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## 20IUUL28 Li 9:58

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent/Cross Appellant,

v. KENNETH R. BURNETT, Appellant/Cross Respondent. No. 70203-3-1

UNPUBLISHED OPINION FILED: July 28, 2014 Verellen, A.C.J.

— Kenneth Burnett pleaded guilty to one count ofpossession of
a controlled substance, heroin, under RCW 69.50.401. As a result, the trial court imposed a $1,000 fine under RCW 69.50.430 (VUCSA fine) at sentencing. Burnett appeals, arguing that the fine should be waived due to his indigency. The State cross 

### appeals, arguing that the trial court should have imposed a $2,000 VUCSA fine because there is no finding ofindigency and this is Burnett's second VUCSA conviction. Because it is unclearfrom the record whether the courtfound Burnett indigent and entitled to a suspension or deferral ofthe fine, we remand to the trial court. DISCUSSION 

### Burnett argues thatthe trial court erred in imposing the $1,000 VUCSA fine because there was evidence that he was indigent and the fine may be waived ifthe trialNo. 70203-3-1/2 

### court finds the defendant is indigent.1 The State argues that the trial court erred in not imposing a $2,000 VUCSA fine because there was no specific finding that Burnett is indigent and this is his second VUCSA conviction. Because it is unclear whetherthe trial court intended to find Burnett indigent and suspend or defer the VUCSA fine, we remand for further proceedings. RCW 69.50.430 states that: (1) Every person convicted of a felony violation of RCW 69.50.401 through 69.50.4013, 69.50.4015, 69.50.402, 69.50.403, 69.50.406, 69.50.407, 69.50.410, or 69.50.415 shall be fined one thousand dollars in addition to any otherfine or penalty imposed. Unless the courtfinds the person to be indigent, this additional fine shall not be suspended or deferred by the court. 

### (2) On a second or subsequent conviction for violation ofany ofthe laws listed in subsection (1) of this section, the person shall be fined two thousand dollars inaddition to any otherfine or penalty imposed. Unless the courtfinds the person to be indigent, this additional fine shall not be suspended or deferred by the court. 

### Imposition ofthisfine ismandatory unless thetrial courtfinds the defendantindigent.2 Atsentencing, the State requested a $2,000 VUCSA fine, based upon Burnett's 

### priorconviction forpossession of cocaine. Burnett's attorney asked the court tofind Burnett indigent and not impose the VUCSA finebecause, although Burnett "has had 

### some work history in the past[, h]e has not been employed for some time."3 He also explained to the court that Burnett was presently unemployed and "would not be able to

1Additionally, Burnettargues that the trial court's boilerplatefinding that he had 

### the ability to pay was not supported by the record. Butbecause RCW69.50.430 requires a finding ofindigency, not the ability to pay, this boilerplatefinding alone does not supportthe trial court's imposition ofthe fine. 

### 2State v. Mayer, 120 Wn. App. 720, 726, 86 P.3d 217 (2004). 3Report ofProceedings (RP) (Mar. 26. 2013) at 3.No. 70203-3-1/3 

### take advantage of work release."4 Inits oral ruling, the trial court stated, "I will reduce the drug fine from $2,000 to $1,000. Butsince trafficking was involved here, Ithink it's 

### appropriate there be a fine, at least a partial fine, for that trafficking activity."5 The trial court did notmake a specific finding that Burnett was indigent, and it is unclear whether or not itintended to do so. On the one hand, the trial court did not 

### check the box on thejudgment and sentence stating that the VUCSA fine was deferred 

### due to indigency, thejudgment and sentence includes only a boilerplate findingthat Burnett has the present or future ability to pay legal financial obligations, and, by imposing the $1,000 fine, the trial court may be implying that Burnett has some abilityto pay. On the other hand, defense counsel presented evidence ofindigency, the trial court did reduce the fine, Burnettwas represented by a public defender at trial and, less than two weeks afterthejudgment and sentence were entered, the samejudge authorized Burnett to seek review at public expense due to his indigency. Burnett argues thatthe trial court made an implicit finding that he was indigentfor purposes ofthe VUCSA fine. But that is not clear based upon the record. The trial court specifically stated that itwas "reducing]" the fine, not suspending or deferring the fine, as would be appropriate based on the language ofthe statute after a finding of 

### indigency.6 Because the trialcourt's language fails to track the language ofthe statute, we do not agree that there was an implicit finding of indigency. Given Burnett's criminal history, a $2,000 VUCSA fine is required unless the trial court has suspended or deferred the fine based upon a finding ofindigency. Therefore, 4Id, at 2. 5Id, at 4. 6Itappears the statute allows suspension or deferral but not a partial reduction.No. 70203-3-1/4 

### we remand to the trial court to clarify whether or not Burnett is indigent and, ifindigent, to articulate whether or notthe fine should be suspended or deferred. We remand for further proceedings consistentwith this opinion.7

WE CONCUR: 

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7We note that, in the eventthat Burnett has completed his incarceration upon resentencing, the trial court's determination of indigency should focus on Burnett's thencurrent indigency, not his indigency at the original sentencing hearing.