### FILED JUNE 21, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. ROMAN LEEBONE, Appellant. ) ) ) ) ) ) ) ) ) No. 33153-9-111

UNPUBLISHED OPINION
FEARING, C.J. -Following a conviction for second degree burglary, RomanBone challenges his sentence offifty-three months confinement onthe basisthat the trial court erred in calculatinghis offender score. Bone contends the trial court erredby not categorizingtwo crimes committed on the same day and in the same location as the same criminal conduct for purposes ofsentencing. Bone also appeals the imposition oflegal financial obligations (LFOs). We refuse to address Bone's sentence because he did not raise the validity ofhis offender score beforethetrial court. We strike the imposition ofa $750 court-appointed attorney fee recoupment, but affirm the imposition ofthe remaining financial obligations.No. 33153-9-III State v. Bone
FACTS OnNovember 5, 2014, Moses Lake Police Department Corporal Aaron Hintz responded to a theftreport at a Safeway store. Safeway identifiedRoman Bone as the thief, and Hintz found Bone outside ofa Hastings Entertainment store near Safeway. After Hintz arrested Bone, Hastings asked Hintzto trespass Bone and Hintz complied. OnNovember29, 2014, Hastings Entertainment employee, Ashlie Moreno, saw Roman Bone enterthe Hastings store, and she alerted her manager. The manager spoke with Bone, butBone denied thatpolice had trespassedhim. Bone later exitedthe store voluntarily. OnNovember 30, 2014, Roman Bone returned to Hastings again, and Ashlie Moreno contactedthe Moses Lake Police Department. Aaron Hintz responded to the call and, upon Hintz's arrival at the store, he spotted Bone standing in the store near a rack of digital video disk (DVDs). Hintz arrested Bone for criminal trespass, escorted him tothe patrol car, and found three DVDbox sets hidden in Bone's clothing. PROCEDURE The State ofWashington charged Roman Bonewith second degree burglary in violation ofRCW 9A.52.030. Bonewaived his right to ajurytrial, and, after trial, the trial court found Bone guilty ofthe sole charge. Duringthe sentencing hearing, the trial court, based onRoman Bone's criminal history, calculated Bone's offender score as eight. Bone's criminal history included 2No. 33153-9-111 State v. Bone
convictions for two counts ofpossession ofa controlled substance committed onthe
same day and in the same county. Our sentencing court made a notation "didnot encompass" nextto these two counts on Bone'sjudgment and sentence. Clerk's Papers (CP) at 36. Based on RomanBone's offender score, the trial court sentenced Boneto fifty three months' confinement, withinthe standardrange of43-57 months. During sentencing, the court imposed $1,450 in legal financial obligations. The obligations included a $500 victim assessment fee, a $200 criminal filing fee, and a $750 fee for the court-appointed attorney. The court inquired into Bone's financial status: Judge: Does Mr. Bonehave a long term financial-or ability to pay legal financial obligations? [Defense]: Let's say very longterm. Report ofProceedings (Feb. 23, 2015) at 41. During sentencing, Roman Bone did not contestthe offender score orthe imposition oflegal financial obligations. LAWAND ANALYSIS Offender Score Roman Bone contends that the trial court erred in calculating his offender score. Bone argues that the trial court did not considerwhethertwoprior convictions constituted the same criminal conductunderRCW 9.94A.525(5)(a)(i). The State argues thatby failing to object at sentencing, Bonewaivedhis rightto challenge the calculation. We agree withthe State.

3No. 33153-9-111 

### State v. 

### Bone Generally, issues notraised in the trial court may notbe raised for the first time on appeal. RAP 2.5(a); 

### State v. 

### Nitsch, 100 Wn. App. 512,519,997 P.2d 1000 (2000). A sentence within the standard range for an offense shall notbe appealed. RCW 9.94A.585(1). Roman Bone's sentence was withinthe standardrange and he did not challenge the calculation ofthe offender score at sentencing. Washington decisions show
an unwillingness to address this issue when it is not raised at sentencing. 

### In re Pers. Restraint of Shale, 160 Wn.2d 489, 495-96, 158 P.3d 588 (2007); 

### State v. 

### Jackson, 150 Wn. App. 877,892,209 P.3d 553 (2009); 

### State v. 

### Nitsch, 100 Wn. App. at 512. Legal Financial Obligations The trial court imposed an obligation on Roman Boneto pay a $500 victim assessment fee and a $200 criminal filing fee. RCW 7.68.035 and RCW 36.18.020(2)(h) respectively mandate these fees regardless ofthe defendant's ability to pay. Trial courts must impose these fees regardless ofa defendant's indigency. 

### State v. 

### Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013). We affirm the imposition ofthe $700 in mandatory financial obligations. Roman Bone contends that the trial court improperly imposed on him the payment of$750 in attorney fees without consideringhis financial resources under RCW 10.01.160(3). Bone did not objectto the challenged obligations before the trial court. We exercise our discretion in reaching the issue and strike the $750 obligation.

4

### No. 33153-9-III 

### State v. Bone
Courts may impose legal financial obligations ifa defendant has or will have the financial ability to pay them. RCW 10.01.160; RCW 9.94A.760(2); 

### State v. Curry, 118 Wn.2d 911, 914-16, 829 P.2d 166 (1992). RCW 10.01.160(3)proscribes: The court shall not order a defendant to pay costs unless the defendant is or will be able topay them. In determining the amount and method ofpayment ofcosts, the court shall take account ofthe financial resources ofthe defendant and the nature ofthe burden thatpayment of costs will impose. In 

### State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), the Washington Supreme Court clarifiedthat RCW 10.01.160(3) requires the trial court "do more than sign ajudgment and sentence withboilerplate language statingthat it engaged in the required inquiry." Rather, the "recordmustreflect that the trial courtmade an individualized inquiry into the defendant's current and future ability to pay." 

### Blazina, 182 Wn.2d at 838. This inquiry includes evaluating a defendant's financial resources, incarceration, and other debts, including restitution. 

### Blazina, 182 Wn.2d at 838-39. RAP 2.5(a) provides, in relevant part: "The appellate courtmay refuse to review any claim oferror which was not raised in the trial court." In 

### State v. Blazina, ourhigh court clarified: "A defendant who makes no objectionto the imposition ofdiscretionary LFOs at sentencing is not automatically entitled to review." 

### Blazina, 182 Wn.2d at 832 (footnote omitted). "Each appellate court must make its own decision to accept discretionary review [ofclaimedLFO errors not appealed as a matter ofright]." 

### State v. Blazina, 182 Wn.2d at 835. Nevertheless, the 

### Blazina court clarifiedthat a challenge to 

### 5

### No. 33153-9-III State v. Bone
the trial court's entry ofanLFO order under RCW 10.01.160(3) is ripe forjudicial determination. Blazina, 182 Wn.2d at 832 n.1. TheBlazina court noted reasons for review oflegal financial obligations before collection activities. Ajudgment for legal financial obligations accrues interest at a high rate, employment and housing background checks show an active record in the superior court as a result ofthe obligations, and thejudgment for the financial obligations impairs the obligor's credit. In short, pending legal financial obligations increase the difficulty of
a defendant in reentering society. Therefore, we follow the spirit and purpose ofboth RCW 10.01.160 andBlazina by reviewing the record here to determine whetherthe trial court engaged in an inquiry as to Roman Bone's ability to pay financial obligations. The record shows only aperfunctory inquiry into Roman Bone's financial ability to pay financial obligations. The trial court engaged in no inquiry into Bone's financial assets and debts. When the trial court fails to conduct an individualized inquiry, we generally remand thejudgment and sentence to the trial court with instructions to reset the defendant's legal financial obligations after conductingthe required inquiry into his present and future ability to pay. Because Bone'strialjudge has retired, we instead remand and directthe trial courtto strike the $750 obligation. Because Roman Bone is indigent and his appeal has merit, we exercise our discretion under RCW 10.73.160(1) and RAP 14.2 to not award costs to the State. Rule

6No. 33153-9-111 State v. Bone
14.2 gives appellate courtjudgesthe discretion to deny costs, evento a prevailingparty. State v. Stump, No. 91531-8, slip op. at 5 (Wash. April 28, 2016). CONCLUSION We affirm Roman Bone's sentence offifty-three months ofincarceration. We remand the case to the trial courtto delete the $750 obligation imposed on Roman Bone for attorney fees. We affirm the imposition ofall other legal financial obligations. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

I CONCUR:

Pennell, J.

7No. 33153-9-111 SIDDOWAY, J. (dissenting in part)-RomanBone did not objectwhen discretionary legal financial obligations were imposed atthe time ofsentencing. I would follow the general rule and decline to consider his challenge for the first time on appeal for the reasons set forth in 

### State v. Duncan, 180 Wn. App. 245, 327 P.3d 699 (2014), 

### aff'd, No. 90188-1 (Wash. Apr. 28, 2016), and in my concurring opinion in 

### State v. Munoz-Rivera, 190 Wn. App. 870, 896, 361 P.3d 182 (2015). I otherwise concur in the majority opinion. 

# l)~w~ }- Siddoway, 

### J. 

# 7)