State Of Washington v. Robert Kent Chase ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 79894-4-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
ROBERT KENT CHASE,
Appellant.
SMITH, J. — Robert Chase appeals his conviction and sentence regarding
four counts of unlawful possession of a firearm in the second degree. He asserts
that the felony firearm registration requirement, RCW 9.41.330, is
unconstitutionally vague and that the trial court erred in ordering (1) discretionary
legal financial obligations (LFOs), (2) interest on nonrestitution LFOs, and (3)
restitution. Because the firearm registration statute does not define a criminal
offense or fix the permissible sentence for a criminal offense, the void for
vagueness doctrine does not apply. With regard to LFOs, the court may not
impose discretionary LFOs or interest on nonrestitution LFOs on an indigent
defendant, and the court erred in ordering both. And while the judgment and
sentence mentioned restitution, the court did not order restitution. Therefore, we
affirm in part but remand for the trial court to strike (1) the parts of the judgment
and sentence requiring Chase to pay discretionary LFOs and interest on
nonrestitution LFOs and (2) the aspects of the judgment indicating that Chase
might owe restitution.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79894-4-I/2
FACTS
In March 2018, Chase and Gene Parker Jr., Chase’s original codefendant,
went to the home of Jennifer Perry, because they believed that Parker’s girlfriend
was there. Following disputed events, shots were fired at Perry’s house. When
they arrived back at Chase’s home, Chase called the police. When the police
arrived, according to the officers’ testimony at trial, Chase denied possessing any
firearms because “he wasn’t allowed to,” but admitted that he manufactured gun
parts. After obtaining a search warrant, the officers found multiple firearms under
Chase’s bed.
The State later charged Chase with first degree assault while armed with a
deadly weapon, as a principal and/or an accomplice, and four counts of second
degree unlawful possession of a firearm.
Parker pleaded guilty to witness tampering and second degree assault
prior to trial, and he testified for the State at trial. During opening arguments,
Chase’s counsel admitted that because he was previously found guilty of a felony
charge, Chase was not allowed to possess firearms. Following the trial, the jury
acquitted Chase of first degree assault but found Chase guilty on each count of
unlawful possession of a firearm.
At the sentencing hearing, the court ordered Chase to pay “mandatory
court fines as well as the crime lab fee, the DNA [(deoxyribonucleic acid)]
collection fee and court costs.” Neither the parties nor the court mentioned
restitution. In discussing whether to impose the firearm registration requirement,
the court expressed concern that Chase not only possessed guns despite
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knowing that he was not allowed to, but also manufactured gun parts and built
guns.
In the judgment and sentence, the court ordered Chase to register as a
felony firearm offender. In addition, the court ordered Chase to pay the following
fees, along with other LFOs and interest: (1) criminal filing, (2) jury demand, and
(3) crime lab. The court neither ordered restitution nor listed any amount of
restitution or any person to whom restitution is owed. However, the court
checked the boxes that indicated that “[r]estitution ordered . . . shall be paid
jointly and severally with” Parker and that Chase waived his “right to be present
at any restitution hearing.” Before Chase’s appeal, the court found Chase
indigent.
ANALYSIS
Firearm Registration Statute
Chase contends that the firearm registration statute, RCW 9.41.330, is
unconstitutionally vague and violates his due process rights.1 We disagree.
“Constitutional questions are questions of law and, accordingly, are
subject to de novo review.” State v. McCuistion, 174 Wash. 2d 369, 387, 275 P.3d
1092 (2012). In reviewing a statute for vagueness, we must first determine
1The State contends that Chase cannot raise this issue on appeal as he
did not argue it below. “‘[T]he appellate court may refuse to review any claim of
error which was not raised in the trial court,’” but a party may raise a “‘manifest
error affecting a constitutional right’” for the first time on appeal. State v. Gregg,
9 Wash. App. 2d 569, 574, 444 P.3d 1219 (alteration in original) (quoting RAP
2.5(a)), review granted, 194 Wash. 2d 1002 (2019). Because Chase alleges a
violation of his constitutional rights, we exercise our discretion to review the
issue.
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whether the void for vagueness doctrine applies to the challenged statute. See
State v. Baldwin, 150 Wash. 2d 448, 457-58, 78 P.3d 1005 (2003). To this end, the
vagueness doctrine applies to “laws that define criminal offenses and laws that
fix the permissible sentences for criminal offenses.” Beckles v. United States,
___ U.S. ___, 137 S. Ct. 886, 892, 197 L. Ed. 2d 145 (2017).
In determining whether the void for vagueness doctrine applies to
RCW 9.41.330, Baldwin is instructive. There, Jeanne Baldwin appealed her
convictions and sentence for five crimes, including two counts of identity theft.
Baldwin, 150 Wash. 2d at 451. The trial court had ordered an exceptional sentence
based on former RCW 9.94A.120 (2000) and former RCW 9.94A.390 (2000).
Baldwin, 150 Wash. 2d at 452, 458. On appeal, Baldwin asserted that both statutes
were unconstitutionally vague “as applied to the identity theft convictions.”
Baldwin, 150 Wash. 2d at 453. Our Supreme Court recognized that “[b]oth prongs
of the vagueness doctrine focus on laws that prohibit or require conduct” and that
the exceptional sentence statutes neither “define conduct nor . . . allow for
arbitrary arrest and criminal prosecution by the State.” Baldwin, 150 Wash. 2d at
458-59. Therefore, it concluded that “the due process considerations that
underlie the void-for-vagueness doctrine have no application in the context of
sentencing guidelines.” Baldwin, 150 Wash. 2d at 459.
In Beckles, the United States Supreme Court addressed a similar issue
when Travis Beckles challenged the federal advisory sentencing guidelines that
provided for “career offender” sentencing enhancements. 137 S. Ct. at 890-91.
The Court concluded that the guidelines were not subject to a void for vagueness
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challenge because they “do not fix the permissible range of sentences;” instead,
“[t]hey merely guide the exercise of a court’s discretion in choosing an
appropriate sentence within the statutory range.” Beckles, 137 S. Ct. at 892.
Likewise, in DeVore, Matthew DeVore challenged as unconstitutionally
vague the destructive impact sentencing aggravator. State v. DeVore, 2 Wn.
App. 2d 651, 660, 413 P.3d 58, review denied, 191 Wash. 2d 1005 (2018). On
appeal, the court applied Baldwin and Beckles and emphasized that the
“destructive impact factor does not increase the permissible sentence of the
offender.” DeVore, 2 Wash. App. 2d at 665. Therefore, the court concluded that
“challenges to the destructive impact factor and other aggravating factors . . . do
not merit review under the void for vagueness doctrine.” DeVore, 2 Wash. App. 2d
at 665.
Here, RCW 9.41.330 does not proscribe or prescribe Chase’s conduct.
Specifically, RCW 9.41.330(1) provides that “whenever a defendant . . . is
convicted of a felony firearm offense . . . , the court must consider whether to
impose a requirement that the person comply with the registration requirements
of RCW 9.41.333 and may, in its discretion, impose such a requirement.” In
short, a court must consider whether to impose the registration requirement on a
defendant, but then, the court may exercise its discretion to impose such a
requirement. Accordingly, RCW 9.41.330 does not fix sentencing aspects, and it
neither proscribes nor prescribes criminal conduct. Because Chase is not
asserting that RCW 9.41.333—the statute prescribing the registration
requirements that he must follow—is unconstitutionally vague, no due process
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concern is implicated. Therefore, we conclude that the void for vagueness
doctrine does not apply to RCW 9.41.330.
Chase disagrees and asserts that the statute is penal—rather than
guiding—in nature. To this end, Chase cites RCW 9.41.335(1), (2), which
provides that an individual who is required to, but fails to, register is guilty of a
gross misdemeanor. But Chase did not challenge these statutes as
unconstitutionally vague; he challenged RCW 9.41.330, which provides the court
with guidance for deciding whether to subject the defendant to the registration
requirement. Indeed, he asserts that “[t]his statute affords too much discretion
because it provides standards that are wholly inadequate to guide a trial court’s
discretion.” Thus, Chase’s assertion fails. See Kolender v. Lawson, 461 U.S.
352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) (“[T]he void-for-vagueness
doctrine requires that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and discriminatory enforcement.”
(emphasis added)).
Chase also relies on Johnson v. United States2 for the proposition that
“Baldwin’s holding that sentencing statutes are not subject to vagueness claims
has now been contradicted.” In Johnson, the United States Supreme Court
reviewed the constitutionality of the Armed Career Criminal Act of 1984,
18 U.S.C. § 924(e), which “increases [a defendant’s] prison term to a minimum of
15 years and a maximum of life” when the defendant has three or more prior
2 576 U.S. 591, 593, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015).
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convictions for “‘serious drug offense[s]’” or “‘violent felon[ies].’” 576 U.S. at 593
(quoting 18 U.S.C. § 924(e)(1)). Johnson challenged a clause defining what
constitutes violent felony. Johnson, 576 U.S. at 593. The Court concluded that
the clause was unconstitutionally vague because “the indeterminacy of the wide-
ranging inquiry required by the . . . clause both denies fair notice to defendants
and invites arbitrary enforcement by judges.” Johnson, 576 U.S. at 597. But in
Beckles, the Court distinguished Johnson, noting that Johnson applied “the
vagueness rule to a statute fixing permissible sentences.” Beckles, 137 S. Ct. at
892 (emphasis added).
Here, the statute does not require that the court impose a minimum
sentence, i.e., the statute does not fix the sentence range or other aspects of the
sentence. Rather, as discussed, the statute provides authority for the court to
exercise its discretion and determine whether imposition of the registration
requirement is appropriate. Because RCW 9.941.330 involves a discretionary—
not mandatory or fixed—decision and does not proscribe or prescribe conduct,
Chase’s reliance on Johnson is misplaced.
Legal Financial Obligations
Chase challenges the following LFOs that the court imposed upon him:
(1) criminal filing fee, (2) jury demand fee, (3) crime lab fee, and (4) interest on
nonrestitution LFOs. Chase also challenges the restitution provisions of the
sentence. The State concedes that the LFOs were improper and contends that
no restitution was ordered. For the following reasons, we accept the State’s
concessions and agree.
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RCW 10.101.010(3) provides the trial court factors to consider when
determining whether a defendant is indigent. Under RCW 36.18.020(2)(h), a
court cannot impose a criminal filing fee on an indigent defendant as defined by
RCW 10.01.010. Similarly, under RCW 10.01.160(3), courts cannot “impos[e]
discretionary costs on a defendant who is indigent at the time of sentencing.”
State v. Ramirez, 191 Wash. 2d 732, 746, 426 P.3d 714 (2018) (emphasis added).
And the jury fee and crime lab fee are discretionary. See RCW 10.46.190 (When
tried by a jury, a defendant “may be liable” for a jury fee. (emphasis added));
RCW 43.43.690(1)3 (“[T]he court shall levy a crime laboratory analysis fee,” but
“[u]pon a verified petition by the [defendant], the court may suspend payment of
all or part of the fee if it finds that the person does not have the ability to pay the
fee.” (emphasis added)); see, e.g., State v. Bartholomew, 104 Wash. 2d 844, 848,
710 P.2d 196 (1985) (“may” provides the trial court discretion in applying a
statute). Finally, RCW 10.82.090(1) provides that “no interest shall accrue on
nonrestitution legal financial obligations.”
Here, the trial court found Chase indigent on two separate occasions.
Moreover, the record indicates that if the trial court were to complete the inquiry
under RCW 10.01.010(3), the court would likely find that Chase falls within the
definition of indigent.4 Accordingly, because these fees are discretionary and
3 Despite Chase’s contention, State v. Malone, 193 Wash. App. 762, 376
P.3d 443 (2016), does not directly address the issue of whether the crime lab fee
is discretionary. 193 Wash. App. at 765-66. Rather, the court remanded to the trial
court to review whether the defendant was indigent and strike all discretionary
LFOs. Malone, 193 Wash. App. at 766.
4 The State contends that the trial court did not “engage in the type of
inquiry contemplated by” Ramirez and required by RCW 10.01.010 to determine
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No. 79894-4-I/9
cannot be imposed on an indigent defendant, the trial court erred by imposing
them.
As a final matter, Chase contends that the trial court erred when it ordered
restitution. While the court indicated that Chase and Parker were jointly and
severally liable for restitution and that Chase waived his right to be present at the
restitution hearing, it did not order restitution. Therefore, we need not address
this issue. Nonetheless, on remand, the trial court should strike these provisions
for the sake of clarity.
We affirm Chase’s conviction but remand for the trial court to strike the
following: (1) crime lab fee, (2) jury fee, (3) interest accrual on nonrestitution
LFOs, and (4) for clarity, those aspects of the sentence indicating that Chase
waived his right to be present at a future restitution hearing and that Chase would
be jointly and severally liable for any restitution owed.
WE CONCUR:
whether a defendant is indigent. Nonetheless, because the State believes that
the court likely would find Chase indigent, it concedes these issues and asserts
that “[t]here is little point to remanding this matter” for a determination of Chase’s
indigency.
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