State of Washington v. Juan Leonardo Aparicio Martinez ( 2013 )

FILED
MAR 19,2013
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. 30440-0-III
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
JUAN LEONARDO APARICIO )
MARTINEZ, )
)
Appellant. )
KORSMO, C.J. - Juan Aparicio Martinez argues that the trial court did not have
authority to impose restitution under RCW 9.94A.753(5) and improperly found that he
currently had the ability to pay his legal financial obligations (LFOs). We disagree with·
his first argument, but agree with his second.
FACTS
In early February 2011, Mr. Martinez and three other individuals broke into a
Bridgeport home while the family was away. The group stole three firearms and other
valuable personal property. He was charged with first degree burglary, first degree theft,
three counts of firearm theft, and first degree trafficking in stolen property. After hearing
No. 30440-0-111
State v. Martinez
the evidence against him, Mr. Martinez agreed to a plea deal. He then pleaded guilty to
amended charges of residential burglary, first degree theft, and one count of theft of a
firearm.
The trial court later sentenced Mr. Martinez to 22 months of incarceration. The
trial court held a restitution hearing the following month. Mr. Martinez and his
codefendants were jointly and severally ordered to make restitution of$26,019.82. Mr.
Martinez timely appealed to this court.
ANALYSIS
Mr. Martinez contends the trial court erred by failing to advise him prior to
accepting his guilty plea that he might have to pay restitution. He also argues that the
court erred by finding that he had the ability to pay his LFOs without first taking
. evidence of his current or future ability to pay. We address both of these issues in tum.
This court reviews de novo the circumstances under which a guilty plea was made.
Young v. Konz, 91 Wn.2d 532,536,588 P.2d 1360 (1979). In Tracy, this court struck an
order to pay restitution because prior to entering his guilty plea, "Mr. Tracy was neither
advised of the possibility of restitution nor did he agree that restitution might be ordered."
State v. Tracy, 73 Wash. App. 386; 389, 869 P.2d 425 (1994). Mr. Martinez argues that he
was not advised of the possibility of restitution and therefore should not have to pay it.
Mr. Martinez, however, was advised of the possibility of restitution. He
acknowledged as much when he signed the "Statement of Defendant on Plea of Guilty":
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No. 30440-0-III
State v. Martinez
In addition to sentencing me to confinement, the judge will order me to pay
$500.00 as a victim's compensation fund assessment. If this crime resulted
in injury to any person or damage to or loss of property, the judge will
order me to make restitution, unless extraordinary circumstances exist
which make restitution inappropriate. The amount of restitution may be up
to double my gain or double the victim's loss. The judge may also order
that I pay a fine, court costs, attorney fees and the costs of incarceration.
Clerk's Papers at 15 (Statement of Defendant on Plea of Guilty ~ 6(e)). Mr. Martinez
counters that the plea form signed by Mr. Tracy contained an almost identical paragraph
6(e) which was found to be legally deficient. Tracy, 73 Wn. App. at 389.
While paragraph 6(e) was legally deficient in Tracy, it was perfectly acceptable in
this case. Mr. Tracy was convicted of "unlawful display of a weapon capable of
producing bodily harm." Tracy, 73 Wn. App. at 387 (emphasis omitted). Unlawful
display of a weapon is not a crime resulting in "injury to any person or damage to or loss
of property"; thus, paragraph 6(e) failed to advise Mr. Tracy of the possibility that he
would be ordered to pay restitution. Here, Mr. Martinez's commission of burglary and
theft resulted in a "loss of property." Thus, paragraph 6(e) properly advised him that
restitution was a possible result of his plea. While the trial court did not orally advise Mr.
Martinez that he would be ordered to pay restitution, it did not need to. In re Pers.
Restraint ofStoudmire, 145 Wn.2d 258,266,36 P.3d 1005 (2001) ("Knowledge of the
direct consequences of a guilty plea can be satisfied either by the plea documents or by
clear and convincing extrinsic evidence."). Accordingly, no error occurred by ordering
Mr. Martinez to pay restitution.
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No.30440-0-III
State v. Martinez
Next, Mr. Martinez argues that the court had no basis for determining that he has
the ability to pay his LFOs. While there is no need to enter formal findings of fact, there
must be sufficient evidence in the record to enable an appellate court to review the
finding. State v. Bertrand, 165 Wn. App. 393,267 P.3d 511 (2011), review denied, 175
Wash. 2d 1014 (2012). The record here is devoid of any evidence of Mr. Martinez's
financial resources. The proper remedy is to affirm the imposition of LFOs, reverse the
finding of present or future ability to pay, and "remand to the trial court to strike finding
number 2.5 from the judgment and sentence." Id. at 405.
Affirmed in part, reversed in part, and remanded with instructions to strike finding
number 2.5 from the judgment and sentence.
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.
~ CCy:
WE CONCUR:
Brown, 1
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