                                                                 FILED

                                                            MAY 02,2013

                                                    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. 30631-3-III
                                               )
                             Respondent,       )
                                               )
           v.                                  ) UNPUBLISHED OPINION
                                               )
LUIS CISNEROS VALENCIA,                        )

                                               )

                             Appellant.        )


       KORSMO, C.J. -Luis Cisneros Valencia appeals the amended judgment and

sentence entered following his 2010 conviction for attempted residential burglary.

Specifically, Mr. Valencia appeals the sentencing court's finding that he has the current

or future ability to pay legal financial obligations as clearly erroneous. 1




       1   In his Statement of Additional Grounds for Review, Mr. Valencia also raises the
question of whether the superior court violated the public's constitutional right of access
to criminal proceedings and his constitutional right to be present at critical stages ofthe
proceedings for a scheduled November 23, 2011 hearing to amend the judgment and
sentence. However, the lower court struck that hearing so no violations occurred. We do
not address the rest of Mr. Valencia's claimed errors because we lack any record from
which to review these allegations.
No. 30631-3-111
State v. Valencia


                                           FACTS

       Mr. Valencia committed the crime of attempted residential burglary on January

13,2010. A Benton County jury found him guilty of the crime on December 8,2010.

Benton County Superior Court entered a felony judgment and sentence against Mr.

Valencia on January 5, 2011, but miscalculated his offender score. Acting pro se, Mr.

Valencia sought relief correcting this error. The superior court amended the judgment

and sentence on January 5, 2012, using the correct offender score.

       The court also reaffirmed its initial order of costs and restitution: a $500 victim

assessment fee, a $100 DNA2 collection fee, $1,952.50 in other costs, and restitution in

the amount of $908.45. Mr. Valencia now appeals the imposition of costs and restitution.

He argues that the trial court exceeded its sentencing authority because it cannot order

legal financial obligations without evidence to support a finding that Mr. Valencia has the

current or future ability to pay as required by RCW 10.01.160(3).

                                         ANALYSIS

       The question of whether the sentencing court erred by finding a current or future

ability to pay costs and restitution is not properly before this court. In neither the original

judgment and sentence, nor the amended judgment and sentence did the lower court find

that Mr. Valencia "has the ability or likely future ability to pay the legal financial


       2   Deoxyribonucleic acid.

                                              2

No. 30631-3-III
State v. Valencia


obligations imposed" by the court. Most felony judgment and sentence forms have this

finding set forth as boiler plate. But in this case, that finding is not in the boiler plate;

instead, it is set forth in an optional checkbox. The sentencing court never checked the

box; thus, it never made the fmding. Nor did the court make such a finding during either

of the sentencing hearings. Accordingly, the finding that Mr. Valencia appeals does not

exist.

         In the absence of a finding of current or future ability to pay, the question turns to

whether the trial court can still order the payment of costs and restitution. The answer to

this question comes from Bertrand. State v. Bertrand, 165 Wn. App. 393,267 P.3d 511

(2011), review denied, 175 Wn.2d 1014 (2012). In Bertrand, the Court of Appeals

reversed the sentencing court's finding of current or future ability to pay as clearly

erroneous due to a complete lack of evidence to support the finding. Id. at 404. Without

a finding of current or future ability to pay the court in Bertrand still affirmed the

imposition of legal financial obligations, leaving any further challenge to the legal

financial obligations for when the State seeks to collect the obligation. Id. at 405 (citing

State v. Baldwin, 63 Wn. App. 303, 310,818 P.2d 1116,837 P.2d 646 (1991)). The only

effect that the lack of a finding of current or future ability to pay currently has on the

judgment and sentence is that it "forecloses the ability of the Department of Corrections

to begin collecting LFOs from [the defendant] until after a future determination of [the


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No.30631-3-II1
State v. Valencia


defendant's] ability to pay." Id. at 405. If Mr. Valencia does not want to wait until the

State attempts to collect on the obligation, then he can bring a motion in superior court at

any time to waive or terminate the LFOs due to manifest hardship. RCW 10.0 1.160(4);

State v. Smits, 152 Wn. App. 514, 524-25,216 PJd 1097 (2009).

       Affirmed.

       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.


                                                                Korsmo, C.J.

WE CONCUR:




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