State Of Washington v. Harold George ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
April 18, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49228-8-II
Respondent,
v.
HAROLD SPENCER GEORGE, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Harold George appeals a provision of his sentence requiring forfeiture
of all property after being convicted of four counts of second degree rape of a child and one
count of second degree child molestation. George argues, and the State concedes, that the trial
court had no statutory authority to order that he forfeit any seized property. We accept the
State’s concession and remand to the trial court to strike the language in George’s sentence
ordering forfeiture of property.
FACTS
George was charged and convicted of four counts of second degree rape of a child and
one count of second degree child molestation during a jury trial in 2014. George’s judgment and
sentence included the boilerplate language “[a]ll property is hereby forfeited.” Clerk’s Papers at
25.
George appealed, and this court affirmed George’s conviction, but remanded the case for
resentencing. George was resentenced on July 15, 2016. George’s judgment and sentence
included the same boilerplate forfeiture language. George now appeals only the forfeiture
provision of his sentence.
No. 49228-8-II
ANALYSIS
George argues, and the State concedes, that the trial court erred when it ordered George
to forfeit all property as part of his judgment and sentence. We agree and accept the State’s
concession.
This court reviews whether a trial court had statutory authority to impose a sentencing
condition de novo. State v. Rivera, https://www.courts.wa.gov/opinions, No. 47326-7-II, slip op.
at 3 (Wash. Ct. App. March 14, 2017) (citing State v. Roberts, 185 Wn. App. 94, 96, 339 P.3d
995 (2014)). A trial court has no inherent power to order forfeiture of property in connection
with a criminal conviction. Roberts, 185 Wn. App. at 96. The authority to order forfeiture of
property as part of a judgment and sentence is purely statutory and the State has the burden to
show that the trial court had statutory authority to order the forfeiture. Roberts, 185 Wn. App. at
96-97.
This court resolved the issue of forfeiture as a condition of sentence in Rivera slip op. at
3. There, Rivera was convicted of second degree assault and third degree malicious mischief,
and as part of his sentence was ordered to “forfeit ‘[a]ll property.’” Rivera, slip op. at 1. We
held that the State failed to show that the sentencing court had statutory authority to require
forfeiture of property and we reversed and remanded the case to the sentencing court to strike the
forfeiture condition. Rivera, slip op. at 16.
Similarly here, the trial court ordered forfeiture of property without statutory authority.
Therefore, we accept the State’s concession and hold that the trial court erred by ordering
forfeiture of seized property as a sentencing condition.
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No. 49228-8-II
APPELLATE COSTS
George requests that this court decline to impose appellate costs because he is indigent.
On January 31, 2017, RAP 14.2 was amended to provide that appellate costs will not be awarded
if a commissioner of this court determines that the party against whom costs are sought does not
have the current or likely future ability to pay such costs. Because George’s ability to pay costs
on appeal may be addressed by a commissioner of this court, we decline to exercise our
discretion to waive appellate costs in this decision terminating review. RAP 14.2; RCW
10.73.160(1).
We remand to the trial court to strike the language ordering forfeiture of George’s
property.
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.
Worswick, J.
We concur:
Maxa, A.C.J.
Johanson, J.
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