State Of Washington v. Denise Sonia P. Pangelinan ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
April 14, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51444-3-II
(Consolidated with
No. 50010-8-II)
Respondent,
v.
DENISE SONIA P. PANGELINAN, UNPUBLISHED OPINION
Appellant.
LEE, C.J. — Denise Pangelinan appeals her sentence for vehicular assault aggravated by
excessive injuries. Pangelinan argues that (1) the sentencing court erred by relying on facts to
which she did not stipulate in imposing an exceptional sentence, (2) her defense counsel was
ineffective for failing to object to the sentencing court’s use of facts not stipulated to by Pangelinan
in imposing an exceptional sentence, (3) the sentencing court erred by imposing a sentence that is
not proportionate to the purposes of the Sentencing Reform Act (SRA), (4) the sentencing court
erred by ordering that she forfeit all seized property, and (5) the sentencing court erred by imposing
a criminal filing fee. In a statement of additional grounds (SAG), Pangelinan also argues that her
defense counsel was ineffective.
We hold that (1) the sentencing court did not err in imposing the exceptional sentence, (2)
Pangelinan’s defense counsel was not ineffective for failing to object to the facts relied on by the
No. 51444-3-II (Consolidated with No. 50010-8-II)
sentencing court in imposing the exceptional sentence, (3) the sentencing court did not impose an
exceptional sentence contrary to the purposes of the SRA, (4) the sentencing court erred in ordering
the forfeiture of all seized property, and (5) the sentencing court erred by imposing the criminal
filing fee. We decline to address the issues raised in the SAG as they rely on matters outside the
record or fail to inform us of the nature of the alleged error. Accordingly, we affirm Pangelinan’s
exceptional sentence, but we remand for the sentencing court to strike the forfeiture provision and
the criminal filing fee from Pangelinan’s judgment and sentence.
FACTS
On November 19, 2015, Clancy Lee O’Connor was riding a motorcycle. Pangelinan hit
O’Conner with her car while changing lanes. Pangelinan was under the influence of an
“intoxicating drug.” Clerk’s Papers (CP) at 19. O’Connor suffered severe injuries, resulting in
the amputation of his right leg and the loss of his eyesight.
On February 26, 2016, in an amended information, the State charged Pangelinan with one
count of vehicular assault for operating a vehicle “while under the influence of intoxicating liquor
or any drug, as defined by RCW 46.61.502, and caus[ing] substantial bodily harm to another;
contrary to Revised Code of Washington 46.61.522(1).” CP at 1. The State also charged her with
an aggravating circumstance of excessive injuries: “the victim’s injuries substantially exceed the
level of bodily harm necessary to satisfy the elements of the offense, contrary to RCW
9.94A.535(3)(y).” CP at 2.
A. PANGLELINAN’S PLEA
Pangelinan signed a plea agreement on March 7, 2016. She pleaded guilty to vehicular
assault under RCW 46.61.522(1)(b), aggravated by excessive injuries under RCW
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No. 51444-3-II (Consolidated with No. 50010-8-II)
9.94A.535(3)(y). Although her standard sentencing range for vehicular assault was 3-9 months,
the State and Pangelinan agreed to an exceptional sentence of 24 months.1
The plea agreement stated:
The Parties stipulate that justice is best served by the imposition of an exceptional
sentence outside the standard range, that they will recommend the following
exceptional sentence provisions, and that a factual basis exists for this exceptional
sentence, predicated upon In re Breedlove, 138 Wash. 2d 298 (1999) and State v.
Hilyard, 63 Wash. App. 413 (1991), review denied, 118 Wash. 2d 1025 (1992), RCW
9.94A.421(3) and RCW 9.94A.535: EXCEPTIONAL ABOVE THE STANDARD
RANGE-24 MONTHS.
CP at 7 (boldface omitted). The plea agreement further stated that “[t]he Defendant understands
that if the parties agree to an exceptional sentence, the Defendant is waiving the right to have facts
supporting such a sentence decided by a jury.” CP at 9. The plea agreement also provided that
Pangelinan “agrees to forfeit all seized property referenced in the discovery to the originating law
enforcement agency unless otherwise stated.” CP at 7. In addition, Pangelinan agreed to the
following financial obligations: a $500 victim assessment fee, a $200 filing fee, and a $100 DNA
collection fee.
In Section 6(h) of her Statement of Defendant on Plea of Guilty, Pangelinan acknowledged
that:
The judge does not have to follow anyone’s recommendation as to sentence. The
judge must impose a sentence within the standard range unless the judge finds
substantial and compelling reasons not to do so. I understand the following
regarding exceptional sentences:
....
(iii) The judge may also impose an exceptional sentence above the standard
range if the State and I stipulate that justice is best served by imposition of
1
The maximum sentence for vehicular assault is 120 months.
3
No. 51444-3-II (Consolidated with No. 50010-8-II)
an exceptional sentence and the judge agrees that an exceptional sentence
is consistent with and in furtherance of the interests of justice and the
purposes of the Sentencing Reform Act.
CP at 14. Pangelinan also handwrote, “On or about 11/19/15 in Kitsap County I did operate a
vehicle while under the influence of an intoxicating drug and caused substantial bodily harm to
another. Additionally, the victim’s injuries substantially exceed the level of bodily harm necessary
to satisfy the elements of the offense.” CP at 18-19.
Pangelinan pleaded guilty in court on the same day that she signed the plea agreement and
her Statement of Defendant on Plea of Guilty. During the plea hearing, Pangelinan stated that she
signed the documents, she went over the documents with her attorney, and she did not have any
questions about the plea agreement. She also stated that she understood that the court was not
bound by the plea agreement and that she was giving up a number of constitutional rights. The
superior court accepted Pangelinan’s plea of guilty to vehicular assault under RCW
46.61.522(1)(b), aggravated by excessive injuries under RCW 9.94A.535(3)(y), and set sentencing
over to a later date.
B. SENTENCING HEARING
On March 25, 2016, the court held the sentencing hearing. At the hearing, the State
recommended a sentence of 24 months.
In the Victim Impact Statement, O’Connor’s wife, writing on behalf of O’ Connor, stated
that due to his injuries, O’Connor was out of work, and he was the sole provider for their family.
“Clancy [sic] whole life was his work and his family. Now he won’t be able to work. He will never
be able to see his grandchildren grow up.” CP at 120.
4
No. 51444-3-II (Consolidated with No. 50010-8-II)
Several of O’Connor’s family members and friends spoke on O’Connor’s behalf at the
sentencing hearing. These statements emphasized the severity of his injuries, including the
amputation of his leg and the loss of his eyesight. The statements also discussed the financial
impact on his family due to the medical bills and O’Connor’s inability to perform his job. They
emphasized that he will never be able to see his children and grandchildren again. The statements
also emphasized the fact that Pangelinan made a choice to drive intoxicated: “[t]his was not an
unfortunate accident.” Verified Report of Proceedings (VRP) (Mar. 25, 2016) at 19.
The court sentenced Pangelinan to 96 months in custody and imposed a $500 victim
assessment fee, a $200 filing fee, and a $100 DNA collection fee. The court also ordered
Pangelinan to “[f]orfeit all seized property referenced in the discovery to the originating law
enforcement agency.” CP at 27-28.
In imposing its sentence, the court commented that the aftermath of the accident was
“devastating.” VRP (Mar. 25, 2016) at 53. It stated, “I have to look at the facts, and the facts have
been clearly laid out to me about the aftermath of this incident, and not only in the near future but
years from now.” VRP (Mar. 25, 2016) at 54. The court also stated it was not imposing the
maximum 120 months of prison only because Pangelinan did not have a criminal history.
C. WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW
On February 10, 2017, the sentencing court entered its written findings of fact and
conclusions of law for the exceptional sentence. These stated in relevant part:
Finding of Fact No. 6:
The Court advised the Defendant that the Court could impose a sentence
different than what was being recommended in the Agreement. She was also
advised that the Court was not bound by the Agreement. The Defendant stated she
understood that.
5
No. 51444-3-II (Consolidated with No. 50010-8-II)
Finding of Fact No. 7:
The Defendant acknowledged she went over the Statement with her
attorney. She advised she did not have any questions about the Statement. She
stated she understood that she was giving up a number of important constitutional
rights by pleading guilty.
....
Finding of Fact No. 10:
At the sentencing hearing, the deputy prosecutor provided a very brief
statement of what had occurred and the injuries sustained by the victim. As a result
of the Defendant driving while impaired the victim lost a leg (it was amputated
during his stay in the hospital). The victim lost his eyesight and is now permanently
blind.
....
Finding of Fact No. 13:
Following those presentations, the Court advised the Defendant that she had
a right to make a statement before sentence would be imposed. The Defendant was
also advised that she was not obligated to make a statement and that if she chose
not to make a statement her silence could not be used against her in any way.
Having said that, the Court told the Defendant that if there was something she
wanted say about the situation the Court would listen. The Defendant did make a
statement and she was sincerely remorseful for the damage she had caused.
Finding of Fact No. 14
The Court commented on the severe impact her crime had on the victim and
in particular, the fact that the victim was now permanently blind. The Court
imposed an exceptional sentence of 96 months.
....
Conclusion of Law No. 3:
RCW 9.94A.535[(3)](y) states an exceptional sentence may be appropriate
when “the victim’s injuries substantially exceed the level of bodily harm necessary
to satisfy the elements of the offense.” The Defendant agreed that the facts and
circumstances of her offense justifies a departure from the sentencing guidelines
and constitute a basis to impose a sentence above the standard range.
Conclusion of Law No. 4:
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No. 51444-3-II (Consolidated with No. 50010-8-II)
“[T]he effects [of an offense] on the victim may be used to justify an
exceptional sentence if they are significantly more serious than the usual case.”
State v. Tunnell, 51 Wash. App. 274, 279.
Conclusion of Law No. 5:
As a result of Defendant’s crime, the victim suffered both the amputation
of his leg and is now permanently blind. The victim’s injuries far exceed substantial
bodily harm. An exceptional sentence of 96 months is an appropriate reflection of
the damage caused by the Defendant’s crime.
CP at 105-08 (boldface omitted) (alterations in original). The court also entered an order of
indigency, allowing Pangelinan to appeal at public expense.
Pangelinan appeals her sentence.
ANALYSIS
A. EXCEPTIONAL SENTENCE
1. Stipulated Facts
Pangelinan argues that the sentencing court abused its discretion by relying on facts to
which she did not stipulate when imposing the exceptional sentence. Specifically, Pangelinan
argues that the sentencing court used facts it did not find beyond a reasonable doubt. We disagree.
By statute, a Washington court may impose an exceptional sentence outside the standard
range if it concludes that “there are substantial and compelling reasons justifying an exceptional
sentence.” RCW 9.94A.535. RCW 9.94A.535(3)(y) states that when “[t]he victim’s injuries
substantially exceed the level of bodily harm necessary to satisfy the elements of the offense” a
sentence above the standard range can be imposed. Additionally, RCW 9.94A.535(2)2 states:
2
In Blakely v. Washington, the United States Supreme Court acknowledged that a jury need not
find facts supporting an exceptional sentence when a defendant pleads guilty and stipulates to the
relevant facts:
7
No. 51444-3-II (Consolidated with No. 50010-8-II)
The trial court may impose an aggravated exceptional sentence without a finding
of fact by a jury under the following circumstances:
(a) The defendant and the state both stipulate that justice is best served by
the imposition of an exceptional sentence outside the standard range, and the court
finds the exceptional sentence to be consistent with and in furtherance of the
interests of justice and the purposes of the sentencing reform act.
And RCW 9.94A.500(1) states:
Before imposing a sentence upon a defendant, the court shall conduct a sentencing
hearing.
....
The court shall consider the risk assessment report and presentence reports,
if any, including any victim impact statement and criminal history, and allow
arguments from the prosecutor, the defense counsel, the offender, the victim, the
survivor of the victim, or a representative of the victim or survivor, and an
investigative law enforcement officer as to the sentence to be imposed.
Here, the plea agreement that Pangelinan signed stated, “The Parties stipulate that justice
is best served by the imposition of an exceptional sentence outside the standard range, that they
will recommend the following exceptional sentence provisions, and that a factual basis exists for
this exceptional sentence.” CP at 7. The Statement of Defendant on Plea of Guilty stated,
The judge may also impose an exceptional sentence above the standard range if the
State and I stipulate that justice is best served by imposition of an exceptional
sentence and the judge agrees that an exceptional sentence is consistent with and in
furtherance of the interests of justice and the purposes of the Sentencing Reform
Act.
When a defendant pleads guilty, the State is free to seek judicial sentence
enhancements so long as the defendant either stipulates to the relevant facts or
consents to judicial factfinding. If appropriate waivers are procured, States may
continue to offer judicial factfinding as a matter of course to all defendants who
plead guilty.
542 U.S. 296, 310, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (citations omitted); State v.
Suleiman, 158 Wash. 2d 280, 289, 143 P.3d 795 (2006).
8
No. 51444-3-II (Consolidated with No. 50010-8-II)
CP at 14. And Pangelinan wrote in her Statement of Defendant on Plea of Guilty, “On or about
11/19/15 in Kitsap County I did operate a vehicle while under the influence of an intoxicating drug
and caused substantial bodily harm to another. Additionally, the victim’s injuries substantially
exceed the level of bodily harm necessary to satisfy the elements of the offense.” CP at 18-19.
Because Pangelinan stipulated to the factual basis for the exceptional sentence and the sentencing
court agreed to the imposition of an exceptional sentence, those facts did not need to be determined
by a jury beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 310, 124 S. Ct. 2531,
159 L. Ed. 2d 403 (2004); State v. Suleiman, 158 Wash. 2d 280, 289, 143 P.3d 795 (2006); RCW
9.94A.535(2).
As to the length of the sentence, the sentencing court has “‘all but unbridled discretion’”
in determining the length of an exceptional sentence. State v. France, 176 Wash. App. 463, 470,
308 P.3d 812 (2013) (internal quotations omitted) (quoting State v. Halsey, 140 Wash. App. 313,
325, 165 P.3d 409 (2007)), review denied, 179, Wn.2d 1015 (2014). However, the term of an
exceptional sentence must have some basis in the record: “The length of an exceptional sentence
cannot come out of thin air.” State v. Brown, 60 Wash. App. 60, 77, 802 P.2d 803 (1990). When a
sentencing court does not base its sentence on improper reasons, this court will find a sentence
excessive only if its length, in light of the record, “‘shocks the conscience.’” State v. Vaughn, 83
Wash. App. 669, 681, 924 P.2d 27 (1996) (internal quotation marks omitted) (quoting State v.
Ritchie, 126 Wash. 2d 388, 396, 894 P.2d 1308 (1995)), review denied, 131 Wash. 2d 1018, 936 P.2d
417 (1997).
We review the length of a sentence for an abuse of discretion. Ritchie, 126 Wash. 2d at 392.
A “clearly excessive” sentence is one that is clearly unreasonable, “‘i.e., exercised on untenable
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No. 51444-3-II (Consolidated with No. 50010-8-II)
grounds or for untenable reasons, or an action that no reasonable person would have taken.’” Id.
at 393 (quoting State v. Oxborrow, 106 Wash. 2d 525, 531, 723 P.2d 1123 (1986)).
Here, as discussed above, the sentencing court’s exceptional sentence did not “‘come out
of thin air.’” Brown, 60 Wash. App. at 77 (internal quotations omitted) (quoting State v. Pryor, 56
Wash. 2d 107, 123, 782 P.2d 1076 (1989)). Rather, the record shows that the sentence was based on
proper reasons. Pangelinan’s plea agreement stated that “justice is best served by imposition of
an exceptional sentence and the judge agrees that an exceptional sentence is consistent with and in
furtherance of the interests of justice and the purposes of the Sentencing Reform Act.” CP at 14.
And Pangelinan admitted that “the victim’s injuries substantially exceed the level of bodily harm
necessary to satisfy the elements of the offense.” CP at 19. Because the sentencing court based
its exceptional sentence on Pangelinan’s admissions in the record, the sentencing court did not
abuse its discretion in imposing an exceptional sentence of 96 months in custody.
Pangelinan also argues that the sentencing court improperly relied on the fact that
O’Connor lost his leg and eyesight as a result of her vehicular assault. But the fact that O’Connor’s
loss of his leg and eyesight is the basis upon which the parties stipulated to the fact that “the
victim’s injuries substantially exceed the level of bodily harm necessary to satisfy the elements of
the offense” cannot be ignored. CP at 19. Therefore, we hold that Pangelinan’s challenge fails.
At the sentencing hearing, the court reviewed the victim impact statement, which included
a description of O’Connor’s injuries and the impact those injuries have had on O’Connor and his
family. And the State informed the court of O’Connor’s injuries. In addition, the court heard from
O’Connor and his family and friends. The statements by O’Connor and his family and friends
emphasized the severity of his injuries, including the amputation of his leg and the loss of his
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No. 51444-3-II (Consolidated with No. 50010-8-II)
eyesight, and the financial and emotional impact of those injuries. The court’s consideration of
the extent of O’Connor’s injuries was not improper. See 9.94A.500(1); State v. Bell, 116 Wn.
App. 678, 684, 67 P.3d 527 (2003) (stating, “Crime victim impact reports and risk assessments
must be considered by the court, together with argument of the crime victim at the time of
sentencing.”), review denied, 150 Wash. 2d 1023 (2003). And the court’s findings and conclusions
show that the court relied only on O’Connor’s leg amputation and permanent blindness in
imposing the exceptional sentence.
Because a sentencing court can rely on victim impact statements, the court’s consideration
of the victim impact statements in determining the length of Pangelinan’s exceptional sentence
was not based on untenable grounds or untenable reasons. Therefore, the sentencing court also
did not abuse its discretion in determining the length of Pangelinan’s exceptional sentence.
2. Ineffective Assistance of Counsel
Pangelinan argues that her defense counsel was ineffective because he failed to object the
sentencing court’s use of facts not stipulated to by Pangelinan in imposing an exceptional sentence
six years longer than the agreed sentence. We disagree.
We review ineffective assistance of counsel claims de novo. State v. Lopez, 190 Wash. 2d
104, 115, 410 P.3d 1117 (2018). In reviewing ineffective assistance of counsel claims, we begin
with a strong presumption of counsel's effectiveness. State v. McFarland, 127 Wash. 2d 322, 335,
899 P.2d 1251 (1995). A defendant claiming ineffective assistance of counsel has the burden to
establish that (1) counsel's performance was deficient and (2) the performance prejudiced the
defendant's case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Failure to establish either prong is fatal to an ineffective assistance of counsel claim. Id.
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No. 51444-3-II (Consolidated with No. 50010-8-II)
at 700. If the defendant bases her ineffective assistance of counsel claim on defense counsel's
failure to object, the defendant must show that the objection would have succeeded. State v.
Gerdts, 136 Wash. App. 720, 727, 150 P.3d 627 (2007).
Here, as shown above, the sentencing court did not rely on improper facts in imposing an
exceptional sentence. Because any objection defense counsel may have made to the sentencing
court’s use of victim impact facts would not have succeeded, defense counsel’s performance was
not deficient. Pangelinan has failed to meet her burden to show ineffective assistance of counsel
because she cannot show that defense counsel’s performance was deficient. Therefore,
Pangelinan’s ineffective assistance of counsel claim fails.
3. Proportionate Sentence
Pangelinan argues that the length of her sentence is not proportionate to the purposes of
the Sentencing Reform Act. We disagree.
Our Supreme Court has rejected a proportionality review for exceptional sentences.
Ritchie, 126 Wash. 2d at 396-97. With regard to proportionality with the purposes of the Sentencing
Reform Act, our Supreme Court has stated:
[T]he general declaration of purpose in RCW 9.94A.010 does not overcome the
controlling language of the substantive provisions of the SRA. When the
Legislature intended consideration of the general declaration of purpose in the
application of a particular procedure, it so provided. Only in RCW 9.94A.120(2)
did it require specific consideration of the purpose of the SRA. This section relates
only to the decision to impose an exceptional sentence, not to the length thereof.
This explicit direction demonstrates how the substantive provisions are to satisfy
the general declaration of purpose.
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No. 51444-3-II (Consolidated with No. 50010-8-II)
Ritchie, 126 Wash. 2d at 396. Once the Supreme Court has decided an issue of state law, that
interpretation is binding until it is overruled. See In re Pers. Restraint of Chapelle, 153 Wash. 2d 1,
5, 100 P.3d 805 (2004).
Here, the length of the sentence is at issue, not the imposition of the exceptional sentence.
Under stare decisis, we do not review proportionality for the length of exceptional sentences.
Therefore, the sentencing court did not commit any error in determining Pangelinan’s sentence.
B. FORFEITURE
Pangelinan argues that the sentencing court acted without authority in ordering the
forfeiture of all property referenced in the discovery as a condition of Pangelinan’s sentence.
Specifically, Pangelinan argues that the sentencing court did not cite any statutory authority in
imposing this condition, so the forfeiture order should be vacated. The State concedes that that
the forfeiture provision of the judgment and sentence should be stricken.
Sentencing courts do no not have inherent power to order property forfeitures in connection
with a criminal conviction. State v. Alaway, 64 Wash. App. 796, 801, 828 P.2d 591, review denied,
119 Wash. 2d 1016 (1992). The authority to order property forfeitures in connection with a criminal
conviction is purely statutory. State v. Roberts, 185 Wash. App. 94, 96, 339 P.3d 995 (2014). “We
review de novo whether the trial court had statutory authority to impose a sentencing condition.”
Id.
Here, both the State and the sentencing court failed to cite any authority for ordering the
forfeiture. Therefore, we accept the State’s concession and remand for the sentencing court to
strike the forfeiture provision in Pangelinan’s judgment and sentence.
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No. 51444-3-II (Consolidated with No. 50010-8-II)
C. LFO – CRIMINAL FILING FEE
Pangelinan argues that the criminal filing fee should be stricken because Pangelinan is
indigent. The State concedes that the imposed criminal filing fee should be stricken.
The 2018 legislative amendments to the LFO statutes prohibit sentencing courts from
imposing a criminal filing fee on indigent defendants. RCW 36.18.020(2)(h); State v. Ramirez,
191 Wash. 2d 732, 746-47, 426 P.3d 714 (2018). Our Supreme Court has held that the amendments
apply prospectively, and are applicable to cases pending on direct review and not final when the
amendment was enacted. Id.
Here, the sentencing court found Pangelinan indigent. Therefore, we accept the State’s
concession and remand for the sentencing court to strike the criminal filing fee from Pangelinan’s
judgment and sentence.
STATEMENT OF ADDITIONAL GROUNDS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Pangelinan argues that her defense counsel “was not of any help to my defense. I wanted
to take it to trial when he informed me he had no time. I didn’t know nor was I familiar with the
law.” SAG at 2.
Here, there is no record to support Pangelinan’s contention that defense counsel did not
have time to try Pangelinan’s case. We do not address matters outside of the record. McFarland,
127 Wash. 2d at 335. Thus, we do not review this issue.
B. DEFENSE INVESTIGATOR
Pangelinan states that “[t]wo hours after signing a plea, an investigator visits me explaining
the re-enactment videos.” SAG at 2.
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No. 51444-3-II (Consolidated with No. 50010-8-II)
RAP 10.10(c) states, “the appellate court will not consider a defendant’s statement of
additional grounds for review if it does not inform the court of the nature and occurrence of alleged
errors.” Here, Pangelinan’s bald statement that an investigator visited here two hours after she
signed her plea to show her re-enactment videos fails to inform us of the nature of the alleged
errors. Therefore, we decline to review this issue.3
We affirm Pangelinan’s exceptional sentence, but remand for the sentencing court to strike
the forfeiture provision and the criminal filing fee from Pangelinan’s 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.
Lee, C.J.
We concur:
Worswick, J.
Melnick, J.
3
We also note that the issue of reenactment videos arose in Pangelinan’s motion to withdraw her
guilty plea. RAP 10.10(a) states, “In a criminal case on direct appeal, the defendant may file a pro
se statement of additional grounds for review to identify and discuss those matters related to the
decision under review that the defendant believes have not been adequately addressed by the brief
filed by the defendant’s counsel.” Here, the decision under review on appeal is the sentencing, not
the motion to withdraw the guilty plea.
15