                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          December 8, 2015
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 46227-3-II

                                 Respondent,

         v.

 MICHAEL DANIEL BERTLING,                                      UNPUBLISHED OPINION

                                 Appellant.

       MELNICK, J. – Michael D. Bertling appeals the discretionary legal financial obligations

(LFOs) imposed after he pleaded guilty to failure to register as a sex offender. Bertling argues that

the trial court failed to take his financial circumstances into account before imposing $400 in court-

appointed attorney fees and defense costs. We agree that the trial court erred and remand for

resentencing.

                                               FACTS

       As part of his agreement to plead guilty to failure to register as a sex offender, Bertling

acknowledged that the trial court would require him to pay mandatory penalties and that the court

also could order him to pay “a fine, court costs, attorney fees and the costs of incarceration.”

Clerk’s Papers (CP) at 9. The State recommended that the trial court impose LFOs that included

$400 for court-appointed attorney fees and defense costs and $800 for a crime victim assessment,

DNA fee, and court filing fee.

       During sentencing, the State asked the trial court to impose the recommended LFOs.

Defense counsel asked the trial court to find that Bertling was indigent and “perhaps not impose

any of the DAC [Department of Assigned Counsel] recoupment. I want him to be able to get back
46227-3-II


out of custody, get his job, do everything that he needs to do and try and pay off these court fines,

so he can restore his rights.” Report of Proceedings (RP) at 8. The trial court imposed the LFOs

that the State recommended. A preprinted paragraph in Bertling’s judgment and sentence stated

that

         [t]he 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 that the defendant’s status will change. The court finds
         that the defendant has the ability or likely future ability to pay the legal financial
         obligations imposed herein.

CP at 23. Bertling now appeals the imposition of the discretionary LFOs imposed for defense

costs.

                                             ANALYSIS

         Bertling argues that the trial court erred in imposing discretionary LFOs without taking

into account his individual financial circumstances. By objecting to the imposition of these LFOs

during sentencing, Bertling preserved this issue for review. State v. Lyle, 188 Wn. App. 848, 852,

355 P.3d 327 (2015).

         While Bertling’s appeal was pending, the Washington Supreme Court decided State v.

Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). The Blazina court relied on RCW 10.01.160(3) in

holding that sentencing courts must inquire into a criminal defendant’s financial circumstances

and ability to pay before imposing discretionary LFOs as sentencing conditions. 182 Wn.2d at

837-38.

         RCW 10.01.160(3) provides that a sentencing court “shall not order a defendant to pay

costs unless the defendant is or will be able to pay them. In determining the amount and method

of payment of costs, the court shall take account of the financial resources of the defendant and

the nature of the burden that payment of costs will impose.” This statute applies only to



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discretionary LFOs. State v. Kuster, 175 Wn. App. 420, 424, 306 P.3d 1022 (2013). For

mandatory LFOs such as victim assessments, DNA fees, and criminal filing fees, the legislature

has divested courts of the ability to consider a defendant’s ability to pay before imposing such

obligations. State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).

       The Blazina court held that a cursory inquiry into a defendant’s financial circumstances is

insufficient when a court is considering discretionary LFOs:

       [T]he court must do more than sign a judgment and sentence with boilerplate
       language stating that it engaged in the required inquiry. The record must reflect
       that the trial court made an individualized inquiry into the defendant’s current and
       future ability to pay. Within this inquiry, the court must also consider important
       factors . . . such as incarceration and a defendant’s other debts, including restitution,
       when determining a defendant’s ability to pay.

182 Wn.2d at 838.

       We review a sentencing court’s imposition of discretionary LFOs under a clearly erroneous

standard. State v. Bertrand, 165 Wn. App. 393, 403-04, 267 P.3d 511 (2011); State v. Baldwin,

63 Wn. App. 303, 312, 818 P.2d 1116, 837 P.2d 646 (1991). A sentencing court’s decision is

clearly erroneous and must be reversed when review of all the evidence leaves the reviewing court

with the “‘definite and firm conviction that a mistake has been committed.’” Lundy, 176 Wn. App.

at 105 (quoting Schryvers v. Coulee Cmty. Hosp., 138 Wn. App. 648, 654, 158 P.3d 113 (2007)).

“The inquiry is whether the court’s determination [that the defendant is or will be able to pay the

LFOs] is supported by the record.” Baldwin, 63 Wn. App. at 312 n.27. Although formal findings

of fact are not required, the record must be sufficient for us to review whether the trial court made

the individualized inquiry that Blazina requires. 182 Wn.2d at 838.

       The State argues that the record establishes an adequate factual basis concerning Bertling’s

ability to pay because defense counsel asked the court to defray the defense costs so that Bertling

could “get his job” and pay off the rest of his court fines. RP at 8. We do not see this single


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statement as evidence that Bertling had an existing job or that he would be otherwise able to pay

the fines incurred.

        The State also argues that because Bertling agreed to pay the defense costs as part of his

plea agreement, he may not challenge them now. We disagree. Bertling’s acknowledgement that

the court had the authority to impose defense costs did not mean that he agreed to the imposition

of $400 for those costs without the required inquiry.

        Finally, the State argues that this issue is not ripe for review because it has not yet attempted

to collect the LFOs. The Blazina court disposed of this argument by ruling that LFOs may be

challenged upon imposition because the challenge is primarily legal, does not require further

factual development, and involves a final action. 182 Wn.2d at 832 n.1 (citing State v. Bahl, 164

Wn.2d 739, 751, 193 P.3d 678 (2008)).

        Because the trial court did not make the required inquiry into Bertling’s ability to pay the

discretionary LFOs imposed, we 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 2.06.040,

it is so ordered.



                                                                Melnick, J.

We concur:



        Bjorgen, A.C.J.




        Sutton, J.


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