                                                                                                     F EL " D
                                                                                              01JRT OF APPEALS
                                                                                                   DIV1510IrlIi

                                                    AM 9: 17                                20Ili FEB - 4
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                            STATE OE WASHIM'U'1 "ON
                                                    DIVISION II
                                                                                            r Y-
                                                                                                      EP TY
STATE OF WASHINGTON,                                                                 No. 43528 -4 -II


                                        Respondent,


        V.




RICHARD WALKSONTOP,                                                          UNPUBLISHED OPINION




        Penoyar, J. —             Richard Walksontop appeals his convictions for burglary, robbery,

harassment,    unlawful       imprisonment,       and assault.       He argues that ( 1) the information failed to


include the essential elements of unlawful imprisonment because it did not include the statutory

definition   of "restrain," (     2) he   was   denied his   right   of allocution, ( 3) the trial court made errors in

his   misdemeanor      and    felony      judgment     and   sentences,     and (   4) the trial court erred when it


imposed legal financial           obligations (   LFOs)   without.     finding   that   he had the ability to pay.    He


also includes a statement of additional grounds ( SAG).


        Division One of this court recently held that the statutory definition of "restrain" is not an

essential    element    of unlawful         imprisonment.         We    agree;   therefore, the information here is


sufficient. Additionally, Walksontop did not preserve for appeal the alleged errors regarding his
right of allocution and the imposition of LFOs, and his SAG does not sufficiently identify and

discuss the    alleged errors.          Accordingly,   we    do   not review     these   arguments.     Finally, the trial

court did err on both the misdemeanor and felony judgment and sentences when it failed to state

whether Walksontop' s misdemeanor sentences are to run concurrently or consecutively and

when    it   marked    that   a    dismissed     sentence    enhancement         applied.    Therefore, we affirm the


convictions,    but   remand      for   clarification and correction of      the judgment      and sentences.
43528 -4 -II



                                                       FACTS


         The State charged Walksontop with first degree burglary, two counts of second degree

robbery,    two   counts of   harassment —death threats, unlawful imprisonment, and three counts of


fourth degree assault .after he forcibly entered an apartment and threatened and attacked the

occupants.     The State also alleged that Walksontop was armed with a deadly weapon, a knife,

when   he   committed   the   crimes. The trial court dismissed the deadly weapon enhancement at the


close of the State' s case.


         After a four -
                      day trial, a jury convicted Walksontop of all counts except one count of

second     degree robbery.      The trial court determined that an aggravating circumstance applied


because Walksontop' s offender score resulted in some of the crimes going unpunished, but it
sentenced      him   within   the    standard   range.    The trial court sentenced him to 364 days'


confinement for each of the misdemeanor assaults and 110 months' confinement for the felonies.

The misdemeanor judgment and sentence did not indicate whether the sentences are to be served

consecutively or concurrently and the felony judgment and sentence stated that a deadly weapon
enhancement applied       even      though the trial   court   dismissed that   enhancement.   The court also


imposed several LFOs on Walksontop. Walksontop appeals.

                                                   ANALYSIS


I.       INFORMATION


         First, Walksontop alleges that the information is defective because it does not include the

 essential elements of unlawful imprisonment. Specifically, he argues that the information fails to

 include the statutory definition       of " restrain."   Division One recently held that the definition of

  restrain" is not an essential element of unlawful imprisonment. State v. Phuong, 174 Wn. App.

 494, 545, 299 P. 3d 37 ( 2013).       We agree. Accordingly, the information here is sufficient.
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43528 -4 -II




            All essential elements of a crime, statutory or otherwise, must be included in a charging

document in order to afford notice to an accused of the nature and cause of the accusation against


him."       State       v.     Kjorsvik, 117 Wn.2d 93, 97, 812 P. 2d 86 ( 1991).                              When the information is


challenged for the first time on appeal, we liberally construe the information in favor of its

validity.        Kjorsvik, 117 Wn. 2d                  at   105.     In determining the sufficiency of the information, we

apply   a       prong test: "(
            two -                            1) do the necessary facts appear in any form, or by fair construction can

they be found, in               the charging         document;        and,   if   so, (   2) can the defendant show that he or she


was nonetheless actually prejudiced by the inartful language which caused a lack of notice ?"

Kjorsvik, 117 Wn.2d                    at   105 -06.    We        review   this issue de     novo.      State v. Campbell, 125 Wn.2d


797, 800, 888 P. 2d 1185 ( 1995).


            A person is guilty of unlawful imprisonment if he knowingly restrains another person.

RCW 9A. 40. 040( 1).                   The legislature defines "             restrain"      as "    restrict[ ing] a person' s movements

without consent and without legal authority in a manner [ that] interferes substantially with his or

her    liberty."           RCW 9A.40. 010( 6).                    The information         alleged    that   Walksontop " did knowingly

                                                                                                   Washington 9A.40. 040( 1)."       Clerk' s
restrain [       S. I.],   a   human        being;   contrary to Revised Code               of




Papers      at    10.      Walksontop argues that the information must also include the statutory definition
of "restrain."


                                                 State            Johnson, _        Wn.     App. _,         289 P. 3d 662 ( 2012),   review
            Walksontop             relies on                 v.




granted      in     part,       178 Wn.2d 1001 ( 2013),                a Division One case holding that charging language

identical to the language here                         was    constitutionally deficient.             But, based on a recent Supreme


 Court      case,       State     v.   Allen, 176 Wn.2d 611,                 294 P. 3d 679 ( 2013),             Division One has since


 implicitly        overruled       Johnson.          In Allen, the State charged the defendant with felony harassment,

 and    the defendant             argued       that the information               was     deficient. because only " true threats"         are



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43528 -4 -
         II



criminalized and         the information did           not    include   a    true threat    requirement.    176 Wn.2d at 626 -27.


Our Supreme Court disagreed, holding that the true threat requirement merely defined the

essential threat element in the felony harassment statute, and, thus, it was not error to omit the

true threat requirement from the information. Allen, 176 Wn.2d at 629 -30.

         Division One            applied      this   same     reasoning in       Phuong,        174 Wn.    App.   494.    There, the


State charged the defendant with unlawful imprisonment and the defendant argued that the

information        was   deficient because it did               not   include the definition         of " restrain."   Phuong, 174

Wn.   App.    at   542.    The court reversed its position in Johnson and held that, based on Allen, the

information        was    sufficient      because the statutory definition                     of " restrain"   merely defined an

essential element of unlawful imprisonment and was not itself an essential element. Phuong, 174

Wn. App. at 545.

         We follow Allen                                     here            hold that the information is           sufficient.    The
                                        and   Phuong                  and




statutory definition of "restrain" is not an essential element of unlawful imprisonment; rather, it
merely defines an essential element of the crime.

II.      ALLOCUTION


         Walksontop next argues that he is entitled to resentencing before a new judge because he
was   denied his         right   of allocution at            sentencing.       At sentencing, "[ t] he      court   shall ...     allow




arguments      from the ...        offender ...         as   to the   sentence    to be imposed." RCW 9. 94A. 500( 1).             The


trial court did not give Walksontop a chance to address the court before imposing the sentence,

but Walksontop failed to object to this omission.

         RAP 2. 5(        a)   states   that "[      t]he appellate court may refuse to review any claim of error

 that]   was   not raised         in the trial        court."       RAP 2. 5(    a)(   3)   further states that a party may raise

 particular    types of errors          for the first        time on        appeal,    including "   manifest error[ s] affecting a

                                                                        El
43528 -4 -II



constitutional             right."    But Walksontop fails to argue that any of the exceptions listed in RAP

2. 5(   a)   apply.        Therefore, we do not address his claims that the trial court erred when it did not

give him a chance to address the court. See State v. Hatchie, 161 Wn.2d 390, 406, 166 P. 3d 698

 2007) (          holding that defendant failed to preserve any error regarding his right of allocution);

State        v.   Hughes, 154 Wn.2d 118, 153, 110 P. 3d 192 ( 2005)               abrogated on other grounds by

Washington            v.   Recuenco, 548 U. S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 ( 2006) (       holding that

the right of allocution is statutory and not constitutional; thus, defendant' s failure to object at

trial precludes review).


III.              SENTENCING ERRORS


                  Next, Walksontop argues that we should remand for the sentencing court to indicate on
the misdemeanor judgment and sentence whether his assault sentences are to be served

consecutively or concurrently and to remove the dismissed deadly weapon enhancement from the

felony judgment and sentence. The State concedes that remand is appropriate, and we agree.

                  Regarding the misdemeanor sentence, the sentencing reform act applies only to felony
 offenders;          accordingly,       the trial court has discretion to impose consecutive sentences on

 misdemeanor               convictions.    State   v.   Langford, 67 Wn.   App.   572, 587, 837 P. 2d 1037 ( 1992);


 RCW 9. 94A.010.                     Here, the court did not indicate how the misdemeanor sentences will be

 served. Because the sentencing court' s intent is unclear, we remand for clarification.

                  Additionally, the trial court marked that a deadly weapon enhancement applied on the

 felony judgment and sentence, but it had dismissed this enhancement at the close of the State' s
 case. A trial court may correct a clerical error in the judgment and sentence. State v. Snapp, 119

 Wn.         App.    614, 626, 82 P. 3d 252 ( 2004).        The trial court' s failure to remove the mark indicating



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43528 -4 -II




that a   deadly   weapon enhancement applies              is   a clerical error.       On remand, the sentencing court

should also correct this error in the felony judgment and sentence.

IV.       LFOs


          Finally, Walksontop argues that the trial court erred when it imposed LFOs without

finding   that he had the ability to pay them.                Because he did not object at trial, Walksontop has

waived this issue on appeal.


          At sentencing, the trial court stated that it was entering standard fines, fees, and costs.
                                                                 the   following      LFOs: $ 412. 10           restitution, $   500
The    felony judgment        and    sentence    contained




victim assessment         fee, $ 200     criminal   filing   fee, $ 250   jury      demand fee, $ 1, 500 court appointed


                                         diem, $ 500 fine,             100 DNA                         fee.'   The trial court did
attorney fees, $ 2, 400 trial      per                         and $                  collection




not check the box on the judgment and sentence stating that the defendant has the ability to pay.

                                           to the              imposition           the   fines   or   fees.   Therefore, he has
But    Walksontop did       not object              court' s                   of




waived his ability to challenge the trial court' s imposition of LFOs. RAP 2. 5( a); Snapp, 119 Wn.

App. at 626 n.8.

          Walksontop contends that he may raise this issue for the first time on appeal, citing State
      Bertrand, 165 Wn.                  393, 267 P. 3d 511 ( 2011).            But Bertrand is distinguishable.                 The
v.                            App.

 defendant in that case was disabled and the sentencing court ordered her to begin payment on her

 LFOs 60 days after entry of the judgment and sentence, while she would still be in confinement
 for her 36 -month       sentence.       Bertrand, 165 Wn.        App.    at   398.   Based on these facts, we reversed


                                  that the defendant         had the ability to pay the LFOs.                  Bertrand, 165 Wn.
 the trial   court' s   finding




     Several of these LFOs are mandatory, and Walksontop concedes that he cannot challenge their
 imposition.
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43528 -4 -II




App.   at   404.   By contrast, here, there is no evidence that Walksontop would be similarly unable

to pay. Therefore, we affirm the trial court' s imposition of LFOs.

V.          SAG


            Walksontop      alleges    several   sources   of error   in his SAG.   But he fails to provide any

argument regarding the errors; he merely lists the page numbers in the record where the errors

allegedly     occurred.     A defendant may file a SAG to identify and discuss those matters that he

believes     were not     adequately    addressed   by   counsel' s   brief. RAP 10. 10( a). We will not consider


a defendant' s SAG if it does not inform the court of the nature and occurrence of alleged errors.

RAP 10. 10( c).       Here, Walksontop did not discuss or inform the court of the nature of the alleged

errors.     Consequently, we decline to review his SAG.

            We affirm the convictions, but remand to the sentencing court to clarify and correct

errors in both judgment and sentences.


            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.




                                                                       Yi            J.


 We concur:




            Max a, J. ,
                              J-   J
            Lee, J.

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