* State Of Washington, Respondent V Michael J. Tester, Jr., Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No.57532-9-II
Respondent,
v.
MICHAEL JOHN TESTER, JR., PART PUBLISHED OPINION
Appellant.
MAXA, P.J. – Michael Tester appeals his third degree theft and residential burglary
convictions and his sentence.
When Tester was sentenced, his offender score included juvenile adjudications. At the
time, former RCW 9.94A.525(1) (2021) contained no provision precluding prior juvenile
adjudications from being counted when calculating an offender score. But in 2023, the
legislature amended RCW 9.94A.525(1) by requiring that “adjudications of guilt pursuant to
Title 13 RCW [Juvenile Courts and Juvenile Offenders] which are not murder in the first or
second degree or class A felony sex offenses may not be included in the offender score.” RCW
9.94A.525(1)(b). This amendment became effective on July 23, 2023. LAWS OF 2023, ch. 415, §
2.
Tester argues that we should remand for resentencing based on an offender score that
does not include his previous juvenile adjudications because RCW 9.94A.525(1)(b) should be
applied prospectively on appeal.
We hold that RCW 9.94A.345 and RCW 10.01.040 require that Tester be sentenced
based on the law in effect when he committed his offenses, and RCW 9.94A.525(1)(b) does not
Filed
Washington State
Court of Appeals
Division Two
April 9, 2024
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No.57532-9-II
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apply prospectively to Tester’s offender score calculation. In the unpublished portion of this
opinion, we address and reject Tester’s other arguments except for the State’s concession that the
crime victim penalty assessment (VPA) must be stricken from the judgment and sentence.
Accordingly, we affirm Tester’s convictions and sentence, but we remand for the trial
court to strike the VPA from the judgment and sentence.
FACTS
A jury found Tester guilty of third degree theft and residential burglary based on an
incident that occurred in May 2022. Sentencing occurred in October 2022.
At sentencing, the trial court determined Tester’s offender score, which included six
juvenile adjudications. The court sentenced Tester to 364 days of confinement with 364 days
suspended for the third degree theft conviction and 45 months of confinement for the residential
burglary conviction.
Tester appeals his convictions and sentence.
ANALYSIS
Tester argues that we should remand for resentencing based on an offender score that
does not include his previous juvenile adjudications because RCW 9.94A.525(1)(b) should be
applied prospectively on appeal. We disagree.
A. STANDARD OF REVIEW
We review questions of statutory interpretation and law de novo. State v. Jenks, 197
Wn.2d 708, 713, 487 P.3d 482 (2021). Statutes are construed based on their plain language. Id.
at 714. If the plain language is unambiguous, the analysis ends and we apply the statute’s plain
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language. Id. “ ‘Language is unambiguous when it is not susceptible to two or more
interpretations.’ ” Id. (quoting State v. Delgado, 148 Wn.2d 723, 726, 63 P.3d 792 (2003)).
B. AMENDMENT TO RCW 9.94A.525(1)
In 2022, when Tester was convicted and sentenced, former RCW 9.94A.525(1) contained
no provision precluding prior juvenile convictions from being counted when calculating an
offender score. The trial court sentenced Tester using an offender score that included his prior
juvenile adjudications.
But in 2023, the legislature amended RCW 9.94A.525(1) by requiring that “adjudications
of guilt pursuant to Title 13 RCW [Juvenile Courts and Juvenile Offenders] which are not
murder in the first or second degree or class A felony sex offenses may not be included in the
offender score.” RCW 9.94A.525(1)(b). This amendment became effective on July 23, 2023.
LAWS OF 2023, ch. 415, § 2.
C. LEGAL PRINCIPLES
Generally, both RCW 9.94A.345 and RCW 10.01.040 control the effect of amendments
to penal statutes on sentencing. Jenks, 197 Wn.2d at 713. RCW 9.94A.345 states, “Except as
otherwise provided in [the SRA1], any sentence imposed under this chapter shall be determined
in accordance with the law in effect when the current offense was committed.” RCW
9.94A.525(1)(b) is part of the SRA. The Supreme Court has stated that RCW 9.94A.345
commands trial courts to look to the law in effect at the time of the crime when imposing a
sentence. Jenks, 197 Wn.2d at 716.
RCW 10.01.040, the general savings clause statute, states in part,
Whenever any criminal or penal statute shall be amended or repealed, all offenses
committed or penalties or forfeitures incurred while it was in force shall be
1 Sentencing Reform Act of 1981, ch. 9.94A RCW.
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punished or enforced as if it were in force, notwithstanding such amendment or
repeal, unless a contrary intention is expressly declared in the amendatory or
repealing act, and every such amendatory or repealing statute shall be so construed
as to save all criminal and penal proceedings, and proceedings to recover
forfeitures, pending at the time of its enactment, unless a contrary intention is
expressly declared therein.
(Emphasis added.) To avoid application of RCW 10.01.040, the legislature must express its
intent “ ‘in words that fairly convey that intention.’ ” Jenks, 197 Wn.2d at 720 (quoting State v.
Ross, 152 Wn.2d 220, 238, 95 P.3d 1225 (2004)).
“Under these statutes . . . sentences imposed under the SRA are generally meted out in
accordance with the law in effect at the time of the offense.” Jenks, 197 Wn.2d at 714. This is
because it is a legislative function, and not a judiciary function, to fix legal punishments for
criminal offenses and to alter the sentencing process. Id. at 713.
In addition, statutes are presumed to apply prospectively rather than retroactively. State
v. Brake, 15 Wn. App. 2d 740, 744, 476 P.3d 1094 (2020). However, under some circumstances
a prospective statutory amendment may apply to a case pending on direct appeal even though the
offense occurred before enactment of the statute. See State v. Ramirez, 191 Wn.2d 732, 747, 426
P.3d 714 (2018) (holding that a statutory amendment pertaining to costs that are imposed on
defendants following conviction applied prospectively to a case pending on direct review). An
amendment applies to a pending appeal “ ‘if the precipitating event under the statute occurred
after the date of enactment.’ ” Jenks, 197 Wn.2d at 722 (quoting In re Pers. Restraint of Carrier,
173 Wn.2d 791, 809, 272 P.3d 209 (2012)). We look to the subject matter that the statute
regulates to determine the precipitating event for application of the statute. Jenks, 197 Wn.2d at
722.
In Jenks, the defendant was convicted of first degree robbery in 2017. Id. at 711. The
trial court determined that he had three strike offenses and was a persistent offender under the
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No.57532-9-II
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Persistent Offender Accountability Act (POAA) of the SRA, and sentenced him to life without
parole. Id. One of his previous strike offenses was second degree robbery. Id. Two years after
the defendant was sentenced as a persistent offender, and while his case was pending on direct
appeal, the legislature enacted Engrossed Substitute Senate Bill (ESSB) 5288, which removed
second degree robbery from the list of “most serious offenses” in RCW 9.94A.030(32). Id.
Therefore, second degree robbery no longer counted as a strike under the POAA. Id.
The Supreme Court held that the change in law did not apply to the defendant’s case
because of RCW 9.94A.345 and RCW 10.01.040. Id. at 715. The court also held that the
change in law did not apply prospectively to the case on direct appeal because “the triggering
event for determining who qualifies as a persistent offender occurs when someone has been
convicted of a most serious offense and was also, in the past, convicted of two other most serious
offenses on separate occasions.” Id. at 722. Therefore, the defendant’s triggering event was his
2017 conviction for first degree robbery, which occurred before the enactment of ESSB 5288.
Id. at 722-23.
D. APPLICATION OF AMENDMENT TO RCW 9.94A.525(1)
Here, former RCW 9.94A.525(1) – which did not preclude prior juvenile adjudications
from being counted in an offender score – was in effect at the time of Tester’s conviction. The
legislature did not express an intent that the 2023 amendment would apply to pending
prosecutions for offenses committed before its effective date. Therefore, both RCW 9.94A.345
and RCW 10.01.040 require that Tester be sentenced based on the former version of RCW
9.94A.525(1), rather than based on RCW 9.94A.525(1)(b).
However, Tester argues that even if RCW 9.94A.525(1)(b) only applies prospectively, it
must be applied to his case because it still is pending on direct appeal. He contends that the
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No.57532-9-II
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termination of his appeal is the applicable triggering event. He cites to Ramirez, 191 Wn.2d 732
and State v. Jefferson, 192 Wn.2d 255, 429 P.3d 467 (2018) to support his argument.
But Tester’s case is similar to Jenks. RCW 9.94A.525(1) regulates which prior
convictions count when calculating an offender score. The triggering event for determining a
defendant’s offender score is the defendant’s sentencing for a conviction, at which the offender
score is calculated. Therefore, the triggering event here was when Tester was sentenced for his
2022 convictions for third degree theft and residential burglary, which occurred before the
enactment of RCW 9.94A.525(1)(b).
Neither Ramirez nor Jefferson compel a different result. In Ramirez, the Supreme Court
addressed statutory amendments modifying the imposition of discretionary legal financial
obligations (LFOs) that were enacted while the defendant’s case was pending on direct appeal.
191 Wn.2d at 747. The court noted that it previously had “concluded that the ‘precipitating
event’ for a statute ‘concerning attorney fees and costs of litigation’ was the termination of the
defendant’s case.” Id. at 749 (quoting State v. Blank, 131 Wn.2d 230, 249, 930 P.2d 1213
(1997)). Therefore, the court held that the statutory amendments applied to the defendant’s case
because it was pending on direct appeal and was not yet final. Ramirez, 191 Wn.2d at 749.
However, the Supreme Court in Jenks expressly declined to expand Ramirez to all cases.
Jenks, 197 Wn.2d at 723. The court stated that the statute in Ramirez “dealt with the narrow
subject matter of ‘costs imposed upon conviction,’ ” and was not analogous to the sentencing
statute at issue. Jenks, 197 Wn.2d at 723 (quoting Ramirez, 191 Wn.2d at 749). Similarly here,
the LFO statute at issue in Ramirez is not analogous to RCW 9.94A.525(1)(b).
In Jefferson, the Supreme Court considered whether GR 37, a court rule involving
discriminatory use of peremptory strikes that was adopted after the defendant’s trial, applied to
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No.57532-9-II
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the defendant’s case on direct appeal. Id. at 243. The court determined that the precipitating
event in that case was voir dire, so GR 37 did not apply. Id. at 248.
In discussing the issue, the Supreme Court stated,
We generally hold that when the new statute concerns a postjudgment matter like
the sentence or revocation of release, . . . then the triggering event is not a “past
event” but a future event. In such a case, the new statute or court rule will apply to
the sentence or sentence revocation while the case is pending on direct appeal, even
though the charged acts have already occurred.
Id. at 247. But Jefferson did not involve amendments to a sentencing statute, and therefore this
statement was dicta. And in making this statement, the court cited to Blank, 131 Wn.2d 230 and
In re Personal Restraint of Flint, 174 Wn.2d 539, 277 P.3d 657 (2012), neither of which
involved amendments to sentencing statutes. Finally, the court in Jenks did not reference this
statement in analyzing the prospective application of statutory amendments. Therefore, we
conclude that the statements regarding postjudgment matters in Jefferson do not apply here. See
State v. Molia, 12 Wn. App. 2d 895, 902, 460 P.3d 1086 (2020) (concluding that the statement in
Jefferson does not control when addressing a statutory amendment that affects sentencing).
Tester also argues that RCW 9.94A.525(1)(b) is a remedial statute, and “remedial statutes
are generally enforced as soon as they are effective, even if they relate to transactions predating
their enactment.” State v. Pillatos, 159 Wn.2d 459, 473, 150 P.3d 1130 (2007). Remedial
statutes generally involve procedural matters rather than substantive matters. Id. Tester claims
that RCW 9.94A.525(1)(b) applies to his case on appeal because it involves a procedural change.
But “changes to criminal punishments are substantive, not procedural.” Jenks, 197
Wn.2d at 721. Regardless, the remedial nature of an amendment is irrelevant when the statute is
subject to RCW 10.01.040. See State v. Kane, 101 Wn. App. 607, 613, 5 P.3d 741 (2000).
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No.57532-9-II
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Therefore, we hold that RCW 9.94A.525(1)(b) does not apply to Tester’s offender score
calculation and sentencing for his 2022 conviction.
CONCLUSION
We affirm Tester’s convictions and sentence, but we remand for the trial court to strike
the VPA from the judgment and sentence.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2.06.040, it is so ordered.
In the unpublished portion of this opinion, we hold that (1) Tester cannot establish that
the trial court violated his public trial right by not allowing spectators in the courtroom; (2)
sufficient evidence supported Tester’s third degree theft conviction; (3) the State did not fail to
prove Tester’s criminal history at sentencing because Tester affirmatively acknowledged his
criminal history and waived the State’s burden of proof; and (4) as the State concedes, the $500
VPA must be stricken from the judgment and sentence.
ADDITIONAL FACTS
Background
In May 2022, a landowner checked his family cabin in Woodland and found Tester and
his girlfriend inside the cabin. The landowner told them to leave and notified law enforcement.
As Tester and his girlfriend were leaving the cabin, an officer arrived and detained them.
Tester eventually admitted that he took boat oars, totes, and rope from the property. The
landowner confirmed that these items were from his property. The officer also located a battery
belonging to the landowner in Tester’s trailer.
The State charged Tester with third degree theft and residential burglary.
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No.57532-9-II
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Trial Court Proceedings
Due to the significant risks of the COVID-19 pandemic, in July 2020 the Cowlitz County
Superior Court filed an administrative order that analyzed the impact of COVID-19 on in person
court proceedings. Admin. Ord., No. 2020-003-08, In re Superior Court Courtroom
Proceedings Held in a Virtual Courtroom (Cowlitz County Super. Ct., Wash. July 27, 2020)
(Admin. Ord., No. 2020-003-08), https://www.cowlitzsuperiorcourt.us/all-forms/318-
administrative-order-no-2020-003-08/viewdocument/318 [https://perma.cc/5ACA-ZH4U]. The
order considered the factors outlined in State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995)
regarding closure of courtrooms. Admin. Ord., No. 2020-003-08, at 1-3. The order stated,
The Court has weighed the importance of open proceedings against the present
health risks and has determined that it is appropriate to defer to the guidance of the
public health experts during this pandemic. The risk of further spread of COVID-
19 outweighs the public’s interest to be physically present in an open court at this
time.
Admin. Ord., No. 2020-003-08, at 2-3.
However, the order expressly stated that all trial court hearings would be “live streamed
on YouTube for the general public to observe” pursuant to Bone-Club. Admin. Ord., No. 2020-
003-08, at 2. The order concluded, “This Order is narrowly tailored as to address present health
risks. No less restrictive alternative is available that will sufficiently protect the health of all
present.” Admin. Ord., No. 2020-003-08, at 3. The order applied to all scheduled proceedings.2
Admin. Ord., No. 2020-003-08, at 3.
2 A February 2021 Supreme Court order stated that “applicable emergency orders may be
deemed part of the record in affected cases for purposes of appeal without the need to file the
orders in each case.” Fifth Revised & Extended Ord. Regarding Ct. Operations, No. 25700-B-
658, at 15, In re Statewide Response by Washington State Courts to the COVID-19 Public Health
Emergency (Wash. Feb. 19, 2021) (Fifth Emergency Ord.),
https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders/25700-B-
658.pdf [https://perma.cc/F2PD-LEXX].
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Tester’s trial took place in September 2022 in Cowlitz County Superior Court. At the
beginning of trial, the trial court stated to the parties, “We are on the record and streaming. . . .
We’re still under a Bone-Club order, just for the record, so public will not be allowed in the
courtroom, but we’re streaming on YouTube.” Rep. of Proc. (RP) at 15. The court later stated
to the prospective jurors,
I do want to also just state for the record that we have a Bone-Club order in effect,
which means the courtroom is closed to the public. However, there’s a camera in
the middle of the aisle there that’s taping everything from that little half wall this
direction, and that’s being broadcast over YouTube, which the general public can
watch the proceedings in all of our courtrooms in that manner. So, that’s still in
place as part of some of our emergency orders. Because of that, I want you to be
aware that everything that you respond to, any questions that you’re asked is also
going to be broadcast on YouTube.
RP at 20-21.
When court reconvened after voir dire, the trial court stated, “I have us streaming.
Welcome back, everyone. We are back on the record and streaming.” RP at 121.
Third Degree Theft Jury Instructions
The trial court gave to the jury four instructions regarding third degree theft. Instruction
21 contained the third degree theft statute: “A person commits the crime of theft in the third
degree when he commits theft of property or services not exceeding $750 in value.” Clerk’s
Papers (CP) at 35. Instruction 22 defined property: “Property means anything of value.” CP at
36. And instruction 23 defined “wrongfully obtains”: “Wrongfully obtains means to take
wrongfully the property of another.” CP at 37.
Instruction 24 was the to convict instruction for third degree theft:
To convict the defendant of the crime of theft in the third degree, each of the
following three elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about May 17, 2022, the defendant wrongfully obtained or exerted
unauthorized control over property of another;
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(2) That the defendant intended to deprive the other of the property; and
(3) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond
a reasonable doubt, it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable
doubt as to any one of these elements, then it will be your duty to return a verdict
of not guilty.
CP at 38.
Conviction and Sentencing
The jury found Tester guilty of both third degree theft and residential burglary. When
scheduling a date for a sentencing hearing, Tester’s counsel stated, “I think, all of his felony
history is more than 15 years old. It didn’t wash because of a couple of misdemeanors in the
interim. . . . I think he still has four convictions from when he’s a juvenile, on account of they
simply didn’t wash, Your Honor.” RP at 306.
At the sentencing hearing, the State said, “[Tester] scores seven points based on his priors
and the current offenses, that puts him at a range of 43 to 57 months in the Department of
Corrections prison. The State is seeking 57 months.” RP at 317. Tester responded that half his
points “come from his juvenile record. . . . But for a couple of driving license suspended, [he]
would have essentially zero points.” RP at 318. Tester further stated, “We don’t contest the
offender score” and he “comes in here with a 43 to 57 month range . . . we think that 43 months
of someone’s life is more than sufficient for the loss of property in this case.” RP at 319-20
(emphasis added).
The trial court found that Tester was indigent under RCW 10.101.010(3), but imposed a
VPA of $500 as part of his sentence.
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ANALYSIS
A. RIGHT TO A PUBLIC TRIAL
Tester argues that the trial court violated his constitutional right to a public trial when the
court closed the courtroom to the public. We disagree.
1. Legal Principles
Criminal defendants have a right to a public trial under both the Sixth Amendment to the
United States Constitution and article I, sections 10 and 22 of the Washington Constitution.
State v. Whitlock, 188 Wn.2d 511, 519, 396 P.3d 310 (2017). We review de novo the question of
law whether a defendant’s public trial right has been violated. Id. at 520.
We engage in a three-part inquiry to determine whether the public trial right has been
violated: (1) whether the proceeding at issue implicated the public trial right, (2) if so, whether
the proceeding was closed, and (3) if so, whether the closure was justified. Id. The burden is on
the defendant regarding the first two questions and the burden is on the State regarding the third
question. State v. Love, 183 Wn.2d 598, 605, 354 P.3d 841 (2015).
To determine whether a closure was justified, courts must engage in a Bone-Club
analysis. 128 Wn.2d at 258-59. Under Bone-Club, the trial court must perform a weighing test
consisting of five criteria before closing the courtroom:
“1. The proponent of closure or sealing must make some showing [of a compelling
interest], and where that need is based on a right other than an accused’s right to a
fair trial, the proponent must show a “serious and imminent threat” to that right.
2. Anyone present when the closure motion is made must be given an opportunity
to object to the closure.
3. The proposed method for curtailing open access must be the least restrictive
means available for protecting the threatened interests.
4. The court must weigh the competing interests of the proponent of closure and
the public.
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5. The order must be no broader in its application or duration than necessary to
serve its purpose.”
Id. (quoting Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d
1258 (1993)).
2. Analysis
Here, we need not engage in the public trial right analysis because the Cowlitz County
Superior Court’s administrative order addressed the Bone-Club factors and concluded that
closing the courtroom to spectators for all proceedings was appropriate. Admin. Ord., No. 2020-
003-08, at 2.
Tester argues that closing the courtroom was not justified because the Cowlitz County
Superior Court’s Bone-Club order was over two years old at the time of his trial in September
2022 and the COVID-19 pandemic essentially was over by then. However, the Cowlitz County
Superior Court order had not been rescinded at the time of trial. And in February 2021, the
Supreme Court issued an order regarding the COVID-19 health emergency that stated that
“courts should follow the most protective public health guidance applicable in their jurisdiction,
and should continue using remote proceedings for public health and safety whenever
appropriate.” Fifth Emergency Ord., at 3. That order was not rescinded until October 31, 2022.
Ord. re: Ct. Operations After October 31, 2022, No. 25700-B-697, In re Statewide Response by
Washington State Courts to the COVID-19 Public Health Emergency (Wash. Oct. 27, 2022),
https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders/Order%202570
0A697.pdf [https://perma.cc/HXR3-V2WG]. As a result, Tester cannot show that the standing
Bone-Club order was stale.
We hold that Tester cannot establish that the trial court violated his public trial right.
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B. SUFFICIENCY OF EVIDENCE – THIRD DEGREE THEFT CONVICTION
Tester argues that insufficient evidence supported the third degree theft conviction
because the State failed to prove that the value of the stolen items did not exceed $750. We
disagree.
1. Legal Principles
RCW 9A.56.050 states in part, “A person is guilty of theft in the third degree if he or she
commits theft of property or services which (a) does not exceed seven hundred fifty dollars in
value.” But the value of the alleged stolen object is not an essential element of third degree theft.
State v. Goss, 186 Wn.2d 372, 380-81, 378 P.3d 154 (2016). It merely divides the lowest degree
of theft from the next higher degree. Id. at 381.
A defendant may challenge the sufficiency of evidence supporting an element of a crime
that was added under the law of the case doctrine. State v. Anderson, 198 Wn.2d 672, 685, 498
P.3d 903 (2021). The law of the case doctrine provides that jury instructions not objected to are
treated as the properly applicable law. Id. at 678. Therefore, “ ‘the State assumes the burden of
proving otherwise unnecessary elements of the offense when such added elements are included
without objection in the “to convict” instruction.’ ” Id. at 679 (quoting State v. Hickman, 135
Wn.2d 97, 102, 954 P.2d 900 (1998)).
The doctrine also may apply to a definitional instruction if it defines a matter that is
relevant to an element listed in the to convict instruction. Anderson, 198 Wn.2d at 683-84. “But
‘[e]ach instruction must be evaluated in the context of the instructions as a whole.’ ” State v.
France, 180 Wn.2d 809, 816, 329 P.3d 864 (2014) (quoting State v. Benn, 120 Wn.2d 631, 654–
55, 845 P.2d 289 (1993)).
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2. Analysis
Here, the instructions given were consistent with the third degree theft statute. The to-
convict instruction required the jury to find that the State proved beyond a reasonable doubt the
following three elements of third degree theft: “(1) That on or about May 17, 2022, the defendant
wrongfully obtained or exerted unauthorized control over property of another; (2) That the
defendant intended to deprive the other of the property; and (3) That this act occurred in the State
of Washington.” CP at 38.
Instruction 21 stated, “A person commits the crime of theft in the third degree when he
commits theft of property or services not exceeding $750 in value.” CP at 35. Tester argues that
the “not exceeding $750 in value” language defined the term “property” in the to convict
instruction and represented the law of the case. He claims that based on this instruction, the
State had to prove that the items stolen did not exceed $750 in value. But evaluating the context
of the instructions as a whole, property clearly was defined as “anything of value” in instruction
22. see France, 180 Wn.2d at 816.
Even if the “not exceeding $750 in value” language is considered definitional, the law of
the case doctrine would only apply if the definitional instruction defined a matter that was
relevant to an element of third degree theft listed in the to convict instruction. See Anderson, 198
Wn.2d at 683-84. And the value of the stolen property was not an essential element of third
degree theft. Goss, 186 Wn.2d at 380-81.
Therefore, we hold that sufficient evidence supported Tester’s third degree theft
conviction.
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C. PROOF OF CRIMINAL HISTORY
Tester argues that we should remand for resentencing because the State failed to prove by
a preponderance of the evidence his criminal history and that his convictions did not wash out.
The State argues that Tester waived the State’s burden by affirmatively acknowledging his
criminal history. We agree with the State.
1. Legal Principles
“In determining the proper offender score, the court may rely on information that is
admitted, acknowledged, or proved in a trial or at sentencing.” State v. Cate, 194 Wn.2d 909,
913-14, 453 P.3d 990 (2019). The State has the burden of proving the criminal history by a
preponderance of the evidence. Id. at 912-13. A prosecutor’s unsupported summary of criminal
history does not satisfy the State’s burden. Id. at 913.
In addition, a defendant’s failure to object to the offender score calculation does not
satisfy the State’s burden. Id. The defendant must affirmatively acknowledge the criminal
history to waive the State’s burden. Id. “ ‘[A] defendant does not “acknowledge” the State’s
position . . . absent an affirmative agreement beyond merely failing to object.’ ” In re Pers.
Restraint of Connick, 144 Wn.2d 442, 463-64, 28 P.3d 729 (2001) (quoting State v. Ford, 137
Wn.2d 472, 483, 973 P.2d 452 (1999)). And a defendant is not “deemed to have affirmatively
acknowledged the prosecutor’s asserted criminal history based on his agreement with the
ultimate sentencing recommendation.” State v. Mendoza, 165 Wn.2d 913, 928, 205 P.3d 113
(2009).
In addition, class B and C felony convictions other than sex offenses are not included in
the offender score if the offender spent the necessary number of “consecutive years in the
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No.57532-9-II
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community without committing any crime that subsequently results in a conviction.” RCW
9.94A.525(2)(b)-(c).
We review de novo a trial court’s calculation of an offender score. State v. Griepsma, 17
Wn. App. 2d 606, 619, 490 P.3d 239 (2021). However, we review for substantial evidence the
existence of a prior conviction, which is a question of fact. Id.
2. Analysis
Here, the State calculated that Tester had an offender score of 7. Tester stated during
sentencing, “We don’t contest the offender score,” and agreed that he came in with a 43 to 57
month standard range. RP at 319-20.
Tester went beyond merely failing to object and affirmatively acknowledged the offender
score by stating that he did not contest the score. See Connick, 144 Wn.2d at 463-64. And he
affirmatively stated that he had a 43 to 57 month range and recommended a sentence of 43
months, where the State recommended 57 months.
In addition, Tester affirmatively acknowledged that his previous felony convictions did
not “wash because of a couple of misdemeanors in the interim” and that his four juvenile
convictions “simply didn’t wash.” RP at 306.
Therefore, we hold that Tester affirmatively acknowledged his criminal history and
waived the State’s burden of proof.
D. CRIME VICTIM PENALTY ASSESSMENT
Tester argues, and the State concedes, that the $500 VPA should be stricken from his
judgment and sentence. We agree.
Effective July 1, 2023, RCW 7.68.035(4) prohibits courts from imposing the VPA on
indigent defendants as defined in RCW 10.01.160(3). See State v. Ellis, 27 Wn. App. 2d 1, 16,
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No.57532-9-II
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530 P.3d 1048 (2023). For purposes of RCW 10.01.160(3), a defendant is indigent if they meet
the criteria in RCW 10.101.010(3). Although this amendment took effect after Tester’s
sentencing, it applies to cases pending on appeal. Ellis, 27 Wn. App. 2d at 16.
The trial court determined that Tester was indigent under RCW 10.101.010(3).
Therefore, on remand the $500 VPA must be stricken from the judgment and sentence.
CONCLUSION
We affirm Tester’s convictions and sentence, but we remand for the trial court to strike
the VPA from the judgment and sentence.
MAXA, P.J.
We concur:
PRICE, J.
CHE, J.
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