FILED MARCH 11, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 39517-1-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) CHAD DRAY OLSON, ) ) Appellant. )
MELNICK, J.P.T. 1 — A jury found Chad Olson guilty of unlawful possession
of a firearm in the second degree (UPF) ; 2 possession with intent to deliver
methamphetamine; 3 and use of drug paraphernalia. 4 Olson claims that the trial court
erred by failing to suppress evidence that resulted from a pretextual stop. He further
claims that the court erred by excluding evidence at the suppression hearing. Olson next
argues that his UPF conviction should be reversed because it violated his constitutional
rights to bear arms or, in the alternative, it was predicated on a conviction for escape from
community custody 5 that was imposed based on a possession of a controlled substance
1 Rich Melnick, a retired judge of the Washington State Court of Appeals, is serving as a judge pro tempore of this court pursuant to RCW 2.06.150(1). 2 Former RCW 9.41.040(2) (2019). 3 RCW 69.50.401(2)(b). 4 Former RCW 69.50.412 (2013). 5 RCW 72.09.310. No. 395171-III State v. Olson
conviction. Lastly, Olson contends the court erred by imposing a crime victim penalty
assessment (CVPA) on an indigent defendant. We remand for the trial court to strike the
CVPA, but otherwise affirm.
FACTS
Traffic stop
While on patrol, Officer Aaron Davis of the Colville Police Department saw a
parked vehicle pull away from a curb without signaling. As the vehicle drove toward
Davis, he noticed the front license plate was obscured by the bumper and a rear license
plate light was not functioning. Davis initiated a traffic stop on the vehicle and identified
the driver as Chad Olson.
During the traffic stop, Davis observed an open bag on the passenger seat that
contained drug paraphernalia. Davis instructed Olson to exit the vehicle. Olson initially
consented to a search of his vehicle; however, he then revoked his consent. Davis seized
the vehicle and obtained a search warrant. Pursuant to the search, Davis seized several
pieces of evidence including controlled substances, a handgun, and drug paraphernalia.
Motion to suppress
Prior to trial, Olson filed a motion to suppress evidence pursuant to CrR 3.6. The
trial court held a hearing and heard testimony from Davis and Olson. A summary of their
2 No. 395171-III State v. Olson
testimony follows. Olson also sought to call a witness, Kyle Bowen, but the trial court
excluded him on the basis that his proffered testimony was irrelevant.
OFFICER AARON DAVIS
Davis worked as a correctional officer for approximately six years. During
that time, he first became familiar with Olson because of the times Olson had spent
in jail. Davis learned of Olson’s involvement in the Colville drug scene. When Davis
subsequently became a police officer, he continued to be aware of Olson’s involvement
with controlled substances. Davis knew Olson normally drove a white pickup that
belonged to either Olson’s father or his father-in-law. Davis never saw anybody but Olson
drive the vehicle. Davis had heard from other officers that Olson possessed a firearm and
drove around with it.
On the evening of Olson’s arrest, Davis was on patrol, which partly involved
parking in problem or high-crime neighborhoods, or near known drug houses. He also
looked for law violators and monitored traffic speed in neighborhoods where children
were present.
Davis had patrolled on numerous occasions the neighborhood where he stopped
Olson. He knew the area was “a high[-]speed area for bus stops and for kids late at night
going to [the store] to get snacks and what not. People fly up and down [the] street at high
3 No. 395171-III State v. Olson
rates of speed all the time, so it’s also a good spot to run traffic.” 1 Rep. of Proc. (RP)
(Oct. 25, 2022) at 64.
Davis first saw Olson’s vehicle parked near the home of a person who was known
to be involved with drugs. It was not the only home in the neighborhood that had such
involvement. When he first saw Olson’s vehicle, Davis did not know with certainty who
had parked it. When the vehicle began moving, Davis did not know who was driving it.
When Olson’s vehicle drove by him, Davis made a U-turn, got behind the vehicle, and
stopped it.
Davis stopped Olson for three infractions: failing to signal; having an obstructed
license plate; and having a malfunctioning license plate light. Olson had not been
speeding or driving recklessly.
Since becoming a patrol officer approximately two years earlier, Davis performed
traffic stops on numerous individuals for the same violations that he stopped Olson.
No department policy prohibited Davis from stopping vehicles for the noted violations.
Davis, per his common practice, did not cite Olson for the traffic infractions, and let him
off with a warning. When Davis approached the vehicle, he most likely knew Olson
would be the driver.
4 No. 395171-III State v. Olson
CHAD OLSON
Olson did not contradict Davis’s testimony in a material way. Olson did add that
he was familiar with Davis because he had been in jail numerous times while Davis was
a corrections officer. While in jail, Olson claimed he got into an argument with Davis,
which ended with Davis saying that when he became a cop, he would get Olson.
The State objected when Olson attempted to call a witness, Kyle Bowen. Olson
made an offer of proof that “Bowen would testify that within the past four years,
while he was in custody in the jail, that . . . Davis threatened [Bowen], said the same type
of thing that he said to [Olson], that when [Davis] become a police officer [he was]
going to get [Bowen].” 1 RP (Oct. 25, 2022) at 102. The trial court sustained the State’s
objection and excluded Bowen, stating “I don’t see how an independent interaction
that . . . Davis has had with somebody else is relevant to this . . . .” 1 RP (Oct. 25, 2022)
at 102.
After the hearing, the court made the following written findings of fact and
conclusions of law:
FINDINGS OF FACT
Based on the testimony elicited at the CrR 3.6 hearing, the Court makes the following findings of fact:
5 No. 395171-III State v. Olson
1. Officer Aaron Davis is employed with the Colville Police Department as a patrol officer. One of his responsibilities as an officer is the enforcement of traffic laws. 2. On October 19, 2020, Officer Davis, of the Colville Police Department, was on patrol. He observed a white Chevrolet truck leave a parking space near the intersection of 8th and Lincoln in Colville, WA. 3. Officer Davis noted that as the driver entered the lane of travel he failed to signal. Officer Davis also observed that the front license plate was obscured by a metal bumper. Officer Davis also testified that the license plate lights were not functioning. 4. Based on these traffic infractions, Officer Davis initiated a traffic stop of the vehicle. 5. Officer Davis stated that as part of his work as a patrol officer he has conducted traffic stops for these infractions in the past as well. 6. Upon contacting the driver, Officer Davis recognized him to be the Defendant, Chad Olson. Officer Davis asked Mr. Olson to step out of the vehicle and he conducted a weapons frisk. 7. While Officer Davis was at the driver’s side door, he observed what he recognized to be drug paraphernalia on Mr. Olson’s front passenger seat. 8. As the traffic stop progressed, Officer Davis decided to seize the vehicle and obtain a search warrant for the contents of the vehicle.
CONCLUSIONS OF LAW
1. In State v. Ladson, the Washington State Supreme Court ruled that pretextual stops are unconstitutional. See generally 139 Wash.2d 343, 979 P.2d 833 (1999). 2. A pretextual traffic stop occurs when a police officer relies on some legal authorization as “a mere pretext to dispense with [a] warrant when the true reason for the seizure is not exempt from the warrant requirement.” Ladson, 138 Wash.2d at 358, 979 P.2d 833. 3. Warrantless traffic stops are constitutional under article I, section 7 [of the Washington Constitution] as investigative stops, but only if based upon at least a reasonable articulable suspicion of either
6 No. 395171-III State v. Olson
criminal activity or a traffic infraction, and only if reasonably limited in scope. See Ladson, 138 Wash.2d at 350, 351-52, 979 P.2d 833 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)); RCW 46.61.021(2); see also [State v.] Snapp, 174 Wash.2d [177,] 197-98, 275 P.3d 289 [(2012)]; State v. Doughty, 170 Wash.2d 57, 62, 239 P.3d 573 (2010); [State v.] Day, 161 Wash.2d [889,] 896, 168 P.3d 1265 [(2007)]; [State v.] Duncan, 146 Wash.2d [166,] 173-74, 43 P.3d 513 [(2002)]; State v. Nichols, 161 Wash.2d 1, 13, 162 P.3d 1122 (2007). 4. In State v. [Chacon] Arreola, the Washington Supreme Court revisited its decision in Ladson and considered whether a mixed- motive traffic stop—that is, a traffic stop based on both legitimate and illegitimate grounds—is a pretextual stop in violation of article I, section 7. 176 Wn.2d 284, 297, 290 P.3d 983, 991 (2012). 5. A mixed-motive stop does not violate article I, section 7 so long as the police officer making the stop exercises discretion appropriately. Thus, if a police officer makes an independent and conscious determination that a traffic stop to address a suspected traffic infraction is reasonably necessary in furtherance of traffic safety and the general welfare, the stop is not pretextual. That remains true even if the legitimate reason for the stop is secondary and the officer is motivated primarily by a hunch or some other reason that is insufficient to justify a stop. In such a case, the legitimate ground is an independent cause of the stop, and privacy is justifiably disturbed due to the need to enforce traffic regulations, as determined by an appropriate exercise of police discretion. [Chacon Arreola, 176 Wn.2d at] 298-99, 290 P.3d 983, 991 (2012). 6. A police officer cannot and should not be expected to simply ignore the fact that an appropriate and reasonably necessary traffic stop might also advance a related and more important police investigation. An officer’s motivation to remain observant and potentially advance a related investigation does not taint the legitimate basis for the stop, so long as discretion is appropriately exercised, and the scope of the stop remains reasonably limited based on its lawful justification. [Chacon Arreola, 176 Wn.2d at] 299, 290 P.3d 983, 992 (2012).
7 No. 395171-III State v. Olson
7. A trial court’s consideration of a challenge to an allegedly pretextual traffic stop should remain direct and straightforward. The trial court should consider both subjective intent and objective circumstances to determine whether the police officer exercised discretion appropriately. The trial court’s inquiry should be limited to whether investigation of criminal activity or a traffic infraction (or multiple infractions), for which the officer had a reasonable articulable suspicion, was an actual, conscious, and independent cause of the traffic stop. [Chacon Arreola, 176 Wn.2d] at 299-300, 290 P.3d 983, 992 (2012). 8. In the present case, Officer Davis decided to pull over the vehicle that Mr. Olson was driving for three separate traffic infractions. There is nothing in the record to suggest that he had a different reason for initiating this stop. 9. Assuming, arguendo, that Officer Davis recognized Mr. Olson prior to the stop, and suspected him of being engaged in criminal activity his actions are not violative of Mr. Olson’s rights as Officer Davis would have been performing a “mixed-motive” stop.
ORDER
IT IS ORDERED that the Defendant’s Motion to Dismiss pursuant to CrR 3.6 is DENIED.
Clerk’s Papers (CP) at 58-61 (boldface omitted) (first alteration in original).
Subsequent proceedings
A jury subsequently found Olson guilty. Olson filed a motion for arrest of
judgment and dismissal of his UPF conviction because the State admitted a certified
judgment and sentence of an escape from community custody conviction to prove
that Olson had a prior felony conviction disqualifying him from possessing a firearm.
8 No. 395171-III State v. Olson
Olson claimed that “the community custody was imposed on an unconstitutional
possession of a controlled substance conviction.” CP at 108. The trial court denied the
motion.
At sentencing, the trial court imposed a $500 CVPA. The trial court did not
indicate on the judgment and sentence whether Olson was indigent. The trial court did
find Olson indigent for purposes of appeal. Olson appeals.
ANALYSIS
The seizure
Olson contends that the trial court erred by not suppressing the fruits of an illegal
pretext stop, by not suppressing evidence because the scope and duration of the detention
was not related to the reason(s) for the stop, and by excluding a witness at the suppression
hearing. We disagree.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Initially, Olson challenges two of the trial court’s findings of fact and argues that
substantial evidence does not support findings 2 or 3. He also challenges conclusions
of law 8 and 9, arguing that they are actually findings of fact.
“The trial court is tasked with resolving issues of credibility and weighing
evidence, and we give great deference to its factual findings.” State v. Taylor,
9 No. 395171-III State v. Olson
29 Wn. App. 2d 319, 328, 541 P.3d 1061, review denied, 3 Wn.3d 1003, 549 P.3d 116
(2024). “We review the denial of a motion to suppress for substantial evidence supporting
the trial court's findings of fact and whether the findings of fact support the trial court's
conclusions of law, and we review the trial court's conclusions of law de novo.” State v.
Teulilo, 1 Wn.3d 595, 602-03, 530 P.3d 195 (2023); State v. Chacon Arreola, 176 Wn.2d
284, 291, 290 P.3d 983 (2012). Substantial evidence exists when there is a sufficient
quantity of evidence to persuade a fair-minded, rational person of the truth of the finding.
State v. Anderson, 200 Wn.2d 266, 286, 516 P.3d 1213 (2022).
Finding of fact 2 states: “On October 19, 2020, Officer Davis, of the Colville
Police Department, was on patrol. He observed a white Chevrolet truck leave a parking
space near the intersection of 8th and Lincoln in Colville, [Washington].” CP at 58. Olson
argues that Davis was not merely on patrol, but that he was acting proactively in a high
crime area. Olson concedes that Davis was also on routine patrol. Appellant’s Opening
Br. at 26. The trial court’s finding that Davis was on patrol is supported by substantial
evidence in the record. The duties of a patrol officer encompass the acts Davis performed.
Finding of fact 4 states: “Based on these traffic infractions, Officer Davis initiated
a traffic stop of the vehicle.” CP at 59. Substantial evidence in the record supports this
finding. The trial court heard testimony that Davis initiated the traffic stop because of
10 No. 395171-III State v. Olson
traffic violations. There is nothing in the record to show that, had the infractions not
occurred, Davis would have stopped Olson. The trial court weighed the credibility of
the witnesses and decided what weight to give their testimony. We do not disturb those
determinations on appeal.
Conclusion of law 8 states: “In the present case, Officer Davis decided to pull over
the vehicle that Mr. Olson was driving for three separate traffic infractions. There is
nothing in the record to suggest that he had a different reason for initiating this stop.”
CP at 61. We agree with Olson that the second sentence of this conclusion is a factual
finding, and we review it as such. First, we conclude that substantial evidence supports
the first sentence of this conclusion. Next, we conclude that substantial evidence does not
support the second sentence. There is evidence in the record that Davis “had a different
reason for initiating this stop.” 6 CP at 61. Although Davis only stopped Olson because
of the infractions, there is evidence that Davis had other reasons to want to stop Olson.
We strike this finding and do not consider it in our review.
6 The trial court could have intended this sentence to be based on making credibility determinations and weighing the evidence from the suppression hearing. It could have said it did not believe the testimony of a witness. However, as written, this finding does not reflect that this meaning is what the court intended, and we do not interpret it as such. Therefore, we strike it.
11 No. 395171-III State v. Olson
Conclusion of law 9 states: “Assuming, arguendo, that Officer Davis recognized
Mr. Olson prior to the stop, and suspected him of being engaged in criminal activity
his actions are not violative of Mr. Olson’s rights as Officer Davis would have been
performing ‘a mixed-motive’ stop.” CP at 61. Olson does not specify which part of this
conclusion is a finding. To the extent that Olson claims the Davis did not act with mixed
motives, we conclude that substantial evidence in the record supports that assertion.
Although warrantless traffic stops are constitutional, under article 1, section 7,
of the Washington Constitution, pretextual traffic stops are unconstitutional. State v.
Ladson, 138 Wn.2d 343, 351-52, 979 P.2d 833 (1999). When a police officer relies on
some legal authorization as a “mere pretext to dispense with the warrant when the true
reason for the seizure is not exempt from the warrant requirement,” a pretext traffic
stop occurs. Ladson, 138 Wn.2d at 358. “When determining whether a given stop is
pretextual, the court should consider the totality of the circumstances, including both
the subjective intent of the officer as well as the objective reasonableness of the officer's
behavior.” Ladson, 138 Wn.2d at 358-59. “When an unconstitutional search or seizure
occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must
be suppressed.” Ladson, 138 Wn.2d at 359.
12 No. 395171-III State v. Olson
A mixed-motive stop, one based on both legitimate and illegitimate grounds,
does not violate our constitution.
[A] traffic stop is not unconstitutionally pretextual so long as investigation of either criminal activity or a traffic infraction (or multiple infractions), for which the officer has a reasonable articulable suspicion is an actual, conscious, and independent cause of the traffic stop. In other words, despite other motivations or reasons for the stop, a traffic stop should not be considered pretextual so long as the officer actually and consciously makes an appropriate and independent determination that addressing the suspected traffic infraction (or multiple suspected infractions) is reasonably necessary in furtherance of traffic safety and the general welfare. .... Thus, if a police officer makes an independent and conscious determination that a traffic stop to address a suspected traffic infraction is reasonably necessary in furtherance of traffic safety and the general welfare, the stop is not pretextual. That remains true even if the legitimate reason for the stop is secondary and the officer is motivated primarily by a hunch or some other reason that is insufficient to justify a stop. In such a case, the legitimate ground is an independent cause of the stop, and privacy is justifiably disturbed due to the need to enforce traffic regulations, as determined by an appropriate exercise of police discretion. . . .
Chacon Arreola, 176 Wn.2d at 297-99.
The trial court has been directed to “consider the presence of an illegitimate reason
or motivation when determining whether the officer really stopped the vehicle for a
legitimate and independent reason (and thus would have conducted the traffic stop
regardless). But a police officer cannot and should not be expected to simply ignore the
fact that an appropriate and reasonably necessary traffic stop might also advance a related
13 No. 395171-III State v. Olson
and more important police investigation.” Chacon Arreola, 176 Wn.2d at 299. The trial
court must focus “on the alleged legitimate reason for the stop and whether it was an
actual, conscious, and independent cause.” Chacon Arreola, 176 Wn.2d at 300.
In this case, the trial court considered both Davis’s illegitimate reasons or
motivations as well as his legitimate and independent reasons for the stop of Olson.
In making factual findings, the court made credibility determinations. The trial court’s
factual finding that Davis stopped Olson for legitimate reasons is supported by substantial
evidence. Davis has, on numerous occasions, stopped individuals for the same infractions
Olson committed. Although there were mixed motives, we conclude that the trial court’s
factual findings support its conclusions of law. The trial court did not err by denying the
motion to suppress.
SCOPE AND DURATION OF TRAFFIC STOP
Olson claims that the scope and the duration of the traffic stop rendered it
unconstitutional. 7 We disagree.
7 Olson seems to argue that the scope and the duration of the traffic stop demonstrates it was pretextual. However, the trial court made no findings on this issue and there is nothing in the record to indicate the defendant proposed such a finding. However, we note that the police cannot and should not ignore the fact that a legitimate traffic stop may also advance a related and more important investigation. Chacon Arreola, 176 Wn.2d at 299. This other investigation will inevitably and necessarily prolong the detention.
14 No. 395171-III State v. Olson
“Whenever any person is stopped for a traffic infraction, the officer may detain
that person for a reasonable period of time necessary to identify the person, check for
outstanding warrants, check the status of the person's license, insurance identification
card, and the vehicle's registration, and complete and issue a notice of traffic infraction.”
RCW 46.61.021(2). However, a separate but related investigation may affect the duration
and scope of the stop. Chacon Arreola, 176 Wn.2d at 299.
In this case, upon stopping Olson for the traffic infractions, Davis approached
the vehicle and observed an open bag with drug paraphernalia. From this point, Davis’s
investigation expanded. Based on the totality of the circumstances, the duration and scope
of the investigation was reasonable.
EXCLUSION OF TESTIMONY AT SUPPRESSION HEARING
Olson argues that the trial court erred by excluding Kyle Bowen’s testimony.
We disagree.
Strict adherence to Washington’s rules of evidence is not required in suppression
hearings. ER 1101. However, we find guidance in applying the rules in the present case.
“‘Relevant evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
15 No. 395171-III State v. Olson
probable than it would be without the evidence.” ER 401. Irrelevant evidence is not
admissible. ER 402.
A trial court’s evidentiary rulings will be reversed only on a showing of manifest
abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
“A discretionary [trial court decision] will not be disturbed on appeal without a clear
showing of abuse of discretion, that is, discretion that is manifestly unreasonable or
exercised on untenable grounds, or for untenable reasons.” State v. Smith, 90 Wn. App.
856, 859-60, 954 P.2d 362 (1998).
In the present case, the trial court did not abuse its discretion by excluding
Bowen’s testimony on the basis that it was irrelevant.
UPF conviction
Olson claims that his conviction for UPF is unlawful for two reasons. First,
he argues that the Second Amendment to the United States Constitution does not bar
people with a nonviolent felony conviction from possessing firearms. Second, Olson
argues that his conviction for UPF is unlawful because it was based on a conviction for
escape from community custody that arose from an unconstitutional conviction for drug
possession. We disagree.
16 No. 395171-III State v. Olson
Olson argues that because the predicate crime for which he is barred from legally
possessing a firearm is a nonviolent offense, escape from community custody,
Washington’s statute is unconstitutional.
We review constitutional issues de novo. City of Seattle v. Evans, 184 Wn.2d 856,
861, 366 P.3d 906 (2015). Statutes are presumed to be constitutional, and the challenger
of a statute has the burden to show unconstitutionality. Evans, 184 Wn.2d at 861-62. “An
as-applied challenge to a statute's constitutionality requires examination of the statute in
the specific circumstances of the case.” State v. Ross, 28 Wn. App. 2d 644, 646, 537 P.3d
1114 (2023), review denied, 2 Wn.3d 1026, 544 P.3d 30 (2024).
The Second Amendment states, “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.” However, this constitutional amendment does have its limits. Dist. of
Columbia v. Heller, 554 U.S. 570, 595, 626, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).
Nothing “should be taken to cast doubt on longstanding prohibitions on the possession
of firearms by felons and the mentally ill . . . .” Heller, 554 U.S. at 626.
The Second Amendment protects the right of “ordinary, law-abiding citizen[s].”
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 8-9, 142 S. Ct. 2111, 213
17 No. 395171-III State v. Olson
L. Ed. 2d 387 (2022). As pointed out in Ross, 28 Wn. App. 2d at 649, 651, the majority
in N.Y. State Rifle iterated this proposition on at least eleven occasions.
There is a long standing historical basis and tradition for prohibiting felons from
possessing firearms. Heller, 554 U.S. at 626; McDonald v. City of Chicago, 561 U.S. 742,
786. 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010). Further, the United States Supreme Court
never distinguished between the rights of violent and nonviolent felons when it comes to
possessing firearms. Ross, 28 Wn. App. 2d at 651.
In State v. Bonaparte, 32 Wn. App. 2d 266, 554 P.3d 1245 (2024), we affirmed the
defendant’s conviction for UPF. Although the predicate offense that prohibited the
defendant from legally possessing a firearm was a crime of violence, Bonaparte points
out that other courts have “upheld prohibitions on the possession of firearms by non-
violent felons.” Bonaparte, 32 Wn. App. 2d at 277-79.
We conclude that Olson’s UPF conviction is not unconstitutional, even though
the underlying predicate is a nonviolent offense.
Olson also claims that his conviction for UPF must be reversed and vacated
because the underlying conviction upon which the unlawful possession is based, escape
from community custody, was imposed as part of the sentencing for a simple drug
possession. Olson argues that because State v. Blake, 197 Wn.2d 170, 481 P.3d 521
18 No. 395171-III State v. Olson
(2021), invalidated the drug possession law, his conviction for escape from community
custody from that crime must also be vacated.
Olson’s 2014 escape from community custody conviction was pursuant to
RCW 72.09.310. CP at 112. The validity of a conviction under RCW 72.09.310 does
not turn on the constitutionality of the crime giving rise to community confinement.
See State v. Gonzales, 103 Wn.2d 564, 567, 693 P.2d 119 (1985). As we have previously
recognized, a defendant who is subject to the jurisdiction of the state based on a prior
conviction “must submit to confinement until discharged by due process of law.” State
v. Paniagua, 22 Wn. App. 2d 350, 358, 511 P.2d 113, review denied, 200 Wn.2d 1018,
520 P.3d 970 (2022). If a defendant believes their prior conviction is invalid, the “remedy
is to seek a declaration of the unconstitutionality of the statute, not flee from justice.”
Paniagua, 22 Wn. App. 2d at 359.
In Gonzales, our Supreme Court held that a person charged under the first degree
escape statute could not challenge the constitutional validity of the convictions that led to
confinement. The court stated, “that in a prosecution for escape the State is not required
to prove the defendant had been detained pursuant to a constitutionally valid conviction.”
Gonzales, 103 Wn.2d at 565.
19 No. 395171-III State v. Olson
In Paniagua, we affirmed the defendant’s bail jumping conviction when the
underlying crime for which the defendant failed to appear was later invalidated on
constitutional grounds. Paniagua, 22 Wn. App. 2d at 358.
Here, Olson was convicted in 2012 of possession of a controlled substance under
former RCW 69.50.4013(1) (2003). CP at 129. The trial court placed him on community
custody. Olson was then convicted in 2014 of escape from community custody by
violating the court’s order to make himself available to the department overseeing his
community custody. The fact that the conviction giving rise to the trial court’s order
regarding community custody was subsequently invalidated does not excuse Olson’s
actions in escaping from community custody. The conduct that led to Olson escaping
from community custody was based on separate conduct from his possession conviction.
We reject Olson’s arguments on this issue. 8
CVPA
Olson contends that because he was indigent, the court improperly imposed the
$500 CVPA on him. The state concedes that if Olson was indigent at sentencing, the
CVPA was improperly imposed.
Neither party briefed nor argued whether Olson’s challenges to the 8
UPF conviction are a proper or improper collateral attack on a prior conviction. We do not address that issue. RAP 12.1.
20 No. 395171-III State v. Olson
Here, the trial court did not specifically make a finding of indigency at Olson’s
sentencing. However, one week later it did find Olson indigent for purposes of appeal.
Although we recognize the standards for indigency may vary, the record is clear to us that
Olson was indigent at the time of sentencing. We remand to the trial court with direction
to strike the CVPA from Olson’s judgment and sentence.
CONCLUSION
We affirm Olson’s convictions, but remand to the trial court to strike the CVPA.
_________________________________ Melnick, J.P.T.
WE CONCUR:
______________________________ _________________________________ Lawrence-Berrey, C.J. Cooney, J.