FILED DECEMBER 19, 2019 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STATE OF WASHINGTON, ) No. 36487-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) TRAVIS LEE PADGETT, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Travis Padgett appeals from the amended judgment
and sentence entered for his Yakima County convictions on 12 felony counts. He
contends, and the State concedes, that a remand is necessary to strike the $100 DNA
(deoxyribonucleic acid) collection fee and to correct scrivener’s errors on the judgment
document. We agree and remand for those limited purposes. We reject Mr. Padgett’s
contention raised in a statement of additional grounds for review and otherwise affirm his
sentence.
FACTS AND PROCEDURE
In light of the limited issues raised, the facts leading to Mr. Padgett’s convictions
are unimportant to this appeal. The trial court heard Padgett’s case in a single hearing on No. 36487-9-III State v. Padgett
remand after two successful appeals.1 Padgett waived his presence at the hearing. He
was represented by attorney Robert Thompson, who had also represented him at the
original sentencing hearing.
At the remand hearing, Mr. Thompson related that Mr. Padgett had discovered
through a public disclosure request that the Department of Corrections (DOC)
presentence investigation (PSI) questionnaire he filled out never made it to the PSI writer.
Padgett was, thus, concerned about the reliability of the PSI. The deputy prosecutor
explained that the PSI writer, Roger Martinez, noted in the PSI that he “obtained a
defendant’s statement regarding the offense.” Report of Proceedings (Nov. 2, 2018)
(RP) at 12. Both counsel confirmed that Padgett had provided allocution at the original
sentencing hearing. Mindful of Padgett’s concerns, Mr. Thompson stated, “As I stand
here, I can’t prove that it would have materially impacted the PSI.” RP at 10. The court
commented that the issue of whether the questionnaire would have a material impact on
either the recommendation of the PSI author or the court’s sentencing decision was not
raised to the extent it could be ruled on.
1 See State v. Padgett, No. 32927-5-III, 2017 WL 888624 (Wash. Ct. App. Mar. 2, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/329275_unp.pdf. (vacating conviction for delivery of methamphetamine in count 8 and remanding for resentencing), review denied, 188 Wn.2d 1018, 396 P.3d 345 (2017); State v. Padgett, 4 Wn. App. 2d 851, 424 P.3d 1235 (2018) (reversing trial court orders that denied Padgett’s motion for copies of his client file and discovery materials, and remanding for further proceedings).
2 No. 36487-9-III State v. Padgett
In entering the amended judgment and sentence, the court found Mr. Padgett
indigent and struck various discretionary legal financial obligations (LFOs). Because
Padgett’s criminal history included a 2006 felony conviction for bail jumping, the parties
agreed that the $100 DNA collection fee should be struck. The court announced its intent
to strike the fee, but it remains on the amended judgment and sentence.2 Padgett appeals.
ANALYSIS
DNA COLLECTION FEE. Mr. Padgett contends the $100 DNA collection fee must
be struck from his judgment and sentence based on State v. Ramirez, 191 Wn.2d 732, 426
P.3d 714 (2018). The State concedes this point, and we agree.
Engrossed Second Substitute House Bill 1783, which became effective June 7,
2018, prohibits trial courts from imposing discretionary LFOs on defendants who are
indigent at the time of sentencing. LAWS OF 2018, ch. 269, § 6(3); Ramirez, 191 Wn.2d
at 745-47. The change in the law prohibits imposition of the DNA collection fee when
the State has previously collected the offender’s DNA as a result of a prior conviction.
LAWS OF 2018, ch. 269, § 18; RCW 43.43.7541. The new statute applies prospectively to
cases that are on direct appeal. Ramirez, 191 Wn.2d at 747.
2 Consistent with this court’s instructions on remand, the trial court also signed an order requiring counsel to turn over portions of Mr. Padgett’s client file. He does not assign error to that order in this appeal.
3 No. 36487-9-III State v. Padgett
The record establishes that Mr. Padgett has a 2006 Washington felony conviction
for bail jumping. Since 2002, Washington law has required defendants with a felony
conviction to provide a DNA sample. State v. Catling, 193 Wn.2d 252, 259, 438 P.3d
1174 (2019); see also RCW 43.43.754; LAWS OF 2002, ch. 289, § 2. Padgett’s prior
felony conviction gives rise to a presumption that the State has previously collected a
DNA sample from him. The State does not contest this presumption. We, therefore,
direct the trial court to strike the DNA collection fee, as it had intended to do.
SCRIVENER’S ERRORS. Mr. Padgett contends, and the State again concedes, that
the amended judgment and sentence contains several scrivener’s or clerical errors that
should be corrected on remand.
A clerical error is one that, when amended, would correctly convey the intention
of the court based on other evidence. State v. Davis, 160 Wn. App. 471, 478, 248 P.3d
121 (2011). If an error is clerical in nature, it does not provide an independent ground for
resentencing. State v. Hayes, 177 Wn. App. 801, 811, 312 P.3d 784 (2013), aff’d, 182
Wn.2d 556, 342 P.3d 1144 (2015). The remedy for clerical or scrivener’s errors in
judgment and sentence forms is to remand to the trial court for correction. State v.
Coombes, 191 Wn. App. 241, 255, 361 P.3d 270 (2015).
Mr. Padgett points out the following scrivener’s errors in the amended judgment
and sentence:
4 No. 36487-9-III State v. Padgett
1. The header on page 1 states that the clerk’s action required is “Dismissal of
Count 9.” Clerk’s Papers (CP) at 51. This court dismissed count 8 for insufficient
evidence in COA No. 32927-5-III and did not similarly dismiss count 9. The reference to
count 9 is a scrivener’s error and should be corrected to instead reflect dismissal of count
8.
2. Paragraph 1.2 states: “The defendant was given the right of allocution and
asked if any legal cause existed why judgment should not be entered.” CP at 51.
“Allocution” refers to the personal right of a defendant to plead for mercy before the
court imposes sentence. See In re Pers. Restraint of Echeverria, 141 Wn.2d 323,
339 n.54, 6 P.3d 573 (2000). Mr. Padgett waived his presence and was, thus, not given
the right of allocution at the remand hearing. The above-quoted language in paragraph
1.2 was included by clerical oversight and should be struck.
3. Paragraph 2.1 lists the crime date for count 1 as occurring on, about, during or
between May 11, 2012 and January 17, 2014, whereas the amended information under
which Mr. Padgett was tried and the to-convict jury instruction both list the crime date as
occurring on, about, during or between May 11, 2012 and January 17, 2013. The
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FILED DECEMBER 19, 2019 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. 36487-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) TRAVIS LEE PADGETT, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Travis Padgett appeals from the amended judgment
and sentence entered for his Yakima County convictions on 12 felony counts. He
contends, and the State concedes, that a remand is necessary to strike the $100 DNA
(deoxyribonucleic acid) collection fee and to correct scrivener’s errors on the judgment
document. We agree and remand for those limited purposes. We reject Mr. Padgett’s
contention raised in a statement of additional grounds for review and otherwise affirm his
sentence.
FACTS AND PROCEDURE
In light of the limited issues raised, the facts leading to Mr. Padgett’s convictions
are unimportant to this appeal. The trial court heard Padgett’s case in a single hearing on No. 36487-9-III State v. Padgett
remand after two successful appeals.1 Padgett waived his presence at the hearing. He
was represented by attorney Robert Thompson, who had also represented him at the
original sentencing hearing.
At the remand hearing, Mr. Thompson related that Mr. Padgett had discovered
through a public disclosure request that the Department of Corrections (DOC)
presentence investigation (PSI) questionnaire he filled out never made it to the PSI writer.
Padgett was, thus, concerned about the reliability of the PSI. The deputy prosecutor
explained that the PSI writer, Roger Martinez, noted in the PSI that he “obtained a
defendant’s statement regarding the offense.” Report of Proceedings (Nov. 2, 2018)
(RP) at 12. Both counsel confirmed that Padgett had provided allocution at the original
sentencing hearing. Mindful of Padgett’s concerns, Mr. Thompson stated, “As I stand
here, I can’t prove that it would have materially impacted the PSI.” RP at 10. The court
commented that the issue of whether the questionnaire would have a material impact on
either the recommendation of the PSI author or the court’s sentencing decision was not
raised to the extent it could be ruled on.
1 See State v. Padgett, No. 32927-5-III, 2017 WL 888624 (Wash. Ct. App. Mar. 2, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/329275_unp.pdf. (vacating conviction for delivery of methamphetamine in count 8 and remanding for resentencing), review denied, 188 Wn.2d 1018, 396 P.3d 345 (2017); State v. Padgett, 4 Wn. App. 2d 851, 424 P.3d 1235 (2018) (reversing trial court orders that denied Padgett’s motion for copies of his client file and discovery materials, and remanding for further proceedings).
2 No. 36487-9-III State v. Padgett
In entering the amended judgment and sentence, the court found Mr. Padgett
indigent and struck various discretionary legal financial obligations (LFOs). Because
Padgett’s criminal history included a 2006 felony conviction for bail jumping, the parties
agreed that the $100 DNA collection fee should be struck. The court announced its intent
to strike the fee, but it remains on the amended judgment and sentence.2 Padgett appeals.
ANALYSIS
DNA COLLECTION FEE. Mr. Padgett contends the $100 DNA collection fee must
be struck from his judgment and sentence based on State v. Ramirez, 191 Wn.2d 732, 426
P.3d 714 (2018). The State concedes this point, and we agree.
Engrossed Second Substitute House Bill 1783, which became effective June 7,
2018, prohibits trial courts from imposing discretionary LFOs on defendants who are
indigent at the time of sentencing. LAWS OF 2018, ch. 269, § 6(3); Ramirez, 191 Wn.2d
at 745-47. The change in the law prohibits imposition of the DNA collection fee when
the State has previously collected the offender’s DNA as a result of a prior conviction.
LAWS OF 2018, ch. 269, § 18; RCW 43.43.7541. The new statute applies prospectively to
cases that are on direct appeal. Ramirez, 191 Wn.2d at 747.
2 Consistent with this court’s instructions on remand, the trial court also signed an order requiring counsel to turn over portions of Mr. Padgett’s client file. He does not assign error to that order in this appeal.
3 No. 36487-9-III State v. Padgett
The record establishes that Mr. Padgett has a 2006 Washington felony conviction
for bail jumping. Since 2002, Washington law has required defendants with a felony
conviction to provide a DNA sample. State v. Catling, 193 Wn.2d 252, 259, 438 P.3d
1174 (2019); see also RCW 43.43.754; LAWS OF 2002, ch. 289, § 2. Padgett’s prior
felony conviction gives rise to a presumption that the State has previously collected a
DNA sample from him. The State does not contest this presumption. We, therefore,
direct the trial court to strike the DNA collection fee, as it had intended to do.
SCRIVENER’S ERRORS. Mr. Padgett contends, and the State again concedes, that
the amended judgment and sentence contains several scrivener’s or clerical errors that
should be corrected on remand.
A clerical error is one that, when amended, would correctly convey the intention
of the court based on other evidence. State v. Davis, 160 Wn. App. 471, 478, 248 P.3d
121 (2011). If an error is clerical in nature, it does not provide an independent ground for
resentencing. State v. Hayes, 177 Wn. App. 801, 811, 312 P.3d 784 (2013), aff’d, 182
Wn.2d 556, 342 P.3d 1144 (2015). The remedy for clerical or scrivener’s errors in
judgment and sentence forms is to remand to the trial court for correction. State v.
Coombes, 191 Wn. App. 241, 255, 361 P.3d 270 (2015).
Mr. Padgett points out the following scrivener’s errors in the amended judgment
and sentence:
4 No. 36487-9-III State v. Padgett
1. The header on page 1 states that the clerk’s action required is “Dismissal of
Count 9.” Clerk’s Papers (CP) at 51. This court dismissed count 8 for insufficient
evidence in COA No. 32927-5-III and did not similarly dismiss count 9. The reference to
count 9 is a scrivener’s error and should be corrected to instead reflect dismissal of count
8.
2. Paragraph 1.2 states: “The defendant was given the right of allocution and
asked if any legal cause existed why judgment should not be entered.” CP at 51.
“Allocution” refers to the personal right of a defendant to plead for mercy before the
court imposes sentence. See In re Pers. Restraint of Echeverria, 141 Wn.2d 323,
339 n.54, 6 P.3d 573 (2000). Mr. Padgett waived his presence and was, thus, not given
the right of allocution at the remand hearing. The above-quoted language in paragraph
1.2 was included by clerical oversight and should be struck.
3. Paragraph 2.1 lists the crime date for count 1 as occurring on, about, during or
between May 11, 2012 and January 17, 2014, whereas the amended information under
which Mr. Padgett was tried and the to-convict jury instruction both list the crime date as
occurring on, about, during or between May 11, 2012 and January 17, 2013. The
reference to January 17, 2014 is a scrivener’s error. Thus, as pertains to count 1,
paragraph 2.1 should be corrected to replace January 17, 2014 with January 17, 2013.
4. Paragraph 2.1 lists the crime date for count 9 as January 1, 2013, whereas the
amended information and to-convict jury instruction both list the crime date as on, about,
5 No. 36487-9-III State v. Padgett
during or between January 1, 2013 and January 17, 2013. Omission of the entire date
range is a scrivener’s error. Thus, as pertains to count 9, paragraph 2.1 should be
corrected to replace January 1, 2013 with on, about, during or between January 1, 2013
and January 17, 2013.
5. Paragraph 2.1 lists the crime date for count 10 as on, about, during or between
August 1, 2012 and January 31, 2014, whereas the amended information and to-convict
jury instruction both list the crime date as on, about, during or between August 1, 2012
and January 31, 2013. Reference to January 31, 2014 is a scrivener’s error. Thus, as
pertains to count 10, paragraph 2.1 should be corrected to replace January 31, 2014 with
January 31, 2013.
6. The court found Mr. Padgett indigent and struck the discretionary LFOs, but,
by clerical oversight, did not strike the following boilerplate language in paragraph 2.7:
Financial Ability: The Court has considered the total amount owing, the defendant’s past, present, and future ability to pay legal financial obligations, including the defendant’s financial resources and the likelihood that the defendant’s status will change. The court finds that the defendant is an adult and is not disabled and therefore has the ability or likely future ability to pay the legal financial obligations imposed herein. RCW 9.94A.753.
CP at 53. In light of the court’s indigency finding, the above paragraph should be struck.
We direct the court on remand to make each of the above-stated corrections to the
amended judgment and sentence. Given that none of the corrections or striking of the
6 No. 36487-9-III State v. Padgett
DNA fee will involve an exercise of discretion, Mr. Padgett’s presence is not required.
See State v. Ramos, 171 Wn.2d 46, 48, 246 P.3d 811 (2011).
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Mr. Padgett has filed a statement of additional grounds for review alleging
government misconduct on the part of the DOC in its handling of his presentence
questionnaire. As Mr. Thompson alluded to at the resentencing hearing, Padgett
obtained, through a public records request, a printout of OMNI Chrono entries in his
DOC file that suggest his completed presentence questionnaire was thrown away and
never given to the PSI report writer, Roger Martinez. Padgett asserts that Martinez not
only made his sentencing recommendation without considering the questionnaire, but
based his recommendation on a false, preconceived notion that he (Padgett) was not
willing to cooperate because he refused to complete the questionnaire.
Mr. Padgett did not allege government misconduct below. His concern, expressed
through Mr. Thompson, was the reliability of the PSI. The court, in essence, determined
the issue was not sufficiently presented to merit relief—a determination that is not
challenged. In any event, resolution of a government misconduct claim would rest on
facts outside the appellate record. The appropriate forum for resolution is a personal
restraint petition. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
We reject Padgett’s claim in this appeal.
7 No. 36487-9-III State v. Padgett
Remand to strike the $100 DNA collection fee and to correct scrivener’s errors as
set forth in this opinion. The amended judgment and sentence is otherwise affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Lawrence-Berrey, C.J.
WE CONCUR:
Fearing, J.
Pennell, J.