                                                                            FILED 

                                                                          DEC 10,2013 

                                                                 In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DMSION THREE 


STATE OF WASHINGTON,                           )
                                               )         No. 31046-9-111
                     Respondent,               )
                                               )
       v.                                      )
                                               )
JOSEPH MARTIAL WONCH,                          )         UNPUBLISHED OPINION
                                               )
                      Appellant.               )


       KORSMO, C.J.      Joseph Wonch pleaded guilty and received an exceptional

sentence. Since the parties stipulated to the exceptional sentence, the trial court did not

err by imposing it. His challenge to a finding related to his ability to pay his legal

fmancial obligation is not manifest error that can be raised for the frrst time on appeal.

                                           FACTS

       This Wonch's case arose after a Ferry County deputy sheriff stopped Joseph M.

Wonch in early May 2011 on suspicion of driving under the influence. The traffic stop
No. 31046-9-111
State v. Wonch


led to the deputy fmding methamphetamine, oxycodone, and multiple fIrearms in the

possession of Mr. Wonch, a convicted felon.

       The State charged Mr. W onch with several crimes, but reached an agreement with

him to plead guilty to two counts of unlawful possession of a controlled substance and

one count of second degree unlawful possession of a fIrearm and stipulate to an

exceptional sentence.

       The sentencing court accepted the recommended exceptional sentence. The court

stated that it had considered Mr. Wonch's age and physical health and his likely present

or future ability to pay legal fmancial obligations (LFOs). The court then imposed

$2,300 in LFOs with repayment to commence immediately. Following entry of the

judgment and sentence and denial of a pro se motion to modify the sentence, Mr. W onch

timely appealed to this court.

                                        ANALYSIS

       Mr. Wonch raises three issues for review. He fIrst argues that the sentencing court

had insuffIcient facts to support an implicit fInding that he has the likely current or future

ability to pay LFOs. Second, he argues that the exceptional sentence must be vacated

because the court entered insuffIcient fmdings to support imposition of an exceptional

sentence. Third, he argues that the judgment and sentence contains a scrivener's error

that requires correction. We address each of these issues in turn.




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No. 31046-9-111
State v. Wonch


       We decline to address Mr. Wonch's challenge to the LFOs for two reasons. First,

the court made no express finding that he had the current ability to pay the LFOs. No

such fmding is required. State v. Curry, 118 Wn.2d 911,916,829 P.2d 166 (1992).

Second, the motion is not yet ripe for review. "[T]he meaningful time to examine the

defendant's ability to pay is when the government seeks to collect the obligation." State

v. Baldwin, 63 Wn. App. 303, 310, 818 P .2d 1116, 837 P .2d 646 (1991). Although the

court ordered repayment to begin immediately, the State has not yet sought to collect on

that order. Accordingly, the issue is not yet ripe for review.

       With regard to the exceptional sentence, the judgment and sentence appears to

contain some error, but nothing that would require resentencing. To impose the

exceptional sentence, the court relied on RCW 9.94A.535(2)(a):

              The defendant and the state both stipulate that justice is best served
       by the imposition of an exceptional sentence outside the standard range,
       and the court fmds the exceptional sentence to be consistent with and in
       furtherance of the interests ofjustice and the purposes of the sentencing
       reform act.

RCW 9.94A.535(2)(a) (emphasis added). The fmdings of fact used to support imposition

of the exceptional sentence parroted the language of this statute. However, the court

treated the frrst part of section 535(2)(a) (defendant and state both stipulate) and the

second part (fmding the exceptional sentence to be in furtherance of the interests of

justice) as independent bases for imposing an exceptional sentence. Treating the two

parts of section 535(2)(a) as independent bases for imposing an exceptional sentence was

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No. 31046-9-111
State v. Wonch


improper because the section only authorizes imposition of an exceptional sentence when

both fmdings are present.

       However, this error does not require resentencing because it is clear that the lower

court would have imposed the same sentence regardless of the number of independent

bases that the court had for imposing the exceptional sentence. See State v. Jackson, 150

Wn.2d 251,276, 76 P.3d 217 (2003). We are satisfied that the sentence would not

change because the court explicitly stated that it would have imposed the same sentence

ifit had only one basis for imposing an exceptional sentence, instead of two. Clerk's

Papers (CP) at 152 ("This court would impose the same sentence if only one of the

grounds listed in the preceding paragraph is valid.").

       Finally, the fmdings of fact used to support the exceptional sentence contains a

scrivener's error that requires correction. Finding I (a) erroneously states that Mr. Wonch

and the State stipulated to "sentencing Count I and Count II at Seriousness Level III,

rather than Seriousness Level II." CP at 152. Mr. Wonch and the State both agree that

the fmding of fact should state that they stipulated to sentencing count I and count II at

seriousness level III, rather than seriousness level I. Accordingly, we remand for the

limited purpose of correcting this error.




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No. 31046-9-111
State v. Wonch


Affirmed in part and remanded for correction.

      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.



                                                I
                                                       Korsmo, C.l

WE CONCUR:



      Brown,   ~




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