State Of Washington, V. Ronald Markovich

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 81423-1-I (Consolidated
) with No. 82795-2-I)
Respondent, )
) DIVISION ONE
v. )
) PUBLISHED OPINION
RONALD CHARLES MARKOVICH, )
)
Appellant. )
)

HAZELRIGG, J. — Ronald C. Markovich seeks reversal of his conviction for

possession of methamphetamine and heroin with intent to deliver or manufacture,

alleging that the trial court violated his right to present a defense by limiting the

testimony of his expert witness and that the prosecutor committed misconduct

during closing argument. In supplemental briefing, Markovich contends that he is

entitled to resentencing after the Washington Supreme Court’s decision in State v.

Blake1 because the out-of-state convictions for simple drug possession that were

included in the calculation of his offender score are no longer comparable to any

valid Washington crime. We agree that Blake requires remand for resentencing

but otherwise affirm.

1 197 Wn.2d 170, 481 P.3d 521 (2021).
No. 81423-1-I/2

FACTS

In the early morning hours of July 13, 2017, police officers broke down the

door of an apartment in Everett while executing a search warrant. Ronald

Markovich was sitting on a couch in the front room of the apartment. Officers

noticed digital scales, loaded and unloaded syringes, baggies, burnt aluminum foil,

and a small stack of cash near the couch. Markovich was handcuffed and led

outside the apartment. He had a small “baggie” containing a white substance in

his pocket. The substance was later determined to be less than a gram of

methamphetamine. Ann Gjesvold and two other people were found in the

bedroom of the apartment. In the bedroom, officers also discovered a black fabric

bag containing a larger quality of methamphetamine, heroin, and related drug

paraphernalia. Markovich was charged with possession of methamphetamine and

heroin with intent to deliver or manufacture.

Before trial, Markovich moved to suppress statements he made to police on

the night of his arrest. The defense called Dr. Jennifer Stankus as an expert

witness at the CrR 3.5 hearing. Stankus had reviewed Markovich’s medical

records from the jail and his declaration. The records showed that he had ecstasy,

heroin, alcohol, and methamphetamine in his system on the day of his arrest.

Stankus also noted that his heart rate and blood pressure were elevated. She

opined that these physical symptoms indicated that Markovich was under the

influence of ecstasy at the time. When asked about Markovich’s ability to make a

knowing and voluntary waiver of his rights in this condition, she responded, “[I]n

my experience dealing with people, particularly, on ecstasy, I have found that what

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people tell me at the time that they are intoxicated can be quite inconsistent with

what they tell me when they are sober.” After the hearing, the court found that

Markovich’s statements to police were knowingly, willingly, and voluntarily made,

and noted that it was unpersuaded by Stankus’ opinions and conclusions. The

court ruled that Markovich’s statements were admissible and denied his motion to

suppress.

The State moved to exclude Stankus as an expert witness at trial, and the

court held a hearing on the motion. Stankus testified that she had interviewed

Markovich since the CrR 3.5 hearing and had added an opinion to her expert report

that, “had there been a closed-head injury, that could have exacerbated the

encephalopathy.” She defined “encephalopathy” as “just a generalized term that

means the brain isn’t functioning as it should.” She also acknowledged that she

could not diagnose hypertensive encephalopathy or a closed-head injury with

certainty from her review of Markovich’s records.

The court ruled that the defense would be allowed to present Stankus’

opinion that Markovich’s statements were “unreliable, given the patient’s

encephalopathy due to polysubstance and alcohol intoxication, coupled with

dangerously elevated blood pressure.” However, the court excluded testimony

regarding her opinion “that a closed-head injury concussion would magnify the

other encephalopathy due to toxicologic ingestions and provide additional support

for the opinion provided.” The court explained that, because Stankus had not

diagnosed Markovich with a concussion and had not “made [the opinion]

applicable to this case,” it was only “a general statement.” The court also stated

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that allowing Stankus to testify to an opinion based on an interview with Markovich

would amount to “backdooring hearsay.”

At trial, Officer Anatoliy Kravchun testified that he was part of the team that

executed the search warrant and that he had spoken with Markovich while other

officers were searching the apartment. He related their conversation to the jury:

I asked him if drugs were being sold at the house. He told me that
drugs were being—drugs were coming out of the house. I asked him
specifically what kind of drugs. He told me meth and heroin. I asked
him if he sold drugs. He told me he didn't. I asked him about a small
baggie I had found in his pocket. He told me it was for personal use.
I asked him—well, he also told me that even though he didn't sell
drugs that he would sometimes get drugs for the people that came
to the house.

Kravchun testified that the conversation was “normal” and that Markovich seemed

to understand and be able to answer his questions.

Markovich took the stand and testified that he had been sitting on the couch

when the officers breached the apartment door. He did not recall the officers

saying anything to him but stated that an officer had grabbed him off the couch

and threw him on the floor. He remembered an officer kneeling on his rib cage

and stated that his “head got slammed on the floor a few times.”

Stankus then testified that she had reviewed Markovich’s records and

interviewed Markovich. She again testified to the substances in his system and

his elevated heart rate and blood pressure. She opined that Markovich was

suffering from encephalopathy, or poor brain functioning, at the time of his arrest

due to substance use and hypertension. Defense counsel asked whether head

trauma could cause encephalopathy, but the court sustained the State’s objection

to this question and instructed the jury to disregard it.

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During closing argument, the prosecutor argued that, even if Markovich was

not dealing drugs, he was acting as an accomplice by “going out, . . . finding

people[,]” and “telling them about the address.” The defense objection that these

facts were not in evidence was overruled, and the court reminded the jury that “the

lawyers’ remarks, statements, and arguments are not the evidence.” The

prosecutor then argued that Markovich “was finding people to come to the house

to get drugs” and was acting as the “doorman” at the apartment:

He found the people, and then when a knock came at the door, he
would open it. He would see that they were the people he had found
and had told about the drugs inside, and then he would get them the
drugs that he told them he would get them.

Defense counsel did not object to this argument.

In closing, defense counsel addressed this portion of the State’s argument:

[T]his case is about overreaching, and a great example of this is the
State just got up and argued somehow that Mr. Markovich is
wandering the streets looking for customers. Why would the State
make an argument like that if the evidence that was here actually
supported the case? They’re reaching.

The prosecutor then stated in rebuttal, “You know that Mr. Markovich was, in fact,

walking around trying to find people; because he said so. The actual words that

he said to Anatoliy Kravchun, again, were, he gets drugs for people who come to

the house.” Defense counsel did not object to this argument.

The jury was instructed on accomplice liability, possession with intent to

deliver, and the lesser included offense of simple possession. Markovich was

convicted as charged.

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The court imposed a high-end standard range sentence of 108 months in

prison followed by 12 months of community custody. The court explicitly

addressed legal financial obligations (LFOs) at sentencing:

As far as the financials, there’s—in looking at all of these
convictions, he owes financials on all of them. He’s never made any,
that I know of, any willing payments on any of his cases.
I’m going to find extraordinary circumstances that he doesn’t
have the ability nor likelihood nor ever have a likelihood of paying
anything on these. I’m waiving the victims compensation fund fine.
I’m waiving the DNA [collection fee] because that’s already been had.
I’m not imposing any other fines, fees, costs, or assessments, for a
grand total judgment of 0 in this case.

The judgment and sentence reflected the court’s finding of exceptional

circumstances and stated that Markovich owed $0.00 in LFOs. However, it

included a preprinted condition of community custody stating that Markovich shall

“pay supervision fees as determined by [the Department of Corrections].”

Markovich appealed his judgment and sentence.

While this appeal was pending, the Washington Supreme Court decided

State v. Blake, holding that Washington’s strict liability drug possession statute,

RCW 69.50.4013(1), violated the due process clauses of the state and federal

constitutions and was void. 197 Wn.2d at 186. Markovich filed a motion for

resentencing in superior court, arguing that he was entitled to resentencing in light

of Blake because his two prior out-of-state convictions for drug possession were

included in the calculation of his offender score. The motion was transferred to

this court for consideration as a personal restraint petition. 2

2 The personal restraint petition (PRP), case No. 82795-2-I, and appeal were consolidated

under case No. 81423-1-I. On July 21, 2021, counsel for Markovich sent a letter to the
Administrator/Clerk of this court and opposing counsel requesting dismissal of the PRP based on
the submission of supplemental briefing on the sentencing issue in this appeal and indicating that

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ANALYSIS

I. Limitation on Expert Testimony

Markovich contends that the trial court erred when it prohibited Stankus

from testifying about the effects of a head injury on brain functioning. He contends

that the improper limitation on the expert’s testimony denied him the right to

present a defense.

Accused persons have a state and federal constitutional right to confront

and cross-examine adverse witnesses and to present their defense, examine

witnesses, and offer testimony. U.S. CONST. amends. V, VI, XIV; WASH. CONST.

art. I, §§ 3, 22; Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L.

Ed. 2d 297 (1973); State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010).

“The right of an accused in a criminal trial to due process is, in essence, the right

to a fair opportunity to defend against the State’s accusations.” Chambers, 410

U.S. at 294.

Washington courts apply a two-part analysis to determine whether the

exclusion of evidence violates a defendant’s constitutional right to present a

defense. State v. Arndt, 194 Wn.2d 784, 797–98, 453 P.3d 696 (2019). We review

a trial court’s evidentiary ruling for an abuse of discretion. Id. at 797. We then

consider de novo the constitutional question of whether the trial court’s ruling

deprived a defendant of their right to present a defense. Id. at 797–98.

a motion to that effect would be forthcoming. However, although the supplemental briefing on that
question was filed in the appeal, the request for resentencing under Blake was raised only in the
PRP. Dismissal of the PRP would remove that issue from this panel’s consideration. Accordingly,
we decline to dismiss the PRP that has been consolidated with the direct appeal.

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No. 81423-1-I/8

“Evidence that a defendant seeks to introduce ‘must be of at least minimal

relevance.’” Jones, 168 Wn.2d at 720 (quoting State v. Darden, 145 Wn.2d 612,

622, 41 P.3d 1189 (2002)). “‘Relevant evidence’ means evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence.” ER 401. A defendant has no constitutional right to present

irrelevant evidence, but only minimal logical relevancy is required for evidence to

be admissible. Jones, 168 Wn.2d at 720; State v. Bebb, 44 Wn. App. 803, 814,

723 P.2d 512 (1986). If the proffered evidence is relevant to the defense, the right

to present a defense places the burden on the State to show that the evidence is

so prejudicial as to disrupt the fairness of the fact-finding process at trial. Darden,

145 Wn.2d at 622. The greater the prejudicial effect of the excluded evidence, the

more likely a reviewing court is to find a constitutional violation. See Jones, 168

Wn.2d at 720–21. For highly probative evidence, “‘it appears no state interest can

be compelling enough to preclude its introduction consistent with the Sixth

Amendment [of the United State Constitution] and [article 1, section 22 of the

Washington Constitution].’” Id. at 720 (alterations in orginal) (quoting State v.

Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983)).

Expert testimony is admissible if the witness qualifies as an expert and the

testimony will assist the trier of fact. ER 702; State v. Thomas, 123 Wn. App. 771,

778, 98 P.3d 1258 (2004). Expert opinion is considered helpful when “it concerns

matters beyond the common knowledge of the average layperson and does not

mislead the jury.” Thomas, 123 Wn. App. at 778. Proposed expert testimony is

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not helpful or relevant if it is based on speculation. State v. Richmond, 3 Wn. App.

2d 423, 431, 415 P.3d 1208 (2018). The facts or data on which the expert bases

an opinion may be known to the expert before testifying or presented during

testimony. ER 703. If those facts or data are of “a type reasonably relied upon by

experts in a particular field in forming opinions or inferences upon the subject,” the

facts or data themselves need not be admissible. Id.

Markovich argues that the court appeared to exclude a portion of the expert

testimony on the ground that the basis for the opinion was Markovich’s interview

rather than the jail’s medical records. He contends that the trial court’s rationale

for exclusion is unclear but appears to ignore ER 703, which allows for expert

opinion to be based on data that is not admissible.

The State argues that the court properly limited Stankus’ testimony “to

prevent her from offering conjecture or speculation based on unwarranted

assumptions not in evidence.” It argues that the testimony was inadmissible under

ER 702 and ER 703 because the proffered opinion testimony lacked proper

foundation and was not helpful to the trier of fact. Therefore, the State argues that

the trial court did not prevent Markovich from advancing his theory of the case, but

only “excluded speculative opinion from [Stankus] that failed to meet the criteria

for admissibility under the rules of evidence.”

Here, the court did not abuse its discretion in excluding Stankus’ opinion

that a concussion would magnify the effects of substance-induced

encephalopathy. Markovich had not been diagnosed with a concussion at the

booking intake. Any opinion from Stankus that he may have sustained a

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concussion from head trauma would necessarily be speculative, and any general

statement that a concussion could compound existing encephalopathy would not

be relevant.

Markovich argues that, even assuming that the trial court’s initial ruling was

valid, “the court’s reasons for excluding the evidence evaporated when Markovich

testified at trial that he had suffered a head injury” because “[i]n-court statements

now undergirded Dr. Stankus’s medical opinion.” However, this does not address

the underlying issue that he was not diagnosed with any effects of a head injury.

The court did not abuse its discretion in excluding this evidence.

II. Prosecutorial Misconduct

Markovich also contends that the State committed prosecutorial misconduct

during closing argument by “concoct[ing] a drug distribution scenario unsupported

by the evidence” and reemphasizing the argument in rebuttal.

Prosecutorial misconduct may deprive a defendant of their constitutional

right to a fair trial. State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984).

A prosecutor is a “‘quasi judicial officer, representing the People of the state, and

presumed to act impartially in the interest only of justice.’” State v. Reed, 102

Wn.2d 140, 147, 684 P.2d 699 (1984) (emphasis omitted) (quoting People v.

Fielding, 158 N.Y. 542, 547, 53 N.E. 497 (1899)). As such, “[a] prosecutor has a

duty to refrain from using statements which are not supported by the evidence and

which tend to prejudice the defendant.” State v. Grover, 55 Wn. App. 923, 936,

780 P.2d 901 (1989).

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The defendant bears the burden to establish prosecutorial misconduct by

showing that the challenged conduct was both improper and prejudicial in the

context of the entire record and the circumstances at trial. State v. Thorgerson,

172 Wn.2d 438, 442, 258 P.3d 43 (2011). To show prejudice, the defendant must

prove that there is a substantial likelihood that the misconduct affected the jury’s

verdict. Id. at 442–43. We evaluate allegedly improper comments in the context

of the entire argument. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).

We also recognize that “[r]epetitive misconduct can have a ‘cumulative effect.’”

State v. Loughbom, 196 Wn.2d 64, 77, 470 P.3d 499 (2020) (internal quotation

marks omitted) (quoting State v. Allen, 182 Wn.2d 364, 376, 341 P.3d 268 (2015)).

In closing argument, prosecutors have wide latitude to draw reasonable

inferences from the evidence and to express those inferences to the jury. Fisher,

165 Wn.2d at 746–47. “Counsel may not, however, mislead the jury by misstating

the evidence.” State v. Guizzotti, 60 Wn. App. 289, 296, 803 P.2d 808 (1991).

This is particularly true for the prosecutor, who has a duty to ensure that the

defendant receives a fair trial. Id. “Defendants are among the people the

prosecutor represents. The prosecutor owes a duty to defendants to see that their

rights to a constitutionally fair trial are not violated.” State v. Monday, 171 Wn.2d

667, 676, 257 P.3d 551 (2011).

Markovich analogizes this case to State v. Reeder, 46 Wn.2d 888, 285 P.2d

884 (1955). In Reeder, the defendant was charged with the murder of the man

with whom his wife was having an affair. Id. at 889–90. During cross-examination

of the defendant, the prosecutor questioned him about a divorce complaint filed by

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his former spouse in which she stated that he had struck her on numerous

occasions and threatened her with a gun. Id. at 891. Reeder responded, “I never

threatened her with a gun.” Id. The divorce complaint was not read to the jury or

admitted into evidence. Id. In closing argument, the prosecutor repeatedly argued

that Reeder threatened his first wife with a gun. Id. at 891–92. The Washington

Supreme Court found prosecutorial misconduct, reasoning, “There is not one word

of testimony in the record that the defendant threatened his first wife with a gun.

The only testimony concerning that question is that he did not do so.” Id. at 892.

The court reversed Reeder’s conviction even though defense counsel had not

objected to the prosecutor’s statements because “the harm had already been done

and it could not have been cured by instructions to disregard the statements so

flagrantly made.” Id. at 893.

Here, the State concedes that “there was no testimony that the defendant

went looking for buyers whom he later allowed into the apartment.” However, it

argues that “the challenged remark of the prosecutor was brief and not

inflammatory” and that, “[w]hile the prosecutor may have garbled his argument by

inferring that the defendant went looking for buyers, it is unlikely that the jurors

would be misled by the inartful remark.”

Although the prosecutor in this case took significant liberty with his

inferences from the testimony, the challenged statements were not such flagrant

mischaracterizations of the evidence as those in Reeder. Given the considerable

latitude afforded advocates to draw and argue inferences from the evidence, we

cannot say that the arguments were entirely unsupported by the testimony. While

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the prosecutor may have inaccurately characterized his argument as restatement

of the testimony rather than an inference from the evidence presented, the court’s

timely reminder that counsel’s arguments were not evidence served to correct this

misstep.3

III. Offender Score

In supplemental briefing, Markovich argues that he is entitled to

resentencing following the Washington Supreme Court’s recent opinion in Blake,

197 Wn.2d 170. In Blake, the court held that Washington’s strict liability drug

possession statute, RCW 69.50.4013(1), violated the due process clauses of the

state and federal constitutions and was void. Id. at 186, 195. “‘[A]n

unconstitutional law is void, and is as no law[;]’” accordingly, a penalty imposed

pursuant to an unconstitutional law is void even if the prisoner’s sentence became

final before the law was held unconstitutional. Montgomery v. Louisiana, 577 U.S.

190, 204, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016) (quoting Ex parte Siebold, 100

U.S. 371, 376, 25 L. Ed. 717 (1879)). Markovich contends that his sentence is

invalid because the prior out-of-state convictions for simple drug possession that

were included in the calculation of his offender score are no longer comparable to

any valid Washington crime.

The Sentencing Reform Act of 1981 (SRA)4 establishes a mechanism to

determine a defendant’s presumptive sentencing range based on the seriousness

of the current offense and an offender score calculated from the defendant’s prior

3 Because we find no error, we do not address Markovich’s contention that the cumulative
effect of these errors denied him a fair trial.
4 Ch. 9.94A RCW.

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convictions. RCW 9.94A.505, .510, .520, .525; State v. Olsen, 180 Wn.2d 468,

472, 325 P.3d 187 (2014). For purposes of offender score calculations, the SRA

provides that “[o]ut-of-state convictions for offenses shall be classified according

to the comparable offense definitions and sentences provided by Washington law.”

RCW 9.94A.525(3). This statute exists “‘to ensure that defendants with equivalent

prior convictions are treated the same way, regardless of whether their prior

convictions were incurred in Washington or elsewhere.’” State v. Morley, 134

Wn.2d 588, 602, 952 P.2d 167 (1998) (internal quotation marks omitted) (quoting

State v. Villegas, 72 Wn. App. 34, 38–39, 863 P.2d 560 (1993)). We review the

trial court’s comparability analysis in calculating an offender score de novo. Olsen,

180 Wn.2d at 472.

“Comparability is both a legal and a factual question.” State v. Collins, 144

Wn. App. 547, 553, 182 P.3d 1016 (2008). The “legal prong” of the comparability

analysis requires the court to determine whether “‘the Washington statute defines

the offense with elements that are identical to, or broader than, the foreign statute,’”

in which case “‘the foreign statute is necessarily comparable to a Washington

offense.’” State v. Howard, 15 Wn. App. 2d 725, 731, 476 P.3d 1087 (2020)

(quoting Collins, 144 Wn. App. at 553). If the offenses are not legally comparable,

the court analyzes whether the offenses are factually comparable by determining

whether the defendant’s conduct would have violated the comparable Washington

statute. Morley, 134 Wn.2d at 606. “If an out-of-state conviction involves an

offense that is neither legally or factually comparable to a Washington offense, the

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sentencing court may not include the conviction in the defendant’s offender score.”

State v. Arndt, 179 Wn. App. 373, 379, 320 P.3d 104 (2014).

A prior conviction based on a constitutionally invalid statute may not be

considered when calculating an offender score. See State v. Ammons, 105 Wn.2d

175, 187–88, 713 P.2d 719 (1986). “[A] sentence that is based upon an incorrect

offender score is a fundamental defect that inherently results in a miscarriage of

justice.” In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 868, 50 P.3d 618

(2002). The remedy for such a defect is resentencing under the correct offender

score. State v. Wilson, 170 Wn.2d 682, 690, 244 P.3d 950 (2010).

Here, Markovich does not argue that the trial court incorrectly conducted

the comparability analysis or that the Washington and Montana statutes were not

legally comparable at the time of sentencing. Rather, he argues that,

[b]ecause there is no possibility of comparability between a foreign
statute and a void Washington statute—a statute which was void at
the time the foreign convictions occurred—the plain language of the
Sentencing Reform Act indicates that the foreign convictions may not
be used in calculating the offender score.

The State responds that “[t]here is no constitutional prohibition against counting

the Montana conviction[s]” because “Montana’s drug possession statute does not

suffer from the same flaw as the former Washington statute invalidated by Blake.”

Although the State is correct that the Blake decision did not invalidate

Markovich’s Montana convictions, the out-of-state convictions must be comparable

to a valid Washington offense to be included in the calculation of the offender

score. In Blake, the Supreme Court declared Washington’s strict liability drug

possession statute unconstitutional and void. Because penalties imposed under

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the invalid statute are void, defendants who were sentenced based on an offender

score that included prior convictions under this unconstitutional statute are entitled

to resentencing. See State v. Sullivan, No. 81254-8-I, slip op. at 1, 22 (Wash. Ct.

App. Jul. 6, 2021), http://www.courts.wa.gov/opinions/pdf/812548.pdf; State v.

LaBounty, __ Wn. App. 2d __, 487 P.3d 221, 221–24 (2021). In accordance with

the principle that the comparability analysis exists to ensure equal treatment of

defendants who engage in the same conduct in Washington or elsewhere,

Markovich must also be entitled to resentencing under an adjusted offender score.

IV. Reassignment

Markovich also contends that his resentencing should occur before a

different judge. He argues that the sentencing judge appears to have “prejudged”

the matter because the judge transferred his motion for resentencing in light of

Blake to this court.

When a defendant files a motion for relief from judgment under CrR 7.8, the

trial court retains and hears the motion only if the motion is timely and either the

defendant has made a substantial showing that they are entitled to relief or

resolution of the motion requires fact finding. CrR 7.8(c)(2); State v. Robinson,

193 Wn. App. 215, 218, 374 P.3d 175 (2016). In all other instances, the trial court

shall transfer the motion to the Court of Appeals for consideration as a personal

restraint petition. CrR 7.8(c)(2). Transfer “should not be automatic, but may be

appropriate when, for example, a new trial motion raises legal issues only and does

not require factual determinations that are the province of the trial court.” State v.

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Smith, 80 Wn. App. 462, 470 n.3, 909 P.2d 1335 (1996), rev’d on other grounds,

131 Wn.2d 258, 930 P.2d 917 (1997).

A party may seek reassignment to a different judge for the first time on

appeal “where, for example, the trial judge will exercise discretion on remand

regarding the very issue that triggered the appeal and has already been exposed

to prohibited information, expressed an opinion as to the merits, or otherwise

prejudged the issue.” State v. McEnroe, 181 Wn.2d 375, 387, 333 P.3d 402

(2014). This remedy is available in limited circumstances, and “even where a trial

judge has expressed a strong opinion as to the matter appealed, reassignment is

generally not available as an appellate remedy if an appellate opinion offers

sufficient guidance to effectively limit trial court discretion on remand.” State v.

Solis-Diaz, 187 Wn. 2d 535, 540, 387 P.3d 703 (2017). However, if the record

shows that “the judge’s impartiality might reasonably be questioned,” the appellate

court should remand the case to a different judge. Id.

Reassignment is not warranted here. Although Markovich argued that his

motion required the trial court to conduct a factual hearing regarding the

comparability of the out-of-state offenses, the underlying question of whether he

was entitled to resentencing after Blake was a purely legal issue. In the absence

of any direct appellate authority on this issue, the trial court’s conclusion that

Markovich had not made a substantial showing that he was entitled to relief does

not amount to a prejudgment of the merits. In any event, our conclusion that

Markovich’s Montana convictions for drug possession cannot count toward his

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offender score effectively limits the trial court’s discretion on remand. Markovich

presents no other evidence of bias or impartiality.

V. Supervision Fees

Markovich contends that the supervision fees imposed as a condition of his

community custody should be stricken from his judgment and sentence because

the record demonstrates that the trial court intended to waive all discretionary fees.

Community custody supervision fees are discretionary LFOs because they are

waivable by the trial court. State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d

1199 (2020). In State v. Dillon, we struck supervision fees from the defendant’s

judgment and sentence because the record demonstrated that the trial court

intended to impose only mandatory LFOs and inadvertently imposed the

supervision fees because of their location in the prewritten judgment and sentence

form. Id.

Here, the trial court was explicit regarding its intention to waive all LFOs,

even going so far as to find that exceptional circumstances justified waiver of the

mandatory victim penalty assessment. As in Dillon, it is clear that the court

inadvertently imposed the supervision fees because of the term’s location in the

judgment and sentence. The community custody supervision fee should be

revisited upon resentencing.

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Remanded for resentencing.

WE CONCUR:

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