Opinion
NO. 92616–6
05-18-2016
In re Personal Restraint Petition of: Earl Owen Flippo, Petitioner.
RULING GRANTING REVIEW
¶1 Earl Flippo filed a personal restraint petition in Division Three of the Court of Appeals seeking relief from discretionary legal financial obligations (LFOs) that he was ordered to pay as part of a sentence imposed for his 2008 Walla Walla County Superior Court convictions on four counts of first degree child molestation. The judgment and sentence was final on March 16, 2010, when the mandate issued disposing of his direct appeal from the convictions. The judgment and sentence includes $2,619.20 total LFOs, including both mandatory and discretionary LFOs. The discretionary LFOs include $775 for appointed counsel, $286.05 in witness fees, a $250 jury demand fee, and $508.15 to be paid to the Walla Walla County Sheriff's Office. The court required Mr. Flippo to pay $50 on a monthly basis towards satisfying the LFOs commencing 60 days after his release. Mr. Flippo claimed the superior court failed to make an individualized inquiry into his current and future ability to pay before the court imposed the discretionary LFOs. Further, he claimed he was found indigent for purposes of his trial and appeal, and that he continues to meet the GR 34 indigency standards. Mr. Flippo contended his personal restraint petition was not barred as untimely under ROW 10.73.090(1) because it was exempt from the one year time limit on personal restraint petitions on the following alternative bases: (1) that the time limit is inapplicable under RCW 10.73.100(6) because this court's decision in State v. Blazina, 182 Wash.2d 827, 344 P.3d 680 (2015), is a significant change in the law; (2) that the time limit does not apply under RCW 10.73.090(1) because the boilerplate finding of ability to pay renders the judgment and sentence invalid on its face; and/or (3) that the judgment and sentence imposing LFOs is not “final” for purposes of the one year time limit because defendants are allowed under RCW 10.01.160(4) to petition the sentencing court at any time for remission of the payment of LFOs. The Court of Appeals held that Blazina does not constitute a significant change in the law under RCW 10.73.100(6), that the boilerplate finding of his ability to pay did not render the judgment and sentence invalid on its face for purposes of the time bar exception in RCW 10.73.090(1), and that nothing in the statute that allows postconviction remission of costs changes the date a judgment and sentence becomes final for purposes of collateral attack under RCW 10.73.090. In re Flippo, 191 Wash.App. 405, 362 P.3d 1011 (2015). The court dismissed the petition as time barred. Mr. Flippo now seeks this court's discretionary review.
These costs were evidently imposed under RCW 9.94A.760 and RCW 70.48.390 (costs of incarceration and booking fee).
¶2 To obtain discretionary review in this court, Mr. Flippo must demonstrate that the Court of Appeals decision conflicts with a decision of this court or with another Court of Appeals decision, or that he is raising a significant constitutional question or an issue of substantial public interest. RAP 13.4(b) ; RAP 13.5A(a)(l), (b). A decision that has the potential to affect a number of proceedings in the lower courts may warrant review as an issue of substantial public interest if review will avoid unnecessary litigation and confusion on a common issue. See State v. Watson, 155 Wash.2d 574, 577, 122 P.3d 903 (2005). Here, the Court of Appeals noted that there are numerous now-pending personal restraint petitions challenging the imposition of LFOs more than one year after judgments became final and making claims similar to those asserted by Mr. Flippo. Flippo, 191 Wash.App at 409 n. 1, 362 P.3d 1011. I am aware that petitions raising some of these issues are pending in other divisions of the Court of Appeals. See, e.g., In re Pers. Restraint of Dove, No. 47796–3–II. In these circumstances, review by this court is warranted on the basis the motion raises an issue of substantial public interest under RAP 13.4(b)(4).
¶3 The Court of Appeals denied Mr. Flippo's request for appointed counsel. Flippo, 191 Wash.App. at 413 n.2, 362 P.3d 1011. Consequently, he is proceeding pro se. If this court determines it is proper, it may provide for the appointment of counsel at public expense for services related to a personal restraint petition in the appellate court. RAP 16.15(h). The acting clerk of the court is requested to place this matter on the June 28, 2016, motion calendar of a department of this court to determine if it is appropriate to appoint counsel for Mr. Flippo to address the legal issues presented.