IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84550-1-I Respondent, DIVISION ONE v. PUBLISHED OPINION NICHOLAS WINDSOR ANDERSON,
Appellant.
COBURN, J. — Nicholas Windsor Anderson was convicted of vehicular homicide
and the trial court imposed a two-year sentence enhancement based on a judge’s
determination that Anderson’s previous reckless driving conviction was amended from a
charge of driving under the influence (DUI). On his first appeal, this court found that the
enhancement required a jury finding and remanded to the trial court to empanel a jury
for fact-finding on that issue. State v. Anderson, 9 Wn. App. 2d 430, 447 P.3d 176
(2019) (Anderson I). Following the State’s appeal of that decision, the Supreme Court
remanded back to this court, which again ordered the trial court to empanel a jury for
fact-finding on the sentence enhancement alone. State v. Anderson, No. 76672-4-I, slip
op. at *3-4 (Wash. Ct. App. June 8, 2020) (unpublished) (Anderson II),
https://www.courts.wa.gov/opinions/pdf/766724.pdf.
After Anderson waived jury on remand, the trial court held a bench trial and
issued the same sentence as the one imposed at Anderson’s original trial. This second 84550-1-I/2
appeal followed. Both Anderson and the State argue on appeal, though on different
bases, that the Anderson II court should never have remanded for jury fact-finding to
support a sentence enhancement. Both parties are correct in that the trial court had no
statutory authority to empanel a fact-finding jury for resentencing under RCW
9.94A.533(7) and that a judge can determine whether a prior conviction for Reckless
Driving was procedurally amended from a charge of Driving Under the Influence (DUI)
because that is not an inquiry as to the facts underlying the charge. But, this is not an
appeal of Anderson II and in the end, a judge, not a jury, properly decided the question
on remand. Anderson also challenges the sufficiency of the State’s evidence that
established Anderson had the prior conviction; and imposition of a Victim Penalty
Assessment (VPA) and restitution interest. We remand to strike the VPA and
reconsider restitution interest, but otherwise affirm.
FACTS
This is the second appeal following Anderson’s conviction for four counts of
vehicular homicide and one count each of vehicular assault and reckless driving
following a jury trial in 2017. The background facts are set forth in the first appeal,
Anderson I, 9 Wn. App. 2d 430, and will be repeated here only as necessary. Anderson
drove intoxicated, causing an accident resulting in the deaths of four passengers and
serious lasting injuries to a fifth. Id. at 436-37.
The sentencing court imposed concurrent sentences of 280 months for each of the four vehicular homicide convictions. It also imposed two 24-month enhancements to run consecutively to each of the vehicular homicide convictions and to each other (192 months total) because Anderson had two prior convictions for driving under the influence (DUI) and reckless driving. And it imposed 120 months for the vehicular assault conviction and 364 days for the reckless driving conviction to run consecutively to the vehicular homicide convictions and the
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enhancements. The court sentenced Anderson to a total of 592 months in prison and 364 days in jail. It waived all nonmandatory legal financial obligations (LFOs) and imposed a $100 DNA fee.
Id. at 437-38. The court also ordered Anderson to pay $97,996.48 in restitution and
imposed interest under RCW 10.82.090. At sentencing, the court enhanced the term of
imprisonment for vehicular homicide under RCW 9.94A.533(7) because the court
determined Anderson had a prior reckless driving conviction that was originally charged
as a DUI as defined by RCW 46.61.5055.
Anderson appealed to this court arguing that the trial court violated his Sixth
Amendment right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466, 490, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531, 159 L. Ed. 2d 403 (2004) in imposing a sentence enhancement without
special jury findings supporting it. Anderson I, 9 Wn. App. 2d at 447. This court agreed
with Anderson. Id. at 447-48. The Anderson I court ordered remand for the superior
court to strike the DNA fee and to empanel a jury to decide whether Anderson’s prior
reckless driving conviction qualifies as a “prior offense” for purposes of enhancing his
term of imprisonment for vehicular homicide. Id. at 462. A majority of the court, in a
concurrence, also held that the State had to prove to a jury that drugs or alcohol were
involved in the prior offense in order to satisfy due process. Id. at 463 (dissenting
opinion of Chun, J.).
The State petitioned for review. The Washington State Supreme Court granted
discretionary review but remanded to this court for reconsideration in light of State v.
Wu, 194 Wn.2d 880, 453 P.3d 975 (2019), which was decided after this court published
Anderson I. The Supreme Court in Wu held, regarding a conviction for felony DUI
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based on prior offenses, that (1) because the prior conviction raised the level of crime
from a misdemeanor to a felony based on the defendant’s prior criminal conviction, it is
an element that must be proved to the jury beyond a reasonable doubt; and (2) the
involvement of alcohol or drugs in the prior conviction was not an essential element.
Wu, 194 Wn.2d at 889-90.
On remand, this court reversed the part of Anderson I that required a jury on
remand to find the reckless driving conviction involved alcohol or drugs and again
remanded to the superior court to empanel a jury to strike the DNA fee and decide
whether Anderson’s prior reckless driving conviction qualifies as a “prior offense” for
enhancement purposes. State v. Anderson (Anderson II), No. 76672-4-I, slip op. at 3
(Wash. Ct. June 8, 2020) (unpublished),
The State moved for this court to reconsider, arguing that the fact of the prior
conviction was a “recidivist fact” that fell under an exception to Apprendi and did not
require a jury finding before a sentence enhancement could be imposed. Anderson
opposed the motion, advocating instead for this court to maintain its holding and
remand the case to superior court for trial solely on the questions of fact underlying the
sentence enhancement. This court denied the State’s motion. The State then
petitioned for review by the Washington Supreme Court on the same grounds. The
supreme court denied the petition.
On remand from Anderson II, the parties returned to superior court for trial on the
sole question of whether Anderson had a prior reckless driving conviction that was
amended from DUI. Anderson waived his right to a jury trial and a bench trial
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proceeded before a judge that was not the same judge who presided over the original
trial. The State presented no witnesses and admitted four certified copies of documents
containing information regarding a 2005 conviction of “Nicholas Anderson” 1 for reckless
driving, as amended from the original charge of DUI. The trial court found that “yes,
[Anderson] was originally charged under this cause number with driving under the
influence and ultimately was convicted on the amended charge of reckless driving.”
The court issued a “confirmation of judgment and sentence post-remand”
maintaining the original sentence imposed other than the imposition of the DNA fee.
Anderson appeals.
DISCUSSION
Review
Both the State and Anderson argue, for different reasons, that it was improper for
this court to remand to the trial court to empanel a jury to determine if Anderson had a
prior reckless driving conviction that was amended from a DUI. Anderson argues that
the trial court had no statutory authority to empanel a jury and hold a new trial on the
issue of whether his prior reckless driving conviction had been originally charged as a
DUI. The State argues that the issue is in the province of the trial court and did not
require a jury finding because it is a fact pertaining to a prior conviction.
The State argues that because Anderson raises the issue of the lack of
legislative authority for the first time on appeal that issue is waived. Generally, we will
1 The complaint names the defendant as “Nicholas Anderson.” The statement of defendant on plea of guilty states, “My true name is Nicholas Anderson.” The signature appears to include a “W” as a middle initial. The order of judgment and sentence identifies the defendant as “Anderson, Nicholas.” What appears to be docket entries identify the case title as “City of Woodinville vs. Anderson, Nicholas Windsor.” 5 84550-1-I/6
not consider issues raised for the first time on appeal. RAP 2.5(a). Parties are
permitted to raise issues for the first time on appeal under certain exceptions to this rule
where the claimed error is (1) lack of trial court jurisdiction; (2) failure to establish facts
upon which relief can be granted; or (3) manifest error affecting a constitutional right.
RAP 2.5(a). A party demonstrates manifest constitutional error by showing that the
issue before this court affects that party’s constitutional rights and that he suffered
actual prejudice. State v. Guevara Diaz, 11 Wn. App. 2d 843, 851, 456 P.3d 869 (2020)
(citing State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001)). To show actual prejudice,
the party must make a “‘plausible showing . . . that the asserted error had practical and
identifiable consequences in the trial of the case.’” Id. (quoting State v. WWJ Corp., 138
Wn.2d 595, 603, 980 P.2d 1257 (1999)).
Anderson does not attempt to argue how an exception to RAP 2.5(a) applies.
The trial court’s ability to empanel a jury on remand to consider aggravating
circumstances is grounded in statute. RCW 9.94A.537(4). It is the legislature that
holds the power to sculpt sentencing practices. State v. Pillatos, 159 Wn.2d 459, 474,
150 P.3d 1130 (2007). Whether the trial court had the authority to empanel a jury for
consideration of sentence enhancements is a statutory question, not a constitutional
question.
This exception typically would not allow this court to review Anderson’s claim.
However, under RAP 1.2(c), the panel generally may waive or alter any rule of appellate
procedure “to serve the ends of justice.” Moreover, “[i]n a case where the nature of the
appeal is clear and the relevant issues are argued in the body of the brief and citations
are supplied so that the Court is not greatly inconvenienced and the respondent is not
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prejudiced, there is no compelling reason for the appellate court not to exercise its
discretion to consider the merits of the case or issue.” State v. Olson, 126 Wn.2d 315,
323, 893 P.2d 629 (1995).
Because both Anderson and the State have requested that this court review the
trial court’s authority to remand the issue of sentencing enhancement to a jury, we will
waive the rule under the authority provided by RAP 1.2(c) and consider the merits of the
issue raised by the parties.
Jury Determination
Anderson argues that a trial court has no statutory authority to empanel a jury for
a trial on sentencing enhancements under RCW 9.94A.533(7). The State argues that
because the sentence enhancement required only the fact of a prior conviction, it does
not require a jury determination. Both are correct.
A. Statutory Authority
RCW 9.94A.535(3) provides “an exclusive list of factors that can support a
sentence above the standard range.” The legislature provides courts the authority to
empanel juries to find facts supporting aggravating circumstances.
In any case where an exceptional sentence above the standard range was imposed and where a new sentencing hearing is required, the superior court may impanel a jury to consider any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in imposing the previous sentence, at the new sentencing hearing.
RCW 9.94A.537(2) (emphasis added). However, the enhancement at issue in this
appeal was not imposed under the authority of RCW 9.94A.535(3), but under RCW
9.94A.533(7). The legislature made no such provision to allow for a jury to find facts
supporting an enhancement on remand under this provision, despite the fact that it did
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so for the aggravating factors outlined in RCW 9.94A.535(3). See State v. Hughes, 154
Wn.2d 118, 149, 110 P.3d 192 (2005) (rejecting remand for a jury determination at
resentencing on aggravating factors because the legislature had not created an avenue
that would allow “juries to be convened for the purpose of deciding aggravating factors
either after conviction or on remand after an appeal”). The Washington Supreme Court
in Hughes specifically declined to itself create such a procedure because “the fixing of
legal punishments for criminal offenses is a legislative function” and that it is not a
function of the “judiciary to alter the sentencing process.” Id. (citing State v. Ammons,
105 Wn.2d 175, 180, 713 P.2d 719 (1986)); State v. Monday, 85 Wn.2d 906, 909-10,
540 P.2d 416 (1975). Hughes was published prior to the legislature amending RCW
9.94A.537 to its current form. See LAWS OF 2007, ch. 205, § 1. But the reasoning in
Hughes otherwise continues to apply to other circumstances such as sentencing
enhancements under RCW 9.94A.533(7).
Thus, the plain language of the statue does not provide a procedure to empanel
a jury to consider sentence enhancements on remand. The trial court did not have
authority to empanel a jury for the purpose of deciding a sentencing enhancement
under RCW 9.94A.533(7).
B. Fact of a Prior Conviction
The United States Supreme Court has 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” in order to comply with the Sixth Amendment right to a jury trial. Apprendi, 530
U.S. at 490. It further explained that the statutory maximum is the maximum sentence a
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judge may impose without any additional findings. Blakely, 542 U.S. at 303-04. In other
words, in order to impose a sentence enhancement or aggravating factor that would
increase the penalty faced by the defendant beyond the statutory maximum, any facts
supporting such an increase in penalty need to be proved to a jury beyond a reasonable
doubt.
In interpreting Apprendi and Blakely, the Washington Supreme Court has held
that the exception to the jury requirement under Apprendi applies “only for prior
convictions” and that where an enhancement requires findings of “new factual
determinations and conclusions” beyond “mere criminal history,” those findings are
required to be made by a jury. Hughes, 154 Wn.2d at 141-42.
However, the Washington Supreme Court has recognized that where a sentence
is increased because of prior convictions, as provided by Apprendi, the fact of those
prior convictions need not be found by a jury. State v. Wheeler, 145 Wn.2d 116, 123-24
P.3d 790 (2001). In Wheeler, two defendants challenged the trial court’s use of two
prior convictions to prove the defendants’ status as “persistent offenders” under the
Persistent Offender Accountability Act of chapter 9.94A RCW. 145 Wn.2d at 117. The
defendants argued that under Apprendi, the existence of those prior convictions was
required to be proved beyond a reasonable doubt to a jury before the sentence
enhancement could be imposed. Wheeler, 145 Wn.2d at 119. The Supreme Court
disagreed, noting that while the State is required to prove every element of an offense
beyond a reasonable doubt, “traditional factors considered by a judge in determining the
appropriate sentence, such as prior criminal history, are not elements of the crime.” Id.
at 120. “All that is required by the constitution and the statute is a sentencing hearing
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where the trial judge decides by a preponderance of the evidence whether the prior
convictions exist.” Wheeler, 145 Wn.2d at 121 (citing State v. Thorne, 129 Wn.2d 736,
782, 921 P.2d 514 (1996), abrogated on other grounds by State v. Reynolds, 2 Wn.3d
195, 209-10, 535 P.3d 427 (2023)).
The Wheeler court explained that federal cases had redefined some sentence
enhancements as elements of a crime that must be proved beyond a reasonable doubt,
such as “serious bodily injury” and “death resulting.” 145 Wn.2d at 121-22 (citing Jones
v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999)). It also
noted that the hate crime sentence enhancement at issue in Apprendi required that the
sentencing judge find that the “defendant acted with certain prohibited motivations” in
order to impose the enhancement. Wheeler, 145 Wn.2d at 122. None of those
circumstances apply here.
In the instant case, the sentencing enhancement at issue is not based on existing
facts of the current case or even underlying facts of the prior conviction, but on the
existence of a prior offense. RCW 9.94A.533(7) provides
An additional two years shall be added to the standard sentence range for vehicular homicide committed while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502 for each prior offense as defined in RCW 46.61.5055.
Under RCW 46.61.5055, “prior offense” is one in which a defendant was initially
charged with DUI, but ultimately convicted of reckless driving. RCW
46.61.5055(14)(a)(v). The existence of a prior offense is analogous to the prior
conviction considered by the court in Wheeler. RCW 9.94A.533(7) and RCW
46.61.5055 provide a definition of a prior offense that qualifies for the sentence
enhancement, it does not require a finding regarding the underlying facts of the instant
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case, such as a finding of serious bodily injury, death resulting, or motivations behind
the crime that would require a jury finding. We conclude that a jury finding was not
required to impose the sentence enhancement under RCW 9.94A.533(7) because the
prior offense is essentially the same as a prior conviction and both the Washington and
United States Supreme Courts have held that it need not be proved beyond a
reasonable doubt to a jury in order to impose the enhancement.
In a statement of additional authorities, Anderson cites to the recent Supreme
Court of the United States opinion, Erlinger v. United States, No. 23-270 (June 21,
2024), https://www.supremecourt.gov/opinions/23pdf/23-370_8n59.pdf. Erlinger pled
guilty to possession of a firearm in violation of 18 U.S.C. § 922(g) and faced a sentence
up to 10 years in prison. Id. at 1. However, the government charged Erlinger under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), which increased his prison
term to a minimum of 15 years and to a maximum of life if he had three prior convictions
for “violent felon[ies]” or “serious drug offense[s]” that were “committed on occasions
different from one another.” Id. at 1-2. At a resentencing hearing, 2 the government
based its request for a 15-year sentence based on decades-old burglaries that spanned
multiple days. Id. at 3. Erlinger maintained the burglaries had not occurred on four
separate occasions but during a single criminal episode. Id. The district court, rejecting
Erlinger’s request for a jury determination, found the burglaries occurred on distinct
occasions. Id. The United States Supreme Court reversed and held that whether the
past offenses occurred on three or more different occasions is a fact-laden task to be
2 The district court vacated Erlinger’s previous sentence because the Seventh Circuit issued decisions indicating that two of three prior offenses the government relied on to support a 15-year sentence did not qualify under the ACCA. Id. at 2. 11 84550-1-I/12
determined by a jury. Id. at 10.
Notably, the Court held that “[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.” Id. at 11. Although the Court criticized its previous
holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L.
Ed. 2d 350 (1998) (permitting a judge to find the fact of a prior conviction), it recognized
that “no one in this case has asked us to revisit Almendarez-Torres.” Erlinger, 601 U.S.
at 14.
The “Court’s opinion in Almendarez-Torres resolves the question of whether a
judge may decide if the defendant committed his prior violent offenses on different
occasions.” In that case, the Court squarely held that either a judge or a jury may apply
sentence enhancements based on ‘recidivism.’” Id. at 4 (dissenting opinion of J.
Kavanaugh) (citing Almendarez-Torres, 523 U.S. at 247). The Alamendarez-Torres
court recognized that federal and state governments have long taken different
approaches to applying recidivism sentencing enhancements (some provide a jury trial
while others assign recidivism enhancements to the sentencing judge) and concluded
that the choice between those methods was left to the legislature, not governed by “a
federal constitutional guarantee.” Id. (citing Almendarez-Torres, 523 U.S. at 246-47).
Erlinger’s holding is limited to resolving ACCA’s occasions inquiry and does not
overrule our state’s well-established precedent in Wheeler, 145 Wn.2d. We are not
persuaded that a determination as to whether a reckless driving conviction was
procedurally amended from a charge of DUI is analogous to an inquiry of the underlying
facts of the prior conviction as held in Erlinger.
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We agree with the State that Wu, 194 Wn.2d 880, does not suggest that the
sentence enhancement imposed on Anderson required a jury determination regarding
qualifying prior offenses. In Wu, the Washington Supreme Court held that because an
element of the crime of felony DUI in that case is the existence of a prior offense, the
jury is required to find those prior offenses beyond a reasonable doubt. Id. at 893. Wu
did not address sentence enhancements based on a prior offense and is inapposite
here.
We conclude that the courts in Anderson I and Anderson II improperly remanded
for the trial court to empanel a fact-finding jury because (1) the issue of a prior offense is
a determination of the fact of a prior conviction, which may be found by the trial court
and does not require a jury finding; and (2) the trial court had no statutory authority to
empanel a jury under RCW 9.94A.533(7). However, this is not an appeal of Anderson
II, it is an appeal of the sentence imposed after remand. We affirm that sentence.
Sufficiency
Despite having remanded to the trial court for a jury determination as to whether
Anderson’s reckless driving conviction was amended from a DUI, Anderson waived
what was understood at the time to be his right to a fact-finding jury. Nonetheless,
Anderson challenges the sufficiency of the evidence presented at the sentencing
hearing. Anderson argues that there was no evidence that allowed the trier of fact to
reach the conclusion that the documents admitted as evidence of his prior convictions
proved beyond a reasonable doubt that the Anderson at the defense table was the
Anderson referred to in the documents because the only connection was the name.
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In order to impose the sentence enhancement under RCW 9.94A.533(7), the
State was required to show that Anderson had a prior conviction of reckless driving that
had originally been charged as a DUI. The best evidence of a prior conviction is a
certified copy of a judgment and sentence. State v. Goggin, 185 Wn. App. 59, 70, 339
P.3d 983 (2014) (citing State v. Santos, 163 Wn. App. 780, 784, 260 P.3d 982 (2011)).
In criminal trials, the State generally has the burden of establishing, beyond a
reasonable doubt, the identity of the accused as the person who committed the offense.
State v. Huber, 129 Wn. App. 499, 501, 119 P.3d 388 (2005). However, we hold here
that a fact-finder’s determination beyond a reasonable doubt was not required to find
the existence of prior offenses required for the sentence enhancement. As a result, the
trial court was only required to find the prior offenses by a preponderance of the
evidence. Wheeler, 145 Wn.2d at 121.
To support this enhancement, the State admitted four certified documents related
to a 2005 conviction of “Nicholas Anderson” for reckless driving. The State provided no
other evidence and introduced no witnesses. The documents show that the defendant
in that case was originally charged with DUI, which was subsequently amended to
reckless driving prior to a plea of guilty. Anderson presented no rebuttal evidence, but
argued in closing that the State’s evidence was insufficient.
In State v. Ammons, a group of appellants challenged the State’s use of certified
copies of prior convictions to support sentence enhancements, arguing that the State
was required to make “some showing that the defendant before the court for sentencing
and the person named in the prior conviction are the same person.” 105 Wn.2d at 190.
The Ammons court held, under a preponderance of the evidence standard, “the identity
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of names is sufficient proof” to support the sentence enhancement, but a defendant
could rebut that evidence with a “declaration under oath that he is not the same person
named in the prior conviction.” Id. at 190. Should the defendant submit such an oath,
the State is required to prove the identity of the defendant by independent evidence. Id.
Here, as in Ammons, Anderson did not argue that he was not the same person
as the one named in the prior offenses, but argued that the State had not met its burden
to prove identity. Anderson presented no evidence asserting that he was not the person
named in the certified copies of prior convictions used to prove the prior offenses for the
purpose of the sentence enhancement.
We conclude that the State’s use of certified copies of Anderson’s prior
convictions was sufficient evidence to support the sentence enhancement under the
applicable preponderance of the evidence standard.
Restitution Interest
Anderson next argues that the trial court erred in imposing restitution interest on
him in his judgment and sentence because he is an indigent defendant.
The State argues that restitution interest is not a “cost” under the holding of
Ramirez. This court has previously found that “restitution interest is analogous to costs
for purposes of applying the rule that new statutory mandates apply in cases . . . that
are on direct appeal” because “[l]ike the costs imposed in Ramirez, restitution interest is
a financial obligation imposed on a criminal defendant as a result of a conviction.” State
v. Reed, 28 Wn. App. 2d 779, 782, 538 P.3d 946 (2023).
Restitution interest was imposed on Anderson in the judgment and sentence
entered in 2017. While Anderson’s appeal was pending, the legislature amended RCW
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10.82.090, authorizing the superior court to elect not to impose interest on any court-
ordered restitution based on factors such as indigency. LAWS OF 2022, ch. 260, § 12;
RCW 10.82.090(2). Relying on State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d
714 (2018), Division Two of this court determined that this amendment applies to cases
on direct appeal at the time it came into effect. State v. Ellis, 27 Wn. App. 2d 1, 16, 530
P.3d 1048 (2023) (citing Ramirez, 191 Wn.2d at 748-49).
As in Reed, Anderson is indigent and his case was pending on direct appeal
when the amendment to RCW 10.82.090 went into effect. Accordingly, we remand for
the trial court to consider the application of the amendment and exercise its discretion.
VPA
Anderson also challenges the imposition of the VPA because he is an indigent
defendant. The State does not object to the striking of the VPA.
Under RCW 7.68.035(4), enacted in July 2023, trial courts are required to waive
the VPA if the defendant is indigent as defined in RCW 10.01.160(3). This court has
applied this waiver to cases pending direct appeal at the time the law went into effect.
See Ellis, 27 Wn. App. 2d at 16-17 (citing Ramirez, 191 Wn.2d at 748-49).
We remand to the trial court to strike the VPA.
Statement of Additional Grounds
In a Statement of Additional Grounds, Anderson challenges the use of blood test
evidence in his trial, arguing that his attorney provided ineffective assistance of counsel
for failing to object to the evidence. Anderson also argues that he was not advised of
his rights before the police responding to the scene of the vehicle accident obtained a
blood sample, therefore the sample did not support probable cause for his arrest.
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We cannot consider matters outside the record on a direct appeal. State v.
McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (“If a defendant wishes to raise
issues on appeal that require evidence or facts not in the existing trial record, the
appropriate means of doing so is through a personal restraint petition.”).
CONCLUSION
We remand to the trial court to strike the VPA and reconsider the order for
restitution interest following amendments to RCW 10.82.090. We otherwise affirm.
WE CONCUR: