State Of Washington v. Joseph Dean Byrd ( 2014 )

FILED
NOVEMBER 25, 2014
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. 31540-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JOSEPH DEAN BYRD, )
)
Appellant. )
LAWRENC&BERREY, 1. Joseph Dean Byrd appeals the legal financial
obligations· (LFOs) imposed by the trial court during sentencing. He contends the trial
court erred by finding he has the ability or likely future ability to pay these obligations. In
a statement of additional grounds for review, he contends that his convictions for second
degree robbery and third degree theft violate double jeopardy. Finding no error, we
affirm.
FACTS
A jury found Mr. Byrd guilty of second degree robbery and third degree theft. At
sentencing, the trial court imposed the following legal financial obligations requested by
the State: $500 victim assessment, $200 criminal tiling fee, and $1,500 court appointed
No. 31540-1-III
State v. Byrd
attorney recoupment fee. Boilerplate language within the judgment and sentence stated:
The court has considered the total amount owing, the defendant's present
and future ability to pay legal financial obligations, including the
defendant's financial resources and the likelihood that the defendant's
status will change.
Clerk's Papers (CP) at 24.
At sentencing, neither party made any presentation addressing Mr. Byrd's ability to
pay legal financial obligations. Mr. Byrd did not object to the costs imposed or to the
boilerplate language in the judgment and sentence related to his ability to pay. The court
ordered LFOs as follows:
The total financial obligation is $2,200. It will bear interest by law
from now until it is paid. Mr. Byrd's inmate account will be subject to
withdrawals on a percentage basis. After his release he's to make payments
as directed by [the Department of Corrections], and after his supervision as
directed by the clerk.
Report of Proceedings (Mar. 25, 20l3) at 18.
Pursuant to Mr. Byrd's request, the court dismissed the third degree theft, finding
it had merged into the second degree robbery conviction. The court imposed a 50-month
standard range sentence.
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State v. Byrd
ANALYSIS
For the first time on appeal, Mr. Byrd contends that the trial court erred in finding
that he had the ability to pay legal financial obligations without conducting any inquiry
into his financial circumstances. Accordingly, he asks us to strike the directive to pay the
LFOs.
Whenever a person is convicted in superior court, the court may order the payment
oflegal financial obligations as part of the sentence. RCW 9.94A.760(1). Courts may
impose legal financial obligations if a defendant has or will have the ability to pay. State
v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116 (1991). Before making such a finding,
the trial court must "[take] into account the financial resources of the defendant and the
nature of the burden" imposed by the LFOs. ld. This court reviews a trial court's
determination of an offender's financial resources and ability to pay for clear error. ld.
Two of the LFOs at issue here are mandatory. The $500 victim assessment is
required by RCW 7.68.035, irrespective of ability to pay. State v. Curry, 62 Wn. App.
676,681,814 P.2d 1252 (1991), aff'd, 118 Wn.2d 911,829 P.2d 166 (1992). And the
$200 criminal filing fee is required by RCW 36. 18.020(2)(h). Because these LFOs are
mandatory, they do not require the trial court to consider Mr. Byrd's ability to pay.
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State v. Byrd
The only discretionary LFO was the $1,500 appointed counsel recoupment fee.
However, Mr. Byrd did not object at sentencing to the finding of his current or likely
future ability to pay. Until our Supreme Court decides otherwise, the rule established that
a defendant may not challenge a determination regarding his or her ability to pay LFOs
for the first time on appeal. State v. Blazina, 174 Wn. App. 906,911,301 P.3d 492,
review granted, 178 Wn.2d 1010,311 P.3d 27 (2013); State v. Calvin, 176 Wn. App. 1,
302 P.3d 509 (20 13),petition/or review filed, No. 89518-0 (Wash. Nov. 12,2013); State
v. Kuster, 175 Wn. App. 420,425, 306 P.3d 1022 (2013). Consistent with these decisions
we decline to allow Mr. Byrd to challenge that finding for the first time on appeal. See
also RAP 2.5(a).
We also agree with the State that the issue is not ripe for review. Mr. Byrd may
petition the court at any time for remission or modification of the payments on the basis
of manifest hardship. RCW 10.0 1.160(4); Baldwin, 63 Wn. App. at 310-11. The initial
imposition of court costs at sentencing is predicated on the determination that the
defendant either has or will have the ability to pay. RCW 10.01.160(3). Because this
determination is somewhat "speculative," the time to examine a defendant's ability to pay
is when the government seeks to collect the obligation. State v. Smits, 152 Wn. App. 514,
523-24,216 P.3d 1097 (2009). Mr. Byrd may challenge the trial court's imposition of
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State v. Byrd
LFOs when the government seeks to collect them.
In his pro se statement of additional grounds for review (SAG), Mr. Byrd contends
that his judgment and sentence is invalid due to a double jeopardy violation. Specifically,
he contends that the convictions for second degree robbery and third degree theft violate
double jeopardy and, therefore, the court erred by imposing "57 Months for robbery in the
second degree plus 364 days in theft in the third degree." SAG at 5. "We review alleged
double jeopardy violations de novo." State v. Lust, 174 Wn. App. 887, 890,300 P.3d 846(2013).
The state and federal double jeopardy clauses protect a defendant from being
punished multiple times for the same offense. State v. Adel, 136 Wn.2d 629,632,965
P.2d 1072 (1998). "Where a defendant's act supports charges under two criminal
statutes, a court weighing a double jeopardy challenge must determine whether, in light of
legislative intent, the charged crimes constitute the same offense." In re Pers. Restraint
a/Orange, 152 Wn.2d 795,815, 100 P.3d 291 (2004).
Mr. Byrd misunderstands his sentence. The trial court dismissed the third degree
theft count and imposed a mid-range standard range sentence of 50 months for the second
degree robbery conviction. CP at 25. Thus, no double jeopardy issue arises.
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We affirm.
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.
Lawrence-Berrey, 1.
WE CONCUR:
Korsmo, J. ?
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