                                                                           FILED 

                                                                        JUNE 12,2014 

                                                                 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. 31556-8-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
IGNACIO JUNIOR SALAZAR,                       )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, J. - Ignacio Salazar asks this court to vacate two provisions of his

sentence: legal fmancial obligations (LFOs) and a variable tenn of community custody.

We decline the first request with the qualification that Salazar may challenge the LFOs, if

and when the State attempts to enforce the obligations. We grant his request to vacate the

variable tenn of community custody and remand for imposition of a fixed tenn.

                                      PROCEDURE

       The State of Washington charged Ignacio Salazar with: two counts of delivering a

controlled substance, both with school bus zone enhancements; one count of possession

with intent to manufacture or deliver a controlled substance; and one count of possession

of a controlled substance. During Salazar's trial, the State and Salazar negotiated a plea.

Salazar entered an Alford plea to one charge of delivery of a controlled substance without

the school bus zone enhancement. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,
No. 3 1556-8-III
State v. Salazar


27 L. Ed. 2d 162 (1970). The standard range for the one count was 60 to 120 months'

confinement, given Salazar's offender score. In exchange for Salazar's plea, the State

dismissed the other counts and agreed to recommend a 36-month exceptional sentence.

Accepting the State's recommendation, the court sentenced Salazar to 36 months'

confinement.

       At sentencing, the trial court imposed LFOs. Salazar's counsel objected, stating:

"Mr. Salazar isn't going to be able to pay this back anyway, Your Honor, he's going into

federal custody. I don't see why we should saddle him with a debt that he's not going to

be able to pay." Report of Proceedings (Mar. 27,2013) at 8. The court reviewed a cost

bill during a recess, adjusted some figures downward, and then imposed LFOs totaling

$7,042.28. The court ordered Salazar to pay up to $50 per month, taken from any

earnings received while in custody, and imposed interest on the amount owed. The court

did not find that Salazar has the present or future ability to pay LFOs.

       The trial court also imposed community custody "for the longer of (1) the period

of early release ... or (2) the period imposed by court [of] 12 months." Clerk's Papers

(CP) at 75.

                                 LA W AND ANALYSIS

                                           LFOs

       On appeal, Ignacio Salazar first assigns error to imposition of LFOs without the




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State v. Salazar


trial court considering his present or future ability to pay. 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.

       Ignacio Salazar is correct that the trial court did not consider his present or future

ability to pay LFOs. RCW 10.01.160(3) demands that the court shall "take account of

the financial resources of the defendant and the nature of the burden that payment of

costs will impose." (emphasis added); State v. Curry, 118 Wn.2d 911,916,829 P.2d 166

(1992). Curry observes that, while not required to make findings, "[t]he court is directed

to consider ability to pay." Curry, 118 Wn.2d at 916 (emphasis added). "The State's

burden for establishing whether a defendant has the present or likely future ability to pay

discretionary legal financial obligations is a low one." State v. Lundy, 176 Wn. App. 96,

106,308 P.3d 755 (2013). As Lundy observes, it has been deemed met by a single

reference in a presentence report to the defendant describing himself as '''employable. '"

Id. (internal quotation marks omitted) (quoting State v. Baldwin, 63 Wn. App. 303, 311,

818 P.2d 1116,837 P.2d 646 (1991». A trial court is prohibited from imposing legal

financial obligations only when it appears from the record that there is no likelihood that

the defendant's indigency will end. Lundy, 176 Wn. App at 99.

       In response, the State argues that Ignacio Salazar is not an "aggrieved party" for




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State v. Salazar


purposes of RAP 3.1. The State is also correct. Challenges to LFOs are not properly

before this court until the State seeks to enforce them. State v. Hathaway, 161 Wn. App.

634,651,251 PJd 253 (2011); State v. Smits, 152 Wn. App. 514, 524,216 P.3d 1097

(2009). Because a person is not an "aggrieved party" under RAP 3.1 "until the State

seeks to enforce the award of costs and it is determined that [the defendant] has the

ability to pay," appellate review is inappropriate. State v. Mahone, 98 Wn. App. 342,

349,989 P.2d 583 (1999); see also State v. Blank, 131 Wn.2d 230,242,930 P.2d 1213

(1997).

       In State v. Crook, 146 Wn. App. 24, 27-28, 189 P.3d 811 (2008), this division held

that "[m]andatory [d]epartment of [c]orrections deductions from inmate wages for

repayment of legal financial obligations are not collection actions by the State requiring

inquiry into a defendant's financial status." Thus, H[i]nquiry into the defendant's ability

to pay is appropriate only when the State enforces collection under the judgment or

imposes sanctions for nonpayment." Crook, 146 Wn. App. at 27.

       After costs are imposed, a defendant who is not in contumacious default may

petition the sentencing court for remission of the payment of all or part of them. RCW

10.01.160(4). Due process precludes the jailing of an offender for failure to pay a fine if

the offender's failure to pay was due to his or her indigence; while the burden is on the

offender to show that his nonpayment is not willful, "due process still imposes a duty on




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State v. Salazar


the court to inquire into the offender's ability to pay ... at 'the point of collection and

when sanctions are sought for nonpayment. ", State v. Nason, 168 Wn.2d 936, 945, 233

P.3d 848 (2010) (citation omitted) (quoting Blank, 131 Wn.2d at 242).

       Here, the court ordered Salazar to pay up to $50 per month from his department of

correction wages towards his LFOs. But there is no evidence that the State has otherwise

sought to enforce collection or impose sanctions for nonpayment. If and when the State

seeks to collect, Salazar may petition the court for remission under RCW 10.0 1.160(4),

which states:

              A defendant who has been ordered to pay costs and who is not in
       contumacious default in the payment thereof may at any time petition the
       sentencing court for remission of the payment of costs or of any unpaid
       portion thereof. If it appears to the satisfaction of the court that payment of
       the amount due will impose manifest hardship on the defendant or the
       defendant's immediate family, the court may remit all or part of the amount
       due in costs, or modify the method of payment under RCW 10.01.170.

The denial or granting of that motion would warrant appellate review.

                           Variable Term o/Community Custody

       The trial court imposed community custody "for the longer of (1) the period of

early release ... or (2) the period imposed by court [of] 12 months." CP at 75. Ignacio

Salazar contends the sentencing court exceeded its statutory authority when it imposed a

variable term of community custody. The State concedes this error, citing State v.

Franklin, 172 Wn.2d 831, 836,263 P.3d 585 (2011).




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State v. Salazar


       "A trial court may only impose sentences that statutes authorize." State v.

Albright, 144 Wn. App. 566, 568, 183 P.3d 1094 (2008). This court reviews issues of

statutory construction de novo as a question oflaw. State v. Wilson, 170 Wn.2d 682, 687,

244 P.3d 950 (2010).

       Previously, a court could impose a variable term of community custody under

RCW 9.94A.715. But our legislature repealed RCW 9.94A.715 in 2008 in favor of fixed

terms of community custody. LAWS OF 2008, ch. 231, § 57; LAWS OF 2009, ch. 28, § 42.

Under the amended statute, RCW 9.94A.701(l)-(3), a court may no longer sentence an

offender to a variable term of community custody contingent on the amount of earned

release but instead, it must determine the precise length of community custody at the time

of sentencing. Franklin, 172 Wn.2d at 836. Ignacio Salazar's contingent sentence, the

longer of the period of early release or 12 months, violates RCW 9.94A.701.

                                     CONCLUSION

       We refuse to review the imposition ofLFOs at this time, but reserve for Ignacio

Salazar the right to challenge the obligations if and when the State seeks to enforce the

obligations. We remand with instructions for the trial court to strike the variable term of

community custody.




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      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.




WE CONCUR: 





Brown, A.C.t.                                Lawrence-Berrey, J.




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