State Of Washington, V. Roosevelt Reed ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84716-3-I
Respondent, DIVISION ONE
v. PUBLISHED OPINION
ROOSEVELT REED,
Appellant,
FELDMAN, J. — Roosevelt Reed appeals his sentence for assault in the
first degree following resentencing pursuant to State v. Blake, 197 Wn.2d 170,
481 P.3d 521 (2021), which invalidated the statute criminalizing simple drug
possession. While the resentencing court reduced Reed’s offender score from
nine to seven and reduced his term of confinement by seven years, it did not
strike the provisions in the original judgment and sentence imposing the $500
crime victim penalty assessment (VPA), $100 DNA collection fee, and interest on
restitution. For the reasons that follow, we remand for the superior court to (1)
strike the VPA and DNA collection fees and (2) decide whether to impose interest
on restitution after consideration of the relevant factors under RCW 10.82.090(2).
We reject the argument in Reed’s Statement of Additional Grounds (SAG) that
the superior court incorrectly determined his offender score.
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I. CRIME VICTIM PENALTY ASSESSMENT, DNA
COLLECTION FEE, AND RESTITUTION INTEREST
Reed asks us to remand for the superior court to strike from his judgment
and sentence the $500 VPA and the $100 DNA collection fee. He argues that
recent amendments to RCW 7.68.035 provide that the VPA shall not be imposed
against a defendant such as Reed who is indigent at the time of sentencing.
LAWS OF 2023, ch. 449, § 1. He likewise argues that RCW 43.43.7541 was also
amended to remove the DNA collection fee requirement. LAWS OF 2023, ch.
449, § 4. The State does not object to a remand for purposes of striking the VPA
or the DNA collection fee from Reed’s judgment and sentence. We accept the
State’s concession and, accordingly, remand for the superior court to strike the
VPA and DNA collection fee from Reed’s judgment and sentence.
Next, Reed asks us to remand for the superior court to consider waiving
interest on restitution. A recent amendment to RCW 10.82.090 provides that the
superior court “may elect not to impose interest on any restitution the court
orders” and that this determination shall be based on factors such as whether the
defendant is indigent. LAWS OF 2022, ch. 260, § 12. Reed argues that although
this provision did not take effect until after his sentencing, it applies to him
because his case is still on direct appeal. We agree.
Division Two’s recent opinion in State v. Ellis, 27 Wn. App. 2d 1, 530 P.3d
1048 (2023), is persuasive on this point. Ellis argued there that statutory
imposition of restitution interest violates the excessive fines clause of the Eighth
Amendment to the United States Constitution and article 1, section 14 of the
Washington Constitution. Id. at 13. The court declined to reach the constitutional
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argument upon concluding that “this issue has been resolved by the recent
enactment of a new statutory provision regarding restitution interest.” Id. at 15
(citing RCW 10.82.090 effective January 1, 2023. LAWS OF 2022, ch. 260, §
12). Relevant here, the court added: “Although this amendment did not take
effect until after Ellis’s resentencing, it applies to Ellis because this case is on
direct appeal.” Id. at 16. The court therefore remanded the issue “for the trial
court to address whether to impose interest on the restitution amount under the
factors identified in RCW 10.82.090(2).” Id. We agree with Ellis and conclude that
the same reasoning and result apply equally here.
The State claims we should not follow Ellis because the court there
purportedly misapplied State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).
To support this argument, the State emphasizes that the court in Ramirez
referred in its opinion to “costs” imposed on criminal defendants following
conviction. 191 Wn.2d at 749. From this, the State argues that Ellis was wrongly
decided because “[t]here is no basis to extend the holding in Ramirez to financial
obligations that are not costs, such as the restitution obligation at issue here.”
We reject this argument. Like the costs imposed in Ramirez, restitution
interest is a financial obligation imposed on a criminal defendant as a result of a
conviction. See RCW 10.01.160(1); RCW 10.82.090(1). We therefore agree
with Ellis that restitution interest is analogous to costs for purposes of applying
the rule that new statutory mandates apply in cases, like this one, that are on
direct appeal. 27 Wn. App. 2d 16. Thus, even though the amendment to RCW
10.82.090 regarding the superior court’s authority to waive interest on restitution
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did not take effect until after Reed’s resentencing, it applies here because this
case is on direct appeal. As in Ellis, we remand for the superior court to decide
whether to impose interest on restitution after consideration of the relevant
factors under RCW 10.82.090(2).
II. STATEMENT OF ADDITIONAL GROUNDS
Reed argues that his prior convictions for assault in the first degree,
unlawful imprisonment, and assault in the third degree should not have been
included in his offender score because “those judgment and sentences are
facially invalid as they contain an unconstitutional conviction for simple drug
possession” in their offender score calculations. We disagree.
Two of our prior opinions are instructive here. In State v. French, 21 Wn.
App. 2d 891, 894, 508 P.3d 1036 (2022), we held that the superior court correctly
declined to add one point to French’s offender score as a result of his
commission of an offense while on community custody 1 because the sentence
condition of community custody was imposed on French as a “direct
consequence” of a constitutionally invalid drug possession conviction. Then, in
State v. Paniagua, 22 Wn. App. 2d 350, 359, 511 P.3d 113 (2022), we
distinguished French and held that the superior court correctly declined to deduct
one point from Paniagua’s offender score corresponding to a bail jumping
offense committed while he was being held on a constitutionally invalid drug
possession charge because bail jumping is “an additional crime” that does not
require the existence of a predicate crime as an element.
1 See RCW 9.94A.525(19) (“If the present conviction is for an offense committed while the
offender was under community custody, add one point.”).
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Applying French and Paniagua, the dispositive issue here is whether
Reed’s prior convictions for assault and unlawful imprisonment are (a) dependent
on a conviction that is now invalid under Blake (as in French) or (b) separate
from (or in addition to) a conviction that is now invalid under Blake (as in
Paniagua). The latter is correct. Unlike the circumstances in French, Reed’s prior
convictions are not dependent on, nor are they a “direct consequence” of, a
conviction that is invalid under Blake. To the contrary, similar to Paniagua, these
are “additional crimes,” and the facts and circumstances of each are wholly
independent of any prior conviction that is now invalid under Blake. For these
reasons, we reject Reed’s argument that these prior convictions should have
been excised in determining his offender score.
Lastly, Reed argues that (1) he must be resentenced because his
exceptional sentence is unlawful as it is based on an incorrect offender score, (2)
at a resentencing based on a corrected offender score, a jury must be impaneled
if the State still seeks an exceptional sentence, and (3) even if the impaneled jury
finds aggravating factors sufficient to warrant an exceptional sentence, the court
should choose not to impose it because he has demonstrated years of
rehabilitation. Each of these arguments is predicated on Reed’s erroneous
assertion that the superior court incorrectly determined his offender score. We
need not address these issues because we have rejected Reed’s arguments
regarding his offender score. 2
2 Reed also raises two additional issues regarding (a) the timeliness of his offender score
argument and (b) the evidentiary record that this court can properly consider in deciding the
appeal. Because we address the merits of Reed’s argument regarding his offender score based
on the pertinent superior court documents, we do not address these preliminary issues.
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III. CONCLUSION
We affirm Reed’s offender score and remand for the superior court to (1)
strike the VPA and DNA collection fees and (2) decide whether to impose interest
on restitution after consideration of the relevant factors under RCW 10.82.090(2).
WE CONCUR
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