State v. Stone

Penoyar, C.J.

¶43 (concurring in part, dissenting in part) — I completely agree with the majority’s analysis of the right to counsel issue and holding that the trial court violated Stone’s due process rights by imposing jail time in its March 23 order without making the required inquiries and findings. I respectfully dissent, however, from its conclusion that on October 2, 2009, the trial court improperly sentenced James Michael Stone to jail time for failing to appear or to make payments on his legal financial obligations.

¶44 The trial court found that Stone’s “failure to pay or appear was willful” because he “could have made a phone call, sent a letter, [or] made some attempt to contact” the trial court. Report of Proceedings at 43. My view is that *819sufficient evidence in the record supports those findings. On the payment issue, Stone had the burden to explain his lack of payment. See Smith v. Whatcom County Dist. Court, 147 Wn.2d 98, 112, 52 P.3d 485 (2002). The trial court heard Stone’s explanation but rejected it. See State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (“Credibility determinations are for the trier of fact and are not subject to review.”). On this record of Stone’s years of nonpayment, the trial court was free to find that Stone had failed to meet his burden to show that he was unable to make any payment. On the appearance issue, Stone does not contest that the trial court had the authority to sentence him for failure to appear; instead, he offers only an explanation for why he did not physically appear in Jefferson County. But the order here allowed Stone to report by phone16 and Stone offered no reason why he could not have found a way to at least report by phone. Again, on this record, the trial court was free to find that Stone’s lack of appearance was willful.

¶45 I see no error in the trial court’s proceedings on October 2, 2009 and would affirm the sentence entered at that hearing.

“If payment is not made by [the last business day of each month], Defendant must appear in Court the second Friday of the following month ... or call the clerk’s office . . . prior to that Friday.” Clerk’s Papers at 29.