                                                                           FILED 

                                                                         OCT. 24, 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. 31060-4-111
                                             )
                      Respondent,            )
                                             )
               v.                            )
                                             )
HAROLD ALBERT WILLEY,                        )         UNPUBLISHED OPINION
                                             )
                      Appellant.             )

       BROWN, J. - Harold Albert Willey appeals his judgment and sentence, contending

the sentencing court erred by making an unsupported implied finding on his present or

future ability to pay legal financial obligations (LFOs). We disagree with him and affirm.

                                         FACTS

       In June 2012, a jury found Mr. Willey guilty of second degree burglary and

attempting to elude a police vehicle. At sentencing, he told the court, "I've been holding

two jobs the whole time I've been out [at Geiger Corrections Center], you know. I get up

at 4:00 in the morning and go to work in the kitchen, and I don't go to bed until 1:00

o'clock at night." 1 Report of Proceedings at 84. The court waived costs and ordered

him to pay $600 in mandatory LFOs, including a victim penalty assessment and DNA1

collection fee, at the minimum rate of $25 per month. The court did not impose



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No. 31060-4-111
State v. Willey

discretionary LFOs. Upon his request, the court deferred all payments for one year.

       In paragraph 2.5 of Mr. Willey's judgment and sentence, the sentencing court

stated it "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." Clerk's Papers at 72. The court

made no express finding on his ability to pay LFOs. Mr. Willey appealed.

                                        ANALYSIS

       The issue is whether the sentencing court made an unsupported implied finding

on Mr. Willey's present or future ability to pay LFOs. If the court had made such a

finding, we would review it under the clearly erroneous standard? See State v.

Bertrand, 165 Wn. App. 393, 404 n.13, 267 P.3d 511 (2011) (citing State v. Baldwin, 63

Wn. App. 303, 312, 818 P.2d 1116,837 P.2d 646 (1991», review denied, 175 Wn.2d

1014 (2012). But the court made no such finding. Even if the court had done so, the

finding would be surplusage because our legislature has mandated imposition of the

victim penalty assessment and DNA collection fee regardless of the offender's ability to

pay them. See State v. Lundy, _      Wn. App. _,308 P.3d 755, 759 (2013) (citing

RCW 7.68.035(1)(a); RCW 43.43.7541). Moreover, the record would support the

finding because Mr. Willey told the court he held two jobs in jail. See Baldwin, 63 Wn.

App. at 311-12 (affirming a finding that an offender had the present or future ability to


      2 A finding is clearly erroneous if, "although there is some evidence to support it,
review of all of the evidence leads to a 'definite and firm conviction that a mistake has
been committed.'" Schryvers v. Coulee Cmty. Hosp., 138 Wn. App. 648. 654,158 P.3d
113 (2007) (quoting Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169.
176,4 P.3d 123 (2000».
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       State v. Willey

       pay LFOs where the sole evidence to support it was a presentence report statement

       that the offender "describe[d] himself as employable"). In sum, the sentencing court did

       not err.

              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.


                                                     ~Y
                                                      '~ Brown, J.

       WE CONCUR:



                         err: 

        orsmo, C.J.



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