                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                            May 3, 2016

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                             No. 47132-9-II

                         Respondent,

          v.

    FOREST STORM NAILLON,                                      UNPUBLISHED OPINION

                         Appellant.


         SUTTON, J. – Forest Storm Naillon appeals his jury trial convictions for unlawful possession

of a stolen vehicle and making or possessing motor vehicle theft tools, and the trial court’s

imposition of discretionary legal financial obligations (LFOs). He argues that the trial court failed

to consider his current and future ability to pay before imposing the discretionary LFOs.1 In a

statement of additional grounds for review (SAG), Naillon further contends the trial court impeded

his constitutional right to testify in his own defense when it advised him that evidence of his prior

conviction might be admissible if he were to testify. We affirm the convictions. But, because the

record shows that the trial court failed to comply with its obligation under RCW 10.01.160(3) and

State v. Blazina2 to make an individualized inquiry into Naillon’s current and future ability to pay



1
  Naillon also argues that he received ineffective assistance of counsel based on his counsel’s
failure to challenge the discretionary LFOs at sentencing. Because we remand to the trial court
for a new hearing on the discretionary LFOs, we do not reach the ineffective assistance of counsel
claim.
2
    182 Wn.2d 827, 838-39, 344 P.3d 680 (2015).
No. 47132-9-II


before imposing the discretionary LFO’s, we remand to the trial court for reconsideration of the

discretionary LFOs consistent with RCW 10.01.160(3) and Blazina.3

                                                   FACTS

        The State charged Naillon with unlawful possession of a stolen vehicle and making or

possessing motor vehicle theft tools.4 Before trial, the State moved under ER 404(b) to admit

evidence that when Naillon was arrested in 2006 for possession of stolen property, he was driving

a stolen car and possessed shaved keys.

        The trial court denied the motion to admit this evidence, ruling that it was unfairly

prejudicial. But the trial court further stated:

                Now, I want to be very clear about something.                Let’s assume,
        hypothetically, the defendant takes the stand, then we have a whole new
        conversation and I want to be fair about that. So it is not in now, but he takes the
        stand, we’ve got a whole different conversation going on.

Verbatim Report of Proceedings (VRP) (Dec. 9, 2014) at 51.

        Naillon’s defense at trial was that he had purchased the car from someone for $500. Naillon

did not testify. The jury convicted Naillon of unlawful possession of a stolen vehicle and making

or possessing motor vehicle theft tools.




3
 At this hearing, the trial court should also consider Naillon’s motion to waive his right to be
present at the LFO hearing.
4
 The making or possessing motor vehicle theft tools charge was based on Naillon’s possession of
“shaved key[s]” at the time of his arrest. Clerk’s Papers at 1-2. Shaved keys are keys that have
been filed down.



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No. 47132-9-II


          At the January 16, 2015 sentencing hearing,5 Naillon requested a DOSA6 sentence, and the

parties discussed Naillon’s ongoing drug related issues. The trial court denied the DOSA request

and sentenced Naillon to 26 month’s confinement on the unlawful possession of a stolen vehicle

conviction. 7 The trial court also imposed a 364 day suspended sentence on the making or

possession motor vehicle theft tools conviction.

          The trial court also imposed a total of $1,300 in LFOs,8 including a $500 discretionary

LFO for his court appointed attorney and defense costs. The judgment and sentence for the felony

unlawful possession of a stolen vehicle conviction contains the following boilerplate language:

          ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS. 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 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. RCW 9.94A.753.

Clerk’s Papers (CP) at 70. Similarly, the judgment and sentence for the gross misdemeanor

possessing motor vehicle theft tools conviction states, “The court finds that the defendant is able

to pay said fee without undue financial hardship.” CP at 82.




5
    Naillon was 31 at the time of sentencing.
6
    Drug Offender Sentencing Alternative. RCW 9.94A.660.
7
    Naillon’s offender score based on his prior offenses was seven points.
8
 The sentencing court also imposed $1200 in LFOs on the gross misdemeanor conviction, which
sentence was suspended, and it ordered the $1200 in LFOs to run concurrently.


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No. 47132-9-II


       There was no discussion of Naillon’s current and future ability to pay during the sentencing

hearing. And Naillon did not object to any of the LFOs. But the trial court did find him indigent

for purposes of the appeal.

       In a later motion for review at public expense, Naillon stated that (1) he was not employed,

(2) he had previously been found indigent, (3) he did not own real estate, stocks, bonds, or notes,

(4) he was not the beneficiary of a trust or other account, (5) he did not own a motor vehicle or

any substantial items of personal property, (6) he did not have any dividend income, and (7) he

had no money in any bank accounts. Naillon also stated that he was receiving $180 a month in

food stamps.

       Naillon appeals his convictions and the discretionary LFOs.

                                           ANALYSIS

                                          I. LFO ISSUE

       Naillon contends, for the first time on appeal, that the trial court erred when it imposed

discretionary LFOs without making an individualized finding that he had the current and future

ability to pay. Generally, we may decline to review issues raised for the first time on appeal.

RAP 2.5(a). Following our Supreme Court’s opinion in State v. Marks, 185 Wn.2d 143, ___ P.3d

___, (2016), we decline to follow our prior approach in State v. Lyle, 188 Wn. App. 848, 355 P.3d

327 (2015), petition for review granted in part, ___ Wn.2d ___, 365 P.3d 1263 (2016). Instead,

we will determine whether to exercise our discretion to reach the LFO issue on a case by case

basis. We choose to exercise our discretion to examine this issue.




                                                4
No. 47132-9-II


       RCW 10.01.160(3) provides:

       The 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.

Although the record of Naillon’s financial circumstances is sparse, the evidence presented at the

sentencing hearing and his motion for indigency suggest that Naillon currently has no assets; that

he has ongoing drug issues; and that he was receiving food stamps at the time of his arrest,

suggesting that before sentencing he had low to no income. The sentencing hearing also disclosed

that Naillon had several prior felony convictions. But despite information in the record suggesting

that Naillon did not have the current ability to pay his LFO obligations and that his incarceration,

his criminal record, and his drug use issues could potentially prevent him from holding

employment following his release from custody, the trial court never inquired into Naillon’s work

history, his education, whether he could potentially hold a job in the future, whether he has any

outstanding debts (such as other outstanding LFO obligations from prior convictions), or whether

he has any disabilities that would prevent him from earning an income. Thus, the record shows

that the trial court failed to make an individualized inquiry into Naillon’s current and future ability

to pay LFOs as required under RCW 10.01.160(3). Accordingly, we remand to the trial court for

reconsideration of the discretionary LFOs consistent with RCW 10.01.160(3) and Blazina, 182

Wn.2d at 838-39.




                                                  5
No. 47132-9-II


                                            II. SAG ISSUE

         In his SAG, Naillon contends that the trial court impeded his constitutional right to testify

by commenting during the ER 404(b) discussion that the 2006 possession of stolen property

conviction, or the facts surrounding that conviction, could be used against him if he testified.9 This

contention has no merit.

         The trial court commented that it would have to reevaluate its decision to exclude the ER

404(b) evidence if Naillon chose to testify. The trial court’s comment did not improperly chill

Naillon’s constitutional right to testify10 but merely ensured that counsel and Naillon understood

that the court’s analysis of the admissibility of the prior conviction and the facts surrounding that

crime could potentially change if Naillon were to testify. For instance, if Naillon had testified,

there was a possibility that his prior possession of shaved keys could have been potentially

admissible to impeach Naillon if he, for instance, denied any knowledge of shaved keys. Naillon

does not show that the trial court intended to chill his constitutional right to testify in his defense.




9
  Naillon also asks that he be allowed to waive his appearance if we remand to the trial court on
the LFO issue. On remand, the trial court should address this issue as a motion to waive his right
to be present.
10
     U.S. Const. amend. VI.


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No. 47132-9-II


                                        CONCLUSION

        We affirm the convictions. But, we remand to the trial court for reconsideration of the

discretionary LFOs consistent with RCW 10.01.160(3) and Blazina and to consider Naillon’s

motion to waive his right to be present at the LFO hearing.

        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.



                                                    SUTTON, J.
 We concur:



 BJORGEN, C.J.




 MAXA, J.




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