State Of Washington, V. Jeffrey Alexander Widmer ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 82744-8-I
)
Respondent, )
) DIVISION ONE
v. )
)
JEFFREY ALEXANDER WIDMER, )
) UNPUBLISHED OPINION
Appellant. )
)
MANN, C.J. — Jeffrey Widmer appeals the trial court’s judgment and sentence
finding him guilty of three counts of gross misdemeanor harassment. Widmer argues
that the mandatory victim penalty assessment (VPA) is unconstitutional when imposed
on indigent defendants. We affirm.
FACTS
The State charged Widmer with three counts of felony harassment for
threatening to kill three different individuals at his apartment complex. Following a plea
bargain, Widmer pleaded guilty to three counts of gross misdemeanor harassment.
The parties’ joint sentencing recommendation included a mandatory $500 VPA.
Defense counsel asked the court to follow the recommendation. The sentencing court
Citations and pin cites are based on the Westlaw online version of the cited material.
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waived all discretionary legal financial obligations due to Widmer’s indigency, but
imposed the VPA. Widmer did not object at sentencing.
Widmer appeals.
ANALYSIS
Widmer argues that the VPA is unconstitutional when imposed on indigent
defendants, violating the excessive fines clause of the Washington Constitution. W ASH.
CONST. art. I, § 14. We disagree.
As a threshold matter, the State contends that Widmer invited any error by
agreeing to recommend the VPA. See State v. Carson, 179 Wn. App. 961, 973, 320
P.3d 185 (2014) (holding that the invited error doctrine precludes a criminal defendant
from seeking appellate review of an error that he helped create, even when the alleged
error implicates a constitutional right). The State also asserts that we need not consider
Widmer’s argument for the first time on appeal because he cannot demonstrate that it is
a manifest error affecting a constitutional right. RAP 2.5(a). Regardless of the
constraints that the invited error doctrine or RAP 2.5(a) may place on Widmer’s appeal,
his argument nonetheless fails.
RCW 7.68.035(1) provides in part:
(a) When any person is found guilty in any superior court of having
committed a crime . . . there shall be imposed by the court upon such
convicted person a penalty assessment. The assessment shall be in
addition to any other penalty or fine imposed by law and shall be five
hundred dollars for each case or cause of action that includes one or more
convictions of a felony or gross misdemeanor.
The Washington Supreme Court has already upheld the constitutionality of this
statute. State v. Curry, 118 Wn.2d 911, 917, 829 P.2d 166 (1992). In Curry, the court
reasoned that constitutional principles will not be implicated unless the government
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seeks to enforce collection of the assessments at a time when a defendant is unable to
comply. Curry, 118 Wn.2d at 917. It is at the point when an indigent defendant may be
faced with alternatives of payment or imprisonment that they may assert a constitutional
objection based on the grounds of their indigency. Curry, 118 Wn.2d at 917.
The Curry court noted that there are sufficient safeguards in the current
sentencing scheme to prevent the imprisonment of indigent defendants: “a sentencing
court shall require a defendant the opportunity to show cause why he or she should not
be incarcerated for a violation of his or her sentence, and the court is empowered to
treat a nonwillful violation more leniently. Moreover, contempt proceedings for
violations of a sentence are defined as those which are intentional.” Curry, 118 Wn.2d
at 918 (citing RCW 9.94A.200; RCW 7.21.010(1)(b)). The court concluded that, due to
such safeguards, no defendant will be incarcerated for their inability to pay the penalty
assessment unless the violation is willful. Curry, 118 Wn.2d at 918.
Once our Supreme Court “has decided an issue of state law, that interpretation is
binding on all lower courts until it is overruled.” State v. Gore, 101 Wn.2d 481, 487,
681 P.2d 227 (1984).
Affirmed.
WE CONCUR:
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