State of Washington v. Aristeo Garcia Rubio ( 2018 )

FILED
MAY 1, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34958-6-III
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ARISTEO GARCIA RUBIO, )
)
Appellant. )
FEARING, J. — Aristeo Rubio, a sex offender, challenges language in his judgment
and sentence imposing time restraints for registering as an offender. He also challenges
an order to pay incarceration costs. We agree, in part, with the challenges and remand for
correction of the judgment and sentence.
FACTS
Aristeo Rubio worked as a paraeducator at a Yakima middle school. While
employed, he befriended a twelve-year-old student and eventually engaged in intercourse
with the girl.
PROCEDURE
The State of Washington charged Aristeo Rubio with rape of a child in the second
degree. The State also sought a sentence enhancement for the aggravating circumstance
that Rubio used his position of trust and confidence to facilitate the offense. The jury
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State v. Rubio
convicted Rubio of the underlying crime and the enhancement.
Due to the finding of an aggravating circumstance, the trial court imposed an
exceptional sentence. The sentencing court sentenced Aristeo Rubio to one hundred and
twenty months’ confinement to life. The judgment and sentence includes an order for
community custody, but the sentence does not delineate the length of community
custody.
We quote numerous paragraphs from the judgment and sentence, which relate to
Aristeo Rubio’s assignments of error and his community custody conditions. Paragraph
4.B.1 reads:
Community Custody: The defendant shall serve community custody
for any period of time the defendant is released from total confinement
before the expiration of the maximum sentence on Count 1 pursuant to
RCW 9.94A.507. The defendant shall report, in person, within 24 hours of
this order or release from incarceration, whichever is later, to the
Washington State Department of Corrections, 210 North Second Street,
Yakima, Washington.
Clerk’s Papers (CP) at 103. As a condition of community custody, paragraph 4.C.3
similarly demands that Aristeo Rubio:
Register as a sex offender as required by RCW 9A.44.130 within 24
hours of release from incarceration.
CP at 104. Section 5.7 of the judgment and sentence also includes a registration
requirement that states:
1. General Applicability and Requirements: Because this crime
involves a sex offense or kidnapping offense involving a minor as defined
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State v. Rubio
in RCW 9A.44.130, the defendant is required to register with the sheriff of
the county of the state of Washington where he or she resides. If the
defendant is not a resident of Washington but is a student in Washington or
is employed in Washington or carries on a vocation in Washington, the
defendant must register with the sheriff of the county of his or her school,
place of employment, or vocation. The defendant must register
immediately upon being sentenced unless he or she is in custody, in which
case the defendant must register within 24 hours of release.
CP at 107.
After imposing the term of confinement, the court engaged in a brief inquiry
regarding Aristeo Rubio’s ability to pay legal financial obligations. Defense counsel
informed the sentencing court that a school district previously employed Rubio, but he
lost employment upon his incarceration. Counsel reminded the court that Rubio would
remain in jail for at least ten years and predicted that Rubio, because of the nature of his
crime, would encounter difficulty gaining employment on release from prison. The
sentencing court found Rubio currently indigent for purposes of appeal and that Rubio
lacked the present and future ability to pay financial obligations. As a result, the court
struck a discretionary attorney fee recoupment provision, but imposed discretionary costs
of incarceration. Defense counsel did not object to the imposition of incarceration costs
but asked that costs be capped at $300. The sentencing court agreed. Otherwise, the
court only imposed mandatory legal financial obligations.
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State v. Rubio
LAW AND ANALYSIS
On appeal, Aristeo Rubio asks this court to amend his judgment and sentence to
reflect that he receives three days to register as a sex offender and to remove the
obligation to pay for incarceration costs. We grant the requests in part.
Sex Offender Registration
Aristeo Rubio registered no objection before the sentencing to the portions of the
sentence he now challenges. Nevertheless, a defendant cannot agree to a sentence in
excess of what the legislature authorized. In re Personal Restraint of Moore, 116 Wash. 2d
30, 38-39, 803 P.2d 300 (1991). An offender may challenge an unlawful sentence for the
first time on appeal. State v. Warnock, 174 Wash. App. 608, 611, 299 P.3d 1173 (2013).
RCW 9A.44.130 imposes registration requirements on a sex offender. Aristeo
Rubio argues his judgment and sentence went a step too far in requiring him to register
within twenty-four hours as it conflicts with the statutory obligations. He further argues
that the language fails to identify the recipient of the registration under the twenty-four-
hour requirement.
The lengthy statute, RCW 9A.44.130 declares, in part:
(1)(a) Any adult or juvenile residing whether or not the person has a
fixed residence, or who is a student, is employed, or carries on a vocation in
this state who has been found to have committed or has been convicted of
any sex offense or kidnapping offense . . . shall register with the county
sheriff for the county of the person’s residence. . . . When a person
required to register under this section is in custody of the state department
of corrections . . . as a result of a sex offense or kidnapping offense, the
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State v. Rubio
person shall also register at the time of release from custody with an official
designated by the agency that has jurisdiction over the person.
(b) Any adult or juvenile who is required to register under (a) of this
subsection must give notice to the county sheriff of the county with whom
the person is registered within three business days:
(i) Prior to arriving at a school or institution of higher education to
attend classes;
(ii) Prior to starting work at an institution of higher education; or
(iii) After any termination of enrollment or employment at a school
or institution of higher education.
....
(4)(a) Offenders shall register with the county sheriff within the
following deadlines:
(i) OFFENDERS IN CUSTODY. Sex offenders or kidnapping
offenders who are in custody of the state department of corrections . . .
must register at the time of release from custody with an official designated
by the agency that has jurisdiction over the offender. The agency shall
within three days forward the registration information to the county sheriff
for the county of the offender’s anticipated residence. The offender must
also register within three business days from the time of release with the
county sheriff for the county of the person’s residence. . . . The agency that
has jurisdiction over the offender shall provide notice to the offender of the
duty to register.
RCW 9A.44.130 repeatedly imposes, on a sex offender, two registration
obligations. First, the offender must register with the Department of Corrections on his
release from incarceration or within twenty-four hours of the release. Second, the
offender must register with the sheriff of the county, in which the offender resides, within
three business days of release.
Aristeo Rubio’s judgment and sentence fails to always distinguish between the
two distinct registration requirements. Paragraph 4.B.1 correctly imposes an obligation
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State v. Rubio
to report to the Department of Corrections within twenty-four hours. Paragraph 4.C.3
imposes a similar obligation to register as a sex offender within twenty-four hours, but
the order does not identify the office at which Rubio registers. Conceivably Rubio could
violate the order if he fails to register with his county sheriff within one day. Paragraph
5.7 expressly imposes on Rubio the obligation to register with the county sheriff within
twenty-four hours of his release. Therefore, we remand to the sentencing court to modify
the judgment and sentence. All references to registration within twenty-four hours
should limit the duty to reporting to the Department of Corrections. All references to
registration with the county sheriff should afford three business days for accomplishing
the obligation.
Incarceration Costs
Aristeo Rubio next challenges the imposition of $300 in incarceration costs. RCW
10.01.160(2) allows a trial court to impose costs, including incarceration expenses, on a
convicted defendant. The court, however, “shall not order a defendant to pay costs
unless the defendant is or will be able to pay them.” RCW 10.01.160(3) (emphasis
added). Use of the word “shall” does not confer discretion but creates a duty not to
impose costs. State v. Blazina, 182 Wash. 2d 827, 838, 344 P.3d 680 (2015).
The statutory language provides that the sentencing court may only impose
discretionary costs if it finds the defendant has the likely present or future ability to pay.
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State v. Rubio
The sentencing court found Aristeo Rubio lacked any present or future ability to pay and
found Rubio indigent for purposes of this appeal.
Pursuant to the discretion imposed on this court under State v. Blazina, this court
often declines to address challenges to amounts of discretionary legal financial
obligations, when the offender failed to object before the trial court. Because we remand
this case on other grounds, we choose to also remand for the striking of the incarceration
costs.
CONCLUSION
We remand to the sentencing court to amend the sex offender ;reporting
requirements consistent with this decision. We also remand for the striking of the
imposition of incarceration costs. Because Aristeo Rubio prevails in part, we decline to
award appellate costs to the State.
A majority of the 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.
Fearing, i
WE CONCUR:
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