State Of Washington v. Charles Samuel Spivey Iii ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69695-5-1
Respondent,
DIVISION ONE § S3§
v.
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CHARLES SPIVEY, UNPUBLISHED OPINION o Z'>^
Appellant. FILED: February 10, 2014 =& x>a
Per Curiam — Charles Spivey appeals the sentence imposed following $g o2
his conviction for first-degree arson. He contends the court's boilerplate finding
that he "has the present or likely future ability to pay the legal financial obligations
imposed" is not supported by the record. He does not challenge the financial
obligations imposed by the court— i.e., the victim's penalty assessment and DNA
collection fee—but instead seeks only to strike the court's finding regarding his
ability to pay. Because Spivey did not raise this issue below, he is barred from
raising it for the first time on appeal. State v. Calvin, 176 Wash. App. 1, 302 P.3d
509(2013).
But even if he could raise the argument, the challenged finding is
immaterial and thus provides no basis for relief. A trial court is not required to
enter findings regarding a defendant's ability to pay before it orders the defendant
to pay financial obligations. State v. Blank. 131 Wash. 2d 230, 241-42, 930 P.2d
1213 (1997); State v. Curry. 118 Wash. 2d 911, 916, 829 P.2d 166 (1992). The
proper time for findings "is the point of collection and when sanctions are sought
for nonpayment." Blank, 131 Wash. 2d at 242; State v. Crook, 146 Wash. App. 24, 189
P.3d 811 (2008). While sentencing courts must consider the defendant's financial
situation before imposing non-mandatory costs, see RCW 10.01.160(3), State v.
Baldwin, 63 Wash. App. 303, 308-12, 818 P.2d 1116 (1991), such consideration is
not necessary at sentencing when, as here, the financial obligations imposed are
mandatory. See e^g.., State v. Thompson, 153 Wash. App. 325, 336-38, 223 P.3d
1165 (2009)(DNA fee is mandatory and imposed regardless of hardship); State v.
Williams, 65 Wash. App. 456, 460, 828 P.2d 1158 (1992)(victim penalty assessment
"is mandatory and requires no consideration of a defendant's ability to pay" at
sentencing); Curry, 62 Wash. App. 676, 682-83, 814 P.2d 1252 (1991); RCW
43.43.690(1) ("the court shall levy a crime laboratory analysis fee. ..."). In these
circumstances, the challenged finding is immaterial surplusage and does not
warrant relief. State v. Caldera, 66 Wash. App. 548, 551, 832 P.2d 139 (1992).
Affirmed.
For the court: