                                                                             FILED
                                                                         MAY 1, 2018
                                                                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
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 34958-6-III
                     Respondent,              )
                                              )
       v.                                     )         UNPUBLISHED OPINION
                                              )
ARISTEO GARCIA RUBIO,                         )
                                              )
                     Appellant.               )

       FEARING, J. — Aristeo Rubio, a sex offender, challenges language in his judgment

and sentence imposing time restraints for registering as an offender. He also challenges

an order to pay incarceration costs. We agree, in part, with the challenges and remand for

correction of the judgment and sentence.

                                           FACTS

       Aristeo Rubio worked as a paraeducator at a Yakima middle school. While

employed, he befriended a twelve-year-old student and eventually engaged in intercourse

with the girl.

                                      PROCEDURE

       The State of Washington charged Aristeo Rubio with rape of a child in the second

degree. The State also sought a sentence enhancement for the aggravating circumstance

that Rubio used his position of trust and confidence to facilitate the offense. The jury
No. 34958-6-III
State v. Rubio


convicted Rubio of the underlying crime and the enhancement.

       Due to the finding of an aggravating circumstance, the trial court imposed an

exceptional sentence. The sentencing court sentenced Aristeo Rubio to one hundred and

twenty months’ confinement to life. The judgment and sentence includes an order for

community custody, but the sentence does not delineate the length of community

custody.

       We quote numerous paragraphs from the judgment and sentence, which relate to

Aristeo Rubio’s assignments of error and his community custody conditions. Paragraph

4.B.1 reads:

               Community Custody: The defendant shall serve community custody
       for any period of time the defendant is released from total confinement
       before the expiration of the maximum sentence on Count 1 pursuant to
       RCW 9.94A.507. The defendant shall report, in person, within 24 hours of
       this order or release from incarceration, whichever is later, to the
       Washington State Department of Corrections, 210 North Second Street,
       Yakima, Washington.

Clerk’s Papers (CP) at 103. As a condition of community custody, paragraph 4.C.3

similarly demands that Aristeo Rubio:

              Register as a sex offender as required by RCW 9A.44.130 within 24
       hours of release from incarceration.

CP at 104. Section 5.7 of the judgment and sentence also includes a registration

requirement that states:

              1. General Applicability and Requirements: Because this crime
       involves a sex offense or kidnapping offense involving a minor as defined
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No. 34958-6-III
State v. Rubio


       in RCW 9A.44.130, the defendant is required to register with the sheriff of
       the county of the state of Washington where he or she resides. If the
       defendant is not a resident of Washington but is a student in Washington or
       is employed in Washington or carries on a vocation in Washington, the
       defendant must register with the sheriff of the county of his or her school,
       place of employment, or vocation. The defendant must register
       immediately upon being sentenced unless he or she is in custody, in which
       case the defendant must register within 24 hours of release.

CP at 107.

       After imposing the term of confinement, the court engaged in a brief inquiry

regarding Aristeo Rubio’s ability to pay legal financial obligations. Defense counsel

informed the sentencing court that a school district previously employed Rubio, but he

lost employment upon his incarceration. Counsel reminded the court that Rubio would

remain in jail for at least ten years and predicted that Rubio, because of the nature of his

crime, would encounter difficulty gaining employment on release from prison. The

sentencing court found Rubio currently indigent for purposes of appeal and that Rubio

lacked the present and future ability to pay financial obligations. As a result, the court

struck a discretionary attorney fee recoupment provision, but imposed discretionary costs

of incarceration. Defense counsel did not object to the imposition of incarceration costs

but asked that costs be capped at $300. The sentencing court agreed. Otherwise, the

court only imposed mandatory legal financial obligations.




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No. 34958-6-III
State v. Rubio


                                  LAW AND ANALYSIS

       On appeal, Aristeo Rubio asks this court to amend his judgment and sentence to

reflect that he receives three days to register as a sex offender and to remove the

obligation to pay for incarceration costs. We grant the requests in part.

                                 Sex Offender Registration

       Aristeo Rubio registered no objection before the sentencing to the portions of the

sentence he now challenges. Nevertheless, a defendant cannot agree to a sentence in

excess of what the legislature authorized. In re Personal Restraint of Moore, 116 Wn.2d

30, 38-39, 803 P.2d 300 (1991). An offender may challenge an unlawful sentence for the

first time on appeal. State v. Warnock, 174 Wn. App. 608, 611, 299 P.3d 1173 (2013).

       RCW 9A.44.130 imposes registration requirements on a sex offender. Aristeo

Rubio argues his judgment and sentence went a step too far in requiring him to register

within twenty-four hours as it conflicts with the statutory obligations. He further argues

that the language fails to identify the recipient of the registration under the twenty-four-

hour requirement.

       The lengthy statute, RCW 9A.44.130 declares, in part:

               (1)(a) Any adult or juvenile residing whether or not the person has a
       fixed residence, or who is a student, is employed, or carries on a vocation in
       this state who has been found to have committed or has been convicted of
       any sex offense or kidnapping offense . . . shall register with the county
       sheriff for the county of the person’s residence. . . . When a person
       required to register under this section is in custody of the state department
       of corrections . . . as a result of a sex offense or kidnapping offense, the
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No. 34958-6-III
State v. Rubio


       person shall also register at the time of release from custody with an official
       designated by the agency that has jurisdiction over the person.
               (b) Any adult or juvenile who is required to register under (a) of this
       subsection must give notice to the county sheriff of the county with whom
       the person is registered within three business days:
               (i) Prior to arriving at a school or institution of higher education to
       attend classes;
               (ii) Prior to starting work at an institution of higher education; or
               (iii) After any termination of enrollment or employment at a school
       or institution of higher education.
               ....
               (4)(a) Offenders shall register with the county sheriff within the
       following deadlines:
               (i) OFFENDERS IN CUSTODY. Sex offenders or kidnapping
       offenders who are in custody of the state department of corrections . . .
       must register at the time of release from custody with an official designated
       by the agency that has jurisdiction over the offender. The agency shall
       within three days forward the registration information to the county sheriff
       for the county of the offender’s anticipated residence. The offender must
       also register within three business days from the time of release with the
       county sheriff for the county of the person’s residence. . . . The agency that
       has jurisdiction over the offender shall provide notice to the offender of the
       duty to register.


       RCW 9A.44.130 repeatedly imposes, on a sex offender, two registration

obligations. First, the offender must register with the Department of Corrections on his

release from incarceration or within twenty-four hours of the release. Second, the

offender must register with the sheriff of the county, in which the offender resides, within

three business days of release.

       Aristeo Rubio’s judgment and sentence fails to always distinguish between the

two distinct registration requirements. Paragraph 4.B.1 correctly imposes an obligation


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No. 34958-6-III
State v. Rubio


to report to the Department of Corrections within twenty-four hours. Paragraph 4.C.3

imposes a similar obligation to register as a sex offender within twenty-four hours, but

the order does not identify the office at which Rubio registers. Conceivably Rubio could

violate the order if he fails to register with his county sheriff within one day. Paragraph

5.7 expressly imposes on Rubio the obligation to register with the county sheriff within

twenty-four hours of his release. Therefore, we remand to the sentencing court to modify

the judgment and sentence. All references to registration within twenty-four hours

should limit the duty to reporting to the Department of Corrections. All references to

registration with the county sheriff should afford three business days for accomplishing

the obligation.

                                     Incarceration Costs

       Aristeo Rubio next challenges the imposition of $300 in incarceration costs. RCW

10.01.160(2) allows a trial court to impose costs, including incarceration expenses, on a

convicted defendant. The court, however, “shall not order a defendant to pay costs

unless the defendant is or will be able to pay them.” RCW 10.01.160(3) (emphasis

added). Use of the word “shall” does not confer discretion but creates a duty not to

impose costs. State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015).

       The statutory language provides that the sentencing court may only impose

discretionary costs if it finds the defendant has the likely present or future ability to pay.



                                               6
No. 34958-6-III
State v. Rubio


The sentencing court found Aristeo Rubio lacked any present or future ability to pay and

found Rubio indigent for purposes of this appeal.

         Pursuant to the discretion imposed on this court under State v. Blazina, this court

often declines to address challenges to amounts of discretionary legal financial

obligations, when the offender failed to object before the trial court. Because we remand

this case on other grounds, we choose to also remand for the striking of the incarceration

costs.

                                       CONCLUSION

         We remand to the sentencing court to amend the sex offender ;reporting

requirements consistent with this decision. We also remand for the striking of the

imposition of incarceration costs. Because Aristeo Rubio prevails in part, we decline to

award appellate costs to the State.

         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.


                                            Fearing,   i
WE CONCUR:




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