FILED
MAY 02,2013
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, ) No. 30631-3-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
LUIS CISNEROS VALENCIA, )
)
Appellant. )
KORSMO, C.J. -Luis Cisneros Valencia appeals the amended judgment and
sentence entered following his 2010 conviction for attempted residential burglary.
Specifically, Mr. Valencia appeals the sentencing court's finding that he has the current
or future ability to pay legal financial obligations as clearly erroneous. 1
1 In his Statement of Additional Grounds for Review, Mr. Valencia also raises the
question of whether the superior court violated the public's constitutional right of access
to criminal proceedings and his constitutional right to be present at critical stages ofthe
proceedings for a scheduled November 23, 2011 hearing to amend the judgment and
sentence. However, the lower court struck that hearing so no violations occurred. We do
not address the rest of Mr. Valencia's claimed errors because we lack any record from
which to review these allegations.
No. 30631-3-111
State v. Valencia
FACTS
Mr. Valencia committed the crime of attempted residential burglary on January
13,2010. A Benton County jury found him guilty of the crime on December 8,2010.
Benton County Superior Court entered a felony judgment and sentence against Mr.
Valencia on January 5, 2011, but miscalculated his offender score. Acting pro se, Mr.
Valencia sought relief correcting this error. The superior court amended the judgment
and sentence on January 5, 2012, using the correct offender score.
The court also reaffirmed its initial order of costs and restitution: a $500 victim
assessment fee, a $100 DNA2 collection fee, $1,952.50 in other costs, and restitution in
the amount of $908.45. Mr. Valencia now appeals the imposition of costs and restitution.
He argues that the trial court exceeded its sentencing authority because it cannot order
legal financial obligations without evidence to support a finding that Mr. Valencia has the
current or future ability to pay as required by RCW 10.01.160(3).
ANALYSIS
The question of whether the sentencing court erred by finding a current or future
ability to pay costs and restitution is not properly before this court. In neither the original
judgment and sentence, nor the amended judgment and sentence did the lower court find
that Mr. Valencia "has the ability or likely future ability to pay the legal financial
2 Deoxyribonucleic acid.
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No. 30631-3-III
State v. Valencia
obligations imposed" by the court. Most felony judgment and sentence forms have this
finding set forth as boiler plate. But in this case, that finding is not in the boiler plate;
instead, it is set forth in an optional checkbox. The sentencing court never checked the
box; thus, it never made the fmding. Nor did the court make such a finding during either
of the sentencing hearings. Accordingly, the finding that Mr. Valencia appeals does not
exist.
In the absence of a finding of current or future ability to pay, the question turns to
whether the trial court can still order the payment of costs and restitution. The answer to
this question comes from Bertrand. State v. Bertrand, 165 Wn. App. 393,267 P.3d 511
(2011), review denied, 175 Wn.2d 1014 (2012). In Bertrand, the Court of Appeals
reversed the sentencing court's finding of current or future ability to pay as clearly
erroneous due to a complete lack of evidence to support the finding. Id. at 404. Without
a finding of current or future ability to pay the court in Bertrand still affirmed the
imposition of legal financial obligations, leaving any further challenge to the legal
financial obligations for when the State seeks to collect the obligation. Id. at 405 (citing
State v. Baldwin, 63 Wn. App. 303, 310,818 P.2d 1116,837 P.2d 646 (1991)). The only
effect that the lack of a finding of current or future ability to pay currently has on the
judgment and sentence is that it "forecloses the ability of the Department of Corrections
to begin collecting LFOs from [the defendant] until after a future determination of [the
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No.30631-3-II1
State v. Valencia
defendant's] ability to pay." Id. at 405. If Mr. Valencia does not want to wait until the
State attempts to collect on the obligation, then he can bring a motion in superior court at
any time to waive or terminate the LFOs due to manifest hardship. RCW 10.0 1.160(4);
State v. Smits, 152 Wn. App. 514, 524-25,216 PJd 1097 (2009).
Affirmed.
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.
Korsmo, C.J.
WE CONCUR:
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