State of Washington v. Sophia Marie Gonzalez

FILED
APRIL 29, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31099-0-111
)
Respondent, )
)
v. )
)
SOPHIA MARIE GONZALEZ, ) UNPUBLISHED OPINION
)
Appellant. )
BROWN, J.-Sophia Marie Gonzalez appeals her exceptional sentence for third
degree child assault and second degree criminal mistreatment. After she initiated this
appeal, the Department of Corrections (DOC) released her from confinement and
unconditionally terminated her supervision. She contends, and the State concedes, the
sentencing court erred by failing to enter factual findings and legal conclusions
supporting her exceptional sentence. Additionally, she contends the sentencing court
erred by including an alternative variable community custody term in her judgment and
sentence. But because she served her sentence, we conclude both challenges are
moot. Next, we reject her challenge to her discretionary legal financial obligations
(LFOs) because she waived it by failing to object at the sentencing hearing and the
record shows her ability to pay them in any event. Finally, we reject her concerns
No. 31099-0-111
State v. Gonzalez
regarding inconsistent sentencing conditions because, in addition to her concern being
moot, no inconsistency exists. Accordingly, we affirm.
FACTS
On August 2, 2012, a jury found Ms. Gonzalez guilty of third degree child assault
and second degree criminal mistreatment for burning her nearly three-year-old stepson,
J.S., in hot bathwater and withholding professional medical attention for several days.
The jury found two aggravating circumstances for each crime.
On August 31, 2012, the sentencing court ordered Ms. Gonzalez to confinement
totaling 30 months-double the standard range for each crime. The court failed to enter
factual findings or legal conclusions explaining the reasons for her exceptional
sentence; the State concedes this error. The court ordered her to supervision totaling
the longer of 12 months or any period of earned early release. Without objection, the
court ordered her to pay $600 in mandatory LFOs and $3,500 in discretionary LFOs.
Her presentence report indicates she has an associate's degree, a steady employment
history, and a current seasonal job, earning $3,000 monthly in her working season and
$1,200 monthly in her nonworking season. The court noted it "considered the total
amount owing, the defendant's 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." Clerk's Papers (CP) at 371. The court did not
expressly find she had the ability to pay discretionary LFOs and did not ask her about
her ability to pay them.
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In the judgment and sentence, the sentencing court ordered Ms. Gonzalez to
"complete a parenting class" and "not have contact with the victim [J.S.]." CP at 372,
379. Additionally, the court entered a domestic violence no contact order. But at the
sentencing hearing, the court said in conflict with 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 September 4, 2012.
On September 16, 2013, the DOC released Ms. Gonzalez from confinement and
unconditionally terminated her supervision, having previously determined she was "not
eligible for supervision." CP at 400.
ANALYSIS
A. Moot Contentions
The issue is whether Ms. Gonzalez's challenges to her sentences of confinement
and supervision are moot. The State contends we cannot provide her with effective
relief because the DOC already released her from confinement and unconditionally
terminated her supervision. We agree with the State.
We will not review a moot case unless it involves "matters of continuing and
substantial public interest."1 Sorenson v. City of Bellingham, 80 Wn.2d 547,558,496
P.2d 512 (1972); Grays Harbor Paper Co. v. Grays Harbor County, 74 Wn.2d 70, 73,
442 P.2d 967 (1968). A case is moot if we "can no longer provide effective relief."
1 Ms. Gonzalez does not argue and we conclude her challenges do not involve
matters of continuing and substantial public interest.
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OlWick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984); In re Del. of Cross,
99 Wn.2d 373, 376-77, 662 P.2d 828 (1983). But a criminal case is not moot if we can
provide a defendant with effective relief from the "adverse collateral legal
consequences" of his 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 of confinement and supervision
might potentially produce collateral consequences, see Pollard v. United States, 352
U.S. 354,358,77 S. Ct. 481, 1 L. Ed. 2d 393 (1957), our Supreme Court concluded
under similar facts that a defendant's challenges to his sentences were moot where 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. Restraint of Mattson, 166 Wn.2d 730, 736-37,
214 P.3d 141 (2009); State v. Hunley, 175 Wn.2d 901, 906-08, 287 P.3d 584 (2012).
We must follow our Supreme Court's directly controlling decisions. State v. Gore, 101
Wn.2d 481, 487, 681 P.2d 227 (1984) (citing Godefroy v. Reilly, 146 Wash. 257, 259,
262 P. 639 (1928». Regardless, the mere potential for collateral consequences is too
speculative to warrant our review where, as here, a defendant challenges his or her
sentence without challenging his or her conviction. See Spencer v. Kemna, 523 U.S. 1,
14-16,118 S. Ct. 978,140 L. Ed. 2d 43 (1998); United States v. Juvenile Male,_
U.S. _,131 S. Ct. 2860, 2864,180 L. Ed. 2d 811 (2011).
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Remanding for the sentencing court to enter factual findings and legal
conclusions supporting Ms. Gonzales's exceptional sentence would be a useless
exercise because the DOC released her from confinement. Similarly, remanding for the
sentencing court to strike the alternative variable community custody term from her
judgment and sentence would be meaningless because the DOC unconditionally
terminated her supervision. She served her sentences. Thus, the sentencing court
would essentially have no sentences of confinement or supervision left to fix. Ms.
Gonzalez cites no legal authority suggesting the DOC could now reinstate her
supervision or seek sanctions if she violated a sentencing condition. In sum, we
conclude we cannot provide Ms. Gonzalez with effective relief. Accordingly, her
challenges to her sentences of confinement and supervision are moot.
B. Waived Contention
The issue is whether Ms. Gonzalez waived her challenge to her discretionary
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
of this court is that a defendant may not challenge a determination regarding his or her
ability to pay LFOs for the 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 for review filed, No. S951S-0 (Wash. Nov. 12,2013); State v.
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Blazina, 174 Wn. App. 906, 911, 301 P.3d 492, review granted, 178 Wn.2d 1010, 311
P.3d 27 (2013).
Moreover, we reject Ms. Gonzalez's challenge to her discretionary LFOs. While
a sentencing court need not make formal, specific findings on a defendant's ability to
pay discretionary LFOs, the record must show the court accounted for the nature of the
burden discretionary LFOs would impose given the defendant's financial resources.
State v. Bertrand, 165 Wn. App. 393,404,267 P.3d 511 (2011) (citing State v. Baldwin,
63 Wn. App. 303, 312, 818 P.2d 1116,837 P.2d 646 (1991)), review denied, 175 Wn.2d
1014 (2012); see State v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992). We review
a determination on a defendant's ability to pay discretionary LFOs "under the clearly
erroneous standard." Bertrand, 165 Wn. App. at 404 n.13 (quoting Baldwin, 63 Wn.
App. at 312). A finding is clearly erroneous if "'although there is evidence to support it,
the reviewing court on the entire evidence is left with 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 ability to pay discretionary LFOs, and ordering her to pay them
without accounting for the nature of the burden they would impose given her financial
resources. But the record would support any such finding because her presentence
report states she has an associate's degree, a steady employment history, and a
current seasonal job, earning $3,000 monthly in her working season and $1,200
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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]
himself as employable"). And, "when the presentence report establishes a factual basis
for the defendant's ... ability to pay and the defendant does not object, the requirement
of inquiry 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 her to complete a parenting class and
prohibiting her from contacting J.S. We disagree.
First, as discussed in the first part of our analysis, we conclude Ms. Gonzalez's
challenge to her sentencing conditions is moot.
Second, the no contact order and the judgment and sentence control over the
orally rendered order for Ms. Gonzalez to attend parenting classes with J.S. Because
the sentencing court did not incorporate the orally rendered order into the no contact
order or the judgment and sentence, the final, formal, written decisions supersede the
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).
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Both the no contact order and the judgment 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. Gonzalez to complete a parenting class
would not conflict with the orders prohibiting her from contacting J.S.
Affirmed.
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.
Brown, J.
WE CONCUR:
Lawrence-Berrey, J.
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