IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 79270-9-I
Respondent,
v.
) UNPUBLISHED OPINION
EUGENE WILLIS SIMS, )
) FILED: March 2, 2020
Appellant.
VERELLEN, J. — Eugene Sims appeals from resentencing following a
successful appeal of his original sentence. Sims contends the court erred by
imposing a community custody condition requiring that he pay the costs of
community supervision. Because Sims was indigent and the court expressed its
intent not to impose any nonmandatory legal financial obligation (LFO), it appears
the supervision fees were inadvertently imposed and should be stricken.
Sims also argues the court erred by maintaining his original term of
incarceration after calculating a lower offender score at resentencing. Because
Sims’s offender score changed from 11 to 10 but all offender scores above 9 have
the same standard range, Sims fails to show the court erred.
We affirm the term of Sims’s incarceration but remand to strike the LFO
imposing supervision fees.
No. 79270-9-1/2
FACTS
In 2017, Sims pled guilty to witness tampering and attempted second
degree assault with a sexual motivation as an act of domestic violence.1 The court
calculated an offender score of 11 on the attempted assault conviction. Although it
did not affect the standard range of his sentence, Sims appealed and argued the
court should have calculated an offender score of 1 Q2 The State conceded the
error, and this court remanded for resentencing.3
Sims was resentenced in November of 2018. Sims was indigent at the time
of resentencing, and in its oral ruling, the court “waiv[ed] any-all nonmandatory
legal financial obligations.”4 But as a community custody condition, the court
required that Sims “[p]ay supervision fees as determined by the Department of
Corrections.”5
Sims appeals the supervision fee of his community custody conditions and,
in his statement of additional grounds, assigns error to the duration of his term of
incarceration.
1 State v. Sims, No. 76900-6-I, slip op. at 1 (Wash. Ct. App. Sept. 10, 2018)
(unpublished), http://www.courts.wa.gov/opinions/pdf/769006.pdf.
2 Id. at 2.
~ Id.
~ Report of Proceedings (RP) (Nov. 13, 2018) at 31.
~ Clerk’s Papers (CP) at 52.
2
No. 79270-9-1/3
ANALYSIS
As a threshold issue, the State argues Sims did not object to paying
supervision fees as a condition of community custody and cannot raise the issue
for the first time on appeal.
We have discretion to consider challenges to community custody conditions
raised for the first time on appeal.6 This discretion exists to ensure sentencing
uniformity.7 Erroneously imposing an LFO does not raise this concern.8 Thus, a
defendant who fails to object to imposition of an LFO cannot, generally, challenge
it on appeal.9 “This rule exists to give the trial court an opportunity to correct the
error and to give the opposing party an opportunity to respond.”1°
Here, however, Sims’s apparent failure to object is somewhat
understandable. The trial court said it was “waiving any-all non-mandatory legal
financial obligations” and declined to require any restitution.11 The supervision fee
was listed as a community custody condition and was not in the section of the
judgment and sentence addressing LFOs. And Sims was indigent when
sentenced. We will consider the merits of Sims’s argument.12
6State v. Casimiro, 8 Wn. App. 2d 245, 249, 438 P.3d 137, review denied,
193 Wn.2d 1029 (2019); RAP 2.5(a).
~ State v. Blazina, 182 Wn.2d 827, 834, 344 P.3d 680 (2015).
8 Id.
old. at 832.
10 ki. at 832-33.
~ RP (Nov. 13, 2018) at 31.
12 RAP 2.5(a); RAP 1.2(a).
3
No. 79270-9-1/4
In our recent decision in State v. Dillon, we reasoned that supervision fees
can be waived by the trial court and, thus, are discretionary LFOs.13 In Dillon, an
indigent defendant argued the trial court improperly imposed community custody
supervision fees.14 We remanded to strike the fees because the record showed
“that the trial court intended to waive all discretionary LFOs, but inadvertently
imposed supervision fees because of its location in the judgment and sentence.”15
We are presented with a substantially similar record here and similarly conclude
that remand is appropriate to strike the imposition of supervision fees.
In his statement of additional grounds, Sims argues the court erred by not
imposing a shorter term of incarceration because his offender score changed from
11 to 10. The offender score changed only for Sims’s conviction for attempted
second degree assault,16 so he appears to challenge his term of incarceration for
that crime alone.
For that conviction, the court calculated an offender score of 10.
ROW 9.94A.510 is the sentencing table for the Sentencing Reform Act of 1981.
The table sets the same standard range for all offenses at the same seriousness
level with an offender score above 9. As the court explained to Sims at
13 No. 78592-3-I, slip op. at 17 (Wash. Ct. App. Feb. 3, 2020),
https://www.courts.wa.gov/opinions/pdf/785923 pdf.
.
14k~.at 17-18.
15 Id. at 18.
16 Compare CP at 22 (offender score of 11 for conviction for attempted
assault), with CP at 45 (offender score of 10 for the same).
4
No. 79270-9-1/5
resentencing, adjusting his offender score from 11 to 10 did not affect the standard
range of his sentence. The court was not compelled to give a lower sentence and
did not err.
Therefore, we affirm Sims’s term of incarceration but remand to strike
imposition of supervision fees.
~
WE CONCUR: