                                                                                       FILED
                                                                                  COURT 0s P1 EALS
                                                                                       MIVISIM14 T1.
                                                                              2013 SEE -4      AM 10: 22
    IN THE COURT OF APPEALS OF THE STATE
                                                                            O GO OM
                                            DIVISION II                           BY
                                                                                        HT
STATE OF WASHINGTON,                                                      No. 44189 6 II
                                                                                    - -


                                  Respondent,

       V.




BRANDON MJ BLURTON,                                               UNPUBLISHED OPINION




       HUNT, J. — Brandon MJ Blurton appeals the trial court's imposition of some legal

financial obligations and his standard range sentence for third degree assault. He argues that the
                                        -

trial court used an incorrect standard sentencing range; the State concedes this error and that

resentencing is required. He also argues that the, trial court erred in imposing attorney fees and

court costs as part of his legal financial obligations without inquiring into his future ability to pay

them. We reverse and remand for resentencing.

                                                 FACTS


       A    jury   convicted Brandon MJ Blurton of third          degree    assault.     At sentencing, the

seriousness level of the crime was set at 3 and his offender score was 5. The State identified the


standard sentencing range as 22 to 29 months of confinement; Blurton did not object. The State

recommended sentencing at the bottom of this supposed standard range, and Blurton requested a

downward departure. Following the State's recommendation, the trial court sentenced Blurton to

22 months.


        The trial court also imposed mandatory and discretionary legal financial obligations,

including $
          00
          2, in attorney fees and $ 02 in court costs, which Blurton did not dispute.
            400.                  387.

Without   making    factual   findings about Blurton's ability   to pay   these   obligations, the   trial court
No. 44189 6 II
          - -



ordered Blurton to make     monthly payments       25 per month, to
                                                of $                     begin   in 60   days.   The


judgment and sentence, however, provided, The court has considered the total amount owing,
                                          "

the defendant's past, present, and future ability to pay legal financial obligations, including the

defendant's financial resources and the likelihood the defendant's status will change." Clerk's

Papers at 50.

        Blurton appeals his standard range sentence and the imposition of attorney fees and court

costs as legal financial obligations.
                                           ANALYSIS


                                I. STANDARD SENTENCING RANGE


       Blurton argues, and the State concedes, that in light of his offender score of 5, 1)
                                                                                         ( the

correct standard sentencing range for his crime is 17 to 22 months of confinement (not 22 to 29

months, the sentencing range for an offender score of 6); (2)resentencing is required to
                                                        and

correct the trial court's having imposed sentence using the wrong standard range. We accept the

State's concession of error.


       Although Blurton did not object below to the improper higher standard range, he may

challenge an illegal or erroneous sentence for the first time on appeal. State v. Ford, 137 Wn. d
                                                                                              2

472, 477, 973 P. d 452 (1999).And he is entitled to have the trial court determine his sentence
               2




1 A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 4 and then referred it to a panel of judges.
      1

                                                 2
No. 44189 6 II
          - -



based on the correct standard range. In re Pers. Restraint of Call, 144 Wn. d 315, 333, 28 P. d
                                                                          2                 3

709 (2001).Therefore, we remand for resentencing using the correct standard sentencing range.

                                   II. LEGAL FINANCIAL OBLIGATIONS


       Blurton also argues that the trial court erred in imposing discretionary legal financial

obligations (LFO)without inquiring into his future ability to pay them. Br. of Appellant at 9 10
                                                                                              -

challenging the trial court's imposition of court costs and attorney fees). The State responds

that Blurton cannot raise this issue for the first time           on   appeal.   Because we remand for


resentencing under the correct standard range, we need not reach this LFO issue on appeal. See

generally   State   v.   Lundy, No. 42886 5 II ,2013 WL 4104978, slip op. at 3 10 (
                                          - -                                  - Wash. Ct. App.

Aug. 13, 2013) (addressing imposition of legal financial obligations on appeal from

resentencing). We reverse and remand for resentencing.

       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

040,
2.6.it is so ordered.
 0




                                                       Hunt, J.
We concur:




            J.
            A. .
             C
UJhanson,
Bj oy en,


2 Because the record shows that the trial court intended to sentence Blurton to the low end of the
applicable standard range, it is immaterial that his sentence fell within both the correct and
incorrect standard ranges. See In re Pers. Restraint of Goodwin, 146 Wn. d 861, 868, 50 P. d
                                                                       2                 3
618 (2002);  Call, 144 Wn. d at 333.
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