State Of Washington, V. Raymond Jay Femling

• Court: Court of Appeals of Washington
• Decided: September 10, 2024
• Docket: 57959-6
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

September 10, 2024

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 57959-6-II

Respondent,

v.

RAYMOND JAY FEMLING, UNPUBLISHED OPINION

Appellant.

GLASGOW, J.—Raymond Jay Femling appeals the trial court’s denial of his CrR 7.8 motion

for resentencing based on State v. Blake.1 In his sole assignment of error, he asks us to order the

trial court to strike the crime victim penalty assessment from his judgment and sentence. But this

issue is not within the scope of this appeal. Thus, although Femling is entitled to have the

assessment stricken, he must seek this relief directly in the trial court.

In 2010, Femling pleaded guilty in two Clark County Superior Court cases.2 In this case,

he pleaded guilty to one count of possession of a controlled substance with intent to deliver. As

part of his plea agreement, he received a prison-based drug offender sentencing alternative

(DOSA) and the trial court imposed multiple legal financial obligations (LFOs). The trial court

1 197 Wn.2d 170, 481 P.3d 521 (2021). 2 Femling’s appeal involving his second superior court case, number 10-1-01376-8, is linked to this appeal. No. 57959-6-II

later revoked Femling’s DOSA after he was convicted of additional crimes in 2014, and he

returned to prison to serve the remainder of his sentence.

In 2021 and 2023, Femling filed motions to strike interest and LFOs. In 2021, the trial court

declined to waive or strike the LFOs and declined to waive interest on nonrestitution LFOs because

Femling was still incarcerated. The court also explained that certain fees were mandatory at that

time. The trial court granted the 2023 motion in part but denied it in part, declining to strike the

crime victim penalty assessment and other fees that were mandatory at the time.

In 2022, Femling filed a CrR 7.8 motion for resentencing based on State v. Blake. His

motion did not mention the crime victim penalty assessment or LFOs. He also filed CrR 7.8

motions in two of his other cases. Following a hearing on all three of these CrR 7.8 motions, the

trial court denied the motions for resentencing on Femling’s 2010 convictions, concluding that

although Blake reduced his offender score, his later convictions increased his offender score such

that there was no net change.

Femling’s notice of appeal sought to appeal only “the denial of the motion for

resentencing.” Clerk’s Papers at 204. However, in his sole assignment of error, Femling does not

challenge the trial court’s denial of his motion for resentencing. Rather, he argues that this court

should remand the case to the trial court with instructions to strike the $500 victim penalty

assessment based on recent amendments to RCW 7.68.035.

In 2023, the legislature eliminated the $500 victim penalty assessment for indigent criminal

defendants. LAWS OF 2023, ch. 449, § 1(4). RCW 7.68.035 further provides that the court shall

waive any crime victim penalty assessment imposed prior to July 1, 2023, upon a motion by a

defendant if the person does not have the ability to pay the assessment because they are indigent

2 No. 57959-6-II

as defined in RCW 10.01.160(3). RCW 7.68.035(5)(b). The State does not dispute that Femling is

indigent as defined in the statute.

We generally agree that Femling is entitled to ask the trial court to strike the $500 victim

penalty assessment from his judgment and sentence. However, this appeal is not the appropriate

vehicle to obtain that collateral relief because it is not within the scope of the notice of appeal.

Our review must be limited to the trial court’s decision on the issues raised in the motion

for resentencing. See State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002). The motion for

resentencing did not include a challenge to the victim penalty assessment. And Femling did not

appeal the trial court’s order on his separate pro se motion, which declined to strike the crime

victim penalty assessment because of its mandatory nature at the time. The order addressing the

crime victim penalty assessment did not prejudicially affect the order Femling appealed—the

motion for resentencing. See RAP 2.4(a). Thus, Femling’s assignment of error seeking relief from

the crime victim penalty assessment is not within the proper scope of his notice of appeal.

Femling may nonetheless seek relief from the victim penalty assessment by filing a CrR

7.8 motion in superior court as contemplated under RCW 7.68.035(5) or by filing a personal

restraint petition in this court.

Femling also filed a statement of additional grounds (SAG) for review. When Femling was

arrested and convicted in 2014, the trial court ran his sentence consecutively to the remainder of

his sentence for his 2010 convictions. In his SAG, he claims that he is entitled to resentencing on

his 2014 sentence to apply credit for the time served on his 2010 convictions. But Femling’s 2014

sentence is also not the subject of this appeal. An appeal of that sentence is currently pending with

3 No. 57959-6-II

our court in number 58129-9-II. Accordingly, we do not reach Femling’s request to reduce his

2014 sentence.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

GLASGOW, J. We concur:

PRICE, J.

CHE, J.