No. 46836-7-I.The Court of Appeals of Washington, Division One.
Filed: July 2, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 94-1-00379-4, Hon. Mary Yu, May 23, 2000, Judgment or order under review.
Counsel for Appellant(s), Robert J. Conklin (Appearing Pro Se), 20288, Mountain View Rd.N.E., Duvall, WA 98019.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Charles W. Lind, Rm W554, 516 Third Ave., Seattle, WA 98104.
PER CURIAM.
The sentencing court ordered Robert Conklin to pay $5,300 in court costs after he was convicted of indecent liberties and multiple counts of child molestation. Following his release from prison, Conklin petitioned for remission of the costs under RCW 10.01.160(4). The trial court eventually reduced Conklin’s obligation by one-half and reduced his monthly payment to $10. On appeal, Conklin argues that the trial court erred in not remitting the underlying obligation altogether. We find no abuse of discretion and affirm.
Facts
In 1994, a jury found appellant Conklin guilty of four counts of third degree child molestation and one count of indecent liberties. At sentencing, the court ordered Conklin to pay $5,258.13 in court costs. Conklin raised no objection to the financial obligations at sentencing and did not challenge them in his direct appeal or in a subsequent personal restraint petition.[1]
On May 11, 2000, Conklin petitioned the trial court for remission of the court costs under RCW 10.01.160(4). Conklin argued that the sentencing court had failed to inquire into his future ability to pay before imposing the financial obligation, that he was currently indigent and would remain so for the foreseeable future, and that payment of the court costs would therefore impose a manifest hardship.
At a hearing on May 23, 2000, the trial court rejected Conklin’s claim that he was indigent, noting that his monthly income was almost $1,400. The court refused to reduce the amount of the underlying obligation, but agreed to reduce Conklin’s monthly payment from $25 to $10. Conklin moved for reconsideration, arguing, among other things, that he had been injured on June 19, 2000, and was currently unable to work.
The trial court granted Conklin’s request for reconsideration and scheduled a hearing on August 31, 2000. At the hearing, the trial court rejected Conklin’s attempts to argue that the sentencing court had erred by imposing court costs without inquiring into his ability to pay. But the court considered evidence of Conklin’s medical condition and the testimony of Bruce Harris, Conklin’s former Community Corrections Officer, who detailed Conklin’s difficulty, as a level III sex offender, in finding an approved residence. According to Harris, Conklin was eventually able to rent a house in Duvall for approximately $1,100 per month. On September 5, 2000, the trial court entered an order granting partial remission. The court found that Conklin’s physical and financial condition merited a reduction of the court costs by one-half to $2,679.06. The monthly payment remained at $10.
Decision
On appeal, Conklin once again contends that the sentencing court erred by imposing court costs without inquiring into his ability to pay as required by RCW 10.01.160(3). He also argues the State failed to prove that the amount of the obligation was limited to `expenses specially incurred by the state in prosecuting the defendant’ as required by RCW 10.01.160(2). But as the State correctly observes, these arguments are untimely and cannot be considered in this appeal. Conklin did not challenge the imposition of court costs at sentencing. Nor did he raise the issue in his direct appeal or in a subsequent personal restraint petition. The issuance of a mandate following Conklin’s unsuccessful appeal divested this court of authority to change or modify its decision.[2]
Conklin’s petition for remission of court costs was brought under RCW 10.01.160(4), which provides:
A defendant who has been sentenced to pay costs and who is not in contumacious default in the payment thereof may at any time petition the sentencing court for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant’s immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under RCW 10.01.170. Unlike sentencing, where the court’s inquiry is directed to the defendant’s future ability to pay legal financial obligations, the issue before the trial court in this case was Conklin’s present ability to pay.[3]
Consequently, even though it expressly found that the presentencing report had established a factual basis for Conklin’s ability to pay at the time of sentencing,[4] the trial court correctly declined to revisit the merits of the original decision to impose court costs. Moreover, as the trial court observed, even if the issue could be raised, Conklin had failed to submit a sufficient record to permit review of the basis for sentencing court’s imposition of court costs. Conklin’s challenge to the original sentencing court’s decision is in the nature of a collateral attack. Because the challenge was not properly before the trial court, we will not consider it in an appeal from a ruling under RCW 10.01.160(4).[5]
Conklin next contends that the trial court’s order granting partial remission was arbitrary and contrary to the evidence to the extent it left any financial obligations in place. He argues the evidence established that he had no disposable income and that any future payments would impose a `manifest hardship.’
Although Conklin initially encountered difficulties in finding a suitable residence following his release from prison, he was eventually able to rent a three-bedroom home located on 20 acres of land for about $1,100 per month. By the time of the second hearing on August 31, 2000, Conklin had resumed full-time employment following his injury and was earning approximately $1,500 per month. The trial court also heard evidence that Conklin had been able to work overtime prior to his injury and that he had always been able to make the monthly payment of $25 for court costs.
The foregoing evidence amply supported the trial court’s determination that Conklin was not indigent and that, although his income was limited, he was able to afford a monthly payment of $10.[6] Under the circumstances, we cannot say that the trial court abused its discretion by reducing his monthly payment from $25 to $10 and eliminating one-half of the financial obligations imposed for court costs.
Contrary to Conklin’s assertion, the trial court’s refusal to remit all of the court costs is not inconsistent with its subsequent order authorizing Conklin to proceed in forma pauperis. The trial court could reasonably determine that Conklin was unable to pay the costs associated with appellate review but would be able to make minimal monthly payments for court costs.[7]
Finally, Conklin contends that his civil rights will never be restored because he cannot pay off the underlying obligation at $10 per month. He argues that restoration of his civil rights is therefore conditioned solely on his indigency in violation of due process and equal protection. But the evidence before the trial court supported the determination that Conklin was not indigent and that he was able to make minimal monthly payments.
RCW 10.01.160(4) also permits Conklin to renew his petition for remission should his circumstances change. He has cited no authority suggesting that the restoration of civil rights cannot be conditioned on the payment of legal financial obligations under such circumstances.[8]
Affirmed.