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    IN THE COURT OF APPEALS OF THE STATE OF WASHI1                                                             1   N
                                                                                                                       l, AShlIdG TON
                                                   DIVISION II                                          8Y


 STATE OF WASHINGTON,                                                                No. 45438 -6 -II


                                       Respondent,


             v.



 MELANIE BALAO,                                                                UNPUBLISHED OPINION


                                       Appellant.




         LEE, J. —      Melanie Balao appeals the trial court' s judgment and sentence, arguing for the

first time on appeal that the trial court erred by imposing discretionary legal financial obligations

LFO)     without considering her ability .to pay. She also argues that she received ineffective

assistance of counsel      because    counsel     failed to   object   to the imposition     of   the LFOs.    We hold


that the trial court did consider Balao' s current or likely future ability to pay discretionary LFOs

and that Balao' s defense counsel was not deficient. Therefore, we affirm.

                                                        FACTS


         The underlying facts of Balao' s conviction are not in dispute, and Balao does not challenge

her underlying conviction. Balao' s only challenge is to the imposition of LFOs.

         Balao      was convicted of assault       in the third degree        and assault   in the fourth degree.       On


October 4, 2013, Balao        was sentenced.        At Balao' s sentencing hearing, the State asked the trial

court   to   impose "   standard"    LFOs.   Verbatim Report           of   Proceedings ( VRP) ( Oct. 4, 2013) at 5.


Both defense counsel and Balao told the trial court that Balao was employed. Balao also filed a

motion       and   declaration for   order   of   indigency    for   appellate    review.    The    motion    included    a
No. 45438 -6 -II



financial statement, in which Balao reported that she was employed as a medical assistant. As part


of Balao' s judgment and sentence, the trial court imposed $2, 035 in LFOs, finding that Balao has

the current or likely future ability to pay. Defense counsel did not object to the State' s request for

the trial court to impose legal financial obligations or to the trial court' s imposition of legal

financial obligations.


             On October 17, 2013, Balao filed a second motion and declaration for order of indigency,

including      a   financial   statement.   The October 17 motion was identical to the October 4 motion,

with one exception. On the financial statement included in the October 17 motion, Balao crossed


out her previously reported income, and wrote that she was terminated from her job as a medical

assistant on September 27, 2013. Balao appeals the imposition of legal financial obligations.

                                                       ANALYSIS


A.           LFOs— CHALLENGES FOR THE FIRST TIME ON APPEAL


             Balao argues that the trial court erred by finding that she had the current or likely future

ability to pay LEDs.             Specifically,   Balao   argues    that the trial   court   included    a " generic,   pre -




formatted" finding in the judgment and sentence but did not otherwise indicate that it considered

her financial resources.


             At Balao'   s   sentencing, the trial   court     imposed $      2, 035 in mandatory and discretionary

LFOs.        The trial court found that Balao has the current or likely future ability to pay the LFOs.

Balao did       not object     below to the trial   court' s   finding   or   to the imposition   of   LFOs.   This court


need not consider challenges to the trial court' s impositions of LFOs for the first time on appeal.

State   v.   Blazina,          Wn.2d ,      344 P. 3d 680 ( 2015);        see State v. Duncan, 180 Wn. App. 245,

250, 253, 327 P. 3d 699 ( 2014) ( holding            that the defendant' s failure to object was not because the



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No. 45438 -6 -II



ability to pay LFOs was overlooked, rather the defendant reasonably waived the issue, considering

 the apparent and unsurprising fact that many defendants do not make an effort at sentencing to
suggest   to the sentencing      court    that   they   are, and will remain, unproductive ").   However, we do


have discretion under RAP 2. 5( a) to consider unpreserved challenges to findings on a defendant' s


ability to pay discretionary LFOs. Blazina, 344 P. 3d at 683.

          Although Balao did        not    object   below,' we reach Balao' s challenge to the trial court's


imposition of LFOs and hold that evidence of Balao' s current and likely future ability to pay LFOs

was before the trial court at sentencing. Thus, the trial court did not err by finding Balao had the

current or likely future ability to pay discretionary LFOs.

          As a preliminary matter, we note that Balao does not distinguish between mandatory and

discretionary   legal financial     obligations.        This is an important distinction because the trial court


does   not consider a     defendant' s ability to pay       when   imposing   mandatory LFOs.     State v. Lundy,

176 Wn. App. 96, 103, 308 P. 3d 755 ( 2013).              Unlike mandatory LFOs, the trial court must consider

the defendant' s present or likely future ability to pay when imposing discretionary LFOs. Lundy,

176 Wn.    App.    at   103.   The trial court is not, however, required to enter formal specific findings


regarding a defendant' s ability to pay. Lundy, 176 Wn. App. at 105.

          If the trial court does enter a finding in the judgment and sentence, we review it under the

clearly   erroneous standard.       Id. Clear error exists when review of the record leads to a definite


conclusion that a mistake was committed. Id.




1 Not only did Balao fail to object below, she represented to the trial court that she worked full-
time in the medical field to support her request for an alternative to jail.


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No. 45438- 6- 11



        In Blazina, the court held that RCW 10. 01. 160( 3) requires the record to reflect that the


sentencing judge " made an individualized inquiry into the defendant' s current and future ability to

pay" before the     court   imposes LFOs. Blazina, 344 P. 3d         at   685.   Balao' s argument that the trial


court did not take her financial resources into account before imposing discretionary LFOs is

belied by the record.

        Here, Balao represented to the trial court on the record that she worked full -time in the

medical field and is the sole provider for her children. Defense counsel also represented that Balao

works   to   support     her home   and children.     Further, Balao' s father told the trial court that Balao


works hard, has a nursing certificate, is trying to earn an associate' s degree, and " will do well in

the future."    VRP ( Oct. 4, 2013) at 7, 10.


        The record clearly shows that Balao' s financial situation was presented to the court and

supports the trial court' s imposition of discretionary LFOs. The trial court did not err by finding

that Balao had the current or likely future ability to pay LFOs.

B.      INEFFECTIVE ASSISTANCE OF COUNSEL


        Balao also argues that she received ineffective assistance of counsel because defense


counsel      failed to   object   to the imposition    of   LFOs.   Specifically, Balao argues that defense

counsel' s failure to object to the discretionary LFOs requires reversal because it prejudiced Balao.

Balao has not demonstrated that defense counsel' s performance was deficient, and therefore, her


claim fails.


          We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d

870, 883, 204 P. 3d 916 ( 2009).          A defendant claiming ineffective assistance of counsel has the

burden to       establish   that ( 1)   counsel' s   performance    was   deficient   and (   2)   the   performance




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No. 45438 -6 -II



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. Id. at 700.


             Counsel' s performance is deficient if it falls below an objective standard of reasonableness.


State   v.   Stenson, 132 Wn.2d 668, 705, 940 P. 2d 1239 ( 1997), cent. denied, 523 U.S. 1008 ( 1998).


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

State   v.   Grier, 171 Wn.2d 17, 33, 246 P. 3d                1260 ( 2011). To rebut this presumption, a defendant


bears the burden of establishing the absence of any legitimate trial tactic explaining counsel' s

performance. Id.


             Here, during sentencing, both Balao and defense counsel told the trial court that Balao was

employed        full -time   and supported           her   children.     Defense counsel also asked the trial court to

consider alternatives to jail so that Balao did not need to spend time in custody. Balao echoed her

counsel' s argument so        that    she   is "   able   to go home to save my job."      VRP ( Oct. 4, 2013) at 9. Over


a week after sentencing was completed, Balao filed a second motion and order for indigency for

appellate review, which included a second financial statement, stating that she had been terminated

from employment a week before the sentencing hearing. Suppl. CP at 106. Thus, at the sentencing

hearing, both defense counsel and Balao were aware that Balao had been terminated from

employment         but   chose   to   not reveal      that information to the trial        court.   This suggests that the


decision to represent Balao as employed at sentencing was likely a reasonable and legitimate

strategy to have the trial court consider alternatives to jail time so that she could be at home with

her   children.     See Duncan, 180 Wn.               App.   at   250 ( noting that "[   s] entencing is a context in which




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No. 45438 -6 -II



most defendants are motivated to portray themselves in a more positive light" and recognizing that

defendants do not want to suggest to the court that they have no hope of productivity).

        Balao has failed to meet her burden of demonstrating that defense counsel' s performance

was deficient. Accordingly, her claim of ineffective assistance of counsel fails.

        We affirm.


        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.




 We concur:




                      4,c.
                   J3j.orgen, A.C. J.




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