State of Washington v. Kimothy Maurice Wynn ( 2024 )

Filed
Washington State
Court of Appeals
Division Two
October 29, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 57511-6-II
Respondent,
v. UNPUBLISHED OPINION
KIMOTHY WYNN,
Appellant.
CHE, J. ⎯ In 2003, Kimothy Wynn was convicted of two counts of first degree assault
with firearm sentence enhancements and one count of first degree unlawful possession of a
firearm. The trial court sentenced Wynn to a standard range sentence of 459 months confinement
and imposed a $110 criminal filing fee, a $500 victim penalty assessment (VPA), and $100 DNA
collection fee.
In 2021, Wynn was resentenced following the Washington Supreme Court’s decision in
State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). After determining that Wynn’s offender
score must be reduced, the trial court resentenced Wynn to 408 months confinement and noted
that all other terms and conditions of the original judgment and sentence remained in full force
and effect.
Wynn appeals the new judgment and sentence following his resentencing.
No. 57511-6-II
ANALYSIS
Wynn argues, and the State concedes, that the trial court improperly imposed legal
financial obligations in his judgment and sentence. We accept the State’s concession.
Effective July 1, 2023, RCW 7.68.035(4) prohibits courts from imposing the VPA on
indigent defendants as defined in RCW 10.01.160(3). See State v. Ellis, 27 Wn. App. 2d 1, 16,
530 P.3d 1048 (2023). For purposes of RCW 10.01.160(3), a defendant is indigent if they meet
the criteria in RCW 10.101.010(3). Although this amendment took effect after Wynn's
sentencing, it applies to cases pending on appeal. Ellis, 27 Wn. App. 2d at 16.
Additionally, at the time of Wynn’s resentencing, the trial court was only authorized to
impose the criminal filing fee if it found Wynn not indigent. RCW 10.01.160(3); RCW
36.18.020(2)(h). The trial court made no such finding.
Wynn and the State agree that Wynn is indigent under RCW 10.101.010(3)(c). And the
trial court found Wynn indigent for purposes of this appeal. Accordingly, the criminal filing fee
and the VPA must be stricken from Wynn’s judgment and sentence. Although Wynn does not
specifically challenge the trial court’s imposition of the DNA fee, the State contends that the
DNA fee must also be stricken from Wynn’s judgment and sentence. Effective July 1, 2023, the
DNA collection fee is no longer statutorily authorized. RCW 43.43.7541; LAWS OF 2023,
ch. 449, § 4. Because Wynn’s case is on appeal, the amendments to RCW 43.43.7541 apply.
Ellis, 27 Wn. App. 2d 1 at 17. Therefore, imposition of the DNA collection fee is no longer
authorized and the trial court should strike it upon remand.
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No. 57511-6-II
CONCLUSION
We remand for the trial court to strike the VPA, filing fee, and DNA fee from Wynn’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.
Che, J.
We concur:
Maxa, J.
Veljacic, A.C.J.
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