the collection clerk. The public defender's office is held to the task of gathering the information for the financial declaration while the offender is in custody. CP at 45. The agreed orders itemized his violations, found them to be willful, and were signed by Mr. Hurley or his lawyer. Each one modified his obligations as to his LFOs. Unlike the original 2002 and 2004 judgment and sentences ordering payment of the LFOs to the clerk in accordance with policies of the clerk, the enforcement orders included a number of additional requirements not involving payment: requirements that Mr. Hurley report in person to the office of the Spokane county clerk within 48 hours of release or at the time of any change in information, provide a current address, keep the clerk advised of a current address at all times, and provide current financial information to the clerk. They provided that failure to comply would result in a bench warrant being issued and the possibility of additional sanctions. The particular orders challenged in this appeal were entered in January 2012, after Mr. Hurley was arrested in late 2011 on a bench warrant issued for violations associated with his LFOs. A hearing was held on January 6, at which Mr. Hurley was represented. The State argued Mr. Hurley should again be sanctioned, and this time for multiple violations: (1) failure to pay, (2) failure to complete and return a financial assessment form, and (3) failure to notify the clerk's office of a change in circumstances.

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Nos. 3060S-4-III, 30606-2-III; 30607-I-III; 30608-9-III, 30609-7-II1 State v. Hurley

It presented testimony from Todd Taylor, presumably an employee of the clerk's office,

who testified Mr. Hurley had paid only $398.52 to date, with his last payment being in 2010. He testified that the then-current balance of Mr. Hurley's LFOs was $16,792.99, including interest. With respect to the failure to complete and return a financial assessment form, Mr. Taylor testified that several days before the hearing, a financial declaration had been provided for Mr. Hurley but because it was not signed, he "could not say that this was actually reviewed by the defendant or filled out by the defendant." Report of Proceedings at 6. Mr. Taylor regarded Mr. Hurley's provision of the form without a signature as a violation. Mr. Taylor also testified that Mr. Hurley failed to notify the clerk's office of a change in circumstances because the previous financial declaration listed his income as $1,800, but the declaration received on the date of the hearing indicated he was not working at the time. Mr. Hurley offered explanations and argument addressing compliance or noncompliance that we need not detail because they are not relevant to the potentially recurring issues that he raises in this appeal. The trial court was not persuaded, found that Mr. Hurley willfully violated the requirement to pay his LFOs, failed to notify the clerk's office of a change in circumstances, and failed to provide his financial assessment. It imposed 180 days' incarceration for each sentence to run concurrently.

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Nos. 30605-4-III, 30606-2-III; 30607-1-III; 30608-9-III, 30609-7-III State v. Hurley

Mr. Hurley moved for reconsideration. The court denied the motion but agreed to modify the sentence and allow Mr. Hurley to serve it in an inpatient treatment facility rather than the county jail. Mr. Hurley appealed. ANALYSIS Under RCW 9 .94A. 760( 1) a trial court may order payment of an LFO as part of a sentence. Once a court imposes an LFO, the offender must be set up on a monthly payment plan. ld. For offenses committed after June 30, 2000, the sentencing court may retain jurisdiction and enforce the judgment "until the obligation is completely satisfied, regardless of the statutory maximum for the crime." RCW 9.94A.760(4). Before 2003, former RCW9.94A.760 authorized the Department of Corrections to supervise an offender's compliance with his obligation to pay LFOs. The department's authority continued for 10 years following the entry of the judgment and sentence or 10 years following the offender's release from total confinement, whichever period was longer. In 2003, the legislature responded to suggestions and requests made by county government officials, and in particular county clerks, who wished to participate in collecting LFOs. LAWS OF 2003, ch. 379,

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