State Of Washington v. Sammy B. Weaver

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COURT 0F' AFPEAI -S
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20h JAN 22 AM 9: 19
IN THE COURT OF APPEALS OF THE STATE OF WASHI
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STATE OF WASHINGTON,
DIVISION II

I No. 44386 - -II
4
75D J 1,

Respondent,

SAMMY B. WEAVER, UNPUBLISHED OPINION

PENOYAR, J. — Sammy Weaver appeals from his conviction for unlawful possession of
methamphetamine. He argues that the trial court erred when it imposed legal financial

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

chemical dependency evaluation. We affirm his conviction but remand for correction of his

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sentence.

1. LEGAL FINANCIAL OBLIGATIONS

LFOs: $ 500 520 court costs,
The trial court imposed the following victim assessment, $

lab fee, 100 DNA collection fee.
attorney, $ 1, 000 fine, $ 100 crime and $
1, 200 court- appointed

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 and the likelihood that the defendant' 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.

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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

presented that he has the ability or likely future ability to pay them. State v. Bertrand, 165 Wn.

App. 393, 404, 267 P. 3d 511 ( 2011), 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, 178 Wn.2d 1010 ( 2103). Unlike Bertrand, in which the defendant had disabilities that

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]." 63 Wn. App. at 310. As the State has not sought to collect Weaver' s LFOs, his

challenge to them is not ripe. 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
that he had that to the crime. State v.
RCW 9. 94A. 607( 1), a chemical dependency contributed

Jones, 118 Wn. App. 199, 209 -10, 76 P. 3d 258 ( 2003). Rather, the court found only that Weaver

that may have to the offense." CP at 4. The State
may have a chemical dependency contributed

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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