State Of Washington, V. Charles Gene Tatum, Iii ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80795-1-I
Respondent, (consolidated with 80796-0-I, 80797-8-I,
80798-6-I, and 80799-4-I)
v.
DIVISION ONE
CHARLES GENE TATUM, III,
UNPUBLISHED OPINION
Appellant.
SMITH, J. — Charles Tatum III appeals the imposition of Department of
Corrections (DOC) supervision fees and interest on his nonrestitution legal
financial obligations (LFOs) in several consolidated cases. After our Supreme
Court decided State v. Blake, __ Wn.2d ___, 481 P.3d 521 (2021), Tatum
supplemented his appeal to challenge his conviction for drug possession under
RCW 69.50.4013(1) as unconstitutional. We agree that his drug possession
conviction should be vacated and that he should therefore be resentenced on his
other convictions with a recalculated offender score, and that nonrestitution
interest and DOC supervision fees should be stricken.
FACTS
Tatum pleaded guilty to charges of theft, burglary, possession of stolen
property, identity theft, and possession of a controlled substance in five separate
cases. In February 2019, the court imposed a parenting sentencing alternative
(PSA), suspending jail time and instead sentencing Tatum to 12 months of
Citations and pin cites are based on the Westlaw online version of the cited material.
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community custody. The court found Tatum to be indigent and waived all
nonmandatory fines and fees. Each judgment ordered that his LFOs would
accrue interest.
In November 2019, the court revoked the PSA after Tatum violated the
conditions of his sentence. The court sentenced Tatum to 43 months of
confinement on the burglary charge and lesser concurrent sentences on the
remaining charges. The court also sentenced Tatum to 12 months of community
custody in one of the cases, and although the court declared that it would “not
impose any additional fines or fees” because of Tatum’s indigence, the order
directed Tatum to “pay supervision fees as determined by DOC.”
Tatum promptly appealed from the orders revoking his PSA sentence. In
February, our Supreme Court decided Blake, which declared Washington’s strict
liability drug possession statute to be unconstitutional. 481 P.3d at 524. Tatum
then moved to supplement his assignments of error to challenge his conviction
under that statute, and the State opposed the motion. We granted the motion to
supplement.
ANALYSIS
Tatum alleges that the court erred by imposing interest on nonrestitution
LFOs and by ordering that he pay DOC supervision fees. He also claims that his
conviction for possession of a controlled substance must be vacated in light of
Blake and that he must be resentenced on his remaining convictions with a
recalculated offender score. 481 P.3d 521. We agree.
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Nonrestitution Interest
Tatum claims that the court erred by ordering interest on all LFOs, rather
than only on restitution, in violation of RCW 10.82.090(1). The State contends
that this issue is not properly before us. We conclude that we may properly
address this issue and reverse.
As an initial matter, the State claims that because Tatum appeals from the
orders revoking his PSA, rather than the judgments that contained the interest
provisions, he may not challenge these provisions. RAP 5.2(a) requires that a
notice of appeal must generally be filed within 30 days of the entry of an order.
However, RAP 2.4(b) provides that we will review an appealable order not
designated in the notice of appeal “if (1) the order . . . prejudicially affects the
decision designated in the notice, and (2) the order is entered, or the ruling is
made, before the appellate court accepts review.” See also Adkins v. Alum. Co.
of Am., 110 Wn.2d 128, 134-35, 750 P.2d 1257, 756 P.2d 142 (1988)
(RAP 2.4(b) permitted review of order granting mistrial on appeal from outcome
of second trial, because “second trial would not have occurred absent the trial
court’s decision granting the motion for a mistrial”).
Here, Tatum appealed from the PSA revocation orders rather than from
the judgments and sentences that contained the interest provision at issue.
RAP 2.4(b) permits us to review the judgments: first, the judgments prejudicially
affected the revocation orders, because the judgments set forth the terms of the
sentencing alternative and enabled it to be revoked. See State v. Harris, No.
36951-0-III, slip op. at 5-6 (Wash. Ct. App. Dec. 3, 2020) (unpublished),
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http://www.courts.wa.gov/opinions/pdf/369510_unp.pdf (review of sentence is
appropriate on appeal from order revoking sentencing alternative because order
revoking sentence could not have occurred “but for” the sentence). Second, the
judgments were entered before we accepted review. Therefore, we address the
interest imposed in the judgments.
We review the imposition of discretionary LFOs for abuse of discretion.
State v. Ramirez, 191 Wn.2d 732, 741, 426 P.3d 714 (2018). However, statutory
interpretation is a question of law that we review de novo. E.g., State v.
Mohamed, 187 Wn. App. 630, 637, 350 P.3d 671 (2015). Furthermore,
“discretion is necessarily abused when it is manifestly unreasonable or based on
untenable grounds or reasons. . . . Stated differently, the court’s exercise of
discretion is unreasonable when it is premised on a legal error.” Ramirez, 191
Wn.2d at 741.
RCW 10.82.090(1) now requires that “no interest shall accrue on
nonrestitution” LFOs. Here, the trial court imposed interest on all LFOs without
distinguishing between restitution and nonrestitution LFOs. This is no longer
permitted, and therefore we remand with instructions to strike the nonrestitution
interest.1
DOC Supervision Fees
Tatum next contends that the court improperly imposed DOC supervision
1 Tatum also requests, with no citation to legal authority, that we direct the
court to reimburse Tatum for any interest he has already paid. There is no
information in the record about whether Tatum has paid any interest or how
much. Tatum may raise this issue before the trial court; we decline to address it
here.
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fees as a condition of community custody. We agree.
As an initial matter, the State contends that Tatum failed to preserve this
issue because he did not object below. However, because of the problems LFOs
impose on indigent defendants, we “regularly exercise [our] discretion to reach
the merits of unpreserved LFO arguments.” State v. Glover, 4 Wn. App. 2d 690,
693, 423 P.3d 290 (2018). We do so here.
RCW 9.94A.703(2) provides that “[u]nless waived by the court, as part of
any term of community custody, the court shall order an offender to: . . . (d) [p]ay
supervision fees as determined by” DOC. “Since the supervision fees are
waivable by the trial court, they are discretionary LFOs.” State v. Dillon, 12 Wn.
App. 2d 133, 152, 456 P.3d 1199, review denied, 195 Wn.2d 1022 (2020).
At the revocation hearing, the court stated that it would “not impose any
additional fines or fees,” and the State affirmed that there were “no additional
financial obligations required to be imposed.” The imposition of supervision fees
conflicts with the court’s statement and therefore appears to be a mistake that
should be struck on remand.2 See Dillon, 12 Wn. App. 2d at 152 (DOC
supervision fees inadvertently imposed were improper).
Drug Possession Charge
Tatum next addresses his conviction for possession of a controlled
2 The State contends that we should disagree with Dillon and disregard
the court’s oral statements because the written judgment is the formal and final
order. However, it is entirely appropriate, and often necessary, to consider a
court’s oral rulings in determining whether a court’s exercise of discretion is
based on untenable grounds. State v. Wade, 138 Wn.2d 460, 466, 979 P.2d 850(1999).
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substance under RCW 69.50.4013(1). He contends that his conviction must be
vacated and he must be resentenced on his other charges. We again address
his challenge to the underlying judgment under RAP 2.4(b), and we agree.
Our Supreme Court recently held that RCW 69.50.4013 is unconstitutional
under the state and federal constitutions because it criminalizes passive conduct.
Blake, 481 P.3d at 523-24. Because Tatum was convicted under an
unconstitutional statute, he is entitled to have his conviction vacated. State v.
Carnahan, 130 Wn. App. 159, 164, 122 P.3d 187 (2005).
Furthermore, “a prior conviction which . . . is constitutionally invalid on its
face may not be considered” for sentencing purposes. State v. Ammons, 105
Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796 (1986). Here, Tatum’s drug
possession charge was included in the calculation of his offender score for
sentencing. Because this charge is facially unconstitutional, Tatum must be
resentenced on remand with an offender score that does not include this offense.
We reverse and remand for the trial court to vacate the drug possession
conviction, strike nonrestitution interest and supervision fees, and resentence
Tatum using a recalculated offender score.
WE CONCUR:
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