State Of Washington, V. Jesse L. Hartman

• Court: Court of Appeals of Washington
• Decided: September 29, 2025
• Docket: 86652-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 86652-4-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JESSE L. HARTMAN,

Appellant.

MANN, J. — Jesse Hartman appeals the sentence imposed on his convictions for

murder in the second degree and unlawful possession of a firearm in the first degree.

Hartman asserts that the trial court miscalculated his offender score by including a

washed-out felony conviction and by including a juvenile felony conviction. We affirm.

I

Hartman pleaded guilty to murder in the second degree and unlawful possession

of a firearm in the first degree for an offense he committed on March 21, 2021. As part

of the plea agreement, Hartman and the State both agreed to recommend a midrange

sentence after the trial court calculated Hartman’s offender score. The parties did not,

however, agree on what Hartman’s offender score was.

Hartman’s criminal history consists of a 2004 conviction for drive-by shooting, a

2001 conviction for attempted robbery in the second degree, and a 1998 juvenile No. 86652-4-I/2

conviction for robbery in the second degree. The State argued that Hartman’s offender

score should be 7 on the murder conviction, with each prior felony counting as 2 (as

violent offenses), plus 1 point for the concurrent conviction. The State further argued

that Hartman’s offender score for the unlawful possession of a firearm conviction should

be 4, consisting of 1 point for each prior and current offense. Hartman argued that his

2001 attempted robbery conviction washed out and that his offender scores should be 5

and 3, respectively. To counter this argument, the State produced certified copies of

records from the Department of Corrections (DOC) and Snohomish County Sheriff’s

Office reflecting that Hartman had served a short jail sentence in 2009 for violating the

terms of his community custody.

The trial court agreed with the State and calculated Hartman’s offender scores as

7 for the murder conviction and 4 for the unlawful possession of a firearm conviction.

The trial court imposed the midrange sentence of 266 months of incarceration, followed

by 36 months of community custody.

Hartman appeals.

II

A

Hartman first asserts that the trial court erred by calculating his offender score to

include the 2001 attempted robbery conviction. Hartman asserts that the State did not

produce reliable evidence of the basis for his 2009 jail sentence such that the trial court

could conclude that the conviction did not wash out. In the alternate, Hartman argues

that his community custody violations were minor and did not prevent his 2001

conviction from washing out. We disagree.

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We review the trial court’s calculation of an offender score de novo.

State v. Schwartz, 194 Wn.2d 432, 438, 450 P.3d 141 (2019). Calculation of an

offender score is based on the defendant’s prior convictions. RCW 9.94A.525. The

State bears the burden of proving prior convictions at sentencing by a preponderance of

the evidence. State v. Hunley, 175 Wn.2d 901, 909-10, 287 P.3d 584 (2012). Prior

convictions that are not included in the offender score are said to have “washed out.”

Schwartz, 194 Wn.2d at 439. RCW 9.94A.525(2)(c) states, in relevant part:

class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.

Because conditions of community custody are part of the felony sentence,

confinement imposed for violating community custody conditions constitutes

“confinement pursuant to a felony conviction” and prevents the class C felony from

washing out. In re Pers. Restraint of Higgins, 120 Wn. App. 159, 164, 83 P.3d 1054

(2004). An exception to this rule exists where the sole violation of community custody

conditions is the failure to pay legal financial obligations (LFOs). Schwartz, 194 Wn.2d

at 445.

Hartman’s 2001 attempted robbery conviction is a class C felony conviction.

RCW 9A.56.210; 9A.28.020(3)(c). Hartman asserts that the State did not meet its

burden to prove that he was in “confinement pursuant to a felony conviction” in 2009,

preventing his attempted robbery conviction from washing out. Hartman claims that the

evidence presented by the State was not sufficiently reliable for the trial court to find that

he violated the terms of his community custody on a felony conviction.

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The State must prove the defendant’s criminal history by a preponderance of the

evidence, not beyond a reasonable doubt. State v. Ford, 137 Wn.2d 472, 480, 973

P.2d 452 (1999). At sentencing, the rules of evidence do not apply. State v. Strauss,

119 Wn.2d 401, 418, 832 P.2d 78 (1992). The State need not present original or

certified copies of documents to prove the defendant’s criminal history. In re Pers.

Restraint of Adolph, 170 Wn.2d 556, 568, 243 P.3d 540 (2010). Rather, the State need

only establish the defendant’s criminal history using evidence with “minimum indicia of

reliability.” Ford, 137 Wn.2d at 481.

Here, to prove that Hartman’s 2001 attempted robbery conviction had not

washed out, the State presented certified copies of Hartman’s file with DOC

documenting his community custody violations, a letter from DOC enclosing the certified

documents, and a certified copy of the 2009 booking summary from the Snohomish

County Sheriff’s Office documenting Hartman’s arrest on a 45-day sanction for parole

violations. The State was not required to further authenticate these documents, nor was

the State required to prove that the documents constituted business records under the

rules of evidence. Strauss, 119 Wn.2d at 418. Although Hartman contends that the

records could have been falsified, he presents nothing beyond speculation to support

this argument. Considering the proffered documents together, the State provided

reliable evidence that Hartman was confined pursuant to a felony conviction in 2009,

preventing his conviction from washing out. The trial court did not err by including

Hartman’s attempted robbery conviction in his offender score.

In the alternative, Hartman asserts that a “minor” community custody violation

cannot prevent an offense from washing out. In support of this assertion, Hartman

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relies on Schwartz’s holding that nonpayment of LFOs cannot prevent a felony from

washing out. Schwartz is not as broad as Hartman would have us read it. This court

has held multiple times that incarceration due to violation of probation imposed as part

of a felony sentence was “confinement pursuant to a felony conviction” under RCW

9.94A.525(2)(c). Higgins, 120 Wn. App. at 164; State v. Blair, 57 Wn. App. 512, 516,

789 P.2d 104 (1990). As the Supreme Court explicitly stated, Schwartz only overruled

these cases insofar as it pertained to failure to pay LFOs. 1 194 Wn.2d at 438 n.3.

Unlike other conditions of community custody, the obligation to pay LFOs can

continue for long after the defendant’s sentence has been otherwise fully served. See

RCW 9.94A.760(5). Due to this continuing obligation, the Supreme Court deemed it

absurd to read RCW 9.94A.525(2)(c) as precluding wash out solely for the nonpayment

of LFOs. 194 Wn.2d at 443. To read the statute in this matter would make it so that

“many felony convictions would never wash out” 2 and defendants would receive

different treatment based solely on their financial means. Schwartz, 194 Wn.2d at 443-

44.

These concerns do not hold true for other violations of community custody.

DOC’s supervision to ensure compliance with conditions of community custody, other

than LFOs, lasts only so long as the term of community custody imposed by the court.

And complying with community custody conditions is easier than ever, now that the

1 Nothing in this opinion should be read as expressing any view as to whether a prior

conviction may wash out when a defendant has spent time in jail as a sanction for violating a condition of his or her sentence. We answer only the narrow question of whether confinement pursuant to a sanction for failing to pay LFOs precludes a prior felony conviction from washing out under the SRA. Schwartz, 194 Wn.2d at 438 n.3. 2 The legislature did not enable courts to waive the obligation to pay previously-imposed LFOs

until 2022, three years after Schwartz was decided. See LAWS OF 2022, ch. 260.

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defendant has the ability to petition the court to modify the conditions of community

custody if there has been a substantial change in circumstances. RCW 9.94A.703(5).

We therefore decline to extend Schwartz any further.

B

Hartman next asserts that the determination of whether his attempted robbery

conviction washed out should have been made by a jury, rather than the court, under

Erlinger v. United States, 602 U.S. 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024). The

State counters that Hartman waived this argument by failing to raise it below and that,

even if he did not, Erlinger does not apply. We agree with the State that Erlinger does

not apply in this case.

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d

435 (2000), the United States Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” (Emphasis added.) Our Supreme Court subsequently held, “[t]o give effect to

the prior conviction exception, Washington’s sentencing courts must be allowed as a

matter of law to determine not only the fact of a prior conviction but also those facts

‘intimately related to [the] prior conviction’ such as the defendant’s community custody

status.” State v. Jones, 159 Wn.2d 231, 241, 149 P.3d 636 (2006) (quoting United

States v. Moore, 401 F.3d 1220, 1225 (10th Cir. 2005)); see also State v. Thiefault, 160

Wn.2d 409, 418, 158 P.3d 580 (2007) (rejecting argument that a jury was required to

engage in comparability analysis). Hartman asserts that Jones and similar cases are no

longer good law in light of the United States Supreme Court’s decision in Erlinger.

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In Erlinger, the United States Supreme Court held that whether a defendant’s

prior convictions were “committed on occasions different from one another,” such that

his minimum sentence should be increased to 15 years under the Armed Career

Criminal Act (ACCA),18 U.S.C. § 924(e)(1), was a determination to be made by a jury.

602 U.S. at 834. Following this holding, the court stated, “[w]hile recognizing Mr.

Erlinger was entitled to have a jury resolve ACCA’s occasions inquiry unanimously and

beyond a reasonable doubt, we decide no more than that.” Erlinger, 602 U.S. at 835.

This caveat is the reason we held in State v. Anderson, 31 Wn. App. 2d 668, 681, 552

P.3d 803 (2024), that “Erlinger’s holding is limited to resolving ACCA’s occasions inquiry

and does not overrule our state’s well-established precedent in [State v.] Wheeler, 145

Wn.2d 116, 34 P.3d 799 [(2001)].” We reaffirmed this holding in State v. Frieday, 33

Wn. App. 2d 719, 747, 565 P.3d 139 (2025). Hartman presents no compelling reason

for us to depart from those opinions and we decline to do so.

C

Finally, Hartman asserts that his juvenile conviction should not have been

included in his offender score under RCW 9.94A.525(1)(b). 3 Hartman argues that the

plain language of RCW 9.94A.525(1)(b) demonstrates the legislature’s intent that the

statute be exempted from presumptive rule that defendants be sentenced according to

the law in place at the time the offense was committed. We disagree.

Effective July 23, 2023, RCW 9.94A.525(1)(b) states that juvenile adjudications

“which are not murder in the first or second degree or class A felony sex offenses may

3 The State contends that Hartman waived this issue by not raising it at his sentencing hearing.

But pure legal issues in the calculation of an offender score cannot be waived. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002).

7 No. 86652-4-I/8

not be included in the offender score.” Sentences imposed under the Sentencing

Reform Act, ch. 9.94A RCW, are generally determined “in accordance with the law in

effect at the time of the offense.” State v. Jenks, 197 Wn.2d 708, 714, 487 P.3d 482

(2021) (citing RCW 9.94A.345). If a sentencing statute is amended or repealed, the

amendment or repeal does not apply merely because proceedings are ongoing. RCW

10.01.040, otherwise known as the “saving clause,” states in relevant part:

Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act.

This “savings clause is deemed a part of every repealing statute as if expressly inserted

therein, and hence renders unnecessary the incorporation of an individual savings

clause in each statute which amends or repeals an existing penal statute.” State v.

Hanlen, 193 Wash. 494, 497, 76 P.2d 316 (1938). To avoid application of the saving

clause, the legislature must clearly express its intent to exclude the statutory

amendment from the ambit of RCW 10.01.040, although no specific words are required.

State v. Ross, 152 Wn.2d 220, 238, 95 P.3d 1225 (2004).

Relying on State v. Grant, 89 Wn.2d 678, 575 P.2d 210 (1978), Hartman asserts

that the words “may not” are an express declaration that the legislature intended for

RCW 9.94A.525(1)(b) to apply to all proceedings, regardless of the time of the offense.

Hartman misconstrues the Supreme Court’s opinion. In Grant, the defendants were

charged with creating a public nuisance, being intoxicated on a public highway, and

obstruction of a law enforcement officer. 89 Wn.2d at 681. While proceedings were

ongoing, former chapter 70.96A RCW went into effect, repealing former RCW 9.68.040,

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the statute criminalizing intoxication on a public highway. Former RCW 70.96A.010

(1972) declared that “[i]t is the policy of this state that alcoholics and intoxicated persons

may not be subjected to criminal prosecution solely because of their consumption of

alcoholic beverages but rather should be afforded a continuum of treatment in order that

they may lead normal lives as productive members of society.” The Supreme Court

held that this declaration of policy clearly expressed the legislature’s intent to apply the

repeal of RCW 9.68.040 to all criminal cases, regardless of the date of the offense.

Grant, 89 Wn.2d at 684. This holding did not turn on the use of the words “may not” in

former RCW 70.96A.010, but was based on the overarching policy articulated by the

legislature in enacting chapter 70.96A RCW. Similarly, we will not narrow our focus

solely to the words “may not,” but examine the legislature’s overarching policy in

amending RCW 9.94A.525.

We have previously rejected the argument that the legislature intended RCW

9.94A.525(1)(b) to be exempt from the saving clause. In State v. Troutman, we held,

“Because the plain language is unambiguous and does not evince a legislative intent for

EHB 1324 to apply retroactively, we conclude that under the SRA, RCW 9.94A.345, and

the saving clause, RCW 10.01.040, the law in effect at the time of the offense applies to

[the defendant’s] sentence.” 30 Wn. App. 2d 592, 599-600, 546 P.3d 458 (2024).

Hartman presents no compelling reason for us to depart from Troutman. 4

4 Hartman also urges us to deem RCW 9.94A.525(1)(b) applicable to his case because the

statute is remedial. But “the remedial nature of an amendment is irrelevant when the statute is subject to RCW 10.01.040.” State v. Tester, 30 Wn. App. 2d 650, 658-59, 546 P.3d 94, review denied, 3 Wn.3d 1019 (2024).

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In the alternative, Hartman asserts that not applying RCW 9.94A.525(1)(b) in his

case violates his right to equal protection. As the State correctly notes, it has long been

the law of this state “that a defendant’s equal protection rights are not violated ‘merely

because the Legislature changed the standard sentencing range for a crime’ or

‘changed its view of criminal punishment which resulted in offenders being subject to

different punishment schemes.’ ” Ross, 152 Wn.2d at 240-41 (quoting In re Pers.

Restraint of Stanphill, 134 Wn.2d 165, 175, 949 P.2d 365 (1998)). Hartman’s argument

to the contrary lacks merit.

Affirmed.

WE CONCUR: