Opinion
No. 22337-0-III
Filed: November 4, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Stevens County. Docket No: 97-1-00015-1. Judgment or order under review. Date filed: 07/25/2003. Judge signing: Hon. Rebecca M Baker.
Counsel for Appellant(s), Chris Bajalcaliev, Attorney at Law, 1309 W Dean Ave Ste 102, Spokane, WA 99201-2018.
Counsel for Respondent(s), John Gerard Wetle, Attorney at Law, 215 S Oak St, PO Box 390, Colville, WA 99114-0390.
Tracy S. Walter was convicted of first degree robbery and second degree assault. After the court imposed sentence, it ordered him to pay $5,526 attorney fees. Mr. Walter sought to be relieved from this award of fees. The court lowered the amount, but did not eliminate the fee award entirely. Mr. Walter appeals. We affirm.
On June 25, 1997, Mr. Walter pleaded guilty to first degree robbery and second degree assault. On June 27, the court signed an order of compensation requiring him to pay $5,526 attorney fees.
In March 2003, Mr. Walter sought relief from the attorney fees award. He objected to the award because he did not receive any billing records from his appointed counsel. He also had not received notice of the hearing imposing the fees even though he had not waived his right to appear.
The court determined some of the hours in the cost bill were for an unrelated case. Although noting Mr. Walter should have been given notice of the initial proceeding, the court found he was nonetheless afforded due process because he was now able to participate. The court thus declined to relieve him of the fee award and entered an order amending the judgment and sentence to reduce the amount of attorney fees by $618 and ordered that the interest be recalculated to run from the date of the amended order, rather than the date of sentencing. This appeal follows.
Mr. Walter claims the court erred by requiring him to pay attorney fees without considering his financial situation. We review a court's determination as to the defendant's resources and ability to pay under the clearly erroneous standard. State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116, 837 P.2d 646 (1991).
RCW 10.01.160 permits the court to order a convicted defendant to pay attorney fees. RCW 10.01.160(3) requires the court to take the defendant's financial situation into account. See Baldwin, 63 Wn. App. at 311. The time to consider a defendant's financial situation is when the State seeks payment of the obligation. Id. at 310. Although the court must take a defendant's financial situation into account, it need not enter formal findings of fact on this issue. Id. at 311.
At the time it entered the judgment and sentence, the court determined Mr. Walter had the ability to pay legal financial obligations. At the 2003 hearing, the court asked Mr. Walter if he had been making payments on this obligation while he was in prison. He replied he had paid $3,500 toward it. From this, the court determined Mr. Walter had the ability to pay the remaining amount of the legal financial obligation. In those circumstances, the court did not err.
Mr. Walter also claims the order of compensation requiring him to pay his attorney fees should be reversed because he was not present at the hearing when the court imposed the fees. He relies on State v. Duvall, 86 Wn. App. 871, 874, 940 P.2d 671 (1997), review denied, 134 Wn.2d 1012 (1998). But Duvall deals with restitution, which is not the same as legal costs. With regard to the imposition of attorney fees, our Supreme Court stated: [I]t is not fundamentally unfair to impose a repayment obligation without notice and an opportunity to be heard prior to the decision to appeal, provided that before enforced payment or sanctions for nonpayment may be imposed, there is an opportunity to be heard regarding ability to pay.
State v. Blank, 131 Wn.2d 230, 245, 930 P.2d 1213 (1997). Mr. Walter was not present when the order of compensation was entered, but he was later afforded an opportunity to object to the costs. He was given a meaningful opportunity to be heard. Indeed, the court substantially reduced the award by eliminating the accrued interest until the date the amended judgment and sentence was entered. There was no error.
Mr. Walter asserts that 27 entries in defense counsel's billing statement could include work done on the unrelated action. But there is nothing in the record from which this court can determine whether those entries were related to this case or another. This issue thus cannot be considered on a direct appeal, but rather must be the subject of a properly supported personal restraint petition. State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
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.
SCHULTHEIS, J. and BROWN, J., Concur.