### FILED 

### MAY 02,2013 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 30631-3-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) LUIS CISNEROS VALENCIA, ) ) Appellant. ) KORSMO, C.J. -Luis Cisneros Valencia appeals the amendedjudgmentand sentence entered following his 2010 conviction for attemptedresidential burglary. Specifically, Mr. Valencia appeals the sentencing court's finding thathehas the current
orfuture abilityto pay legal financial obligations as clearly erroneous. 1

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### In his Statement ofAdditional Grounds for Review, Mr. Valencia also raises the question ofwhether the superior court violated thepublic's constitutional right ofaccess to criminalproceedings andhis constitutional right to bepresent at critical stages ofthe proceedings for a scheduledNovember 23, 2011 hearing to amend thejudgmentand sentence. However, the lowercourt struckthat hearing so noviolations occurred. We do not address the rest ofMr. Valencia's claimed errors because we lack any record from which to review these allegations.

### No. 30631-3-111 State v. Valencia
FACTS Mr. Valencia committed the crime ofattempted residential burglary on January 13,2010. 

### A Benton Countyjury found him guilty ofthe crime onDecember 8,2010. Benton County Superior Court entered a felonyjudgment and sentence against Mr. Valencia on January 5, 2011, but miscalculated his offender score. Actingpro se, Mr. Valencia soughtreliefcorrecting this error. The superior court amended thejudgment and sentence on January 5, 2012, using the correct offender score. The court also reaffirmed its initial order ofcosts and restitution: a $500 victim assessment fee, a $100 DNA 2 

### collection fee, $1,952.50 in other costs, and restitution in the amount of$908.45. Mr. Valencia now appeals the imposition ofcosts and restitution. He argues that the trial court exceeded its sentencing authority because it cannot order legal financial obligations without evidence to support a finding that Mr. Valencia has the current or future ability to pay as required by RCW 10.01.160(3). ANALYSIS The question ofwhetherthe sentencing court erred by finding a current or future ability to pay costs and restitution is not properly before this court. In neither the original judgment and sentence, northe amendedjudgment and sentence did the lower court find that Mr. Valencia "has the ability or likely future ability to pay the legal financial

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### 2No. 30631-3-III State v. Valencia obligations imposed" by the court. Most felonyjudgmentand sentence forms have this finding set forth as boiler plate. But in this case, that finding is not in the boilerplate; instead, it is set forth in an optional checkbox. The sentencing court never checked the box; thus, it never made the fmding. Nor did the court make such a finding during either ofthe sentencing hearings. Accordingly, the finding that Mr. Valencia appeals does not exist. In the absence ofa finding ofcurrent or future ability to pay, the question turns to whether the trial court can still orderthe payment ofcosts and restitution. The answer to this question comes from 

### Bertrand. State v. 

### Bertrand, 165 Wn. App. 393,267 P.3d 511 

### (2011), review denied, 175 Wn.2d 1014 (2012). In

### Bertrand, the Court ofAppeals reversed the sentencing court's finding ofcurrent or future ability to pay as clearly
erroneous due to a complete lack ofevidence to support the finding. Id. at 404. Without
a finding ofcurrent or future ability to pay the court in 

### Bertrand still affirmed the imposition oflegal financial obligations, leaving any further challenge to the legal financial obligations for when the State seeks to collect the obligation. 

### Id. at 405 (citing 

### State v. 

### Baldwin, 63Wn. App. 303, 310,818 P.2d 1116,837 P.2d 646 (1991)). The only effect that the lack ofa finding ofcurrent or future ability to pay currently has on the judgment and sentence is that it "forecloses the ability ofthe Department ofCorrections to begin collecting LFOs from [the defendant] until after a future determination of[the 3No.30631-3-II1 State v. Valencia defendant's] ability to pay." 

### Id. at 405. IfMr. Valencia does not want to wait until the State attempts to collect on the obligation, then he can bring a motion in superiorcourt at any time towaive or terminate the LFOs due to manifest hardship. RCW 10.0 1.160(4); 

### State 

### v. Smits, 152 Wn. App. 514, 524-25,216 PJd 1097 (2009). Affirmed. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but itwill be filed for public recordpursuant to RCW 2.06.040. Korsmo, C.J. WE CONCUR:

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