                                                                                                                        F11- ED
                                                                                                                  COURT 0F' AFPEAI -S
                                                                                                                      D1V! 1110fq 1I
                                                                                                              20h JAN 22 AM 9: 19
       IN THE COURT OF APPEALS OF THE STATE OF WASHI
                                                                                                                                   IINGTO ?
                                                                                                                                          l




STATE OF WASHINGTON,
                                                       DIVISION II


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




                                             Respondent,


              V.



SAMMY B. WEAVER,                                                                UNPUBLISHED OPINION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

                   l
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.


 1
     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



                                                                   2
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




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