### FILED MAR 19,2013
In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) No. 30440-0-III ) Respondent, ) ) 

### v. ) ) UNPUBLISHED OPINION JUANLEONARDO APARICIO ) MARTINEZ, ) ) Appellant. ) KORSMO, C.J.

- JuanAparicio Martinez argues thatthe trial court did nothave authority to impose restitution under RCW 9.94A.753(5) and improperly found thathe currently had the ability to payhis legal financial obligations (LFOs). We disagree with· his first argument, but agree with his second. FACTS In early February 2011, Mr. Martinez andthree other individuals broke intoa Bridgeporthome while the family was away. The group stole three firearms and other valuable personal property. He was charged with first degree burglary, first degree theft, three counts offirearm theft, and first degree trafficking 

### in stolen property. AfterhearingNo. 30440-0-111 State v. Martinez the evidence against him, Mr. Martinez agreed to a plea deal. He then pleaded guilty to amended charges ofresidential burglary, first degree theft, and one count oftheft ofa firearm. The trial court later sentenced Mr. Martinez to 22 months ofincarceration. The trial court held a restitution hearing the following month. Mr. Martinez and his codefendants werejointly and severally ordered to make restitution of$26,019.82. Mr. Martinez timely appealed to this court.ANALYSIS Mr. Martinez contends the trial court erred by failing to advise himprior to accepting his guilty plea that he might have to pay restitution. He also argues that the court erred by finding thathe had the ability to pay his LFOs without first taking

. evidence ofhis current or future ability to pay. We address both ofthese issues in tum. This court reviews de novo the circumstances under which a guilty pleawas made. 

### Young v. 

### Konz, 91 Wn.2d 532,536,588 P.2d 1360 (1979). In 

### Tracy, this court struck an order to pay restitution because priorto entering his guilty plea, "Mr. Tracy was neither advised ofthe possibility ofrestitution nor did he agree that restitution might be ordered." 

### State v. 

### Tracy, 73 Wn. App. 386; 389, 869 P.2d 425 (1994). Mr. Martinez argues that he

was not advised ofthe possibility ofrestitution and therefore should not have to pay it. Mr. Martinez, however, was advised ofthe possibility ofrestitution. He acknowledged as much when he signed the "Statement ofDefendant on PleaofGuilty": 2No. 30440-0-III State v. Martinez In addition to sentencing me to confinement, thejudge will order me to pay $500.00 as a victim's compensation fund assessment. Ifthis crime resulted in injury to any person ordamage to or loss ofproperty, thejudge will order me to make restitution, unless extraordinary circumstances exist which make restitution inappropriate. The amount ofrestitution may beup to double my gain ordouble the victim's loss. Thejudge may also order that I pay a fine, court costs, attorney fees and the costs ofincarceration. Clerk's Papers at 15 (Statement ofDefendant on Plea ofGuilty**~** 6(e)). Mr. Martinez counters that the plea form signed by Mr. Tracy contained an almost identical paragraph 6(e) which was found to be legally deficient. 

### Tracy, 73 Wn. App. at 389. While paragraph 6(e) was legally deficient in 

### Tracy, it was perfectly acceptable in this case. Mr. Tracy was convicted of"unlawful display ofa weapon capable of producing bodily harm." 

### Tracy, 73 Wn. App. at 387 (emphasis omitted). Unlawful display ofa weapon is not a crime resulting in "injury to any person or damage to orloss ofproperty"; thus, paragraph 6(e) failed to advise Mr. Tracy ofthe possibility that he would be ordered topay restitution. Here, Mr. Martinez's commission ofburglary and theft resulted in a "loss ofproperty." Thus, paragraph 6(e) properly advised him that restitution was a possible result ofhis plea. While the trial court did not orally advise 

### Mr. Martinez that he would be ordered to pay restitution, it did not needto. 

### In re Pers. RestraintofStoudmire, 145 Wn.2d 258,266,36 P.3d 1005 (2001) ("Knowledge ofthe direct consequences ofa guilty plea canbe satisfied either by the plea documents or by clear and convincing extrinsic evidence."). Accordingly, no error occurred by ordering 

### Mr. Martinez to pay restitution. 

### 3No.30440-0-III State v. Martinez Next, Mr. Martinez argues that the court had no basis for determining that he has the ability to pay his LFOs. While there is no need to enter formal findings offact, there must be sufficient evidence in the record to enable an appellate court to review the finding. State v. Bertrand, 165 Wn. App. 393,267P.3d 511 (2011), review denied, 175 Wn.2d 1014 (2012). The record here is devoid ofany evidence ofMr. Martinez's financial resources. The properremedy is to affirm the imposition ofLFOs, reverse the finding ofpresent or future ability to pay, and "remandto the trial court to strike finding number 2.5 from thejudgmentand sentence." Id. at 405. Affirmed in part, reversed inpart, and remanded with instructions to strike finding number 2.5 from thejudgmentand sentence. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040.

# ~ CCy:

WE CONCUR:

Brown,

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