27,

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

V.

JOHN PATRICK BLACKMON,

Appellant.

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DIVISION ONE

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UNPUBLISHED OPINION C6rri

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FILED: June 12, 2017 1N) —44::,

LEACH, J. — In his second appeal to this court, John Blackmon challenges

the trial court's decision to impose discretionary legal financial obligations (LF05).1

Because the trial court considered whether the evidence before it showed that

Blackmon had the ability to pay, it satisfied its duty to make an individualized

inquiry under State v. Blazina.2 We affirm.

BACKGROUND

The State charged John Blackmon with two counts of child molestation in

the second degree, two counts of child molestation in the third degree, and one

count of rape of a child. At the conclusion of a third trial, after two mistrials, a jury

convicted Blackmon as charged.

1 The facts of Blackmon's underlying offenses are described in our opinion

addressing his first appeal, State v. Blackmon, No. 70955-1-1, slip op. at 2-3

(Wash. Ct. App. Dec. 22, 2014) (unpublished), http://www.courts.wa.gov/

opinions/pdf/709551/pdf, review denied, 183 Wn.2d 1019 (2015).

2 182 Wn.2d 827, 344 P.3d 680 (2015).
it

No. 74567-1-1 /2

Judge Michael T. Downes presided over all three trials and both sentencing

hearings. During the trials, the court heard evidence bearing on Blackmon's

financial circumstances. Specifically, the court heard testimony that the defendant

had worked as a "tech guy" for Microsoft for 12 years before he became a "stayat-home-dad." It also heard testimony that Blackmon offered to pay the victim, his

daughter, $100 to perform oral sex on him and that he bought his daughter and his

other children expensive gifts. In addition, Blackmon's own testimony about his

activities around the house, when he described working in the yard, in the crawl

space, and on the roof, showed that he was physically capable of working.

Initially, the court imposed an exceptional sentence of 176 months'

confinement followed by 36 months in community custody.3 The judgment

included a community custody condition that required Blackmon to "fflind and

maintain fulltime employment and/or a fulltime educational program during the

period of supervision." Blackmon objected to this condition. He claimed that he

had been "unable to work and receiving disability benefits for years." But he did

not support this claim with any evidence, and the court imposed the condition. The

trial court also imposed both mandatory and discretionary LF05.

• Blackmon appealed and raised a number of challenges to his convictions

and sentence.4 We rejected all but one of his arguments.5 We accepted the

State's concession that the trial court exceeded the statutory maximum sentence

3 RCW 9.94A.535(2)(c).

4 See Blackmon, No. 70955-1-1, slip op. at 1.

5 Blackmon, No. 70955-1-1, slip op. at 1.

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No. 74567-1-1/ 3

when it imposed the statutory maximum term of confinement plus the term of

community custody.6 Thus, we remanded for resentencing.7

At the resentencing hearing, the trial court modified the sentence to comply

with our decision. This reduced the amount of community custody.

Blackmon asked the court to consider his LFOs in light of Blazina, which the

Supreme Court had decided after Blackmon's first sentencing hearing. Blackmon

asked the court to waive discretionary LF0s, asserting that he is partially disabled

and unable to work. Again, he supplied no evidence to support this claim.

The court decided that the information before it showed that Blackmon had

the ability to pay court costs. It stated,

With regard to money. Counsel, I don't have any information

in front of me in any usable form that Mr. Blackmon is, in fact,

indigent. The testimony at the trial involved—there was ownership

of a home, there was a divorce. I don't know what the divorce

settlement was. I don't know who got money. There was something

to do with insurance proceeds. I don't know how much the insurance

proceeds were. I don't know who they went to, what they were spent

for. Given all of that, given the defendant, to my knowledge, has

never been screened and found to be indigent, and that he

apparently very well may and likely does have access to some

significant resources, I'm going to impose the financial conditions

which were requested.

Now, if there's other information that I'm unaware of, and if

after the sentencing hearing it's somehow or other appropriate to

have another hearing on this issue, then you can try to have another

hearing on the issue.

But the testimony from the trial was that Mr. Blackmon, in fact,

had access to resources, and I have no idea what happened. I don't

even know if the divorce case is over, to tell you the truth. But I have

6 Blackmon, No. 70955-1-1, slip op. at 22-23.

7 Blackmon, No. 70955-1-1, slip op. at 24.

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No. 74567-1-1 / 4

no idea what the split of assets would have been or what happened

to them.

The court imposed $600.00 in mandatory costs and $1,793.82 in discretionary

court costs to be paid in monthly installments of $60.00, starting 30 days after his

release.

The amended judgment contains the following boilerplate language:

2.5 ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS. 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.

(RCW 10.01.160). The court finds that the defendant is an

adult and is not disabled and therefore the defendant has the

ability or likely future ability to pay the legal financial

obligations imposed herein. RCW 9.94A.753.

Later, Blackmon asked the court to allow him to seek review at public

expense. He filed a declaration that references an order of indigency from a civil

case and an affidavit in which he stated he is permanently disabled. The affidavit

also states that he has no debts other than the LF0s. The trial court granted

Blackmon's request, permitting him to appeal in forma pauperis. The trial court

entered a supplemental order of indigency confirming that the court had previously

found the defendant to be indigent and ordering that verbatim reports of

proceedings be prepared at public expense.

ANALYSIS

Blackman challenges the trial court's decision to impose discretionary

LF0s. We review a decision to impose LFOs for abuse of discretion.8 A court

8 State v. Clark, 191 Wn. App. 369, 372, 362 P.3d 309 (2015).

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No. 74567-1-1/ 5

abuses its discretion when it makes a decision on untenable grounds or for

untenable reasons.9

. Blackmon asserts that the trial court did not make an individualized inquiry

into his ability to pay before it imposed discretionary LF0s. RCW 10.01.160(3)

authorizes courts to impose discretionary costs at sentencing. But it provides that

a court

shall not order a defendant to pay costs unless the defendant is or

will be able to pay them. In determining the amount and method of

payment of costs, the court shall take account of the financial

resources of the defendant and the nature of the burden that

payment of costs will impose.[19]

Our Supreme Court, in Blazina, clarified that a trial court must conduct "an

individualized inquiry into the defendant's current and future ability to pay" before

it may impose discretionary LF0s.11 It must consider factors such as incarceration

and the defendant's other debts.12 In order for this court to affirm an imposition of

discretionary LF0s, the record must reflect that the trial court made this inquiry.13

Including boilerplate language in the judgment and sentence stating that the

defendant has an ability to pay does not satisfy this requirement.14

The amended judgment contains standard boilerplate language. But the

transcript of the resentencing hearing shows that the trial court considered

Blackmon's financial circumstances.

9 Clark, 191 Wn. App. at 372.

19 RCW 10.01.160(3).

11 Blazina, 182 Wn.2d at 838.

12 Blazina, 182 Wn.2d at 838.

13 Blazina, 182 Wn.2d at 839.

14 Blazina, 182 Wn.2d at 838.

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No. 74567-1-1 / 6

Judge Downes presided over all three trials and heard all the evidence, and

he indicated that he had reviewed the facts of the case before sentencing. At the

sentencing hearing, the court relied on the trial testimony to find that Blackmon

had access to resources.

Ideally, the court should have asked about the nature of his claimed

disability or his ability to work or stated its conclusions about those questions on

the record. However, because it found Blackmon had access to resources, the

court had a proper basis for concluding Blackmon could afford to pay the LFOs it

imposed. Although this is a close case, we find that the court made an adequate

inquiry into Blackmon's ability to pay.

Blackmon also asserts that the evidence before the court does not support

its findings in the judgment and sentence. Specifically, he challenges the findings

that the court considered Blackmon's ability to pay and that Blackmon is not

disabled and therefore "has the ability or likely future ability to pay."

Neither RCW 10.01.160 nor the constitution requires a trial court to enter

specific findings about a defendant's ability to pay discretionary court costs.15 But

if the court does make any findings of fact, we review them under the clearly

erroneous standard.16 A finding of fact is clearly erroneous when, although some

evidence supports it, review of all the evidence leads to a definite and firm

conviction that the court has made a mistake.17

15 State v. Lundy, 176 Wn. App. 96, 105, 308 P.3d 755 (2013).

16 Lundy, 176 Wn. App. at 96.

17 Lundy, 176 Wn. App. at 96.

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Here, the trial court's comments at sentencing show it reviein/ed the record

before sentencing and, based on that record, considered Blackmon's ability to pay.

Thus, the court's finding that it considered Blackmon's ability to pay is not clearly

erroneous. •

Nor is the court's finding that Blackmon is not disabled clearly erroneous.

Blackmon claims he is unable to work due to a partial disability. But contrary to

Blackmon's unsupported statements that he is disabled, the record shows he had

the ability to work. Blackmon maintained employment at Microsoft for 12 years,

and the record suggests that his later unemployment was voluntary. In addition,

Blackmon had the ability to complete maintenance projects at home. Our review

of the record persuades us that the trial court's findings are not clearly erroneous.

Finally, Blackmon asks the court to deny the State appellate costs based

on his indigency. We generally award appellate costs to the substantially

prevailing party on review. However, when the trial court makes a finding that an

offender is indigent for purposes of appeal, that finding continues throughout

review "unless the commissioner or clerk determines by a preponderance of the

evidence that the offender's financial circumstances have significantly improved

since the last determination of indigency."18 We follow the trial court and presume

Blackmon is indigent. If the State has evidence indicating significant improvement

in Blackmon's financial circumstances, it may file a •motion for costs with the

commissioner.

18 RAP 14.2.

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We affirm.

WE CONCUR:

CONCLUSION

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