                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          July 12, 2016

              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION II

    STATE OF WASHINGTON,                                            No. 47613-4-II

                        Respondent,

         v.

    MICHAEL J. TREVINO,                                       UNPUBLISHED OPINION

                        Appellant.


        SUTTON, J. — Michael J. Trevino appeals the forfeiture provision in his judgment and

sentence.1 We hold that the sentencing court lacked the statutory authority to order a forfeiture.

We reverse and remand to the sentencing court with instructions to strike the forfeiture provision

and amend the judgment and sentence.

                                              FACTS

        Trevino pleaded guilty to multiple felonies on April 13, 2015. At sentencing, the State

presented a joint sentencing recommendation, including a provision requiring that Trevino “forfeit

of items in property.” Verbatim Report of Proceedings (VRP) (4/20/15) at 4. The parties

negotiated and agreed to the joint sentencing recommendation and the sentencing conditions;

Trevino did not object. The sentencing court adopted the joint sentencing recommendation,

entered the judgment and sentence, and included a forfeiture provision in section 4.4(a), which

read, “All property is hereby forfeited.” Clerk’s Papers (CP) at 64. Nothing in the record indicates




1
 This matter was initially considered by a commissioner of this court pursuant to RAP 18.14 and
subsequently referred to a panel of judges.
No. 47613-4-II


what property, if any, law enforcement seized, or what property was subject to the forfeiture

provision. Trevino appeals the forfeiture provision in his judgment and sentence.

                                           ANALYSIS

                                        I. INVITED ERROR

       The State argues that the invited error doctrine precludes review because Trevino

negotiated over, agreed to, and presented the sentencing court with a joint sentencing

recommendation that included forfeiture of Trevino’s property. We disagree.

       If a defendant knowingly and voluntarily set up the error through some affirmative action,

the invited error doctrine precludes appellate review. State v. Phelps, 113 Wn. App. 347, 353, 57

P.3d 624 (2002). But the invited error doctrine does not preclude review of an illegally imposed

sentence, “even if [the] defendant agree[d] to the sentence.” State v. Mercado, 181 Wn. App. 624,

631, 326 P.3d 154 (2014).

                                         II. FAILURE TO OBJECT

       Generally, a failure to object below to an assigned error precludes appellate review. RAP

2.5(a). But illegal sentences may be challenged for the first time on appeal. State v. Ford, 137

Wn.2d. 472, 477, 973 P.2d 452 (1999), superseded by statute on other grounds. Trevino assigns

error to the forfeiture provision and his failure to object below does not preclude our review.




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No. 47613-4-II


                                          III. FORFEITURE

       The State argues that the record is insufficient for our review because Trevino (1) failed to

identify any seized property and (2) failed to file a motion under CrR 2.3(e).2 We disagree.

       A statute must authorize a sentencing court’s forfeiture of a defendant’s property because

sentencing courts have no inherent power to order the forfeiture of a defendant’s property. State

v. Roberts, 185 Wn. App. 94, 96, 339 P.3d 995 (2014). We review de novo whether the sentencing

court had the statutory authority to impose a sentencing condition. State v. Armendariz, 160 Wn.2d

106, 110, 156 P.3d 201 (2007). In State v. Roberts, we reversed the forfeiture provision in the

defendant’s judgment and sentence because the State failed to provide statutory authority for the

forfeiture and the sentencing court lacked statutory authority to order the forfeiture. Roberts, 185

Wn. App. at 96-97.

       The State has the burden to prove that the sentencing court had statutory authority to

include a forfeiture provision in the defendant’s judgment and sentence. Roberts, 185 Wn. App.

at 96-97. Therefore, it is the State’s burden to produce a record that factually supports its claim.

       A defendant’s failure to file a motion under CrR 2.3(e) does not preclude our review of this

issue.3 See Roberts, 185 Wn. App. at 96 (exercising review of whether there was statutory

authority for forfeiture despite defendant’s failure to file a motion under CrR 2.3(e)). Whereas




2
 CrR 2.3(e) provides a defendant the opportunity to file a motion for an evidentiary hearing where
ownership of unlawfully seized property is contested between the defendant and the State.
3
  In Roberts, we rejected the same argument made by the State because CrR 2.3(e) does not
statutorily authorize any kind of forfeiture. Roberts, 185 Wn. App. at 96-97.


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No. 47613-4-II


CrR 2.3(e) resolves the question of ownership of seized property, we resolve the question of

whether there is statutory authority for a forfeiture provision. CrR 2.3(e).

       The record does not indicate that the State cited any authority to the sentencing court to

authorize the forfeiture provision; however, on appeal the State now cites RCW 10.105.010 as the

authority for the forfeiture provision. Under RCW 10.105.010, a defendant’s personal property

that was (1) used “in the commission of, or in aiding or abetting in the commission of[,] any felony”

or (2) acquired for, during, or as a result of any felony is subject to forfeiture. RCW 10.105.010(1).

The State also must meet certain procedural requirements under RCW 10.105.010(3)-(5), such as

giving the owner proper notice.

       But nothing in the record indicates what property of Trevino’s, if any, was seized or subject

to the forfeiture provision or whether the procedural requirements of RCW 10.105.010(3)-(5) were

met. RCW 10.105.010 does not authorize the forfeiture provision here because the State fails to

show that the forfeiture provision only applied to (1) property connected to Trevino’s commission

of the felonies that he pleaded guilty to and (2) that the procedural requirements of RCW

10.105.010(3)-(5) were met.

       Because the sentencing court lacked the statutory authority for the forfeiture provision, we

hold that the sentencing court erred in ordering the forfeiture of Trevino’s property. We reverse

and remand to the sentencing court with instructions to strike the forfeiture provision and amend

the judgment and sentence.




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No. 47613-4-II


                                        CONCLUSION

        We reverse and remand to the sentencing court with instructions to strike the forfeiture

provision and amend the judgment and sentence.

        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.



                                                    SUTTON, J.
 We concur:



 BJORGEN, C.J.




 MELNICK, J.




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