State Of Washington V. Joseph Dean Byrd (Majority)

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FILED NOVEMBER 25, 2014 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. JOSEPH DEAN BYRD, Appellant. LAWRENC&BERREY, 1. No. 31540-1-III UNPUBLISHED OPINION ) ) ) Joseph Dean Byrd appeals the legal financial obligations· (LFOs) imposed by the trial court during sentencing. He contends the trial court erred by finding he has the ability or likely future ability to pay these obligations. In a statement of additional grounds for review, he contends that his convictions for second degree robbery and third degree theft violate double jeopardy. Finding no error, we affirm. FACTS A jury found Mr. Byrd guilty of second degree robbery and third degree theft. At sentencing, the trial court imposed the following legal financial obligations requested by the State: $500 victim assessment, $200 criminal tiling fee, and $1,500 court appointed No. 31540-1-III State v. Byrd attorney recoupment fee. Boilerplate language within the judgment and sentence stated: 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 and the likelihood that the defendant's status will change. Clerk's Papers (CP) at 24. At sentencing, neither party made any presentation addressing Mr. Byrd's ability to pay legal financial obligations. Mr. Byrd did not object to the costs imposed or to the boilerplate language in the judgment and sentence related to his ability to pay. The court ordered LFOs as follows: The total financial obligation is $2,200. It will bear interest by law from now until it is paid. Mr. Byrd's inmate account will be subject to withdrawals on a percentage basis. After his release he's to make payments as directed by [the Department of Corrections], and after his supervision as directed by the clerk. Report of Proceedings (Mar. 25, 20l3) at 18. Pursuant to Mr. Byrd's request, the court dismissed the third degree theft, finding it had merged into the second degree robbery conviction. The court imposed a 50-month standard range sentence. 2 No. 31540-1-111 State v. Byrd ANALYSIS For the first time on appeal, Mr. Byrd contends that the trial court erred in finding that he had the ability to pay legal financial obligations without conducting any inquiry into his financial circumstances. Accordingly, he asks us to strike the directive to pay the LFOs. Whenever a person is convicted in superior court, the court may order the payment oflegal financial obligations as part of the sentence. RCW 9.94A.760(1). Courts may impose legal financial obligations if a defendant has or will have the ability to pay. State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116 (1991). 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. ld. This court reviews a trial court's determination of an offender's financial resources and ability to pay for clear error. ld. Two of the LFOs at issue here are mandatory. The $500 victim assessment is required by RCW 7.68.035, irrespective of ability to pay. State v. Curry, 62 Wn. App. 676,681,814 P.2d 1252 (1991), aff'd, 118 Wn.2d 911,829 P.2d 166 (1992). And the $200 criminal filing fee is required by RCW 36. 18.020(2)(h). Because these LFOs are mandatory, they do not require the trial court to consider Mr. Byrd's ability to pay. 3 No. 31540-1-111 State v. Byrd The only discretionary LFO was the $1,500 appointed counsel recoupment fee. However, Mr. Byrd did not object at sentencing to the finding of his current or likely future ability to pay. Until our Supreme Court decides otherwise, the rule established that a defendant may not challenge a determination regarding his or her ability to pay LFOs for the first time on appeal. State v. Blazina, 174 Wn. App. 906,911,301 P.3d 492, review granted, 178 Wn.2d 1010,311 P.3d 27 (2013); State v. Calvin, 176 Wn. App. 1, 302 P.3d 509 (20 13),petition/or review filed, No. 89518-0 (Wash. Nov. 12,2013); State v. Kuster, 175 Wn. App. 420,425, 306 P.3d 1022 (2013). Consistent with these decisions we decline to allow Mr. Byrd to challenge that finding for the first time on appeal. See also RAP 2.5(a). We also agree with the State that the issue is not ripe for review. Mr. Byrd may petition the court at any time for remission or modification of the payments on the basis of manifest hardship. RCW 10.0 1.160(4); Baldwin, 63 Wn. App. at 310-11. The initial imposition of court costs at sentencing is predicated on the determination that the defendant either has or will have the ability to pay. RCW 10.01.160(3). Because this determination is somewhat "speculative," the time to examine a defendant's ability to pay is when the government seeks to collect the obligation. State v. Smits, 152 Wn. App. 514, 523-24,216 P.3d 1097 (2009). Mr. Byrd may challenge the trial court's imposition of 4 No. 31540-1-III State v. Byrd LFOs when the government seeks to collect them. In his pro se statement of additional grounds for review (SAG), Mr. Byrd contends that his judgment and sentence is invalid due to a double jeopardy violation. Specifically, he contends that the convictions for second degree robbery and third degree theft violate double jeopardy and, therefore, the court erred by imposing "57 Months for robbery in the second degree plus 364 days in theft in the third degree." SAG at 5. "We review alleged double jeopardy violations de novo." State v. Lust, 174 Wn. App. 887, 890,300 P.3d 846 (2013). The state and federal double jeopardy clauses protect a defendant from being punished multiple times for the same offense. State v. Adel, 136 Wn.2d 629,632,965 P.2d 1072 (1998). "Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense." In re Pers. Restraint a/Orange, 152 Wn.2d 795,815, 100 P.3d 291 (2004). Mr. Byrd misunderstands his sentence. The trial court dismissed the third degree theft count and imposed a mid-range standard range sentence of 50 months for the second degree robbery conviction. CP at 25. Thus, no double jeopardy issue arises. 5 No. 31540-1-111 State v. Byrd We affirm. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Lawrence-Berrey, 1. WE CONCUR: Korsmo, J. 6 ?

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