FILED
DEC 10,2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DMSION THREE
STATE OF WASHINGTON, )
) No. 31046-9-111
Respondent, )
)
v. )
)
JOSEPH MARTIAL WONCH, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, C.J. Joseph Wonch pleaded guilty and received an exceptional
sentence. Since the parties stipulated to the exceptional sentence, the trial court did not
err by imposing it. His challenge to a finding related to his ability to pay his legal
fmancial obligation is not manifest error that can be raised for the frrst time on appeal.
FACTS
This Wonch's case arose after a Ferry County deputy sheriff stopped Joseph M.
Wonch in early May 2011 on suspicion of driving under the influence. The traffic stop
No. 31046-9-111
State v. Wonch
led to the deputy fmding methamphetamine, oxycodone, and multiple fIrearms in the
possession of Mr. Wonch, a convicted felon.
The State charged Mr. W onch with several crimes, but reached an agreement with
him to plead guilty to two counts of unlawful possession of a controlled substance and
one count of second degree unlawful possession of a fIrearm and stipulate to an
exceptional sentence.
The sentencing court accepted the recommended exceptional sentence. The court
stated that it had considered Mr. Wonch's age and physical health and his likely present
or future ability to pay legal fmancial obligations (LFOs). The court then imposed
$2,300 in LFOs with repayment to commence immediately. Following entry of the
judgment and sentence and denial of a pro se motion to modify the sentence, Mr. W onch
timely appealed to this court.
ANALYSIS
Mr. Wonch raises three issues for review. He fIrst argues that the sentencing court
had insuffIcient facts to support an implicit fInding that he has the likely current or future
ability to pay LFOs. Second, he argues that the exceptional sentence must be vacated
because the court entered insuffIcient fmdings to support imposition of an exceptional
sentence. Third, he argues that the judgment and sentence contains a scrivener's error
that requires correction. We address each of these issues in turn.
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No. 31046-9-111
State v. Wonch
We decline to address Mr. Wonch's challenge to the LFOs for two reasons. First,
the court made no express finding that he had the current ability to pay the LFOs. No
such fmding is required. State v. Curry, 118 Wn.2d 911,916,829 P.2d 166 (1992).
Second, the motion is not yet ripe for review. "[T]he meaningful time to examine the
defendant's ability to pay is when the government seeks to collect the obligation." State
v. Baldwin, 63 Wn. App. 303, 310, 818 P .2d 1116, 837 P .2d 646 (1991). Although the
court ordered repayment to begin immediately, the State has not yet sought to collect on
that order. Accordingly, the issue is not yet ripe for review.
With regard to the exceptional sentence, the judgment and sentence appears to
contain some error, but nothing that would require resentencing. To impose the
exceptional sentence, the court relied on RCW 9.94A.535(2)(a):
The defendant and the state both stipulate that justice is best served
by the imposition of an exceptional sentence outside the standard range,
and the court fmds the exceptional sentence to be consistent with and in
furtherance of the interests ofjustice and the purposes of the sentencing
reform act.
RCW 9.94A.535(2)(a) (emphasis added). The fmdings of fact used to support imposition
of the exceptional sentence parroted the language of this statute. However, the court
treated the frrst part of section 535(2)(a) (defendant and state both stipulate) and the
second part (fmding the exceptional sentence to be in furtherance of the interests of
justice) as independent bases for imposing an exceptional sentence. Treating the two
parts of section 535(2)(a) as independent bases for imposing an exceptional sentence was
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No. 31046-9-111
State v. Wonch
improper because the section only authorizes imposition of an exceptional sentence when
both fmdings are present.
However, this error does not require resentencing because it is clear that the lower
court would have imposed the same sentence regardless of the number of independent
bases that the court had for imposing the exceptional sentence. See State v. Jackson, 150
Wn.2d 251,276, 76 P.3d 217 (2003). We are satisfied that the sentence would not
change because the court explicitly stated that it would have imposed the same sentence
ifit had only one basis for imposing an exceptional sentence, instead of two. Clerk's
Papers (CP) at 152 ("This court would impose the same sentence if only one of the
grounds listed in the preceding paragraph is valid.").
Finally, the fmdings of fact used to support the exceptional sentence contains a
scrivener's error that requires correction. Finding I (a) erroneously states that Mr. Wonch
and the State stipulated to "sentencing Count I and Count II at Seriousness Level III,
rather than Seriousness Level II." CP at 152. Mr. Wonch and the State both agree that
the fmding of fact should state that they stipulated to sentencing count I and count II at
seriousness level III, rather than seriousness level I. Accordingly, we remand for the
limited purpose of correcting this error.
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No. 31046-9-111
State v. Wonch
Affirmed in part and remanded for correction.
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.
I
Korsmo, C.l
WE CONCUR:
Brown, ~
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