State Of Washington v. John Patrick Blackmon

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
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No. 74567-1-1
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V. DIVISION ONE
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JOHN PATRICK BLACKMON, UNPUBLISHED OPINION C6rri
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Appellant. FILED: June 12, 2017
LEACH, J. — In his second appeal to this court, John Blackmon challenges
the trial court's decision to impose discretionary legal financial obligations(LF05).1
Because the trial court considered whether the evidence before it showed that
Blackmon had the ability to pay, it satisfied its duty to make an individualized
inquiry under State v. Blazina.2 We affirm.
BACKGROUND
The State charged John Blackmon with two counts of child molestation in
the second degree, two counts of child molestation in the third degree, and one
count of rape of a child. At the conclusion of a third trial, after two mistrials, a jury
convicted Blackmon as charged.
1 The facts of Blackmon's underlying offenses are described in our opinion
addressing his first appeal, State v. Blackmon, No. 70955-1-1, slip op. at 2-3
(Wash. Ct. App. Dec. 22, 2014)(unpublished), http://www.courts.wa.gov/
opinions/pdf/709551/pdf, review denied, 183 Wn.2d 1019(2015).
2 182 Wash. 2d 827, 344 P.3d 680(2015).
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No. 74567-1-1 /2
Judge Michael T. Downes presided over all three trials and both sentencing
hearings. During the trials, the court heard evidence bearing on Blackmon's
financial circumstances. Specifically, the court heard testimony that the defendant
had worked as a "tech guy" for Microsoft for 12 years before he became a "stay-
at-home-dad." It also heard testimony that Blackmon offered to pay the victim, his
daughter, $100 to perform oral sex on him and that he bought his daughter and his
other children expensive gifts. In addition, Blackmon's own testimony about his
activities around the house, when he described working in the yard, in the crawl
space, and on the roof, showed that he was physically capable of working.
Initially, the court imposed an exceptional sentence of 176 months'
confinement followed by 36 months in community custody.3 The judgment
included a community custody condition that required Blackmon to "fflind and
maintain fulltime employment and/or a fulltime educational program during the
period of supervision." Blackmon objected to this condition. He claimed that he
had been "unable to work and receiving disability benefits for years." But he did
not support this claim with any evidence, and the court imposed the condition. The
trial court also imposed both mandatory and discretionary LF05.
• Blackmon appealed and raised a number of challenges to his convictions
and sentence.4 We rejected all but one of his arguments.5 We accepted the
State's concession that the trial court exceeded the statutory maximum sentence
3 RCW 9.94A.535(2)(c).
4 See Blackmon, No. 70955-1-1, slip op. at 1.
5 Blackmon, No. 70955-1-1, slip op. at 1.
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when it imposed the statutory maximum term of confinement plus the term of
community custody.6 Thus, we remanded for resentencing.7
At the resentencing hearing, the trial court modified the sentence to comply
with our decision. This reduced the amount of community custody.
Blackmon asked the court to consider his LFOs in light of Blazina, which the
Supreme Court had decided after Blackmon's first sentencing hearing. Blackmon
asked the court to waive discretionary LF0s, asserting that he is partially disabled
and unable to work. Again, he supplied no evidence to support this claim.
The court decided that the information before it showed that Blackmon had
the ability to pay court costs. It stated,
With regard to money. Counsel, I don't have any information
in front of me in any usable form that Mr. Blackmon is, in fact,
indigent. The testimony at the trial involved—there was ownership
of a home, there was a divorce. I don't know what the divorce
settlement was. I don't know who got money. There was something
to do with insurance proceeds. I don't know how much the insurance
proceeds were. I don't know who they went to, what they were spent
for. Given all of that, given the defendant, to my knowledge, has
never been screened and found to be indigent, and that he
apparently very well may and likely does have access to some
significant resources, I'm going to impose the financial conditions
which were requested.
Now, if there's other information that I'm unaware of, and if
after the sentencing hearing it's somehow or other appropriate to
have another hearing on this issue, then you can try to have another
hearing on the issue.
But the testimony from the trial was that Mr. Blackmon, in fact,
had access to resources, and I have no idea what happened. I don't
even know if the divorce case is over, to tell you the truth. But I have
6 Blackmon, No. 70955-1-1, slip op. at 22-23.
7 Blackmon, No. 70955-1-1, slip op. at 24.
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no idea what the split of assets would have been or what happened
to them.
The court imposed $600.00 in mandatory costs and $1,793.82 in discretionary
court costs to be paid in monthly installments of $60.00, starting 30 days after his
release.
The amended judgment contains the following boilerplate language:
2.5 ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS. The
court has considered the total amount owing, the defendant's
past, present and future ability to pay legal financial
obligations, including the defendant's financial resources and
the likelihood that the defendant's status will change.
(RCW 10.01.160). The court finds that the defendant is an
adult and is not disabled and therefore the defendant has the
ability or likely future ability to pay the legal financial
obligations imposed herein. RCW 9.94A.753.
Later, Blackmon asked the court to allow him to seek review at public
expense. He filed a declaration that references an order of indigency from a civil
case and an affidavit in which he stated he is permanently disabled. The affidavit
also states that he has no debts other than the LF0s. The trial court granted
Blackmon's request, permitting him to appeal in forma pauperis. The trial court
entered a supplemental order of indigency confirming that the court had previously
found the defendant to be indigent and ordering that verbatim reports of
proceedings be prepared at public expense.
ANALYSIS
Blackman challenges the trial court's decision to impose discretionary
LF0s. We review a decision to impose LFOs for abuse of discretion.8 A court
8 State v. Clark, 191 Wash. App. 369, 372, 362 P.3d 309 (2015).
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abuses its discretion when it makes a decision on untenable grounds or for
untenable reasons.9
. Blackmon asserts that the trial court did not make an individualized inquiry
into his ability to pay before it imposed discretionary LF0s. RCW 10.01.160(3)
authorizes courts to impose discretionary costs at sentencing. But it provides that
a court
shall not order a defendant to pay costs unless the defendant is or
will be able to pay them. In determining the amount and method of
payment of costs, the court shall take account of the financial
resources of the defendant and the nature of the burden that
payment of costs will impose.[19]
Our Supreme Court, in Blazina, clarified that a trial court must conduct "an
individualized inquiry into the defendant's current and future ability to pay" before
it may impose discretionary LF0s.11 It must consider factors such as incarceration
and the defendant's other debts.12 In order for this court to affirm an imposition of
discretionary LF0s, the record must reflect that the trial court made this inquiry.13
Including boilerplate language in the judgment and sentence stating that the
defendant has an ability to pay does not satisfy this requirement.14
The amended judgment contains standard boilerplate language. But the
transcript of the resentencing hearing shows that the trial court considered
Blackmon's financial circumstances.
9 Clark, 191 Wash. App. at 372.
19 RCW 10.01.160(3).
11 Blazina, 182 Wash. 2d at 838.
12 Blazina, 182 Wash. 2d at 838.
13 Blazina, 182 Wash. 2d at 839.
14 Blazina, 182 Wash. 2d at 838.
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No. 74567-1-1 /6
Judge Downes presided over all three trials and heard all the evidence, and
he indicated that he had reviewed the facts of the case before sentencing. At the
sentencing hearing, the court relied on the trial testimony to find that Blackmon
had access to resources.
Ideally, the court should have asked about the nature of his claimed
disability or his ability to work or stated its conclusions about those questions on
the record. However, because it found Blackmon had access to resources, the
court had a proper basis for concluding Blackmon could afford to pay the LFOs it
imposed. Although this is a close case, we find that the court made an adequate
inquiry into Blackmon's ability to pay.
Blackmon also asserts that the evidence before the court does not support
its findings in the judgment and sentence. Specifically, he challenges the findings
that the court considered Blackmon's ability to pay and that Blackmon is not
disabled and therefore "has the ability or likely future ability to pay."
Neither RCW 10.01.160 nor the constitution requires a trial court to enter
specific findings about a defendant's ability to pay discretionary court costs.15 But
if the court does make any findings of fact, we review them under the clearly
erroneous standard.16 A finding of fact is clearly erroneous when, although some
evidence supports it, review of all the evidence leads to a definite and firm
conviction that the court has made a mistake.17
15 State v. Lundy, 176 Wash. App. 96, 105, 308 P.3d 755 (2013).
16 Lundy, 176 Wash. App. at 96.
17 Lundy, 176 Wash. App. at 96.
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Here, the trial court's comments at sentencing show it reviein/ed the record
before sentencing and, based on that record, considered Blackmon's ability to pay.
Thus, the court's finding that it considered Blackmon's ability to pay is not clearly
erroneous. •
Nor is the court's finding that Blackmon is not disabled clearly erroneous.
Blackmon claims he is unable to work due to a partial disability. But contrary to
Blackmon's unsupported statements that he is disabled, the record shows he had
the ability to work. Blackmon maintained employment at Microsoft for 12 years,
and the record suggests that his later unemployment was voluntary. In addition,
Blackmon had the ability to complete maintenance projects at home. Our review
of the record persuades us that the trial court's findings are not clearly erroneous.
Finally, Blackmon asks the court to deny the State appellate costs based
on his indigency. We generally award appellate costs to the substantially
prevailing party on review. However, when the trial court makes a finding that an
offender is indigent for purposes of appeal, that finding continues throughout
review "unless the commissioner or clerk determines by a preponderance of the
evidence that the offender's financial circumstances have significantly improved
since the last determination of indigency."18 We follow the trial court and presume
Blackmon is indigent. If the State has evidence indicating significant improvement
in Blackmon's financial circumstances, it may file a •motion for costs with the
commissioner.
18 RAP 14.2.
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CONCLUSION
We affirm.
WE CONCUR:
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