,


                                                                                 FILED 

                                                                               OCT. 24, 2013 

                                                                      In the Office of the Clerk of Court 

                                                                    W A State Court of Appeals, Division III 





               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                  DIVISION THREE 


     STATE OF WASHINGTON,                           )        No. 30560-1-111
                                                    )
                            Respondent,             )
                                                    )
                  v.                                )
                                                    )
     DANIEL T. STEELMON,                            )        UNPUBLISHED OPINION
                                                    )
                            Appellant.              )

            BROWN,     J. - Daniel T. Steelmon appeals the legal financial obligations (LFOs)

     imposed by the trial court during his second degree theft sentencing. He contends the

     court erred in finding he has the present or likely future ability to pay. We agree and

     remand for the trial court to correct Mr. Steelmon's judgment and sentence.

                                                FACTS

           A jury found Mr. Steelmon guilty of second degree theft. The trial court

     sentenced Mr. Steelmon to 18 months' confinement. During sentencing, Mr. Steelmon

     submitted a signed affidavit regarding his finances for purposes of appointing appellate

     counsel. The court reviewed the affidavit on the record and found he was indigent for

     appeal purposes. The court made no further inquiry into his financial resources and the

     nature of the burden of imposing LFOs. The record is limited to the court "considering

     the total amount owing, the defendant's past, present and future ability to pay legal
N,o. 30560-1-111
State v. Steelmon


financial ,obligati,ons, including the defendant's financial res,ources and the likelih,o,od that

the defendant's status will change." Clerk's Papers (CP) at 7. Similarly, the C,ourt

f,ound, "[T]he defendant has the present ability ,or likely future ability t,o pay the legal

financial ,obligations imp,osed herein." Id. The trial C,ourt imp,osed LFOs. Mr. Steelm,on

appealed.

                                          ANALYSIS

       The issue is whether the trial C,ourt erred in finding Mr. Steelm,on had the present,

,or future, ability t,o pay LFOs. Mr. Steelm,on c,ontends substantial evidence d,oes n,ot

exist t,o SUPP,ort the court's finding. We agree.

       Under RCW 9.94A.760(1), the trial C,ourt may imp,ose LFOs as part ,of the

sentence. But, a defendant cann,ot be ,ordered t,o pay C,osts unless he ,or she is, ,or will

be, able t,o pay them. RCW 10.01.160(3). A trial C,ourt is n,ot required t,o enter f,ormal

findings ,of fact ab,out a defendant's present ,or future ability t,o pay LFOs at the time ,of

sentencing. State v. Bertrand, 165 Wn. App. 393,404,267 P.3d 511 (2011) (citing

State v. Baldwin, 63 Wn. App. 303, 311,818 P.2d 1116,837 P.2d 646 (1991), review

denied, 175 Wn.2d 1014 (2012). But, if an unnecessary finding is made, perhaps

thr,ough inclusi,on ,of b,oilerplate language in the judgment and sentence, this C,ourt

reviews it under the clearly errone,ous standard. Bertrand, 165 Wn. App. at 404 n.13

(citing Baldwin, 63 Wn. App. at 312). "A finding ,of fact is clearly err,one,ous when,

alth,ough there is s,ome evidence t,o SUPP,ort it, review ,of all ,of the evidence leads t,o a

'definite and firm c,onvicti,on that a mistake has been c,ommitted.'" Schryvers v. C,oulee



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.I




     No. 30560-1-111
     State v. Steelmon


     Cmty. Hosp., 138 Wn. App. 648, 654,158 P.3d 113 (2007) (quoting Wenatchee

     Sportsmen Ass'n v. Chelan .County, 141 Wn.2d 169, 176,4 P.3d 123 (2000)).

            The State's burden for establishing whether a defendant has the present or likely

     future ability to pay discretionary LFOs is a low one. In Baldwin, for instance, this

     burden was met by a single sentence in a presentence report that the defendant did not

     object to, which stated, "Mr. Baldwin describes himself as employable, and should be

     held accountable for legal financial obligations normally associated with this offense."

     63 Wn. App. at 311.

            Bertrand, on the other hand, presented the court with a markedly different

     situation. There, the record. showed the trial court acknowledged that Ms. Bertrand had

     a disability and that her "ability to pay LFOs now or in the near future is arguably in

     question." 165 Wn. App. at 404 n.15.

            Here, like in Bertrand, the court found Mr. Steelmon had the ability to pay.

     During the sentence hearing, the court reviewed an affidavit regarding his finances on

     the record and found that he was indigent for purposes of an appeal. The court made

     no further inquiry into Mr. Steelmon's financial resources and the nature of the burden of

     imposing LFOs. Without more, the court's finding regarding current or future ability to

     pay is clearly erroneous under Bertrand.

            The remedy is to affirm the imposition of LFOs, reverse the finding of present or

     future ability to pay, and "remand to the trial court to strike [the] finding ... from the




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No. 30560-1-111
State v. Steelmon


judgment and sentence." Bertrand, 165 Wn. App. at 405. We leave challenges to the

legal financial obligations for when the State seeks to collect the obligation. Id.

       Remanded for judgment and sentence correction in a manner consistent with this

opinion.

       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.


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                                                J. (J
                                                   Brown,
WE CONCUR:



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