                                                                                                      LED
                                                                                         COURT OF APPEALS
                                                                                            DIVISION

                                                                                        21M DEC 30 AM 9: t15
     IN THE COURT OF APPEALS OF THE STATE WANNARTggisT

                                                     DIVISION II                         BY
                                                                                                   DEP TY
 STATE OF WASHINGTON.                                                                   No. 44561 - 1 - II


                                       Respondent,


            v.



 JACOB BENJAMIN MATTILA, aka JACOB                                                    Consolidated with:
 BENJAMIN MATILLA,


                                       Appellant.
 STATE OF WASHINGTON,                                                                   No. 44621 -9 -II


                                       Respondent,


            v.



 MYKELL ALEX BRU,                                                                UNPUBLISHED OPINION


                                       Appellant.




          LEE, J. —   A jury found Jacob Benjamin Mattila and Mykell Alex Bru guilty of residential

burglary. The jury also found Mattila guilty of first degree burglary, an additional count of

residential burglary, two counts of theft of a firearm, first degree theft, and unlawful possession of

a firearm. Mattila appeals, arguing that he received ineffective assistance of counsel and that there

was insufficient evidence to support the jury' s verdict finding him guilty of unlawful possession

of a firearm. Bru also appeals, arguing that the trial court erred by denying his motion to continue

trial.   Mattila and Bru both argue that prosecutorial misconduct denied them a fair trial and that

the trial   court   improperly    imposed legal financial            obligations.   The State concedes that there was


insufficient     evidence   to   support   the   jury' s   verdict   finding   Mattila guilty   of unlawful possession of
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a firearm, and we accept the State' s concession. Mattila' s and Bru' s remaining claims lack merit.

Accordingly, we vacate Mattila' s .conviction for unlawful possession of a firearm and remand for

resentencing, and we affirm Mattila' s remaining convictions and Bru' s residential burglary

conviction.



                                                        FACTS


          On October 16, 2012, P. M.1 was home alone. The doorbell rang, but P. M. did not answer

the door because she did not recognize the man standing outside. P. M. called her mother and told

her there was     a stranger at     the door.   P.M.' s mother, Jennifer Mock, told P. M. not to answer the


door. A few minutes later, P. M. saw someone in the house. P.M. hid in the pantry and called 911.

From the window in the pantry, P.M. saw a tan car with a dark stripe and described the car to the

dispatcher. P. M. also saw a man in the house who was not the man who rang the doorbell. When

P.M. thought the men were away from the pantry, she ran out of the house and hid behind a tree

in the front yard.


          Clark   County       Sheriff' s   Deputy   Rick Buckner   responded   to P. M.' s 911   call.   When he


arrived at the house, he saw Mattila sitting in a tan Honda with a dark stripe down the side.

Buckner asked Mattila what he was doing there, and Mattila responded that he was trying to find

his   girlfriend' s   house.    Buckner placed Mattila in his police car while he figured out what was


going on. About the same time, Mock returned home and ran into the house. When Mock came

back    outside, she    told Buckner that her home had been burgled.             Buckner called for additional




1 Because P.M. is a minor, we use her initials to protect her privacy.

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units to respond, left Mattila in the car, and entered the house to ensure that there were no additional

suspects inside.


          While at the scene, Buckner determined that the tan Honda was stolen. They obtained the

car owner' s permission            to   search   the    car.   In the car, officers found stolen property, including

firearms in the trunk.


          Mattila     gave   a   statement       implicating     himself in    several     other   burglaries.   One of the


burglaries to which Mattila admitted involvement occurred in Washougal just prior to the burglary

at the Mock house.


          Several days       after   the   burglary,     Mock found       a cigarette   in her bathroom. She turned the


cigarette over      to the   sheriffs, office.          The forensics lab determined that the cigarette contained


Bru' s deoxyribonucleic acid (DNA).


          The State    charged       Mattila     with   first degree    burglary ( count   one),   two counts of residential



burglary ( count two         and   three),   possession of a stolen vehicle ( count           four), two counts of theft of


a   firearm ( count five     and seven),     first degree theft (count       six),   and unlawful possession of a firearm


 count eight).      The State      charged     Bru     with residential    burglary ( count   three),   first degree burglary

 count nine), and      theft     of a   firearm ( count ten). Mattila and Bru were tried together.


          On Monday, February 11, 2013, the first day of trial, Bru moved for a continuance because

he had just    received      the DNA       report      the   previous   Thursday     afternoon.    The State explained that


the parties had initially agreed to a continuance. However, at the readiness hearing on the previous

Thursday, Bru called the case ready for trial knowing that the State was still waiting for the DNA

report.    The State received the DNA report that afternoon and immediately forwarded it to Bru.




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Furthermore, there was supposed to be a hearing on a motion to continue the next day ( Friday),

but Bru did      not appear.           Bru argued that the continuance was necessary because he wanted to

obtain an expert       to   respond          to the State'       s expert.    The trial court denied the continuance because


Bru was aware that the DNA report was pending and called the case ready.

         After a CrR 3. 5 hearing, the trial court concluded that Mattila' s statements to the police

were admissible. At trial, Clark County Sheriff' s Office Deputy Robin Yakhour testified regarding

a redacted version of Mattila' s statements.2 Mattila stated that he was the lookout and driver for

the burglaries. He also stated that the men who actually performed the burglaries generally looked

for   guns and gold         to   steal   from the homes they burglarized.                   Deputy Yakhour testified that the

following exchange took place in regard to the Washougal burglary:

                   I   asked, "    You sat out there and basically you' re the lookout again ?"
                   Mr. Mattila           replied, " Yes."

                   I   asked, "    They load stuff into the trunk ?"
                   Mr. Mattila           says, "       Yes."
                       Did they tell          you what         they   acquired    in the house ?" I asked.
                   He       says, "   No."
                   I   said, "    Not a word ?"
                   He       said, "      Theythey don' t—they said something about not enough
         jewelry."
                   I   said, "   Okay."           I   asked, "   So, did they tell you there were guns in the house ?"
                   Mr. Mattila           replied, "          Um— because        yes, um, one of    them   was   like —he' s
         like, `Hey, there'           s —'    I   said, ` Did you guys get what you —did you guys get— what

         did    you guys get ?'          And          they   were   like, ` Oh,   there' s some jewelry and like that. "'

2B Report of Proceedings ( RP) at 508 -09.


         At closing argument, the prosecutor argued:



2 Because Mattila and Bru were tried together, Mattila' s statements were required to be redacted
to comply with Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 ( 1968).
There is   no   issue regarding the                   admission of    the    statements.
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         These two Defendants had zero regard for other people' s property, their sense of
         security, or their right to be safe in their own homes. They didn' t care that ten -
         year -old [ P. M.] was home all alone that day, terrified, hiding in the pantry. They

         didn' t consider how her mother would feel about leaving her daughter home alone
         that day, even for a few minutes.

                   These two didn' t care that the victims of their crimes worked hard to obtain
         the property that they had. They didn' t care that those things meant something to
         them, and they didn' t care how these people would feel after their homes had been
         invaded by complete strangers to them. It meant nothing to them, nothing.

3 RP    at    658, 659 -60.        The prosecutor went on to argue that Mattila was guilty of unlawful

possession of a firearm on the date of the Washougal and Mock burglaries because the guns were

in the trunk of the car he was driving and because he knew that the goal of the burglaries was to

steal gold and guns. Neither Mattila nor Bru objected during the prosecutor' s closing argument.

         The jury found Mattila guilty of first degree burglary, two counts of residential burglary,

two counts of theft of a firearm, first degree theft, and unlawful possession of a firearm. The jury

also   found Bru guilty       of residential   burglary. The trial court imposed standard range sentences

and legal financial obligations. Mattila and Bru appeal.

                                                     ANALYSIS


A.       MATTILA' S ISSUES


         1.        Ineffective Assistance of Counsel


         A defendant claiming ineffective assistance of counsel has the burden of establishing that

 1) counsel' s performance was deficient and ( 2) counsel' s deficient performance prejudiced the

defendant' s case. Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

 1984). (     Failure to establish either prong is fatal to an ineffective assistance of counsel claim.

Strickland, 466 U.S.          at   700.   Counsel' s performance is deficient if it falls below an objective




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standard of reasonableness.           State   v.   McFarland, 127 Wn.2d 322, 334, 899 P. 2d 1251 ( 1995). Our


scrutiny of counsel' s performance is highly deferential and we strongly presume reasonableness.

McFarland, 127 Wn.2d             at   335.     To establish prejudice, a defendant must show a reasonable


probability that the outcome of the trial would have differed absent counsel' s deficient

performance. McFarland, 127 Wn.2d at 337.


            Mattila contends that he received ineffective assistance of counsel because defense counsel

did not move to suppress the evidence found in the car or Mattila' s statements. Mattila asserts that


he was unlawfully arrested because, at the time Buckner arrested him, Buckner did not have

probable cause to believe that a crime had been committed.

            When an ineffective assistance of counsel claim is based on a failure to move to suppress

evidence, the defendant must show that the motion to suppress would have been granted.

McFarland, 127 Wn.2d            at   333 -34. However, "[ t]hat standard often cannot be met when the record


lacks   a   factual basis for   determining        the   merits of   the claim."   State v. Walters, 162 Wn. App. 74,

81, 255 P. 3d 835 ( 2011) ( citing McFarland, 127 Wn.2d                      at   337 -38).   Here, the record before us


lacks the factual basis for determining whether a claim that Mattila' s arrest was unlawful would

have been successful.


            Because Mattila never challenged the lawfulness of his arrest, the parties never developed


the record necessary to determine when Mattila was actually arrested. Mattila argues that he was

arrested when Buckner detained him by placing Mattila in his vehicle. The record is clear that, at

that point, Mattila was not free to leave. But, an officer may detain a person, without formal arrest,

for further investigation if the officer has a reasonable suspicion that the person has been involved




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in   criminal     activity. State    v.   Day,   161 Wn.2d 889, 895, 168 P. 3d 1265 ( 2007). Here, Mattila was


outside of the Mock house in the same car P.M. described when she called 911. A trial court could

have determined that Buckner reasonably detained Mattila to further investigate whether a

burglary had occurred. However, the issue before the trial court at the CrR 3. 5 hearing was whether

Mattila was properly read his Miranda rights prior to giving his statements to the police; the trial

court was not asked to determine whether Mattila' s arrest was lawful. Therefore, the record is not

fully developed as to the circumstances regarding Mattila' s detention and arrest, or the officers'

search of the vehicle. The facts here have not been settled, the parties have not had an opportunity

to develop their arguments, and the trial court has not made factual findings for our review.

Accordingly, Mattila has failed to meet his burden to show counsel' s performance was deficient

because the record is insufficient for us to determine whether the motion to suppress would have

been granted.3

          2.         Sufficiency      of   the Evidence —Unlawful             Possession of a firearm


            The test for determining the sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond      a reasonable     doubt."       State   v.   Salinas, 119 Wn. 2d 192, 201, 829 P. 2d 1068 ( 1992). " A


claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably

can    be drawn therefrom."               Salinas, 119 Wn.2d           at    201.   All " reasonable inferences from the


evidence must be drawn in favor of the State and interpreted most strongly against the defendant."




3
     When   a claim rests on matters outside             the   record, "    a personal restraint petition is the appropriate
vehicle     for   bringing   those   matters     before the     court."     McFarland, 127 Wn.2d at 338.



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Salinas, 119 Wn.2d        at   201.   Circumstantial and direct evidence are deemed equally reliable. State

v.   Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). "         Credibility determinations are for the trier

of   fact   and cannot   be    reviewed on appeal."     State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850


 1990).


            To convict Mattila of unlawful possession of a firearm, the State was required to prove that

Mattila knowingly owned, possessed, or controlled a firearm, and that Mattila had been convicted

of a serious offense.         RCW 9. 41. 040( 1).    Knowing possession is an essential element of unlawful

possession of a       firearm. State    v.   Anderson, 141 Wn.2d 357, 366 -67, 5 P. 3d 1247 ( 2000). Mattila


was charged with unlawful possession of a firearm on October 16, the date of the Washougal and

Mock        robberies.   Therefore, the State had to present sufficient evidence to prove that the guns


were in the trunk of the car Mattila was driving and that Mattila knew the guns were in the trunk.

The State concedes that there was not sufficient evidence to prove that Mattila knew that the guns

were in the trunk, and therefore, there was not sufficient evidence to support the jury' s verdict

finding Mattila guilty of unlawful possession of a firearm. We agree.

            Here, the evidence presented at trial established that the men committing the Washougal

burglary stated that there was not enough jewelry in the house; there was no evidence that Mattila

was told they stole guns from the house. The inference that, because the goal was usually to steal

gold and guns, Mattila must have known there were guns in the car, is not sufficient evidence for

a rational trier of fact to find beyond a reasonable doubt that Mattila knew the guns were in the

trunk. Accordingly, we accept the State' s concession and vacate Mattila' s conviction for unlawful

possession of a firearm.




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B.         BRU' S MOTION TO CONTINUE4


           The decision to grant or deny a continuance rests within the sound discretion of the trial

court, and we will not disturb the trial court' s decision unless the defendant can show that the trial

court' s    decision     was "'    manifestly      unreasonable,     or   exercised   on   untenable   grounds,   or for


untenable reasons. "'         State    v.   Downing,    151 Wn.2d 265, 272 -73, 87 P. 3d 1169 ( 2004) ( quoting


State   ex rel.   Carroll    v.   Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)). "          In exercising discretion

to grant or deny a continuance, trial courts may consider many factors, including surprise,

diligence, redundancy, due            process,    materiality,   and maintenance of orderly procedure."      Downing,

151 Wn.2d        at   273 ( citing State    v.   Eller, 84 Wn. 2d 90, 95, 524 P. 2d 242 ( 1974); RCW 10. 46. 080;


CrR 3. 3 ( f)). The      mere existence of surprise and diligence does not require reversing a trial court' s

decision denying a motion to continue in order for the defense to secure expert testimony.

Downing, 151 Wn.2d at 274.

           Bru argues that the trial court abused its discretion when it denied his motion to continue

because the prosecutor did not provide him with the DNA lab report until just before trial and he

did not have time to have an expert review the results. But Bru knew that the DNA results would


be available the afternoon after the readiness hearing, and he decided to call the case ready for

trial. And, Bru did not make any effort to contact an expert or present an offer of proof as to what




4 In addition to arguing that the trial court erred by denying his motion to continue trial and by
imposing legal financial obligations, Bru asserts the trial court erred by refusing to grant him a
new        Presumably, Bru is referencing the trial court' s orders denying Bru' s CrR 7. 5 motion.
        trial.

However, Bru offers no argument or authority addressing his assignment of error; Bru does not
even reference his post- conviction motions in his analysis. Accordingly, we do not consider Bru' s
assignment of error referencing the trial court' s decision on his CrR 7. 5 motion. RAP 10. 3( a)( 6);
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 ( 1992).


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he   would present expert           testimony for.       The trial court considered the fact that Bru was not


surprised by the evidence because he knew that it was going to be disclosed shortly at the time he

called   the   case   ready.    The trial court did not act unreasonably when it determined that Bru was

not surprised by the evidence and that Bru did not act diligently by calling the case ready when he

was aware the report was about to be disclosed. We affirm the trial court' s decision to deny Bru' s

motion to continue on the morning of trial.

C.       JOINT ISSUES


          1.          Prosecutorial Misconduct


         To prevail on a claim of prosecutorial misconduct, Mattila and Bru must show that the


prosecutor' s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278

P. 3d 653 ( 2012) ( citing State          v.   Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011)).   First, we


must determine whether the prosecutor' s conduct was improper. Emery, 174 Wn.2d at 759. If we

determine that the prosecutor' s conduct was improper, we then determine whether the prosecutor' s


improper conduct resulted in prejudice. Emery, 174 Wn.2d at 760 -61. Prejudice is established by

showing a substantial likelihood that the prosecutor' s misconduct affected the verdict. Emery, 174

Wn.2d at 760.


          If the defendants did not object at trial, the defendants are deemed to have waived any

error, unless the prosecutor' s misconduct was so flagrant and ill-intentioned that an instruction


could not have cured any resulting prejudice. Emery, 174 Wn.2d at 760 -61 ( citing State v. Stenson,

132 Wn.2d 668, 727, 940 P. 2d 1239 ( 1997)).                    Under this heightened standard of review, the


defendant      must show       that "( 1) `    no curative instruction would have obviated any prejudicial effect




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on the jury' and ( 2) the misconduct resulted in prejudice that ` had a substantial likelihood of

affecting the jury      verdict. '      Emery, 174 Wn.2d at 761 ( quoting Thorgerson, 172 Wn.2d at 455).

          In closing argument, prosecutors are afforded wide latitude to draw and express reasonable

inferences from the evidence. State v. Reed, 168 Wn. App. 553, 577, 278 P. 3d 203, review denied,

176 Wn.2d 1009 ( 2012).              Prosecutors may not rely on facts outside the evidence or use arguments

calculated   to inflame the          passions or prejudices of            the   jury. In re Pers. Restraint of Glasmann,

175 Wn.2d 696, 704, 286 P. 3d 673 ( 2012);                     State v. Jones, 71 Wn. App. 798, 808, 863 P. 2d 85

 1993),   review   denied, 124 Wn.2d 1018 ( 1994). We do not look at the comment in isolation, but


in the context of the total argument, the issues in the case, the evidence, and the instructions given

to the   jury. State    v.   Yates, 161 Wn.2d 714, 774, 168 P. 3d 359 ( 2007), cert. denied, 554 U. S. 922


 2008).    We   presume        the   jury    follows the trial       court' s   instructions. State v. Anderson, 153 Wn.


App. 417,    428, 220 P. 3d 1273 ( 2009), review denied, 170 Wn.2d 1002 ( 2010).


          Mattila and Bru challenge the following portion of the prosecutor' s closing argument:

          These two Defendants had zero regard for other people' s property, their sense of
          security,   or     their   right   to be   safe   in their   own      homes.   They didn' t care that ten -
          year -old [   P. M.]   was    home      day,
                                                 all alone       hiding in the pantry. They
                                                              that         terrified,

          didn' t consider how her mother would feel about leaving her daughter home alone
          that day, even for a few minutes.

                   These two didn' t care that the victims of their crimes worked hard to obtain
          the property that they had., They didn' t care that those things meant something to
          them, and they didn' t care how these people would feel after their homes had been
          invaded by complete strangers to them. It meant nothing to them, nothing.

3 RP at 658, 659 -60.


          First, Mattila and Bru argue that the prosecutor committed misconduct by relying on facts

outside the evidence; specifically, that Mattila and Bru did not care about P.M. being alone or



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terrified.    The    prosecutor    did   not   improperly   rely      on   facts   outside   the   record.   P. M. testified that


she   believed the     man who      rang the doorbell       saw    her     looking    out   the    window.    1B RP 273.    The


prosecutor did not commit misconduct by inferring that the burglars then knew she was there and

broke into the house anyway. It was also reasonable to infer that, if Mattila and Bru knew P. M.


was in the house, they would know she would be scared or terrified by strange men breaking into

her house.


         Second, Mattila and Bru argue that the prosecutor improperly appealed to the jury' s
passions and prejudice.           The    prosecutor' s argument was not               improper.       In State v. Brown, 132


Wn.2d 529, 562 -63, 940 P. 2d 546 ( 1997),               cent.   denied, 523 U.S. 1007 ( 1998), our Supreme Court


held that     statements    asking the     jury   to    personalize        crimes were not          improper.    In Brown, the


prosecutor stated:




         I' ve sort of lived with Holly [Washa] over the last two years or so preparing for this
         case, and perhaps I' ve personalized her a little bit. Maybe by the time this trial is
         over, you will know enough about her that maybe you' ll personalize her a little bit.
         The one thing I do hope though is that justice can be done by the end of this trial
         and we can put Holly [ Washa] to rest.

         I want to assure you at the end of this case you' re not going to look at me and say,
             Did he do it ?" I    suggest you' re      going to look       at me and you' re       going to say, " How
         could    he have done it ?" And, you know, that' s one question that I won' t be able to
         answer for you. I don' t have to answer it for you. I can' t imagine how any person
         could have done this to Holly Washa or to any other living human being. How

         could he have done it?


132 Wn. 2d      at   562.   The   court   held that the    prosecutor' s statements were not                 improper. Brown,


132 Wn.2d at 563. Here, the prosecutor reminded the jury that property crimes have victims. The

prosecutor did not improperly urge the jury to find guilt based on passions or prejudice. And, the

remainder of the prosecutor' s closing argument focused on applying the facts to the law as stated



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in the jury instructions. Like the prosecutor in Brown, the prosecutor' s comments in this case were

not improper.


         2.        Legal Financial Obligations


         Mattila and Bru make two arguments regarding their allegation that the trial court

improperly imposed legal financial obligations. First, they argue that the trial court impermissibly

imposed the       cost    of a    jury   trial    by including    a "   trial   per   diem" fee in their legal financial


obligations. Second, they argue that the trial court violated their right to counsel by imposing costs

for assigned counsel without sufficient evidence supporting the trial court' s finding that they had

the present or likely future ability to pay legal financial obligations. Their first claim lacks merit;

their   second    claim    is    not   properly before this       court.        Therefore, we affirm the trial court' s


imposition of legal financial obligations.


                   a. "          Court Appointed Attorney and Trial Per Diem" Fee

         Mattila and Bru contend that the trial court exceeded its statutory authority because the

trial court may not impose costs for exercising their constitutionally guaranteed right to a jury trial

in   excess of   the $ 250      jury   trial fee expressly   authorized         by    statute.    However, the $ 1, 500 legal


financial     obligation   is   assigned   to "   court appointed     attorney   and    trial   per   diem." CP ( Manila) atl 1;


CP ( Bru) at 18. RCW 9. 94A.030( 30) authorizes the trial court to impose legal financial obligations


for " court- appointed      attorneys'     fees,   and costs of   defense." Therefore, because the costs of a court


appointed attorney are statutorily authorized legal financial obligations, the trial court did not

exceed its statutory authority to impose legal financial obligations.




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                    b.      Ability to Pay

          Mattila and Bru argue that the trial court may not impose court- appointed attorney costs

unless it finds that the defendant has the present or future ability to pay. They are correct. Fuller

v.   Oregon, 417 U. S. 40, 45, 94 S. Ct. 2116, 40 L. Ed. 2d 642 ( 1974); RCW 10. 01. 160( 3).       But the


record shows that the trial court did find that Mattila and Bru had the present or future ability to

pay.


          It appears that Mattila and Bru are actually arguing that the trial court' s finding is not

supported by substantial evidence.5 However, this issue is not properly before us.

          Under State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492, review granted, 178 Wn,2d

1010 ( 2013),     Mattila and Bru may not raise a challenge to the trial court' s finding that they have

the present or future ability to pay for the first time on appeal. And, under State v. Lundy, 176 Wn.

App. 96,    108 -09, 308 P. 3d 755 ( 2013), their claim is not ripe for review until the State attempts to


collect   the   ordered   legal financial   obligations.   Accordingly, Mattila' s and Bru'.s claim that the

trial court erred by imposing court- appointed attorney costs is not properly before this court.




5 For example, Mattila argues:

          In this case, the sentencing court entered such a finding without any support in the
          record.    Indeed, the record suggests that Mr. Mattila lacks the ability to pay the
          amount     ordered.     The court found Mr. Mattila indigent at the end of the
          proceedings. His lengthy incarceration and felony conviction will also negatively
          impact his prospects for employment.     Accordingly, Finding No. 2. 5 of the
          Judgment and Sentence must be vacated.


Br. of Appellant (Mattila) at 20 ( citations omitted).




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         We vacate Mattila' s conviction for unlawful possession of a firearm and remand for


resentencing. We affirm Mattila' s other convictions and Bru' s residential burglary conviction.

         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.




                                                                        Lee, J.
 We concur:




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