State Of Washington v. Charles D. Bowman ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
January 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52907-6-II
Respondent,
v. UNPUBLISHED OPINION
CHARLES DANIEL BOWMAN, aka
DANIEL CHARLES BOWMAN
Appellant.
MAXA, C.J. – Charles Bowman appeals his sentence for possession of methamphetamine
with intent to deliver in violation of RCW 69.50.401(1). He argues that the combination of the
120 month term of confinement and 12 month term of community custody exceeded the 10 year
statutory maximum set out in RCW 69.50.401(2)(b). Bowman also appeals the imposition of
certain legal financial obligations (LFOs) based on the 2018 amendments to the LFO statutes.
The State concedes that Bowman’s sentence exceeds the statutory maximum. But we do
not accept the State’s concession. Because Bowman had two prior convictions under chapter
69.50 RCW, under RCW 69.50.408(1) the trial court doubled Bowman’s maximum sentence to
240 months. Bowman’s term of confinement plus community custody was well within the
doubled statutory maximum.
No. 52907-6-II
The State also concedes that the court appointed attorney fees, drug enforcement fund
fee, crime lab fee, criminal filing fee, and DNA collection fee must be stricken. We accept this
concession.
Accordingly, we affirm Bowman’s sentence but remand for the trial court to strike the
challenged LFOs.
FACTS
In February 2017, Bowman pleaded guilty to possession of methamphetamine with intent
to deliver.1 In his guilty plea statement, Bowman acknowledged that the statutory maximum
sentence for his conviction was 20 years. Bowman’s offender score was 14. He had two prior
felony convictions under the Uniform Controlled Substances Act, chapter 69.50.
The trial court noted on the judgment and sentence that the standard range sentence for
Bowman’s offense was 60 to 120 months. The court listed the statutory maximum sentence as
20 years, including a note that “[m]aximum is doubled as a ‘subsequent’ offense under RCW
69.50.408.” Clerk’s Papers at 29.
The trial court sentenced Bowman to 120 months of confinement and 12 months of
community custody. The court also ordered Bowman to pay LFOs, including $575 for court
appointed attorney fees, $500 for a drug enforcement fund, a $100 crime lab fee, a $200 criminal
filing fee, and a $100 DNA collection fee.
The record does not reflect that the trial court considered Bowman’s ability to pay before
imposing discretionary LFOs or determined whether he was indigent. The court later entered an
order of indigency for purposes of appeal.
1
Bowman also pleaded guilty to attempting to elude a police vehicle and second degree
possession of a firearm, but he does not challenge the sentences for those convictions.
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No. 52907-6-II
Bowman appeals his sentence and the imposition of certain LFOs.
ANALYSIS
A. LENGTH OF SENTENCE
Bowman argues that the trial court erred by imposing a total sentence of 132 months –
120 months confinement with 12 months of community custody – for his conviction, which
exceeded the statutory maximum of 10 years for possession of methamphetamine with intent to
deliver. We disagree because the trial court doubled the maximum sentence as authorized by
RCW 69.50.408(1).
A trial court errs when it imposes a total term of confinement and community custody
exceeding the statutory maximum. State v. Boyd, 174 Wn.2d 470, 473, 275 P.3d 321 (2012).
The trial court shall reduce the community custody term “whenever an offender’s standard range
term of confinement in combination with the term of community custody exceeds the statutory
maximum . . . .” RCW 9.94A.701(9).
Possession of methamphetamine with intent to deliver is a class B felony with a statutory
maximum sentence of 10 years imprisonment. RCW 69.50.401(2)(b).2 Bowman’s argument and
the State concession that Bowman’s total sentence of 132 months was unauthorized was based
on that statutory maximum.
However, RCW 69.50.408(1) states, “Any person convicted of a second or subsequent
offense under [chapter 69.50 RCW] may be imprisoned for a term up to twice the term otherwise
authorized . . . .” This statute doubles the maximum sentence that can be imposed for a second
violation of chapter 69.50 RCW. State v. Cyr, 8 Wn. App. 2d 834, 839, 441 P.3d 1238, review
2
RCW 69.50.401was amended in 2019, but that amendment is not material to this case.
Therefore, we cite to the current version of the statute.
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No. 52907-6-II
granted, 194 Wn.2d 1001 (2019); see also In re Pers. Restraint of Cruz, 157 Wn.2d 83, 90, 134
P.3d 1166 (2006).
Here, Bowman had two prior felony convictions under chapter 69.50 RCW. Therefore,
under RCW 69.50.408(1) the statutory maximum sentence doubled from 10 years to 20 years.
Bowman acknowledged this doubled statutory maximum in his guilty plea statement, and the
trial court noted the doubled statutory maximum in the judgment and sentence.
The trial court imposed a total sentence of 132 months. Although that sentence exceeded
the “normal” 10 year statutory maximum for possession of methamphetamine with intent to
deliver, it was well within the doubled statutory maximum of 20 years. Accordingly, we affirm
the trial court’s sentence.
B. IMPOSITION OF LFOS
Bowman argues, and the State concedes, that the imposition of the court appointed
attorney fees, drug enforcement fund fee, crime lab fee, criminal filing fee, and DNA collection
fee must be stricken from the judgment and sentence. We agree.
In 2018, the legislature amended (1) RCW 10.01.160(3), which now prohibits imposition
of discretionary LFOs on a defendant who is indigent as defined in RCW 10.101.010(3)(a)-(c);
(2) RCW 36.18.020(2)(h), which now prohibits imposing the criminal filing fee on a defendant
who is indigent as defined in RCW 10.101.010(3)(a)-(c); and (3) RCW 43.43.7541, which
establishes that the DNA collection fee is no longer mandatory if the offender’s DNA previously
has been collected because of a prior conviction. These amendments apply prospectively to
cases pending on direct appeal. State v. Ramirez, 191 Wn.2d 732, 749-50, 426 P.3d 714 (2018).
Under RCW 10.101.010(3)(a)-(c), a person is “indigent” if he or she receives certain
types of public assistance, is involuntarily committed to a public mental health facility, or
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No. 52907-6-II
receives an annual after tax income of 125 percent or less of the current federally established
poverty level. The record is unclear whether the trial court found Bowman indigent based on the
definitions in RCW 10.101.010(3)(a)-(c). Nevertheless, the State does not oppose striking the
court appointed attorney fees, drug enforcement fund fee, crime lab fee, and criminal filing fee
based on Bowman’s indigency. Therefore, under the current versions of RCW 10.01.160(3) and
RCW 36.18.020(2)(h), these LFOs must be stricken.
In addition, the State’s records show that Bowman’s DNA previously was collected
because of a prior conviction. Therefore, under the current version of RCW 43.43.7541, the
DNA collection fee imposed on Bowman must be stricken.
CONCLUSION
We affirm Bowman’s sentence, but we remand for the trial court to strike the court
appointed attorney fees, drug enforcement fund fee, crime lab fee, criminal filing fee, and DNA
collection fee from the judgment and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, C.J.
We concur:
WORSWICK, J.
SUTTON, J.
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