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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Filed Washington State Court of Appeals Division Two

June 13, 2023

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 56984-1-II

Respondent, v. PUBLISHED OPINION

JAMES LARON ELLIS, Appellant.

MAXA, J. – James Ellis appeals his sentence following a resentencing pursuant to State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). Ellis’s sentence related to his conviction in 2009

following a guilty plea to second degree murder with a firearm sentencing enhancement. The conviction arose from an incident in which Ellis shot and killed a person in the course of an attempted robbery. Ellis was 18 years old at the time of the offense.

At the resentencing hearing, the trial court declined Ellis’s request to consider the mitigating qualities of his youth at the time of the offense. But the court imposed the sentence

Ellis’s defense counsel recommended. The trial court did not alter the provisions in the original

judgment and sentence imposing several legal financial obligations (LFOs), restitution, and interest on the restitution amount.

Ellis argues that the trial court erred in failing to consider the mitigating qualities of youth when imposing his sentence; that imposition of restitution, interest on restitution, and the For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II crime victim penalty assessment (VPA) violated the excessive fines clause in the United States and Washington constitutions; and the trial court improperly imposed certain LFOs.

We hold that (1) the trial court was not required to consider Ellis’s youth at resentencing, and any error relating to the trial court’s suggestion that it did not have discretion to consider

Ellis’s youth was harmless because the court imposed the sentence that Ellis requested; (2) imposition of restitution does not violate the excessive fines clause; (3) a recently enacted

statutory provision gives the trial court discretion to waive interest on restitution, so on remand the court must consider whether to waive interest based on the statutory factors; (4) a newly

enacted statutory provision precludes imposing the VPA on an indigent offender, so on remand the trial court must determine whether Ellis is indigent and reconsider imposition of the VPA based on that determination; and (5) on remand the trial court must strike the DNA collection fee

and community custody supervision fees based on newly enacted statutory provisions and reconsider whether to impose the criminal filing fee and attorney fees.

Accordingly, we affirm in part and reverse in part the trial court’s sentence, and remand for the trial court to strike the DNA collection fee and community custody supervision fees from

the judgment and sentence and to reconsider the imposition of interest on restitution, the VPA, the criminal filing fee, and attorney fees.

FACTS

In March 2008, Ellis shot and killed a person in the course of an attempted robbery. Ellis

was 18 years old at the time of his offense. The State charged Ellis with first degree murder, second degree murder, second degree assault, and unlawful possession of a firearm.

Ellis pled guilty to second degree murder. In January 2009, the trial court sentenced him to 240 months in confinement and an additional 60 months for a firearm sentencing For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II

enhancement. The sentence was based on an offender score of 4, which included a prior conviction for unlawful possession of a controlled substance. The trial court ordered Ellis to pay

the $500 VPA, a $200 criminal filing fee, $1,500 in attorney fees, a $100 DNA collection fee, and community custody supervision fees. The judgment and sentence stated that interest would

accrue on unpaid amounts. The trial court also ordered Ellis to pay restitution in the amount of $7,097.32. The restitution order stated, “CVC1 $7,097.32.” Clerk’s Papers (CP) at 36.

In July 2021, Ellis was resentenced after one point was removed from his offender score based on Blake, which lowered the standard range sentence. At the resentencing hearing, Ellis stated, “I would like to just bring awareness of my youthfulness. . . . And hopefully you can take into consideration that.” Report of Proceedings (RP) at 5. The court noted, “That certainly is an

issue that the courts have acknowledged is something that should be taken into account in certain circumstances.” RP at 6. But the court stated that youthfulness is “a different issue than the one we’re talking about today.” RP at 6.

The State recommended that Ellis’s sentence remain at 300 months because that sentence was within the standard range with his lower offender score. Ellis did not advocate for an exceptional sentence below the standard range. Instead, he asked the trial court to lower his sentence to 289 months, proportional to the new sentencing range.

Before the trial court imposed a sentence, Ellis again asked the trial court to consider his youth. The court responded that this issue “is something that you have the ability to address in a different format than what we are doing today.” RP at 9.

The trial court entered an order correcting the 2009 judgment and sentence, changing

Ellis’s total confinement from 300 months to 289 months, the adjustment Ellis recommended.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II

The order stated that all other terms and conditions of the 2009 judgment and sentence would remain in full force. Ellis appeals his sentence.

ANALYSIS

A. SCOPE OF RESENTENCING

Ellis argues that he is entitled to be resentenced because the trial court declined to consider his youth when imposing his sentence. We disagree.^[2]

In general, a defendant cannot appeal a standard range sentence. RCW 9.94A.585(1); In re Pers. Restraint of Marshall, 10 Wn. App. 2d 626, 635, 455 P.3d 1163 (2019). But this rule does not prohibit defendants from appealing the process by which the trial court imposed its sentence. Id.

The trial court was not required to consider Ellis’s youth when sentencing him. In State v. Houston-Sconiers, the Supreme Court held that the Eighth Amendment requires courts to

consider the mitigating qualities of youth when sentencing juvenile offenders. 188 Wn.2d 1, 18, 391 P.3d 409 (2017). But Ellis was 18 at the time of his offense, so Houston-Sconiers is inapplicable. See State v. Nevarez, 24 Wn. App. 2d 56, 61-62, 519 P.3d 252 (2022), rev. denied, For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II lead opinion in Monschke supports extending the holding in Houston-Sconiers to the sentencing of an 18-year-old, Nevarez, 24 Wn. App. 2d at 60-62, and the Supreme Court has denied review of that case. ^[1] Wn.3d 1005 (2023).

Ellis also argues that the trial court failed to recognize that it had the discretion to

consider his youth under State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015). In O’Dell, the Supreme Court held that trial courts are allowed, but not obligated, to consider youth as a mitigating factor in favor of an exceptional sentence below the standard range when sentencing adult defendants. Id. at 696. Here, Ellis does not argue that the sentencing court failed to recognize its discretion to impose an exceptional sentence. At the sentencing hearing, Ellis

argued for a sentence within the standard range, which the trial court granted. Therefore, the court was not required to consider the mitigating qualities of youth under O’Dell. See Nevarez, 24 Wn. App. 2d at 61-62.

The trial court certainly had the discretion to consider Ellis’s youth when considering his sentence within the standard range. But even if the court erred in failing to recognize that it had such discretion, any error was harmless because Ellis received the sentence his defense counsel requested. And Ellis does not assert an ineffective assistance of counsel claim.

We hold that Ellis is not entitled to be resentenced even though the trial court declined to consider Ellis’s youth at resentencing.

B. EXCESSIVE FINES CLAUSE CHALLENGES

Ellis argues that imposition of $7,097.32 in restitution, interest on restitution, and the VPA violates the excessive fines clause. We disagree with regard to restitution, but we remand for the trial court to address restitution interest and the VPA based on newly enacted statutory provisions.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II

Here, Ellis’s excessive fines claims are of constitutional magnitude. And if we were to accept Ellis’s arguments, the error would be manifest. Therefore, we will exercise our discretion and address Ellis’s excessive fine claims.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II to pay, full or partial restitution and accrued interest on restitution where the entity to whom

restitution is owed is an insurer or state agency, except for restitution owed to the department of labor and industries under chapter 7.68 RCW, if the court finds that the offender does not have the current or likely future ability to pay.” RCW 9.94A.753(3)(b) (emphasis added).

The restitution order here related to amounts incurred by “CVC,” CP at 36, which refers to the crime victim compensation program established in chapter 7.68 RCW. The CVC is a self- insurance program operated by the Department of Labor and Industries, so the trial court here

would not be allowed to rescind the restitution order under RCW 9.94A.753(3)(b). However, RCW 7.68.120(5) states, “Any requirement for payment due and owing the department by a convicted person under this chapter may be waived, modified downward or otherwise adjusted

by the department in the interest of justice, the well-being of the victim, and the rehabilitation of the individual.” b. Punishment

The first question is whether the restitution imposed here constitutes “punishment.”

Long, 198 Wn.2d at 163. We conclude that because the specific restitution ordered here was solely compensatory, it was not punishment for purposes of the excessive fines clause.

The Supreme Court has stated in a different context that restitution is both compensatory and punitive. State v. Kinneman, 155 Wn.2d 272, 279-80, 119 P.3d 350 (2005). Restitution is compensatory because it is connected to a victim’s losses. Id. at 280. But the court stated that restitution also is punitive because RCW 9.94A.753(3) allows the trial court to order restitution in an amount that is double a victim’s loss, which necessarily exceeds what is necessary to compensate a victim. Id.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II

Division One of this court in State v. Ramos relied on Kinneman to conclude that restitution is partially punitive for Eighth Amendment purposes. 24 Wn. App. 2d 204, 226, 520

P.3d 65 (2022), rev. denied, 200 Wn.2d 1033 (2023). And the court cited Harris v. Charles, 151

Wn. App. 929, 940, 214 P.3d 962 (2009), aff’d, 171 Wn.2d 455, 256 P.3d 328 (2011), for the proposition that a court must look to the legislature’s intent in determining whether restitution is punishment, not to the restitution ordered in a particular case. Ramos, 24 Wn. App. at 226.

However, Kinneman did not address whether restitution was punitive for purposes of the excessive fines clause. That case involved whether the defendant was entitled to a jury

determination of the facts essential to restitution. 155 Wn.2d at 277. And Harris involved the definition of “punishment” for purposes of double jeopardy, not for purposes of the excessive fines clause. 151 Wn. App. at 940. Therefore, those cases are not directly controlling. And no case other than Ramos has held that a restitution order that involves only compensation of a crime victim constitutes punishment.

We conclude that, unlike Division One stated in Ramos, the proper inquiry is whether the restitution ordered in a particular case is punitive. Here, the restitution the trial court ordered was solely compensatory, reimbursing the CVC for amounts paid to the victim of Ellis’s crime.

The court in Kinneman stated that restitution could be punitive because the trial court has statutory authority to order restitution in an amount that is double a victim’s loss. 155 Wn.2d at

280. But the trial court here did not double the amount needed to compensate CVC. Therefore, under the facts of this case, the restitution the court ordered was not punitive.

We hold that because the restitution imposed on Ellis was not punitive, the excessive fines clause does not apply.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II c. Constitutionally Excessive

Even if the restitution the trial court ordered was punitive, the second question is whether the restitution imposed here was constitutionally excessive. Long, 198 Wn.2d at 163. We conclude that the restitution imposed here was not excessive.

In Ramos, the court concluded that restitution orders based on the victim’s actual losses

necessarily are not excessive, even if the offender is unable to pay. 24 Wn. App. 2d at 230. The court relied on a Ninth Circuit case, United States v. Dubose, which held that proportionality is

built into the restitution order when the amount of restitution is tied to the victim’s loss, and the offender’s ability to pay does not change the outcome. 146 F.3d 1141, 1145 (9th Cir. 1998).

The court in Ramos stated, We agree with the reasoning of Dubose and hold that a restitution award based on a victim’s actual losses is inherently proportional to the crime that caused the losses because the amount is linked to the culpability of the defendant and the extent of harm the defendant caused. A defendant’s inability to compensate the victim for the losses he caused will not render the restitution amount grossly disproportional.

24 Wn. App. 2d at 230.

We agree with Ramos regarding this issue. Here, the amount of restitution was the amount paid by the crime victim compensation fund, which necessarily related to victim losses.

Further, application of the five-factor test articulated in Long supports the conclusion that

the restitution imposed was not constitutionally excessive. First, the nature and extent of the crime was second degree murder, a significant crime. Second, the murder was related to other illegal activities – Ellis committed the murder during the course of an attempted burglary with an

illegally possessed firearm. Third, second degree murder carries a maximum sentencing term of life and a maximum fine of $50,000. Fourth, the trial court ordered restitution in the amount that For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II the crime victim compensation program paid to compensate the victim’s family, which represented only a portion of the actual financial harm that resulted from Ellis’s offense.

Regarding the fifth factor, Ellis claims that he is indigent and that he is unable to pay the restitution amount. However, that amount is not so high that it would be inconceivable that Ellis would be able to pay that amount at some point after being released from prison. And RCW

7.68.120(5) allows the Department of Labor and Industries to waive, modify downward, or otherwise adjust the amount of restitution “in the interest of justice, the well-being of the victim, and the rehabilitation of the individual.” This means that there is a statutory mechanism through which Ellis’s restitution amount may be reduced or eliminated.

We hold based on our de novo review of the specific facts of this case, the restitution imposed on Ellis was not constitutionally excessive. Therefore, the excessive fines clause does not apply.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II

interest on restitution. After consideration of these factors, the court may waive the imposition of restitution interest.

RCW 10.82.090(2) (emphasis added).3

Although this amendment did not take effect until after Ellis’s resentencing, it applies to

Ellis because this case is on direct appeal. See State v. Ramirez, 191 Wn.2d 732, 748-49, 426

P.3d 714 (2018). Therefore, we remand for the trial court to address whether to impose interest on the restitution amount under the factors identified in RCW 10.82.090(2).

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II remand for the trial court to determine whether Ellis is indigent under RCW 10.01.160(3) and to reconsider the imposition of the VPA based on that determination.^[4]

C. IMPOSITION OF LFOS

Ellis argues that the trial court erred at resentencing by not removing the following LFOs: the DNA collection fee, community custody supervision fees, the criminal filing fee, $1,500 in attorney fees.

RCW 43.43.7541 currently provides that the DNA collection fee is mandatory unless the offender’s DNA previously had been collected as the result of a prior conviction. However, the legislature has eliminated this provision, effective July 1, 2023. LAWS OF 2023, ch. 449, § 4. On remand, the trial court should strike the DNA collection fee.^[5]

Effective July 2022, RCW 9.94A.703(2) no longer authorizes the imposition of community custody supervision fees. LAWS OF 2022, ch. 29, § 7. Although this amendment took effect after Ellis’s resentencing, it applies to cases pending on appeal. State v. Wemhoff, 24

Wn. App. 2d 198, 200-02, 519 P.3d 297 (2022). Therefore, the community custody supervision fees must be stricken. Id. at 202.

RCW 36.18.020(2)(h) now prohibits imposition of the criminal filing fee on a defendant who is indigent as defined in RCW 10.01.160(3). However, there has been no finding that Ellis is indigent and the State refuses to concede this issue. Therefore, we remand for the trial court to determine whether Ellis is indigent and to reconsider the imposition of the criminal filing fee based on that determination.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 56984-1-II

Under former RCW 10.01.160(1) (2018), a trial court may require a defendant to pay

“costs.” Court-appointed attorney fees constitute costs under former RCW 10.01.160(1). In re

Pers. Restraint of Dove, 196 Wn. App. 148, 155, 381 P.3d 1280 (2016). However, costs cannot be imposed on an indigent defendant. Former RCW 10.01.160(3). Again, there has been no

finding that Ellis is indigent, and the State refuses to concede this issue. Therefore, we remand for the trial court to determine whether Ellis is indigent and to reconsider the imposition of attorney fees based on that determination.

Accordingly, we remand for the trial court to strike the imposition of the DNA collection fee and community custody supervision fees. We also remand for the court to reconsider imposition of the criminal filing fee and attorney fees.

CONCLUSION

We affirm in part and reverse in part the trial court’s sentence, and remand for the trial

court to strike the DNA collection fee and community custody supervision fees from the judgment and sentence and to reconsider imposition of interest on restitution, the VPA, the criminal filing fee, and attorney fees.

MAXA, J. We concur: GLASGOW, C.J. VELJACIC, J.