### FILED APRIL29, 2014 In the Office oftheClerkofCourt W A StateCourtofAppeals, Division III

IN THE COURT OFAPPEALS OF THE STATE OFWASHINGTON DIVISION THREE STATE OFWASHINGTON, ) No. 31099-0-111 ) Respondent, ) ) 

### v. ) ) SOPHIA MARIE GONZALEZ, ) UNPUBLISHED OPINION ) Appellant. ) BROWN, J.-Sophia Marie Gonzalez appeals her exceptional sentenceforthird degree child assault and second degree criminal mistreatment. After she initiated this appeal, the Department ofCorrections (DOC) released herfrom confinement and unconditionally terminated hersupervision. She contends, and the State concedes, the sentencing courterred byfailing to enterfactual findings and legal conclusions supporting herexceptional sentence. Additionally, she contends the sentencing court erred by including an alternativevariable community custody term in herjudgmentand sentence. But because she served hersentence, we conclude both challenges are moot. Next, we reject her challenge to herdiscretionary legal financial obligations (LFOs) because she waived it byfailing to object atthe sentencing hearing and the record shows herabilityto paythem in anyevent. Finally, we reject herconcernsNo. 31099-0-111 State v. Gonzalez regarding inconsistentsentencing conditions because, in addition to her concern being moot, no inconsistency exists. Accordingly, we affirm. FACTS On August2, 2012, ajuryfound Ms. Gonzalez guilty ofthird degree child assault and second degree criminal mistreatmentfor burning her nearlythree-year-old stepson, J.S., in hot bathwater and withholding professional medical attention for several days. Thejuryfound two aggravating circumstances foreach crime. On August 31, 2012, the sentencing court ordered Ms. Gonzalezto confinement totaling 30 months-doublethe standard range for each crime. The courtfailed to enter factual findings or legal conclusions explaining the reasons for herexceptional sentence; the State concedes this error. The court ordered herto supervision totaling the longer of 12 months or any period ofearned early release. Withoutobjection, the court ordered herto pay $600 in mandatory LFOs and $3,500 in discretionary LFOs. Herpresentence report indicates she has an associate's degree, a steady employment history, and a current seasonaljob, earning $3,000 monthly in herworking season and $1,200 monthly in her nonworking season. The court noted it "considered thetotal amountowing, the defendant's present and future ability to pay legal financial obligations, including the defendant'sfinancial resources and the likelihood thatthe defendant's status will change." Clerk's Papers (CP) at 371. The court did not expresslyfind she had the abilityto pay discretionary LFOs and did notask herabout herability to pay them.



### 2No. 31099-0-111 State v. Gonzalez In thejudgment and sentence, the sentencing court ordered Ms. Gonzalezto "complete a parenting class" and "not have contact with the victim [J.S.]." CP at372, 379. Additionally, the court entered a domesticviolence no contact order. But atthe sentencing hearing, the court said in conflictwith those documents, 'There was a parenting class. I'll require you have to participate in classes with [J.S.]." Report of Proceedings (Aug. 31,2012) at 701. She appealed on September4, 2012. On September 16, 2013, the DOC released Ms. Gonzalezfrom confinement and unconditionally terminated hersupervision, having previously determined she was "not eligible for supervision." CP at400. ANALYSIS A. Moot Contentions The issue is whether Ms. Gonzalez's challenges to her sentences ofconfinement and supervision are moot. The State contends we cannot provide herwith effective relief because the DOC already released herfrom confinement and unconditionally terminated hersupervision. We agree with the State. Wewill not review a moot case unless it involves "matters ofcontinuing and substantial public interest."1 Sorenson v. CityofBellingham, 80 Wn.2d 547,558,496 P.2d 512 (1972); Grays HarborPaperCo. v. Grays HarborCounty, 74 Wn.2d 70, 73, 442 P.2d 967 (1968). A case is moot ifwe "can no longer provide effective relief."

1 Ms. Gonzalez does not argue and we conclude her challenges do not involve matters ofcontinuing and substantial public interest. 

### 3No. 31099-0-111 

### State v. Gonzalez OlWick v. CityofSeattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984); 

### In re Del. ofCross, 99 Wn.2d 373, 376-77, 662 P.2d 828 (1983). But a criminal case is not moot ifwe can provide a defendantwith effective relieffrom the "adverse collateral legal consequences" ofhis or her conviction or sentence. 

### Sibron v. New York, 392 U.S. 40, 53-55,57,88 S. Ct. 1889,20 L. Ed. 2d 917 (1968); see 

### State v. Turner, 98 Wn.2d 731, 733,658 P.2d 658 (1983); 

### Monohan v. Burdman, 84 Wn.2d 922, 925, 530 P.2d 334 (1975). While it is arguable Ms. Gonzalez's sentences ofconfinement and supervision might potentially produce collateral consequences, see 

### Pollard v. UnitedStates, 352 U.S. 354,358,77 S. Ct. 481, 1 L. Ed. 2d 393 (1957), our Supreme Court concluded undersimilarfacts that a defendant's challenges to his sentences were mootwhere his confinement and supervision already ended, see 

### State v. Ross, 152 Wn.2d 220, 228, 95 P.3d 1225 (2004); see 

### also In re Pers. RestraintofMattson, 166Wn.2d 730, 736-37, 214 P.3d 141 (2009); 

### State v. Hunley, 175Wn.2d 901, 906-08, 287 P.3d 584 (2012). We mustfollow our Supreme Court's directly controlling decisions. 

### State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984) (citing 

### Godefroy v. Reilly, 146Wash. 257, 259, 262 P. 639 (1928». Regardless, the mere potential for collateral consequences is too speculative towarrant our review where, as here, a defendant challenges his or her sentence without challenging his or herconviction. 

### See Spencerv. Kemna, 523 U.S. 1, 14-16,118 S. Ct. 978,140 L. Ed. 2d 43 (1998); 

### UnitedStates v. Juvenile Male,_ U.S. _,131 S. Ct. 2860, 2864,180 L. Ed. 2d 811 (2011).



### 4No. 31099-0-111 State v. Gonzalez Remanding forthe sentencing court to enterfactual findings and legal conclusions supporting Ms. Gonzales's exceptional sentence would be a useless exercise because the DOC released herfrom confinement. Similarly, remanding forthe sentencing court to strike the alternative variable community custody term from her judgment and sentence would be meaningless because the DOC unconditionally terminated hersupervision. She served hersentences. Thus, the sentencing court would essentially have no sentences ofconfinement or supervision left to fix. Ms. Gonzalez cites no legal authority suggesting the DOC could now reinstate her supervision orseek sanctions ifshe violated a sentencing condition. In sum, we conclude we cannot provide Ms. Gonzalezwith effective relief. Accordingly, her challenges to her sentences ofconfinement and supervision are moot. B. Waived Contention The issue is whether Ms. Gonzalezwaived her challenge to herdiscretionary LFOs. The State argues she did not preserve her error claims for our review because she did not object at the sentencing hearing. We agree with the State. Until our Supreme Court decides otherwise, the rule established by each division ofthis court is that a defendant may not challenge a determination regarding his or her ability to pay LFOs forthe first time on appeal. State v. Duncan, No. 29916-3-111, slip op. at 7-12 (Wash. Ct. App. Mar. 25, 2014) (citing RAP 2.5(a) and State v. Kuster, 175 Wn. App. 420, 424-25,306 P.3d 1022 (2013)); State v. Calvin, _Wn.App. _,316 P.3d 496, 507-0S, petition forreviewfiled, No. S951S-0 (Wash. Nov. 12,2013); State v.



### 5No. 31099-0-111 State v. Gonzalez Blazina, 174Wn. App. 906, 911, 301 P.3d 492, reviewgranted, 178Wn.2d 1010, 311 P.3d 27 (2013). Moreover, we reject Ms. Gonzalez's challenge to herdiscretionary LFOs. While

a sentencing court need not make formal, specificfindings on a defendant's ability to pay discretionary LFOs, the record must showthe court accounted for the nature ofthe burden discretionary LFOswould impose given the defendant'sfinancial resources. State v. Bertrand, 165Wn. App. 393,404,267 P.3d 511 (2011) (citing State v. Baldwin, 63Wn. App. 303, 312, 818 P.2d 1116,837 P.2d 646 (1991)), reviewdenied, 175Wn.2d 1014 (2012); see State v. Curry, 118Wn.2d 911, 916, 829 P.2d 166 (1992). We review

a determination on a defendant's ability to pay discretionary LFOs "underthe clearly

erroneous standard." Bertrand, 165Wn. App. at404 n.13 (quoting Baldwin, 63Wn. App. at 312). A finding is clearly erroneous if"'although there is evidence to support it, the reviewing court on the entire evidence is leftwith the definite and firm conviction that

a mistake has been committed.'" Ancheta v. Daly, 77 Wn.2d 255, 259-60,461 P.2d 531 (1969) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,395,68 S. Ct. 525, 92 L. Ed. 746 (1948)). Ms. Gonzalez argues the sentencing court erred by making an unsupported implied finding on her abilityto pay discretionary LFOs, and ordering herto pay them without accounting for the nature ofthe burden theywould impose given herfinancial

resources. Butthe record would support any such finding because her presentence report states she has an associate's degree, a steady employment history, and a current seasonaljob, earning $3,000 monthly in her working season and $1,200 

### 6No. 31099-0-111 State v. Gonzalez monthly in her nonworking season. See Baldwin, 63 Wn. App. at 311-12 (affirming a finding that a defendant had the present or likely future ability to pay discretionary LFOs where the sole evidence to support it was his presentence report, stating he "describe[d] himselfas employable"). And, "when the presentence report establishes a factual basis for the defendant's

... abilityto pay and the defendant does not object, the requirement ofinquiry into the ability to pay is satisfied." Id. at 311. The evidence does not leave us with a definite and firm conviction that the sentencing court made a mistake. In sum, the sentencing court did not err in imposing discretionary LFOs. C. Clarification Request Ms. Gonzalez contends we must remand for clarification because the sentencing court issued conflicting orders both requiring herto complete a parenting class and prohibiting herfrom contacting J.S. We disagree. First, as discussed in the first part ofour analysis, we conclude Ms. Gonzalez's challenge to her sentencing conditions is moot. Second, the no contact order and thejudgment and sentence control overthe orally rendered orderfor Ms. Gonzalezto attend parenting classes with J.S. Because the sentencing court did not incorporate the orally rendered order into the no contact order orthejudgment and sentence, the final, formal, written decisions supersedethe earlier, informal, oral decision. See State 

### v. Mallory, 69 Wn.2d 532, 533-34,419 P.2d 324 (1966); State 

### v. Dailey, 93 Wn.2d 454,458-59,610 P.2d 357 (1980); State 

### v. Kilburn, 151 Wn.2d 36, 39 n.1, 84 P.3d 1215 (2004).



### 7No. 31099-0-111 State v. Gonzalez Both the no contact order and thejudgment and sentence unequivocally prohibit Ms. Gonzalez from contacting J.S., without exception for a parenting class. The obvious result is that she would have had to complete a parenting class without him present. Therefore, the order requiring Ms. Gonzalezto complete a parenting class would not conflict with the orders prohibiting herfrom contacting J.S. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

Brown, 

### J. WE CONCUR:

Lawrence-Berrey, J.



### 8