State Of Washington, Respondent V. Sammy B. Weaver, Appellant (Majority)
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F11- ED COURT 0F' AFPEAI -S D1V! 1110fq 1I 20h JAN 22 AM 9: 19 IN THE COURT OF APPEALS OF THE STATE OF WASHI DIVISION II J 1, No. 44386 - -II 4 I STATE OF WASHINGTON, 75D IINGTO ? l Respondent, V. UNPUBLISHED OPINION SAMMY B. WEAVER, PENOYAR, J. Sammy Weaver appeals from his conviction for unlawful possession of He argues that the trial court erred when it imposed legal financial methamphetamine. obligations ( LFOs) against him without evidence that he had the current or future ability to pay them. He also argues that the trial court erred when it imposed a sentence condition requiring a dependency chemical evaluation. We affirm his conviction but remand for correction of his l sentence. LEGAL FINANCIAL OBLIGATIONS 1. The trial 1, 200 imposed the court court- appointed following LFOs: $ 500 attorney, $ 1, 000 fine, $ 100 crime victim assessment, $ lab fee, and $ 520 court costs, 100 DNA collection fee. The court made the following finding: The court has considered the total amount owing, the defendant' s present and future ability to pay legal financial obligations, including the defendant' s financial resources the likelihood that the defendant' and s status will change. ( RCW 10. 01. 160) Clerk' s Papers ( CP) at 6. The court did not make a finding that it found Weaver had the ability or likely future ability to pay the LFOs. 1 A commissioner of this court initially considered Weaver' s appeal as a motion on the merits under RAP 18. 14 and then transferred it to a panel of judges. 44386 -4 -II Weaver argues that the court erred when it imposed the LFOs because no evidence was that presented App. he has the ability likely or 393, 404, 267 P. 3d 511 ( 2011), future ability to pay them. State v. Bertrand, 165 Wn. review denied, 175 Wn.2d 1014 ( 2012). Before making such a finding, the trial court must take " into account the financial resources of the defendant and the nature of the burden" imposed by the LFOs. Bertrand, 165 Wn. App at 404 ( quoting State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116, 837 P. 2d 646 ( 1991)). At sentencing, Weaver did not challenge the trial court' s imposition of LFOs. Although RAP 2. 5 allows us to consider such a challenge for the first time on appeal, the rule does not compel us to do so in every case. State v. Blazina, 174 Wn. App. 906, 911, 301 P. 3d 492, review granted, Unlike Bertrand, in which the defendant had disabilities that 178 Wn.2d 1010 ( 2103). might reduce her future ability to pay, nothing shows that Weaver' s case is similar. Blazina, 147 Wn. App. at 911 -12. And in Weaver' s case, the trial court did not make a finding that he had the ability or likely future ability to pay the LFOs. Under Baldwin, " the meaningful time to examine the defendant' s ability to pay is when the government seeks to collect the [ legal financial] obligation[ s]." challenge 63 Wn. to them is App. not ripe. at 310. As the State has not sought to collect Weaver' s LFOs, his Bertrand, 165 Wn. App. at 405. The State must prove his ability to pay the LFOs at that time. II. SENTENCING CONDITION Weaver argues that the trial court erred when it required him to undergo a chemical dependency evaluation and any recommended treatment because it did not make a finding, under RCW 9. 94A. 607( 1), Jones, 118 Wn. may have App. that he had a chemical dependency 199, 209 -10, 76 P. 3d 258 ( 2003). a chemical dependency that may have 2 that contributed to the crime. State v. Rather, the court found only that Weaver contributed to the offense." CP at 4. The State 44386- 4- 11 concedes that without a finding by the trial court that a chemical dependency contributed to Weaver' s crime, the court lacked the authority to impose that condition. Jones, 118 Wn. App. at 207 -08. We accept the concession and remand to the trial court to strike that condition. We affirm Weaver' s judgment as to his LFOs but remand for correction of his sentence. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. Maxa, I 3
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