State v. Reed

538 P.3d 946

STATE of Washington, Respondent,

v.Roosevelt REED, Appellant.

No. 84716-3-I

Court of Appeals of Washington, Division 1.

Filed November 20, 2023

PLLC Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, 98121, Erin Irene Moody, Nielsen Koch & Grannis, PLLC, 2200 6th Ave., Ste. 1250, Seattle, WA, 98121-1820, for Appellant.

Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Feldman, J.

¶1 Roosevelt Reed appeals his sentence for assault in the first degree following resentencing pursuant to State v. Blake , 197 Wash.2d 170, 481 P.3d 521 (2021), which invalidated the statute criminalizing simple drug possession. While the resentencing court reduced Reed's offender score from nine to seven and reduced his term of confinement by seven years, it did not strike the provisions in the original judgment and sentence imposing the $500 crime victim penalty assessment (VPA), $100 DNA collection fee, and interest on restitution. For the reasons that follow, we remand for the superior court to (1) strike the VPA and DNA collection fees and (2) decide whether to impose interest on restitution after consideration of the relevant factors under RCW 10.82.090(2). We reject the argument in Reed's Statement of Additional Grounds (SAG) that the superior court incorrectly determined his offender score.

I. CRIME VICTIM PENALTY ASSESSMENT, DNA COLLECTION FEE, AND RESTITUTION INTEREST

¶2 Reed asks us to remand for the superior court to strike from his judgment and sentence the $500 VPA and the $100 DNA collection fee. He argues that recent amendments to RCW 7.68.035 provide that the VPA shall not be imposed against a defendant such as Reed who is indigent at the time of sentencing. LAWS OF 2023, ch. 449, § 1. He likewise argues that RCW 43.43.7541 was also amended to remove the DNA collection fee requirement. LAWS OF 2023, ch. 449, § 4. The State does not object to a remand for purposes of striking the VPA or the DNA collection fee from Reed's judgment and sentence. We accept the State's concession and, accordingly, remand for the superior court to strike the VPA and DNA collection fee from Reed's judgment and sentence.

¶3 Next, Reed asks us to remand for the superior court to consider waiving interest on restitution. A recent amendment to RCW 10.82.090 provides that the superior court "may elect not to impose interest on any restitution the court orders" and that this determination shall be based on factors such as whether the defendant is indigent. LAWS OF 2022, ch. 260, § 12. Reed argues that although this provision did not take effect until after his sentencing, it applies to him because his case is still on direct appeal. We agree.

¶4 Division Two's recent opinion in State v. Ellis , 27 Wash. App. 2d 1, 530 P.3d 1048 (2023), is persuasive on this point. Ellis argued there that statutory imposition of restitution interest violates the excessive fines clause of the Eighth Amendment to the United States Constitution and article 1, section 14 of the Washington Constitution. Id. at 13, 530 P.3d 1048. The court declined to reach the constitutional argument upon concluding that "this issue has been resolved by the recent enactment of a new statutory provision regarding restitution interest." Id. at 15, 530 P.3d 1048 (citing RCW 10.82.090 effective January 1, 2023. LAWS OF 2022, ch. 260, § 12). Relevant here, the court added: "Although this amendment did not take effect until after Ellis's resentencing, it applies to Ellis because this case is on direct appeal." Id. at 16, 530 P.3d 1048. The court therefore remanded the issue "for the trial court to address whether to impose interest on the restitution amount under the factors identified in RCW 10.82.090(2)." Id . We agree with Ellis and conclude that the same reasoning and result apply equally here.

¶5 The State claims we should not follow Ellis because the court there purportedly misapplied State v. Ramirez , 191 Wash.2d 732, 426 P.3d 714 (2018). To support this argument, the State emphasizes that the court in Ramirez referred in its opinion to "costs" imposed on criminal defendants following conviction. 191 Wash.2d at 749, 426 P.3d 714. From this, the State argues that Ellis was wrongly decided because "[t]here is no basis to extend the holding in Ramirez to financial obligations that are not costs, such as the restitution obligation at issue here."

¶6 We reject this argument. Like the costs imposed in Ramirez , restitution interest is a financial obligation imposed on a criminal defendant as a result of a conviction. See RCW 10.01.160(1) ; RCW 10.82.090(1). We therefore agree with Ellis that restitution interest is analogous to costs for purposes of applying the rule that new statutory mandates apply in cases, like this one, that are on direct appeal. 27 Wash. App. 2d at 16, 530 P.3d 1048. Thus, even though the amendment to RCW 10.82.090 regarding the superior court's authority to waive interest on restitution did not take effect until after Reed's resentencing, it applies here because this case is on direct appeal. As in Ellis , we remand for the superior court to decide whether to impose interest on restitution after consideration of the relevant factors under RCW 10.82.090(2).

II. STATEMENT OF ADDITIONAL GROUNDS

¶7 Reed argues that his prior convictions for assault in the first degree, unlawful imprisonment, and assault in the third degree should not have been included in his offender score because "those judgment and sentences are facially invalid as they contain an unconstitutional conviction for simple drug possession" in their offender score calculations. We disagree.

¶8 Two of our prior opinions are instructive here. In State v. French , 21 Wash. App. 2d 891, 894, 508 P.3d 1036 (2022), we held that the superior court correctly declined to add one point to French's offender score as a result of his commission of an offense while on community custody¹ because the sentence condition of community custody was imposed on French as a "direct consequence" of a constitutionally invalid drug possession conviction. Then, in State v. Paniagua , 22 Wash. App. 2d 350, 359, 511 P.3d 113 (2022), we distinguished French and held that the superior court correctly declined to deduct one point from Paniagua's offender score corresponding to a bail jumping offense committed while he was being held on a constitutionally invalid drug possession charge because bail jumping is "an additional crime" that does not require the existence of a predicate crime as an element.

¶9 Applying French and Paniagua , the dispositive issue here is whether Reed's prior convictions for assault and unlawful imprisonment are (a) dependent on a conviction that is now invalid under Blake (as in French ) or (b) separate from (or in addition to) a conviction that is now invalid under Blake (as in Paniagua ). The latter is correct. Unlike the circumstances in French , Reed's prior convictions are not dependent on, nor are they a "direct consequence" of, a conviction that is invalid under Blake . To the contrary, similar to Paniagua , these are "additional crimes," and the facts and circumstances of each are wholly independent of any prior conviction that is now invalid under Blake . For these reasons, we reject Reed's argument that these prior convictions should have been excised in determining his offender score.

¶10 Lastly, Reed argues that (1) he must be...