NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED NOVEMBER 3, 2022 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. 38371-7-111 ) Respondent, ) ) V. ) PUBLISHED OPINION ) JENNIFERL. WEMHOFF, ) ) Appellant. )
LAWRENCE-BERREY, A.C.J. -The legislature recently amended RCW 9.94A.703.
The amendment removes the condition, waivable by the trial court at sentencing,
requiring defendants to pay community custody supervision fees.
The question on appeal is whether this amendment, effective after sentencing but
before the termination of the appeal, applies here. Because amendments to statutes
imposing costs on criminal defendants apply to cases on appeal, we conclude the
amendment applies here. We remand for the trial court to strike its imposition of the
community custody supervision fees and for correction of a scrivener's error. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38371-7-III State v. Wemhoff
FACTS
Jennifer Wemhoff pleaded guilty to two counts of identity theft in the first degree
and three counts of theft in the first degree. On July 26, 2021, the trial court sentenced
her to an exceptional sentence of 48 months of confinement, followed by 12 months of
community custody. The court did not discuss or alter the standard provision in the
judgment and sentence that required payment of supervision fees for community custody.
In addition, Ms. Wemhoff’s judgment and sentence included a prior misdemeanor
conviction for frequenting a drug house. The date listed for that crime was December 6,
2011, and the date listed for sentencing was February 21, 2021. Apparently, the last two
numbers in the year were transposed. Ms. Wemhoff timely appealed.
ANALYSIS
Ms. Wemhoff argues the trial court erred when it imposed community custody
supervision fees and her sentence contains a scrivener’s error. We address each argument
in turn.
A. COMMUNITY CUSTODY SUPERVISION FEES
RCW 9.94A.703 sets forth which community custody conditions a trial court must
impose and which it may waive. Until recently, former RCW 9.94A.703(2)(d) (2018)
provided: “Unless waived by the court, as part of any term of community custody, the
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
court shall order an offender to . . . [p]ay supervision fees as determined by the
[Department of Corrections].” Earlier this year, the legislature amended the statute. See
SECOND SUBSTITUTE H.B. 1818, 67th Leg., Reg. Sess. (Wash. 2022). The amendment
has an effective date of July 1, 2022, and deletes the subsection from the statute. We first
must determine whether the former statute or the amended statute applies.
The State contends RCW 9.94A.345 controls the disposition of this question. The
statute provides: “[A]ny sentence imposed under this chapter shall be determined in
accordance with the law in effect when the current offense was committed.” This statute,
however, has never been extended to costs imposed on a criminal defendant.
In State v. Blank, 131 Wn.2d 230, 233-34, 930 P.2d 1213 (1997), two indigent
defendants challenged the constitutionality of RCW 10.73.160, which permits appellate
courts to impose appellate costs on adult offenders. That statute was enacted while their
appeals were pending. Id. at 234. In addition to other constitutional arguments, the
defendants asserted that retroactive application of the statute to them violated their equal
protection and due process rights. Id. at 249. In refuting this argument, the Blank court
explained why application of the statute to them was prospective, not retroactive:
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
[A] statute does not operate retroactively “merely because it relates to prior facts or transactions where it does not change their legal effect. It is not retroactive because some of the requisites for its actions are drawn from a time antecedent to its passage . . . .” State v. Scheffel, 82 Wn.2d 872, 879, 514 P.2d 1052 (1973). “A statute operates prospectively when the precipitating event for [its] application . . . occurs after the effective date of the statute . . . .” Aetna Life Ins. Co. v. Wash. Life & Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 535, 520 P.2d 162 (1974).
Id. at 248 (alterations in original). The Blank court held, “The precipitating event for
application of a statute concerning attorney fees and costs of litigation is termination of
the case.” Id. at 249.
In State v. Ramirez, 191 Wn.2d 732, 748, 426 P.3d 714 (2018), the court
considered an amendment to RCW 10.01.160, which prohibits trial courts from imposing
discretionary costs on defendants who are indigent at the time of sentencing. There, the
court noted in Blank, “we held that a statute imposing appellate costs applied
prospectively to the defendants’ cases on appeal.” Id.
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NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED NOVEMBER 3, 2022 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. 38371-7-111 ) Respondent, ) ) V. ) PUBLISHED OPINION ) JENNIFERL. WEMHOFF, ) ) Appellant. )
LAWRENCE-BERREY, A.C.J. -The legislature recently amended RCW 9.94A.703.
The amendment removes the condition, waivable by the trial court at sentencing,
requiring defendants to pay community custody supervision fees.
The question on appeal is whether this amendment, effective after sentencing but
before the termination of the appeal, applies here. Because amendments to statutes
imposing costs on criminal defendants apply to cases on appeal, we conclude the
amendment applies here. We remand for the trial court to strike its imposition of the
community custody supervision fees and for correction of a scrivener's error. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38371-7-III State v. Wemhoff
FACTS
Jennifer Wemhoff pleaded guilty to two counts of identity theft in the first degree
and three counts of theft in the first degree. On July 26, 2021, the trial court sentenced
her to an exceptional sentence of 48 months of confinement, followed by 12 months of
community custody. The court did not discuss or alter the standard provision in the
judgment and sentence that required payment of supervision fees for community custody.
In addition, Ms. Wemhoff’s judgment and sentence included a prior misdemeanor
conviction for frequenting a drug house. The date listed for that crime was December 6,
2011, and the date listed for sentencing was February 21, 2021. Apparently, the last two
numbers in the year were transposed. Ms. Wemhoff timely appealed.
ANALYSIS
Ms. Wemhoff argues the trial court erred when it imposed community custody
supervision fees and her sentence contains a scrivener’s error. We address each argument
in turn.
A. COMMUNITY CUSTODY SUPERVISION FEES
RCW 9.94A.703 sets forth which community custody conditions a trial court must
impose and which it may waive. Until recently, former RCW 9.94A.703(2)(d) (2018)
provided: “Unless waived by the court, as part of any term of community custody, the
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
court shall order an offender to . . . [p]ay supervision fees as determined by the
[Department of Corrections].” Earlier this year, the legislature amended the statute. See
SECOND SUBSTITUTE H.B. 1818, 67th Leg., Reg. Sess. (Wash. 2022). The amendment
has an effective date of July 1, 2022, and deletes the subsection from the statute. We first
must determine whether the former statute or the amended statute applies.
The State contends RCW 9.94A.345 controls the disposition of this question. The
statute provides: “[A]ny sentence imposed under this chapter shall be determined in
accordance with the law in effect when the current offense was committed.” This statute,
however, has never been extended to costs imposed on a criminal defendant.
In State v. Blank, 131 Wn.2d 230, 233-34, 930 P.2d 1213 (1997), two indigent
defendants challenged the constitutionality of RCW 10.73.160, which permits appellate
courts to impose appellate costs on adult offenders. That statute was enacted while their
appeals were pending. Id. at 234. In addition to other constitutional arguments, the
defendants asserted that retroactive application of the statute to them violated their equal
protection and due process rights. Id. at 249. In refuting this argument, the Blank court
explained why application of the statute to them was prospective, not retroactive:
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
[A] statute does not operate retroactively “merely because it relates to prior facts or transactions where it does not change their legal effect. It is not retroactive because some of the requisites for its actions are drawn from a time antecedent to its passage . . . .” State v. Scheffel, 82 Wn.2d 872, 879, 514 P.2d 1052 (1973). “A statute operates prospectively when the precipitating event for [its] application . . . occurs after the effective date of the statute . . . .” Aetna Life Ins. Co. v. Wash. Life & Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 535, 520 P.2d 162 (1974).
Id. at 248 (alterations in original). The Blank court held, “The precipitating event for
application of a statute concerning attorney fees and costs of litigation is termination of
the case.” Id. at 249.
In State v. Ramirez, 191 Wn.2d 732, 748, 426 P.3d 714 (2018), the court
considered an amendment to RCW 10.01.160, which prohibits trial courts from imposing
discretionary costs on defendants who are indigent at the time of sentencing. There, the
court noted in Blank, “we held that a statute imposing appellate costs applied
prospectively to the defendants’ cases on appeal.” Id. The court noted that the subject
matter regulated the trial court’s ability to impose costs on indigent defendants at
sentencing. Id. at 749. Nonetheless, it concluded that the precipitating event for the
statute was termination of the appeal and held that the amendment applied to the
defendant’s case. Id.
In State v. Jenks, 197 Wn.2d 708, 711, 487 P.3d 482 (2021), the defendant was
sentenced to life without parole as a persistent offender. His persistent offender status
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
was based in part upon a previous conviction for second degree robbery. Id. While his
case was on appeal, the legislature removed second degree robbery from the list of “most
serious offenses” that count as strikes under the persistent offender law. Id. The court
concluded that the former version of the statute controlled the outcome of the defendant’s
appeal. Id. at 715. Relevant to our decision here, the Jenks court reconciled its
conclusion with Ramirez. The Jenks court explained that the “triggering event [in
Ramírez] was the termination of all appeals, at which point the costs were finalized.”
Id. at 723. Thus, cost statutes in effect at the conclusion of a defendant’s appeal apply to
a defendant’s case.
Ms. Wemhoff argues she should benefit from the amendment because, as in
Ramirez, her conviction is not yet final. We agree. Former RCW 9.94A.703(2)(d)
involved a cost imposed by the trial court and that cost was not finalized until the
termination of all appeals. We remand for the trial court to strike its imposition of the
community custody supervision fees.
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
B. SCRIVENER'S ERROR
Ms. Wemhoff contends her judgment and sentence incorrectly lists the date of
sentencing for a prior crime and requests that we remand so the trial court can correct its
scrivener's error. A scrivener's error is a clerical mistake that, when amended, would
correctly convey the trial court's intention based on other evidence. State v. Davis,
160 Wn. App. 471, 478, 248 P.3d 121 (2011). The State concedes a scrivener's error
occurred and the error should be corrected. We agree, the transposition of the last two
numbers of the year of sentencing is a scrivener's error. Correction of this type of error
does not require resentencing. State v. Hayes, 177 Wn. App. 801, 811, 312 P.3d 784
(2013), ajf'd, 182 Wn.2d 556, 342 P.3d 1144 (2015).
Remanded.
Lawrence-Berrey, A.C.
WE CONCUR:
Pennell, J. IQ- Staab, J.