State Of Washington, Respondent V. Paul Sheldon, Appellant (Majority)
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FCL_ED 0t) r SF APP A L S 191( F- F/ y ? I 2M JA N, 18 11 Ali 9: 57 J J IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 44251 -5 -II . STATE OF WASHINGTON, Respondent, V. UNPUBLISHED OPINION PAUL DOUGLAS SHELDON, JOHANSON, A.C. J. for failure to Paul Sheldon appeals the sentence imposed following his conviction register as a sex offender. Oregon -conviction in his history; ( 2) erred in-finding that-he had the current or likely- - __ criminal - future ability to pay legal financial maximum sentence. He argues that the trial court ( 1) erred in including an The State obligations ( concedes LFOs), and ( 3) made a scrivener' s error as to his the first error and we remand for resentencing. 1 At sentencing, the State presented a declaration of criminal history as to Sheldon, which included for bail one Washington jumping ( 1 point), point each), and one Sheldon 1 nor his conviction for indecent liberties ( 3 points), one Washington conviction three Washington convictions for failure to register as a sex offender ( 1 Oregon conviction counsel signed for possession of a controlled substance ( the declaration or otherwise stipulated to the 1 point). criminal Neither history. The A commissioner of this court initially considered Sheldon' s appeal as a motion on the merits under RAP 18. 14 and then transferred it to a panel of judges. No. 44251 -5 -II State did not present evidence of the comparability of the Oregon conviction. The trial court included the Oregon conviction in Sheldon' s offender score. The trial filing court fee, $ 1, 000 imposed the court- appointed following LFOs: $ 500 victim attorney fee, $ 500 fine and $ assessment, $ 200 criminal 100 deoxyribonucleic acid collection feeThe court made the following finding: The court has considered the total amount owing, the defendant' s past, 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. The court finds: Clerk' s Papers ( CP) at 10. It checked the box stating that it found t]hat the defendant has the ability or likely future ability to pay the legal financial obligations imposed herein. RCW 9. 94A.753. CP at 10. The trial court stated Sheldon' s maximum sentence as " 010. 00Y." CP at 10. First, Sheldon argues that the trial court erred in including his Oregon conviction in his offender score because the State did not present any evidence that it was comparable with a Washington v. offense and- because the-trial court did-not perform a Ford, 137 Wn.2d 472, 482 -83, 973 P. 2d 452 ( 1999). comparability analysis.' - State -- - The State concedes that Sheldon is correct and that the remedy is to remand for resentencing. _We accept the State' s concession. Second, Sheldon argues that the record does not support the trial court' s finding that he has the ability or likely future ability to pay the legal financial obligations that the court imposed. State v. 2012). Bertrand, 165 Wn. Before making App. such a 393, 404, 267 P. 3d 511 ( 2011), review denied, 175 Wn.2d 1014 finding, the trial court must take "` into account the financial 2 While Sheldon did not challenge the inclusion of the Oregon conviction during sentencing, he may do so for the first time on appeal. Ford, 137 Wn.2d at 484 -85. 2 No. 44251 -5 -II resources of obligations. the defendant and the nature of the burden "' imposed by the legal financial Bertrand, 165 Wn. App at 404 ( quoting State v. Baldwin, 63 Wn. App. 303, 312, 818 P. 2d 1116, 837 P. 2d 646 ( 1991)). Because we remand for resentencing, Sheldon can raise this issue in the trial court. Finally, while the trial court stated Sheldon' s maximum sentence somewhat cryptically as 010. 00Y," it is correct because the sentence maximum RCW 9A.44. 132( 1)( b); RCW 9A.20. 021( l)( b). for his crime is 10 years. CP at 10; However, the trial court may wish to revise its description of the maximum sentence on remand. We remand for resentencing. 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. r HANSON, A.C. J. We con -ur: HU' T, J. B4OR J. ' 3 a
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