IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 83877-6-I Respondent, DIVISION ONE v. ORDER GRANTING MOTION JEREMY WAYNE HIXSON, FOR RECONSIDERATION AND WITHDRAWING AND Appellant. SUBSTITUTING OPINION
Appellant filed a motion for reconsideration on July 7, 2023. After review
of the motion, a panel of this court has determined that the motion for
reconsideration should be granted. The panel has also determined that the
opinion filed on June 20, 2023 should be withdrawn and a substitute opinion filed.
Now, therefore, it is hereby
ORDERED that the motion for reconsideration is granted; and it is further
ORDERED that the opinion filed on June 20, 2023 shall be withdrawn and
a substitute opinion shall be filed.
FOR THE COURT: IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 83877-6-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JEREMY WAYNE HIXSON,
Appellant.
HAZELRIGG, A.C.J. — Jeremy Hixson appeals from a judgment and
sentence entered after his guilty plea to one count of possession of stolen property
in the second degree. He avers that the court finding that a motor vehicle was
used in the commission of the crime, triggering suspension of his driver license by
the Department of Licensing, is erroneous as it failed to apply the statutory
definition as amended. Hixson further challenges both the imposition of
community custody supervision fees and the victim penalty assessment.
We agree, reverse, and remand for correction of the judgment and sentence.
FACTS
On July 22, 2021, the State charged Hixson with one count of organized
retail theft in the second degree. According to the affidavit of probable cause, 1
1 The signed agreement of the parties, which was attached to the “Statement of Defendant
on Plea of Guilty” and filed with the trial court, indicates Hixson’s consent for the judge to review and consider the probable cause affidavit for the “[f]acts to be considered for imposing sentence.” Accordingly, we similarly rely on those facts accepted by the parties and the judge. No. 83877-6-I/2
Hixson and another individual entered a beauty store in Lynnwood and took
various fragrances from the store without paying. The store manager reported the
incident to police and provided a description of the people involved and the vehicle
in which they left. The responding officer observed a car that matched the
description provided and conducted a traffic stop. The officer identified Hixson as
the driver and noted that several boxes of fragrances were on the floorboard, and
that the passenger in the back seat had a number of alarm sensors from the store
in their lap. On February 17, 2022, pursuant to a plea agreement with the State,
Hixson entered a guilty plea to an amended charge of one count of possession of
stolen property in the second degree.
On March 31, 2022, the court conducted a sentencing hearing where the
only contested matter was whether the court should enter a finding that a motor
vehicle was used in the commission of the offense, pursuant to RCW 46.20.285(4),
which would result in the Department of Licensing (DOL) suspending Hixson’s
driver license for a period of one year. The State argued that such a finding was
appropriate because the stolen property was located on the floorboard of the
vehicle Hixson was driving. Hixson argued the vehicle merely served as a “mode
of transportation,” not as a necessary part of the crime, and the stolen property
was not hidden or concealed within the vehicle. According to the trial court, “them
being in the vehicle and then moving it away from the owner of that property who
had a right to possess it does implicate the vehicle.” Thus, the court found that the
motor vehicle was used in the commission of the offense and checked the
corresponding box on the judgment and sentence (J&S) to reflect the finding.
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Both parties and the Department of Corrections (DOC) recommended a
residential Drug Offender Sentencing Alternative 2 (DOSA). The trial court imposed
the residential DOSA “with the conditions recommended” as well as the $500
victim penalty assessment (VPA), 3 but did not impose any discretionary fines or
fees. The community custody section of the J&S included preprinted language
buried within several paragraphs under the broad heading of “COMMUNITY
CUSTODY” that required Hixson to “pay supervision fees as determined by DOC.”
Hixson timely appealed.
ANALYSIS
Hixson avers the trial court erred in failing to apply the amended version of
RCW 46.20.285(4), which became effective on January 1, 2022, and, therefore,
the finding that a motor vehicle was used in the offense under the applicable
statutory definition was also erroneous. Hixson further challenges the imposition
of DOC community custody supervision fees based on his indigency at the time of
sentencing and the subsequently amended version of RCW 9.94A.703. He also
challenges the VPA as unconstitutionally excessive.
I. Failure To Apply Current Version of Statute
Hixson argues that the trial court abused its discretion by failing to apply the
correct version of the statute on the use of a motor vehicle in the commission of a
2 RCW 9.94A.660. 3 Criminal law practitioners, trial courts, and different panels of this court, have variously
referred to the mandatory fee imposed pursuant to RCW 7.68.035 as the “victim penalty assessment,” VPA, or “crime victim assessment,” CVA. In briefing, the parties use VPA and we use their chosen language herein for consistency.
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felony and, accordingly, that the corresponding finding on the issue was erroneous.
We agree.
RCW 46.20.285 provides a list of offenses for which revocation of a driver
license is required upon conviction. The statute dictates that the DOL, 4 “shall
revoke the license of any driver for the period of one calendar year, unless
otherwise provided in this section, upon receiving a record of the driver’s
conviction” of one of the listed offenses “when the conviction has become final.”
RCW 46.20.285. The previous version of RCW 46.20.285(4) required revocation
based on “[a]ny felony in the commission of which a motor vehicle is used.” (LAWS
OF 2005, ch. 288, § 4) (emphasis added). However, our legislature amended RCW
46.20.285(4) and, as of January 1, 2022, a revocation based on this provision is
limited to felonies wherein “a motor vehicle was used in a manner that endangered
persons or property.” (Emphasis added.)
Because trial courts have discretion with sentencing we review their
decisions with deference and will only reverse a sentence based on a “clear abuse
of discretion or misapplication of the law.” State v. Elliott, 114 Wn.2d 6, 17, 785
P.2d 440 (1990). A trial court abuses its discretion when it “applies the wrong legal
standard, or bases its ruling on an erroneous view of the law.” State v. Lord, 161
Wn.2d 276, 284, 165 P.3d 1251 (2007). We review the underlying questions of
law de novo. Id. Here, the plain language of RCW 46.20.285(4) requires the DOL
to revoke a defendant’s license upon conviction of a felony only in those
circumstances “where the sentencing court determines that in the commission of
4 RCW 46.04.162 clarifies that the term “department,” as used in RCW 46.20.285, refers
to the DOL.
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the offense a motor vehicle was used in a manner that endangered persons or
property.”
Although the sentencing hearing took place nearly three months after the
amended version of RCW 46.20.285(4) went into effect, the trial court did not apply
it or appear to be aware of the changes to the statute. However, the court did
express appreciation for precisely the concerns that likely led the legislature to
amend the statute in the first place. In deciding the motor vehicle issue, the court
stated:
I do have to say that the legislature or the upper courts may want to rethink their revoking driver’s licenses based on offenses like this where driving itself doesn’t create a danger to the public, but I don’t think that it’s my place to do that. I understand that it can set someone back. And so it is certainly not with any joy that I find that this case does fit with Batten[ 5] and the license—I should not say that—I do find that the motor vehicle was used in the commission of the offense.
(Emphasis added.) On appeal, the State concedes that the trial court made its
finding under the former version of RCW 46.20.285(4), which was no longer in
effect at the time of Hixson’s sentencing.
However, rather than acknowledging that this finding was improper and
based on a misapplication of controlling authority, and thus an abuse of discretion,
the State argues Hixson’s assignment of error is not ripe for review as his license
has not yet been suspended and, alternatively, that he cannot challenge the finding
on appeal because the DOL is the entity responsible for revoking an individual’s
license and “[a]ny contention regarding what the DOL will do with the sentencing
5 State v. Batten, 140 Wn.2d 362, 997 P.2d 350 (2000).
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court’s motor vehicle finding under the old version of RCW 46.20.285(4) is pure
speculation and conjecture at present.” This contention is meritless and directly at
odds with the plain language of RCW 46.20.285, which provides that the DOL
“shall revoke the license of any driver for the period of one calendar year unless
otherwise provided in this section, upon receiving a record of the driver’s conviction
of any of the following offenses, when the conviction has become final.” (Emphasis
added.) As a general rule, “the word ‘shall’ is presumptively imperative and
operates to create a duty rather than conferring discretion.” State v. Bartholomew,
104 Wn.2d 844, 848, 710 P.2d 196 (1985). As nothing in this statute indicates the
word “shall” was intended to be “directory instead of mandatory,” we interpret it as
the latter. Id.
The court abused its discretion as to this finding by not applying the version
of the statute in effect at the time of sentencing, and controlling case law. 6
Accordingly, the J&S must be corrected.
6 The State further asserts that the older version of the statute should apply because that
was the version in effect at the time the crime was committed, and that the finding under that version was proper based on the facts. While the first contention is true, that the State must charge under the statute in effect at the time of the alleged criminal conduct, case law is clear that sentencing is distinct with regard to remedial statutes, which “are generally enforced as soon as they are effective, even if they relate to transactions predating their enactment.” State v. Pillatos, 159 Wn.2d 459, 473, 150 P.3d 1130 (2007). “A statute is remedial when it relates to practice, procedure, or remedies and does not affect a substantive or vested right.” Miebach v. Colasurdo, 102 Wn.2d 170, 181, 685 P.2d 1074 (1984). The revocation of licenses by the DOL is a “remedial sanction and not criminal punishment.” City of Spokane v. Wilcox, 143 Wn. App. 568, 572, 179 P.3d 840 (2008). As the provision and amendment at issue only relate to procedures, the amendment is remedial and was applicable at the time of sentencing. See Pillatos, 159 Wn.2d at 473. Because we have already determined that the application of the superseded version of the statute was an abuse of discretion, we need not entertain the State’s additional argument that the trial court properly applied the former version.
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II. Community Custody Supervision Fees
Hixson also assigns error to the trial court’s imposition of community
custody supervision fees despite the fact that his attorney presented evidence of
his indigency and the State agreed that only the mandatory victim penalty
assessment should be imposed if the court concluded that Hixson was indigent.
He contends the discretionary fees are improper in this case under both the former
RCW 9.94A.703(2)(d) and the subsequently amended version of that statute.
Hixson is correct on both points.
RCW 9.94A.703 provides a list of community custody conditions that are
categorized as mandatory, waivable, and discretionary, along with special
conditions that apply only under certain facts. The former version of RCW
9.94A.703(2)(d), in effect at the time of Hixson’s sentencing, included fees for the
cost of supervision by DOC among the waivable conditions: “Unless waived by the
court, as part of any term of community custody, the court shall order an offender
to . . . [p]ay supervision fees as determined by the [DOC].” LAWS OF 2022, ch. 29,
§ 7. However, our legislature amended the statute, effective July 1, 2022, and
struck that provision entirely. Id.
Even under the former RCW 9.94A.703(2)(d), imposition of the community
custody supervision fees here was error, likely a scrivener’s error at that. Under
the former statute, because “‘supervisory fees [were] waivable by the trial court,
they [were] discretionary [legal financial obligations].’” State v. Bowman, 198
Wn.2d 609, 629, 498 P.3d 478 (2021) (quoting State v. Dillon, 12 Wn. App. 2d 133,
152, 456 P.3d 1199 (2020)). “A sentencing court may not impose discretionary
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costs on indigent defendants.” State v. Pervez, 15 Wn. App. 2d 265, 280, 478
P.3d 103 (2020).
Hixson is indigent. Though the State makes much of the trial court’s failure
to make an express finding of indigency on the record, this argument ignores case
law establishing that such a finding is unnecessary when the record demonstrates
that the court intended to impose only mandatory LFOs. Dillon, 12 Wn. App. 2d at
152. In Dillon, we struck the imposition of community custody supervision fees,
located deep within the J&S, in the section on community custody conditions. Id.
Because the trial court had stated that it would only impose the $500 VPA, and the
community custody condition that required Dillon to pay supervisory fees was
“buried in a lengthy paragraph on community custody,” we determined that the trial
court intended to waive all discretionary LFOs and “inadvertently imposed the
supervision fees because of its location in the judgment and sentence.” Id.
The trial court in Dillon stated it was only imposing the VPA; the sentencing
court here asserted the same. Further, just as in Dillon, the boilerplate language
at issue here is buried in a lengthy paragraph on community custody conditions
within the 16-page J&S. Defense counsel included a separate section on
indigency in Hixson’s sentencing memorandum and expressly asked the court to
“only impose the mandatory court fees and fines of $500 [for the VPA]” on the basis
of his indigency. The State’s sentencing memorandum also addressed Hixson’s
indigency and asked that the court impose only the VPA and a $200 criminal filing
fee as mandatory, but noted that the filing fee “may be waived if the court finds the
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defendant indigent.” The trial prosecutor reiterated the State’s position orally at
the sentencing hearing:
As far as legal financial obligations go, there’s a mandatory $500 victim assessment and a $200 filing fee unless the defendant is found indigent, in which case we would waive the $200.
(Emphasis added.) While the State is correct that the court never explicitly made
a finding as to Hixson’s indigency, the court clearly considered, and followed, the
agreement of the parties in that regard. In imposing the sentence and
accompanying legal financial obligations (LFOs), the court said, “So I’ll impose the
residential DOSA with the conditions recommended, and I’ll impose the $500 crime
victim fee. There was apparently no restitution.” Later, the following exchange
occurred:
THE COURT: Otherwise, I believe that concludes everything. Would your client waive presence for signing?
[DEFENSE]: He would. And I may have missed it, Your Honor, the financial obligations, I’m not sure if you—
THE COURT: Yes. I may not have said it, but it was implied by the fact I only imposed the 500.
[DEFENSE]: Thank you, Your Honor.
THE COURT: Thank you. All right.
The record could not be clearer that all parties considered Hixson to be indigent
and that, on that basis, the court did not impose the filing fee.
Accordingly, it is evident that, like the sentencing judge in Dillon, the trial court here
overlooked the DOC supervision fee condition due to its location in the preprinted
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language in the J&S. 7 The footer on the J&S indicates that it was prepared by the
prosecutor’s office. Considering the number of times this court has addressed this
precise appellate issue in other opinions, it seems the simplest manner by which
to address the recurring error would be for the State to update the forms it presents
to the court at sentencing. 8 Further, the State has now taken a position on appeal
7 While the State cites the rule that written orders control over oral rulings in its brief, this
was not a situation where the court ruled one way in its oral ruling at sentencing and then, in memorializing its ruling in a written order, used language that was contradictory; this is a matter of boilerplate language in a standardized form with facts nearly identical to those set out in Dillon. 8 This Division alone has issued over 60 opinions since January 1, 2020 that reach this
precise issue. Of those opinions from this court, more than half of them were issued in cases arising from this same superior court where this same prosecutor’s office represented the State. See State v. Dillon, 12 Wn. App. 2d 133, 456 P.3d 1199 (2020); see also State v. Meza, 22 Wn. App. 2d 514, 512 P.3d 608, review denied, 200 Wn.2d 1021 (2022); see also State v. Greenfield, 21 Wn. App. 2d 878, 508 P.3d 1029 (2022); see also State v. Markovich, 19 Wn. App. 2d 157 (2021), review denied, 198 Wn.2d 1036 (2022). While GR 14.1(c) directs that “Washington appellate courts should not, unless necessary for a reasoned decision, cite or discuss unpublished opinions,” the following list of unpublished cases is provided for the sole purpose of establishing that this is a well-settled legal issue: State v. Winbush, 25 Wn. App. 2d 1028 (2023) (unpublished); State v. Darby, 24 Wn. App. 2d 1032 (2022) (unpublished), review denied, 1 Wn.3d 1004 (2023); State v. Liptrap, 22 Wn. App. 2d 1031 (2022) (unpublished); State v. Susnios, 22 Wn. App. 2d 1023 (unpublished), review denied, 200 Wn.2d 1015 (2022); State v. Kankam, 21 Wn. App. 2d 1069 (unpublished), review denied, 200 Wn.2d 1006 (2022); State v. Greenfield, 22 Wn. App. 2d 1013 (2022) (unpublished); State v. Boudrieau, 21 Wn. App. 2d 1038 (unpublished), review denied, 199 Wn.2d 1026 (2022); State v. Yaffee, 21 Wn. App. 2d 1011 (2022) (unpublished); State v. Stach, 20 Wn. App 2d 1055 (unpublished), review denied, 199 Wn.2d 1019 (2022); State v. Carmona-Cruz, 20 Wn. App. 2d 1035 (2021) (unpublished), review denied, No. 100757-4 (Wash. Aug. 30, 2022); State v. Saidy- Khan, 20 Wn. App. 2d 1023 (2021) (unpublished); State v. McDonald, 20 Wn. App. 2d 1013 (2021) (unpublished); State v. Hernandez Aguilar, 19 Wn. App. 2d 1054 (2021) (unpublished), review denied, 199 Wn.2d 1007 (2022); State v. Purdy, 19 Wn. App. 2d 1023 (2021) (unpublished), review denied, 198 Wn.2d 1043 (2022); State v. Allingham, 18 Wn. App. 2d 1058 (2021) (unpublished); State v. Baker, 18 Wn. App. 2d 1041 (2021) (unpublished), review denied, 198 Wn.2d 1033 (2022); State v. Bloom, 18 Wn. App. 2d 1031 (unpublished), review denied, 198 Wn.2d 1031 (2021); State v. Snyder, 18 Wn. App. 2d 1032 (unpublished), review denied, 198 Wn.2d 1030 (2021); State v. Maldonado-Alonzo, 17 Wn. App. 2d 1066 (2021) (unpublished); State v. Tatum, 17 Wn. App. 2d 1036 (2021) (unpublished); State v. Schopf, 17 Wn. App. 2d 1016 (2021) (unpublished); State v. Salas, 17 Wn. App. 2d 1005 (unpublished), review denied, 198 Wn.2d 1016 (2021); State v. Salih, 17 Wn. App. 2d 1001 (2021) (unpublished); State v. Spieker, 16 Wn. App. 2d 1080 (2021) (unpublished); State v. Anderson, 16 Wn. App. 2d 1040 (2021) (unpublished), review denied, 197 Wn.2d 1019 (2021); State v. Anthony, 16 Wn. App. 2d, 1010 (2021) (unpublished); State v. Van Brackle, 15 Wn. App. 2d 1031 (2020) (unpublished); State v. Reyes-Rojas, 15 Wn. App. 2d 1023 (2020) (unpublished); State v. Okler, 14 Wn. App. 2d 1060 (2020) (unpublished), review denied, 196 Wn.2d 1044 (2021); State v. Elliott, 14 Wn. App. 2d 1056 (2020) (unpublished); State v. Rose, 13 Wn. App. 2d 1107 (2020) (unpublished); State v. Smith, 13 Wn. App. 2d 1107 (2020) (unpublished); State v. Newbern, 13 Wn. App. 2d 1070 (2020) (unpublished); State v. Gonsalves, 13 Wn. App. 2d 1019 (2020) (unpublished).
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that directly contradicts the one presented by the deputy prosecutor handling the
matter in the trial court. Given that fact, and the wealth of case law on the issue,
the State’s arguments here are not well taken.
Finally, Hixson properly notes in briefing that while the amendment to RCW
9.94A.703(2)(d) that eliminated supervision fees for DOC community custody was
not in effect at the time of Hixson’s sentencing in March 2022, it applies now as
“amendments to statutes imposing costs on criminal defendants apply to cases on
appeal.” State v. Wemhoff, 24 Wn. App. 2d 198, 199, 519 P.3d 297 (2022). The
State’s position before this court is wholly unavailing in light of the clear record
from the trial court, the bountiful and recent jurisprudence on this precise question,
and the legislative amendment which directly applies to Hixson’s case.
III. Imposition of VPA on Indigent Offenders
Hixson’s final assignment of error goes to the imposition of the $500 VPA,
which, he asserts, violates the excessive fines clause of our state constitution
because he is indigent. While the constitutionality of this assessment has long
been settled, our legislature recently amended RCW 7.68.035 to prohibit trial
courts from imposing the VPA on indigent defendants.
Pursuant to the new provision of RCW 7.68.035(4), effective July 1, 2023,
trial courts shall not impose the VPA on defendants who are found indigent at the
time of sentencing. LAWS OF 2023, ch. 449, § 1. Though this change took effect
after Hixson’s sentencing, the new provision applies here as this case is on direct
appeal. State v. Ellis, No. 56984-1-II, slip op. at 12 (Wash. Ct. App. June 13, 2023)
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www.courts.wa.gov/opinions/pdf/D2%2056984-1-II%20Published%20Opinion.pdf
(citing State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d 714 (2018)).
We reverse and remand for correction of the J&S as to the finding under
RCW 46.20.285(4) and to strike the language that imposes both the community
custody supervision fees and VPA. 9
WE CONCUR:
9 Again, it would behoove the State, if it continues to assume the responsibility of preparing
and presenting the judgment and sentence to the court, to update its standardized forms to reflect the will of our legislature as demonstrated by the statutory amendment removing community custody supervision fees. This would not only be consistent with interests of judicial economy for both the trial and appellate courts, but would also relieve appellate prosecutors and defenders of the burden of having to continually relitigate a well-settled issue.
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