FILED APRIL 9, 2024 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STATE OF WASHINGTON, ) ) No. 39048-9-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) DUSTIN GENE ABRAMS, ) ) Appellant. )
FEARING, J. — Dustin Abrams seeks, on appeal, a ruling striking a victim penalty
assessment (VPA) entered for six 2004 convictions and the vacation of the six
convictions. The latter request requires that we discern whether RCW 9.94A.640(2)
allows a vacatur when the offender is incarcerated for offenses other than the offenses
sought to be vacated. We grant Abrams’ request to remove the VPA. We read
RCW 9.94A.640(2) to permit a vacatur when the applicant remains in prison for other
offenses, but reject, without prejudice, Abrams’ request to vacate the 2004 convictions
because of no showing of rehabilitation.
FACTS
In April 2004, the State charged, under Grant County cause number 04-1-00255-1,
Dustin Abrams with four counts of possessing a stolen firearm, four counts of theft of a
firearm, and four counts of unlawful possession of a firearm in the second degree. Mike No. 39048-9-III State v. Abrams
Mallon, a 79-year-old man who lived in a remote area of Grant County, was the victim of
the thefts. In June 2004, the State amended the information to reduce the number of
charged crimes to six. Abrams pled guilty to those six charges: four counts of theft of a
firearm, one count of theft in the first degree, and one count of theft in the second degree.
We collectively refer to those six convictions as the 2004 convictions. The trial court
sentenced Abrams to thirty months in confinement and ordered him to pay the following
legal financial obligations: a $500.00 VPA, a $110.00 criminal filing fee, a $509.10
sheriff services fee, and a $500.00 fee for his court-appointed attorney.
During Dustin Abrams’ time in prison for the theft convictions, Grant County
detectives unearthed evidence that Abrams killed Mike Mallon. Abrams remained
incarcerated, after completion of his sentence for the thefts, while awaiting trial for
murder. He later pled guilty to the murder charge. He remains in prison today and has
never been released since 2004.
On November 29, 2021, Dustin Abrams filed a motion for an order waiving all of
his legal financial obligations from the 2004 prosecution. On December 6, 2021, the
superior court granted the motion in part. The order confirming the ruling declares: “[a]ll
discretionary LFO’s [sic] are waived and interest.” Clerk’s Papers (CP) at 82. We read
the order as retaining in effect all mandatory obligations. The order did not distinguish
between discretionary and nondiscretionary legal financial obligations.
2 No. 39048-9-III State v. Abrams
PROCEDURE
On June 1, 2022, Dustin Abrams filed another motion with the superior court for
an order waiving legal financial obligations. The motion did not identify the discrete
obligations that Abrams requested be stricken. The June 1 motion is one of two motions
now being reviewed by this court. Abrams filed with the motion a declaration that
avowed his financial inability to pay obligations.
On June 15, 2022, the superior court denied, without any argument, Dustin
Abrams’ second motion to waive legal financial obligations. The written order explained
that the court denied the motion because “RCW 10.82.090(2) allows for waiver
‘following the offender’s release from total confinement.’ [sic] Defendant is in custody
at DOC.” CP at 89.
On June 17, 2022, Dustin Abrams filed a motion and declaration for an order
vacating the record of his six 2004 felony convictions. This motion is the second motion
on review before this court. That same day, the trial court denied the motion on the
ground that, under RCW 9.94A.640(2), the offender may not gain a vacatur until five
years after the offender’s release from confinement.
On August 15, 2022, Dustin Abrams filed, with the superior court, a motion for an
order of indigency, in which he certified:
[(1)] That I am the named defendant and I wish to appeal the judgment that was entered in the above-entitled case; (2) I own no real property; (3) That I own no personal property other than my personal
3 No. 39048-9-III State v. Abrams
effects; (4) No income whatsoever; (5) That I have undischarged LFOs in all Grant County Superior Court Cases; (6) That I am without other means to prosecute said appeal and desire that public funds are expended for that purpose; (7) That I can contribute $0.00; (8) That brief statement was already filed with this court; (9) I ask that the court to [sic] provide the following at public expense: All filing fees, attorney fees, preparation, reproduction, and distribution of briefs, preparation of verbatim report of proceedings, and preparation of necessary clerk’s papers; (10) I do not have the funds to pay for an appeal, I have been indigent since March 31, 2004 to date and will always be indigent.
CP at 95. On August 16, the superior court granted the motion and entered an order of
indigency.
LAW AND ANALYSIS
Legal Financial Obligations
Before addressing the merits of Dustin Abrams’ motion to strike legal financial
obligations, we entertain the State’s argument that Abrams lacks a right to appeal as a
matter of right the superior court’s denial of the second motion to strike. The State may
be correct in accordance with State v. Wilson, 198 Wn. App. 632, 635, 393 P.3d 892
(2017). But, in accordance with State v. Abrams, No. 39050-1-III (Wash. Ct. App. Aug.
22, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/390501_unp.pdf,
wherein Dustin Abrams sought the striking of legal financial obligations for convictions
other than his 2004 convictions, we exercise our discretion to grant discretionary review
on our own motion. RAP 1.2(c); State v. Blazina, 182 Wn.2d 827, 832, 344 P.3d 680
(2015).
4 No. 39048-9-III State v. Abrams
Dustin Abrams filed two motions for an order waiving legal financial obligations
entered in the 2004 prosecution: first on November 29, 2021 and again on June 1, 2022.
On December 6, 2021, the trial court granted the November 29 motion and struck all
“discretionary” legal financial obligations with interest. The order did not identify those
obligations deemed discretionary.
In 2018, the Washington Legislature amended the law to prohibit charging the
$200 criminal filing fee to defendants who are indigent at the time of sentencing. LAWS
Of 2018, ch. 269, § 17; State v. Ramirez, 191 Wn.2d 732, 748, 426 P.3d 714 (2018). The
legislature also revoked, for indigent offenders, imposition of expenses incurred by the
State in prosecuting the defendant, such as sheriff’s fees. RCW 10.01.160(2); State v.
Landrum, No. 33812-6-III (Wash. Ct. App. June 20, 2017) (unpublished),
https://www.courts.wa.gov/opinions/pdf/338126_unp.pdf. Finally, court-appointed
attorney fees became discretionary. State v. Glover, 4 Wn. App. 2d 690, 695, 423 P.3d
290 (2018). Thus, when the superior court signed the December 6 order, only the $500
VPA remained as a judgment against Dustin Abrams.
When Dustin Abrams filed, on June 1, 2022, his second motion for waiver of legal
financial obligations, Washington law still deemed the VPA to be a mandatory
obligation. Nevertheless, in April 2023, the Washington Legislature adopted Engrossed
Substitute House Bill 1169, and this law became effective on July 1, 2023. LAWS OF
2023, ch. 449, § 27. Under this bill, the superior court may no longer impose a VPA if
5 No. 39048-9-III State v. Abrams
the court adjudges the defendant to be indigent at the time of sentencing. LAWS OF 2023,
ch. 449, § 1. RCW 7.68.035(4) now reads:
The court shall not impose the penalty assessment under this section if the court finds that the defendant, at the time of sentencing, is indigent as defined in RCW 10.01.160(3).
Dustin Abrams argues that RCW 7.68.035(4) applies to his case because the 2023
bill went into effect while this direct appeal was pending. We agree. Changes in the law
with regard to legal financial obligations apply to cases pending on direct review and not
yet final at the time the new law became effective. State v. Ramirez, 191 Wn. 2d 732,
747 (2018).
We still must decide whether Dustin Abrams was indigent at the time of
sentencing in 2004. RCW 10.01.160 states, in relevant part, that
a defendant is “indigent” if the defendant: (a) Meets the criteria defined in RCW 10.101.010(3) (a) through (c); (b) is homeless or mentally ill as defined in RCW 71.24.025; (c) has household income above 125 percent of the federal poverty guidelines and has recurring basic living costs, as defined in RCW 10.101.010, that render the defendant without the financial ability to pay; or (d) has other compelling circumstances that exist that demonstrate an inability to pay.
RCW 10.01.160(3). RCW 10.101.010(3) provides that
“[i]ndigent” means a person who, at any stage of a court proceeding, is: (a) Receiving one of the following types of public assistance: Temporary assistance for needy families, aged, blind, or disabled assistance benefits, medical care services under RCW 74.09.035, pregnant women assistance benefits, poverty-related veterans’ benefits, food stamps or food
6 No. 39048-9-III State v. Abrams
stamp benefits transferred electronically, refugee resettlement benefits, medicaid, or supplemental security income; or (b) Involuntarily committed to a public mental health facility; or (c) Receiving an annual income, after taxes, of one hundred twenty- five percent or less of the current federally established poverty level.
RCW 10.101.010(3)(a)-(c).
The record establishes that Dustin Abrams has been incarcerated since before his
2004 convictions, is unemployed, has no income or assets, and cannot afford counsel. He
receives public assistance. He owns no property. The superior court signed an order of
indigency on August 16, 2022. Although the superior court did not expressly find
Abrams to be indigent at the time of the June 2004 sentencing, Abrams averred that he
has been indigent since March 2004. No facts contradict that Abrams was indigent at the
time of sentencing in June 2004. Therefore, we remand to the trial court with instructions
to strike the $500.00 VPA.
Vacatur of 2004 Convictions
Dustin Abrams assigns error to the superior court’s denial of his motion to vacate
his 2004 convictions. The superior court denied the motion after reading the controlling
statute, RCW 9.94A.640(2)(e)(ii), as demanding that the applicant be released from all
confinement, including confinement for other convictions, for at least five years. Abrams
has been incarcerated continuously since his 2004 convictions.
7 No. 39048-9-III State v. Abrams
The 2019 New Hope Act, codified in RCW 9.94A.640, seeks to promote
successful reentry into society by offenders. LAWS OF 2019, ch. 331, § 3.
RCW 9.94A.640 declares, in relevant part:
(1) Every offender who has been discharged under RCW 9.94A.637 may apply to the sentencing court for a vacation of the offender’s record of conviction. If the court finds the offender meets the tests prescribed in subsection (2) of this section, the court may clear the record of conviction by: (a) Permitting the offender to withdraw the offender’s plea of guilty and to enter a plea of not guilty; or (b) if the offender has been convicted after a plea of not guilty, by the court setting aside the verdict of guilty; and (c) by the court dismissing the information or indictment against the offender. (2) An offender may not have the record of conviction cleared if: (a) There are any criminal charges against the offender pending in any court of this state or another state, or in any federal court; (b) The offense was a violent offense as defined in RCW 9.94A.030 or crime against persons as defined in RCW 43.43.830. . .. .... (e) The offense is a class B felony and less than ten years have passed since the later of: (i) The applicant’s release from community custody; (ii) the applicant’s release from full and partial confinement; or (iii) the applicant’s sentencing date. (f) The offense was a class C felony, other than a class C felony described in RCW 46.61.502 or 46.61.504, and less than five years have passed since the later of: (i) The applicant’s release from community custody; (ii) the applicant’s release from full and partial confinement; or (iii) the applicant’s sentencing date.
(Emphasis added.) Theft of a firearm and theft in the first degree, two of Dustin Abrams’
crimes, are class B felonies subject to section (2)(e) of RCW 9.94A.640. RCW
9A.56.030, RCW 9A.56.300. Second degree theft, the other 2004 offense, constitutes a
class C felony subject to subsection (2)(f) of RCW 9.94A.640. RCW 9A.56.040.
8 No. 39048-9-III State v. Abrams
RCW 9.94A.640 takes a step forward to remedy the problem of an offender facing
obstacles when released from incarceration. Under public policy, a deserving offender
should be restored to his preconviction status as a full-fledged citizen. State v. Hawkins,
200 Wn.2d 477, 495, 519 P.3d 182 (2022). This legislative intent aligns with the overall
purposes of the Sentencing Reform Act of 1981, ch. 9.94A, RCW, which include
protecting the public and offering the offender an opportunity to improve himself or
herself. RCW 9.94A.010(4), (5); State v. Hawkins, 200 Wn.2d 477, 495 (2022).
RCW 9.94A.640 addresses the myriad of debilitating problems felons face when
attempting to reintegrate into society. State v. Hawkins, 200 Wn.2d 477, 489 (2022).
Long after serving their sentences, people with criminal histories face severe collateral
consequences that can include barriers to voting, serving on a jury, holding public office,
securing employment, obtaining housing, receiving public assistance, owning a firearm,
getting a driver’s license, qualifying for financial aid and college admission, qualifying
for military service, and deportation for noncitizens. State v. Hawkins, 200 Wn.2d 477,
489 (2022).
Vacatur entitles an individual to rejoin society free of all penalties and disabilities
resulting from the offense. RCW 9.94A.640(4)(a). In fact, the statute allows an offender,
whose conviction has been vacated, to state that he has never been convicted of that
crime for all purposes, including responding to questions on employment applications.
State v. Hawkins, 200 Wn.2d 477, 489-90 (2022). A conviction vacated under
9 No. 39048-9-III State v. Abrams
RCW 9.94A.640 is removed from the offender’s criminal history.
RCW 9.94A.030(11)(b).
RCW 9.94A.640(1) outlines a two-step process for vacating an offender’s
convictions. First, a trial court must determine whether the convictions meet the legal
requirements identified in RCW 9.94A.640(2). If the court determines that the
conviction satisfies subsection (2) of the statute, the court engages in the second step and
exercises its discretion to determine whether or not to clear the record of conviction.
RCW 9.94A.640(1). In line with the statutory purpose, the trial court must focus on
whether the applicant has demonstrated sufficient postconviction change to show
rehabilitation. State v. Hawkins, 200 Wn.2d 477, 495 (2022).
Because some of Dustin Abrams’ crimes were class B felonies, ten years must
have passed from some event in order to qualify him for vacation of all 2004 convictions.
RCW 9.94A.640(2)(e). The State argues that the ten years has not even begun to
commence because Abrams remains incarcerated. The State maintains that interpreting
RCW 9.94A.640(2)(e)(ii) to mean that ten years have passed since the offender’s release
from full or partial confinement for the specific Class B felony at issue and interpreting
RCW 9.94A.640(2)(f)(ii) to mean that five years have passed since the offender’s release
from full or partial confinement for the specific Class C felony would defeat the purposes
of the statute, place the statute in conflict with related statutes, and lead to absurd results.
Abrams reads the statute to only demand that ten years have passed since his
10 No. 39048-9-III State v. Abrams
incarceration for the 2004 crimes, which confinement ended sometime around 2006. We
must decide whether RCW 9.94A.640(2)(e) and (f)’s references to release from
community custody, release from confinement, and sentencing date relate only to the
crimes sought to be vacated or extend to other crimes.
The court’s primary duty in statutory interpretation is to discern and implement the
legislature’s intent. Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012).
In so doing, the court relies on many tested, commonsensical, and intelligent principles to
divine the meaning of the statute, principles employed when interpreting other important
and even sacred texts. State v. Jimenez, 200 Wn. App. 48, 52, 401 P.3d 313 (2017). We
discern legislative intent from the plain language enacted by the legislature, considering
the text of the provision in question, the context of the statute in which the provision is
found, related provisions, amendments to the provision, and the statutory scheme as a
whole. Association of Washington Spirits & Wine Distributors. v. Washington State
Liquor Control Board, 182 Wn.2d 342, 350, 340 P.3d 849 (2015). We also apply basic
rules of grammar. In re Forfeiture of One 1970 Chevrolet Chevelle, 166 Wn.2d 834, 839,
215 P.3d 166 (2009).
We note that RCW 9.94A.640(2) repeatedly refers to “the offense,” presumably
the offense that the applicant seeks to vacate. Thus, the statute employs the definite
article “the.” We focus on RCW 9.94A.640(2)(e), which controls Class B felonies.
11 No. 39048-9-III State v. Abrams
RCW 9.94A.640(2)(f), governing Class C felonies, uses the same critical language.
Subsection 2(e) reads:
The offense is a class B felony and less than ten years have passed since the later of: (i) The applicant’s release from community custody; (ii) the applicant’s release from full and partial confinement; or (iii) the applicant’s sentencing date.
(Emphasis added.) We note that the subsection lists all three triggering events for the
commencement of the ten years in the same sentence as “the offense.” We recognize that
subsections (i), (ii), and (iii) do not specifically mention release from custody or
confinement or the sentencing date as a result of any specific offense. Nevertheless,
based on ordinary sentence structure, those three events relate to “the offense.” Nowhere
does the sentence structure suggest that any of the operative dates connect to other or
later crimes. The applicant’s sentencing date would likely not refer to sentencing for
another offense since it refers to one date only. We should read the qualifying events in
subsection (i) and (ii) accordingly.
Use of a definite article is a recognized indication of statutory meaning.
Guardado v. Guardado, 200 Wn. App. 237, 243, 402 P.3d 357 (2017); Department of
Ecology v. City of Spokane Valley, 167 Wn. App. 952, 965, 275 P.3d 367 (2012). The
use of the definite article “the” often signifies a narrowing intent, a reference to
something specific, either known to the reader or listener or uniquely specified. Hickey v.
Scott, 370 Or. 97, 107, 515 P.3d 368 (2022). Whereas definite articles like “the” restrict
12 No. 39048-9-III State v. Abrams
the noun that follows as particularized in scope or previously specified by context, the
indefinite “a” has generalizing force. Nielsen v. Preap, 586 U.S. ___, 139 S. Ct. 954,
965, 203 L. Ed. 2d 333 (2019) (citing Merriam-Webster’s Collegiate Dictionary 1294
(11th ed. 2005)). The articles in a statutory text—the definite articles and the indefinite
articles—should not be overlooked or discounted, but should be treated as being chosen
by design and as intending a particularizing effect. In re A.P., 245 W. Va. 248, 858
S.E.2d 873, 879 (2021).
In Guardado v. Guardado, 200 Wn. App. 237 (2017), this court highlighted the
placement of the article “the” before the noun “cause” in CR 60(e)(1), which demanded
that any motion to vacate a judgment be filed in “the cause.” Based on a plain reading of
the entire rule, the rule’s language referenced the cause of action in which the judgment
from which the movant sought relief was entered. This court reversed the superior
court’s vacation of a judgment because the movant filed her motion in a different cause.
In RCW 9.94A.640(2)(a), the legislature disqualified an offender from a vacatur if
“any criminal charges” are pending against the offender. This subsection of the
controlling statute illustrates that the legislature knew when it wished to reference other
offenses. The legislature could have, but chose not to, insert the phrase “for any criminal
charges” in RCW 9.94A.640(2)(e) and (f) when referencing community custody,
confinement, and sentencing for purposes of triggering the five- and ten-year waiting
periods.
13 No. 39048-9-III State v. Abrams
We adopt Dustin Abrams’ reading of RCW 9.94A.640(2)(e). The statute’s
reference to release from community custody or confinement extends only to release by
reason of the offense or offenses sought to be vacated, not other offenses that may keep
the offender incarcerated.
The State highlights that Dustin Abrams’ interpretation of RCW 9.94A.640 would
create a conflict between crimes that have community custody and those that do not. The
offender serves community custody time at the end of all confinement time, including
that time imposed on unrelated charges. RCW 9.94A.171(3)(a). Under Abrams’
interpretation, crimes that require community custody would be ineligible for vacation
until after the offender’s ultimate release, and crimes that do not have community custody
would be eligible for vacation years, if not decades, earlier, while the offender remains in
prison.
The State makes an excellent point that almost persuades us to adopt its
interpretation. But, the continued use of the phrase “the offense” in the statute convinces
us of the correctness of our exegesis. We note that crimes that do not demand
community custody typically entail less harm to the general public such that the
legislature could legitimately distinguish for purposes of vacatur between those offenses
that demand community custody and those that do not.
We also note that entry of a vacatur before the offender leaves prison affords little
benefit to the offender. This recognition also almost persuades us to adopt the State’s
14 No. 39048-9-III State v. Abrams
interpretation of RCW 9.94A.640. The offender will later need to seek a vacatur of the
convictions for which he remains incarcerated in order to claim being conviction free.
But, under RCW 9.94A.640 and the policy of promoting and furthering rehabilitation
while in prison, the offender should still be able to gain what little profit is available
while in prison from the opportunity to gain vacatur of old crimes.
Our adoption of Dustin Abrams’ reading of RCW 9.94A.640(2) does not
necessarily lead to vacation of his 2004 convictions. The court must meaningfully
consider evidence of mitigation and rehabilitation since the time of the crime and
exercise its discretion based on its assessment of the extent of rehabilitation. State v.
Hawkins, 200 Wn.2d 477, 481 (2022). The legislature’s use of the word “may” in
RCW 9.94A.640 constitutes a clear grant of discretion to the trial court. State v.
Hawkins, 200 Wn.2d 477, 495 (2022).
When filing his vacatur motion, Dustin Abrams supplied the superior court with
no evidence of rehabilitation that the superior court could weigh in exercising its
discretion when determining vacatur. Therefore, we do not reverse the superior court’s
denial of the vacatur. Abrams remains free to file a new motion for vacatur with
evidence of any rehabilitation.
The State emphasizes that Dustin Abrams has not reentered the community.
According to the State, a person serving a murder sentence in state custody is not
someone the legislature would wish have restored to his preconviction status as a full-
15 No. 39048-9-III State v. Abrams
fledged citizen. We disagree. Someone convicted of murder can gain rehabilitation,
return safely to society, and benefit from restoration of full citizen status. The 2019 New
Hope Act recognizes the possibility of redemption.
CONCLUSION
We affirm the superior court’s denial of Dustin Abrams’ petition for vacatur of his
2004 convictions without prejudice to Abrams filing a new petition with evidence of
rehabilitation.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________ Fearing, J.
WE CONCUR:
______________________________ Lawrence-Berrey, C.J.
______________________________ Cooney, J.