State Of Washington v. Jose Juan Lemasson ( 2013 )

COURT Or APPEALS L,;
STATE CF WASHINGTC;.
2013 JUN 17 AH 8= 5U
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 68645-3-1
Respondent,
v.
JOSE JUAN LEMASSON, UNPUBLISHED OPINION
Appellant. FILED: June 17, 2013
Verellen, J. — Jose LeMasson appeals the judgment and sentence entered
upon his conviction by a jury of possession of heroin with intent to deliver. LeMasson
argues that the trial court erred in finding that he has the current or likely future ability
to pay the legal financial obligations imposed. We affirm.
At sentencing, in addition to $600 in mandatory financial obligations, the State
requested that the court impose court costs and costs of incarceration under
RCW 10.01.160 and a $1,000 fine for violation of the Uniform Controlled Substances
Act, RCW 69.50.430.1 The prosecutor suggested that the court take note ofthe fact
that LeMasson was represented by privately-retained counsel in this case and in a
related case, and infer that while he might not have extensive financial resources, he
1The mandatory financial obligations consist of the $500 victim penalty
assessment and the $100 DNA collection fee. RCW 7.68.035(1 )(a); RCW 43.43.7541.
No. 68645-3-1/2
was not indigent. LeMasson, on the other hand, asked the court to waive all financial
penalties on the basis of indigency. Defense counsel pointed out that LeMasson was
initially represented by appointed counsel and that counsel's services were retained
by LeMasson's family. The trial court imposed some, but not all, of the financial
penalties sought by the State. The court imposed the $600 in mandatory financial
obligations, $465 in court costs and waived all other discretionary penalties.
LeMasson's judgment and sentence includes the following preprinted finding:
Having considered the defendant's present and likely future financial
resources, the Court concludes that the defendant has the present or
likely future ability to pay the financial obligations imposed. The Court
waives financial obligation(s) that are checked below because the
defendant lacks the present and future ability to pay them.[2]
LeMasson claims that no evidence in the record supports the sentencing
court's boilerplate finding. Therefore, he argues that the finding is clearly erroneous
and must be stricken from the judgment and sentence.
Mandatory legal financial obligations must be imposed regardless of financial
circumstances, so the finding about ability to pay is immaterial with respect to the
mandatory penalties imposed.3 LeMasson does not challenge the mandatory legal
financial obligations imposed.
2Clerk's Papers at 50.
3See, e.g., State v. Thompson, 153 Wash. App. 325, 336-39, 223 P.3d 1165
(2009) (DNA fee is mandatory and imposed regardless of hardship); State v. Williams,
65 Wash. App. 456, 460-61, 828 P.2d 1158 (1992) (victim penalty assessment "is
mandatory and requires no consideration of a defendant's ability to pay" at
sentencing).
No. 68645-3-1/3
The sentencing court has discretion to impose court costs under
RCW 10.01.160, but in order to do so, must consider the present and likely future
financial resources of the defendant and the burden that the imposition of costs will
impose.4 RCW 10.01.160 does not require the court to enter findings regarding a
defendant's ability to pay before imposing financial obligations.5
Here, the sentencing court imposed legal financial obligations, including the
nonmandatory legal financial obligations, after hearing the positions of both the State
and the defense on LeMasson's indigence. The court's rejection of certain
discretionary costs sought by the State reflects its consideration of LeMasson's
financial resources and the burden of the legal financial obligations. The record is
sufficient to conclude that the court complied with the requirements of the statute by
considering LeMasson's financial resources before imposing the legal financial
obligations.6
4 RCW 10.01.160(3) ("The court shall not ordera defendant to pay costs unless
the defendant is or will be able to pay them. In determining the amount and method of
payment of costs, the court shall take account of the financial resources of the
defendant and the nature of the burden that payment of costs will impose."); State v.
Baldwin. 63 Wash. App. 303, 308-12, 818 P.2d 1116 (1991), 837 P.2d 646 (1992); State
v. Calvin. No. 67627-0-I, 2013 WL 2325121 at *11 (Wash. Ct. App. May 28, 2013).
5See State v. Curry. 118 Wash. 2d 911, 916, 829 P.2d 166 (1992); Calvin. WL
2325121 at 11.
6See Baldwin, 63 Wash. App. at 311 (inquiry into ability to pay satisfied by
statement in presentence report that defendant was employable); Calvin. WL 2325121
at 11.
No. 68645-3-1/4
We affirm LeMasson's sentence, including the imposition of $465 in
discretionary legal financial obligations.7
WE CONCUR:
IkiL^ej^
7A formal finding about LeMasson's ability to pay is not required. See State v.
Bertrand, 165 Wash. App. 393, 404, 267 P.3d 511 (2011), review denied. 175 Wash. 2d
1014, 276 P.3d 10 (2012). Nevertheless, the finding is supported by the record as a
whole, including the statements of both counsel at sentencing as well as the testimony
at trial that LeMasson is in his 30s, able-bodied, and was carrying a substantial sum of
money at the time of the crime.