### FILED JUNE 13, 2013 In the Office ofthe ClerkofCourt W A StateCourt ofAppeals, Division 1II INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) No. 30650-0-111 ) Respondent, ) ) 

### v. ) UNPUBLISHED OPINION ) JAMES C. CARTER, ) ) Appellant. ) KULIK, J.

- James Carter appeals the trial court's orderrequiring repayment ofhis legal financial obligations (LFOs). Mr. Carter contends thatthe trial court'simplied finding that hehas the current or future ability topay is not supportedby the record. We disagree withMr. Carter's assertions and affirmthetrial court. The court only specified the amount ofinmate wages to be appliedto Mr. Carter's LFOs. Statutory guidelines
ensure deductions arenotbelow indigency levels. FACTS OfficerJeffBickford and Officer KevinBarton ofthe Richland PoliceDepartment noticed aburgundy Oldsmobilelegally parked in the parking lot ofthe FurnitureRow Outlet store onWest BonnieAvenue in Richland. The officers sawMr. Carter intheNo.30650-0-II1 State v. Carter
passenger seat ofthe vehicle. The officers had knowledge thatMr. Carterwas a heroin
user and/or dealer. The officers contacted Mr. Carter and saw that he was inserting a needle in his ann. The needle contained a dark fluid consistent with heroin, which was presumptively confinned through a field test. Mr. Carter was charged and convicted ofunlawful possession ofa controlled substance. As part ofhis sentence, court costs, fees, and fines were assessed against him, totaling $3,460 in LFOs. Mr. Carter'sjudgment and sentence contained section 2.5 that stated, "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 thatthe defendant's status will change." Clerk's Papers (CP) at 40. However, the trial court did not indicate on thejudgment and sentence that itfound thatMr. Carter hadthe ability or future ability topay the LFOs. Section4.1 ofthejudgment and sentence ordered that "[t]he defendant shall pay up to $50.00 permonth to be taken from any income the defendant earns while in custody ofthe Department ofCorrections. This money is to be applied towards legal financial obligations." CP at41.

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### Mr. Carter appeals. He contends that the trial court made an implied finding that he had the current or future ability to pay his LFOs when itordered him to pay $50.00 per month. He contends that the finding is not supported by the record and must be stricken. ANALYSIS We review a trial court's determination on an offender's financial resources and ability to pay underthe clearly erroneous standard. State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116 (1991). "A finding offact is clearly erroneous when, although there is some evidence to support it, review ofall ofthe evidence leads to a 'definite and firm conviction that a mistake has been committed.'" Schryvers v. Coulee Cmty. Hosp., 138 Wn. App. 648, 654, 158 PJd 113 (2007) (quoting Wenatchee SportsmenAss'n v. Chelan County, 141 Wn.2d 169,176,4 PJd 123 (2000)). UnderRCW 10.01.160, a court "may [order] a [criminal] defendant to pay costs

... incurred by the [S]tate in prosecuting the defendant." RCW 10.01.160(1), (2). "'Inquiry into the defendant's ability to pay is appropriate only whenthe State enforces collection underthejudgment or imposes sanctions for nonpayment; a defendant's indigent status at the time ofsentencing does not bar anaward ofcosts." State v. Crook, 146 Wn. App. 24, 27,189 P.3d 811 (2008). "Consideration ofthe defendant's ability to pay applies to the setting ofthe minimum monthly payment, not to the setting ofthe total


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restitution amount." State v. We, 138 Wn. App. 716, 728, 158 P.3d 1238 (2007); RCW 9.94A.753(l). Funds earned by a convicted person during custody are under the charge ofthe Secretary ofthe Department ofCorrections. RCW 72.11.020. The secretary has the authority to disburse money from the inmate's personal account for the purpose of satistying a court-ordered LFO. Id. LFO deductions shall be made as stated in RCW 72.09.111(1) and RCW 72.65.050. RCW 72.11.020. The withdrawal offunds for the payment ofLFOs shall not reduce the inmate's account to less than the level of indigency as defined by the department. Id. "Further, unless specifically altered herein, court-ordered legal financial obligations shall be paid." Id. RCW 72.09.111 mandates the minimum deductions from wages received by prisoners. The statute sets forth "specific formulas allowing for fluctuating amounts to be withheld, based on designated percentages and inmate account balances, assuring inmate accounts are notreduced below indigency levels." Crook, 146 Wn. App. at 28 (citing RCW 72.09.111). This includes a minimum 20 percent deduction for payment ofLFOs for all inmates who have LFOs owing in any Washington superior court. RCW 72.09.l11(1)(a)(iv).

4No.30650-0-III State v. Carter "Mandatory Department ofCorrections deductions from inmate wages for repayment oflegal financial obligations are not collection actions by the State requiring inquiry into a defendant's financial status." Crook, 146 Wn. App. at 27-28. The trial court did not make a finding regarding Mr. Carter's ability topay. Instead, the trial court addressed the amount ofinmate wages thatwere to be applied to Mr. Carter'sLFO. The Department ofCorrections has the statutory authority to deduct a portion ofhis inmate's wages for this purpose. RCW 72.11.020. Statutory guidelines are in place to assure inmate's accounts are notreduced below indigency levels. Id. The deduction from Mr. Carter's inmate's wages while in custody ofthe Department ofCorrections was not a collection action by the State. RCW72.11.020 allows the LFO deduction bythe Department ofCorrections. Becausethere was no attempt by the Stateto collectpayment, there was no need for the courtto address Mr. Carter's current ability to pay. Thejudgment and sentence does not contain an unsupported finding thatMr. Carterhas the ability topay LFOs. Statement of Additional Groundsfor Review. In his statement ofadditional grounds, Mr. Carter contends that the officers did nothave probable cause to make contactwithhim when they approached his parked vehicle. In making this argument, Mr.
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Carter does not challenge the court's factual findings, does not cite legal authority, and makes no citations to the record. Despite the lack ofsupport for his statement of additional grounds for review, we determine that Mr. Carter developed this same contention at his suppression hearing. Thus, we review this issue on appeal. Whether the facts surrounding an encounter constitute a seizure is an issue oflaw and is reviewed de novo. State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009) (quotingState v. Armenta, 134 Wn.2d 1,9,948P.2d 1280 (1997)). A seizure occurs under article I, section 7 ofthe Washington Constitution when "considering all the circumstances, an individual's freedom ofmovement is restrained and the individual would not believe he or she is free to leave or decline a request due to an officer's use of force or display ofauthority." State v. Rankin, 151 Wn.2d 689,695,92 PJd 202 (2004). When apolice officer engages a citizen in conversation in a public place, the officer asking for identification does not, in itself, convert the encounter into a seizure. Harrington, 167 Wn.2d at 665 (quoting State v. Young, 135 Wn.2d 498,511,957P.2d 681 (1998)). The trial court concluded that the officers had a lawful right to approach Mr. Carter. The court reviewedHarrington and determined thatthe officer did not exceed

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the law by making social contactwith Mr. Carter, even considering the contact's investigative component. After reviewing the record, we determine that the trial court correctly determined that the officers' actions did not rise to the level ofa seizure. The officers' action of simply approaching Mr. Carter's car would not have led Mr. Carterto believe thathe was not free to leave. We affirm. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but itwill be filed for publicrecord pursuant to RCW 2.06.040.

WE CONCUR:

Korsmo, C,J.



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