                                                                          FILED 

                                                                      OCTOBER 16,2014 

                                                                  In the Office of the Clerk of Court 

                                                                 WA State Court of Appeals, Division III 





IN TIlE COURT OF APPEALS OF THE STATE OF WASHINGTON
                          DIVISION THREE

STATE OF WASHINGTON,                           )
                                               )         No. 31620-3-111
                       Respondent,             )
                                               )
       v.                                      )
                                               )
CLAYTON M. COTTER,                             )         UNPUBLISHED OPINION
                                               )
                       Appellant.              )


       Fearing, J. -   Clayton Cotter appeals his sentence for the crime of assault. He

argues for the first time on appeal that the trial court incorrectly calculated his offender

score when the court failed to consider, under RCW 9.94A.525, three crimes committed

on the same day as arising from the same criminal conduct. Because we are unable to

determine whether Cotter waived this assignment of error, and, if not, whether the three

convictions arise from similar criminal misconduct, we remand to the trial court for a

further hearing. We reject Clayton Cotter's additional request to strike the legal financial

obligations (LFOs) imposed upon him.
No. 31620-3-III
State v. Cotter


                                             FACTS

        On June 27, 2012, Clayton Cotter broke Demetres Perry's arm and nose. At the

time of the assault, witnesses saw Cotter holding an object similar to a baseball bat, pipe,

pool cue, or stick.

                                       PROCEDURE

        On June 29, 2012, the State of Washington charged Clayton Cotter with second

degree assault with a sentence enhancement for use of a deadly weapon. The jury

rejected Cotter's self-defense claim and found him gUilty. By special verdict, the jury

found that Cotter, or an accomplice, was armed with a deadly weapon.

        For purposes of sentencing, Clayton Cotter stipulated to seven prior offenses:

Crime                                 Date               IYM.              Adult/Juvenile

First-degree theft                    Oct. 8,2004        Nonviolent       Juvenile
Second-degree escape                  Nov. 7,2004        Nonviolent       Juvenile
Attempted residential burglary        Nov. 11,2005       Nonviolent       Juvenile
Second-degree theft                   Nov. 11,2005       Nonviolent       Juvenile
Possession of a stolen firearm        Nov. 11,2005       Nonviolent       Juvenile
Minor in possession                   (unknown)          Misdemeanor      Adult
City assault                          (unknown)          Misdemeanor      Adult

Clerk's Papers (CP) at 179. On March 30, 2006, a prior court sentenced Cotter for the

three crimes that occurred on November 11,2005.

        At the April 2, 2013 sentencing hearing on the current charge of assault, the trial

court and counsel discussed Clayton Cotter's offender score:

               THE COURT: I have in front of me a criminal history

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No. 31620-3-111
State v. Cotter


       understanding signed by the parties. You calculate then his criminal history
       as a two? 

              [PROSECUTION]: Yeah. 

              THE COURT: Technically two and a half, but round down. 

              [DEFENSE COUNSEL]: Correct, Your Honor. 


Report of Proceedings (RP) at 713.

       Defense counsel argued for leniency:

             Your Honor, Mr. Cotter is 22 years of age. He'll be 23 this coming
      August the 6th. He's lived here in Spokane his entire life. His whole
      family lives here. At the time of this incident, he was going through a
      divorce. His child who was then three was living with him until he was
      arrested on this and was placed with CPS.
             He has a tenth grade formal education through Rogers High School.
      He had just started ajob at Solid Structures. They're in the Spokane area
      doing construction work when this case came about.

RP at 719.

      Clayton Cotter allocuted:
                                                                                            I
              I'd like the Court to know I did have some juvenile history, but it
      was seven years ago, and I haven't got in any serious trouble since, and the
      last three years I spent taking care of my daughter trying to get my life on
      track, and I just got a job right before I got arrested, and I would just like to
      get on with my life and continue to get back to my family and continue
      taking care of my daughter.

RP at 721. The trial court sentenced Cotter to 25 months' confinement, 13 months for the

assault based on an offender score of2, and 12 months for the deadly weapon

enhancement.

      On April 19, 2013, the court entered a warrant of commitment, instructing the

sheriff to deliver Clayton Cotter to the Department of Corrections to serve the remainder

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No. 31620-3-III
State v. Cotter


of his 25 month sentence. That warrant credited Cotter with 295 days served. Cotter has

already served most, if not all, of his 25 month sentence.

       At the sentencing hearing, the State also argued for the imposition ofLFOs:

              Regarding financial legal financial obligations, there is a $500 

       victim assessment, $200 court costs, $100 DNA collection fee, and 

       $8,759.14 in restitution. We do have a restitution schedule that has be.en 

       handed up, and that's for the VA and then, as well, from AMR. 

               We would ask for minimum monthly payments of $25 to start at a 

       date to be suggested by defense. 


RP at 718-19.

       The trial court asked whether Clayton Cotter had earned his General Equivalency

Diploma (GED):

               [THE COURT:] You don't actually have your GED yet? 

              THE DEFENDANT: No, I don't. 

              THE COURT: I think you should get your GED, too. It'll help you 

      when you get out. It'll help you get a better job.
              There is a $500 victim assessment, $200 in court costs. There's a
      $100 DNA collection fee. I am going to impose that you not have any
      criminal law violations, keep in regular contact with the [Department of
      Corrections] DOC and you do have restitution. This is a lot of restitution.
      It totals $8,759.14. So you need to either work or go to school pursuant to
      DOC.
              I am going to include you have to start making minimum monthly 

      payments of $25 a month within at least two months of getting out. DOC 

      may collect, so I'm guessing he's going to get out in 12 months. 

                                                                                          I
               [PROSECUTION]: Maybe a little-yeah. 

               [DEFENSE COUNSEL]: The base sentence on 13 he would get 

      four and a third. So that's-
              THE COURT: He's already done about.
                                                                                          i,,
                                                                                          r
               [DEFENSE COUNSEL]: He's got close to month, so there's
      another 11 months.                                                                  [
              THE COURT: So you got about a year from today.                              f:

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No. 3 I 620-3-III
State v. Cotter


               [PROSECUTION]: Yeah.
               THE COURT: So set his payment out a year from today. You
       should be out before then, but you said he has another charge still pending?
               [DEFENSE COUNSEL]: Yes. The State has another file that we
       still have to resolve.
               THE COURT: If you don't get out, send a letter. He's going to give
       you that green piece of paper that will tell you to contact the clerk's office
       if you're still in or you don't get out right away.
               Even if you get out and you can't make a payment, check in with
       them and let them know. You, also, I'm guessing maybe you have some
       other fines and costs. You might check in with them and see about making
       those payments.
               Do you have any questions about the sentence, itself?
               THE DEFENDANT: No, Your Honor.

RP at 723-25.

       The trial court imposed $9,559.l4 in LFOs upon Clayton Cotter. Neither Cotter

nor his counsel objected to the amount imposed. The trial court instructed Cotter on what

to do ifhe later struggled to pay the obligations.

       The judgment and sentence provides:

               2.5 Legal Financial Obligations/Restitution. 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.

CP at 187.

The court further ordered:

               All payments shall be made in accordance with the policies of the
       clerk of the court and on a schedule established by the DOC or the clerk of
       the court, commencing immediately, unless the court specifically sets forth
       the rate here: Not less than $25.00 per month commencing 4114/14.


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No. 31620-3-111
State v. Cotter


CP at 191. The court noted by hand "sooner or by 4/14/14." CP at 191.

                                 LA W AND ANAL YSIS

       Assignment of Error I: Offender Score

       Clayton Cotter contends the trial court erred when calculating his offender score

because it failed to determine whether three of his prior juvenile convictions constituted

the same criminal conduct for purposes ofRCW 9.94A.525(5)(a)(i). Clayton Cotter did

not raise this issue below. Instead Cotter stipulated to seven prior offenses and an

offender score of two. In addition to addressing the substance of Cotter's assignment of

error, we must also decide whether he waived the assignment by failing to assert the

argument below. Unfortunately, we cannot resolve the waiver issue without first

addressing the substance ofRCW 9.94A.525, so our discussion of the two subjects

proceeds backwards.

      RCW 9.94A.525 is a comprehensive statute addressing criminal offender scores,

which, in turn, determines the lengths of criminal sentences. Under RCW

9.94A.030(54)(a)(viii), second degree assault, Clayton Cotter's current conviction, is a

"violent offense." Subsection (8) ofRCW 9.94A.525 thus applies to his offender score

and reads:

             If the present conviction is for a violent offense and not covered in
      subsection (9), (10), (11), (12), or (13) of this section, count two points for
      each prior adult and juvenile violent felony conviction, one point for each
      prior adult nonviolent felony conviction, and ~ point for each prior juvenile
      nonviolent felony conviction.

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No. 31620-3-III
State v. Cotter


         Five of Clayton Cotter's earlier seven convictions were for nonviolent juvenile

offenses, which, under the statute, account for .5 of a score each. Applying this

subsection, his offender score would be 2.5. The other two convictions, minor in

possession and city assault accrue no score. RCW 9.94A.525 specifies that the score be

rounded down to the nearest whole number, bringing Cotter's offender score to 2.

         On appeal, Clayton Cotter observes that he committed the crimes of attempted

residential burglary, second degree theft, and possession of a stolen firearm all on the

same day-November 11,2005. Also a court sentenced him for these three crimes on the

same day March 30, 2006. Cotter argues that, instead of incurring 1.5 points for these

crimes, he should only accumulate a score of .5 because the three crimes constitute the

same criminal conduct under RCW 9.94A.525(5). Ifthe three convictions constituted the

same criminal conduct, Cotter's offender score would fall to 1. Instead of 12 to 14

months, his standard range for sentencing would be 6 to 12 months. See RCW 9.94A.515

(assigning second degree assault a seriousness ofIV); RCW 9 .94A.51 0 (the sentencing

grid).

         RCW 9.94A.525 provides:

                (5)(a) In the case of multiple prior convictions, for the purpose of
         computing the offender score, count all convictions separately, except:
                (i) Prior offenses which were found, under RCW 9. 94A. 589(1) (a), to
         encompass the same criminal conduct, shall be counted as one offense, the
         offense that yields the highest offender score. The current sentencing court
         shall determine with respect to other prior adult offenses for which
         sentences were served concurrently or prior juvenile offenses for which

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No. 31620-3-111
State v. Cotter


       sentences were served consecutively, whether those offenses shall be
       counted as one offense or as separate offenses using the "same criminal
       conduct" analysis found in RCW 9.94A.589(1)(a), and if the court finds
       that they shall be counted as one offense, then the offense that yields the
       highest offender score shall be used. The current sentencing court may
       presume that such other prior offenses were not the same criminal conduct
       from sentences imposed on separate dates, or in separate counties or
       jurisdictions, or in separate complaints, indictments, or informations;

                (b) As used in this subsection (5), "served concurrently" means that:
       (i) The latter sentence was imposed with specific reference to the former;
       (ii) the concurrent relationship of the sentences was judicially imposed; and
       (iii) the concurrent timing of the sentences was not the result of a probation
       or parole revocation on the former offense.

(Emphasis added.)

       We are unable to determine if the three 2005 offenses constitute the same criminal

conduct, and, in turn, whether Clayton Cotter was properly sentenced in this case. If the

2006 sentencing court found the three offenses to be the same criminal conduct, that

finding binds subsequent sentencing courts. "Prior offenses which were found, under

RCW 9.94A.589(1)(a), to encompass the same criminal conduct, shall be counted as one

offense, the offense that yields the highest offender score." RCW 9.94A.525(5)(a)(i). If

the 2006 court made such a finding, then the subsequent sentencing court needed to give

legal effect to the earlier finding. If such a finding exists, then Clayton Cotter was

incorrectly sentenced as a matter of law for his conviction of second degree assault. The

appellate record is silent on this point.




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No. 31620-3-111
State v. Cotter


       If the 2006 court made no finding of same criminal conduct, RCW

9.94A.525(5)(a)(i) provides that "[t]he current sentencing court shall determine with

respect to ... prior juvenile offenses for which sentences were served consecutively,

whether those offenses shall be counted as one offense or as separate offenses using the

"same criminal conduct" analysis found in RCW 9.94A.589(l)(a)." (Emphasis added.)

The record also fails to show whether Clayton Cotter served the sentences for the three

crimes consecutively or concurrently. Regardless, the "application of the same criminal

conduct inquiry involves both factual determinations and the exercise of discretion." In

re Pers. Restraint ofShale, 160 Wn.2d 489,495, 158 P.3d 588 (2007).

       Now we address waiver. In general, a defendant may challenge a sentencing

court's calculation of his offender score for the first time on appeal. State v. Roche, 75

Wn. App. 500, 5l3, 878 P.2d 497 (1994). But "waiver can be found where the alleged

error involves an agreement to facts, later disputed, or where the alleged error involves a

matter of trial court discretion." Shale, 160 Wn.2d at 494. Stated differently, waiver

does not apply to sentences that are incorrect as a matter of law, but applies to matters of

fact and discretion. Based upon the record before us, we are unable to determine whether

Clayton Cotter's challenge to his offender score presents a question oflaw, on the one

hand, or fact or discretion, on the other hand.

       Our prior analysis establishes that, if the 2006 sentencing court considered the

three November 2005 offenses as being of the same criminal conduct, then the sentencing

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No. 31620-3-111
State v. Cotter


in the current case is in the nature of an error o flaw . If the 2006 sentencing court made

no such finding, the correctness of Clayton Cotter's sentence for assault hinges on

matters of fact and discretion.

       We remand this case for a hearing to determine whether the 2006 sentencing court

found the three offenses to constitute the same criminal conduct. If so, we instruct the

lower court to give legal effect to that finding, and resentence Clayton Cotter with an

offender score of l.5, which is reduced to 1. If there is no finding of same criminal

conduct from the 2006 court, we instruct the lower court to deem the issue waived.

       We recognize that Clayton Cotter bore the burden of perfecting the record and his

failure may have rendered a collateral attack a more appropriate vehicle for relief.

Nevertheless, because Cotter has served most or all of the 25 month sentence, we opt for
                                                                                              J
the more expeditious procedure of a remand.

       Assignment of Error 2: LFOs

       Clayton Cotter also contends that the trial court erred when it imposed LFOs

without considering his present or future ability to pay.

       Courts may impose LFOs-such as court costs, DNA collection fees, and victim

restitution-if a defendant has or will have the financial ability to pay them. RCW

10.01.160(3); RCW 9.94A.760(2); State v. Curry, 118 Wn.2d 911,914-16,829 P.2d 166

(1992). The trial court need not make a formal finding that the defendant has or will have
                                                                                              I,
                                                                                              I


the ability to pay. State v. Baldwin, 63 Wn. App. 303, 312, 818 P .2d 1116 (1991). When

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No. 31620-3-III
State v. Cotter


the court does make such a finding, the record must support it. State v. Bertrand, 165

Wn. App. 393, 403-05, 267 P.3d 511 (2011). This court reviews a trial court's

determination of an offender's financial resources and ability to pay for clear error.

Bertrand, 165 Wn. App. at 404 n.13; Baldwin, 63 Wn. App. at 312.

       Clayton Cotter failed to preserve this issue for review. Until our Supreme Court

decides otherwise, the rule established by each division of this court is that a defendant

may not challenge a determination regarding his or her ability to pay LFOs for the first

time on appeal. State v. Duncan, No. 29916-3-III, slip op. at 7-12 (Wash. Ct. App. Mar.

25,2014); State v. Calvin, 176 Wn. App. 1,316 P.3d 496,507-08, petition/or review

filed, No. 89518-0 (Wash. Nov. 12,2013); State v. Blazina, 174 Wn. App. 906, 911, 301

P.3d 492, review granted, 178 Wn.2d 1010, 311 P.3d 27 (2013). Thus, we decline to

address this assignment of error.

       Ifwe were to reach this assignment of error, we would rule there was no error. In

Baldwin, this court affirmed a trial court's finding that an offender had the present or

likely future ability to pay LFOs where the only evidence to support it was a statement in

the presentence report that the offender described himself as employable. At sentencing

in this case, the trial court was informed that Clayton Cotter had been employed in

construction.

       Noting the large amount of restitution ordered, the trial court encouraged Clayton

Cotter to earn his OED in order to obtain better work. The court recognized the LFOs

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No. 31620-3-111
State v. Cotter


might pose a high financial burden. To this end, the court ordered a minimum payment

of $25 a month. The trial court considered Cotter's financial ability to pay his LFOs and

concluded that Cotter will later be able to pay.

       The trial court also instructed Clayton Cotter to contact the court's clerk if

payment proved difficult. At that point, Clayton may petition the court for remission

under RCW 10.01.160(4), which states:

              A defendant who has been ordered to pay costs ... may at any time
       petition the sentencing court for remission of the payment of costs or of any
       unpaid portion thereof. If it appears to the satisfaction of the court that
       payment of the amount due will impose manifest hardship on the defendant
       or the defendant's immediate family, the court may remit all or part of the
       amount due.

The denial or granting of that motion would warrant appellate review.

                                      CONCLUSION

       We remand for a determination of whether the 2006 sentencing court found the

three offenses to constitute the same criminal conduct. If so, we instruct the lower court

to give legal effect to that finding, and resentence Clayton Cotter accordingly. If there is

no finding of same criminal conduct from the 2006 court, we instruct the lower court to

deem the issue waived.




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No. 31620-3-111
State v. Cotter


      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.




WE CONCUR: 





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