* State Of Washington, Respondent V. James David Griepsma, Jr., Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
Respondent,
v.
JAMES DAVID GRIEPSMA, JR.,
Appellant.
No. 83720-6-I
PUBLISHED OPINION
BOWMAN, J. — James David Griepsma Jr. challenges imposition of the
mandatory $500 victim penalty assessment (VPA) as unconstitutional under the
excessive fines clauses of the Eighth Amendment to the United States
Constitution and article I, section 14 of the Washington State Constitution. We
affirm.
FACTS
On March 25, 2019, a jury convicted Griepsma of six counts of third
degree felony assault of a law enforcement officer and one count of third degree
malicious mischief, a gross misdemeanor. The trial court imposed concurrent
midrange sentences of 55 months for each of the assault convictions and a
concurrent 364-day sentence for the misdemeanor, but it did not order
community custody. The court also imposed the mandatory $500 VPA.
Griepsma appealed. We affirmed Griepsma’s convictions but remanded
for resentencing to recalculate his offender score and to impose statutorily
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No. 83720-6-I/2
2
mandated community custody.1 On remand, the trial court imposed the same
sentence but also imposed community custody.2
Griepsma appeals imposition of the mandatory $500 VPA.
ANALYSIS
Griepsma argues that the VPA “violates the excessive fines clause[s]
because it is disproportional punishment.” We disagree.
Both our federal and state constitutions deny the government the power to
issue excessive fines. U.S. CONST. amend. VIII (“Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.”); WASH. CONST. art. I, § 14 (“Excessive bail shall not be required,
excessive fines imposed, nor cruel punishment inflicted.”). The Eighth
Amendment is applicable to the states by incorporation through the Fourteenth
Amendment’s due process clause. Timbs v. Indiana, __ U.S. __, 139 S. Ct. 682,
686, 203 L. Ed. 2d 11 (2019); U.S. CONST. amend. XIV. For a fine to be
unconstitutional, it must be at least partially punitive and it must be excessive.
City of Seattle v. Long, 198 Wn.2d 136, 162-63, 493 P.3d 94 (2021).
The VPA statute mandates imposition of the assessment. RCW
7.68.035(1)(a) provides:
When any person is found guilty in any superior court of having
committed a crime . . . , there shall be imposed by the court upon
such convicted person a penalty assessment. The assessment
1 State v. Griepsma, 17 Wn. App. 2d 606, 624, 490 P.3d 239, review denied, 198
Wn.2d 1016, 495 P.3d 844 (2021).
2 The parties later filed a stipulated motion to amend the judgment and sentence
to set “a fixed term of community custody of [five] months” for each assault conviction
and to strike the discretionary supervision fees due to Griepsma’s indigency. The court
granted the motion.
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No. 83720-6-I/3
3
shall be in addition to any other penalty or fine imposed by law and
shall be five hundred dollars for each case or cause of action that
includes one or more convictions of a felony or gross misdemeanor.
In State v. Curry, 118 Wn.2d 911, 918, 829 P.2d 166 (1992), our Supreme
Court held that the VPA “is neither unconstitutional on its face nor as applied to
indigent defendants.” Recently, in State v. Tatum, 23 Wn. App. 2d 123, 130-31,
514 P.3d 763, review denied, 200 Wn.2d 1021, 520 P.3d 977 (2022), we rejected
an excessive fines challenge to the VPA, explaining that we are bound by our
Supreme Court’s decision in Curry. And we reached the same conclusion three
months later in State v. Ramos, __ Wn. App. 2d __, 520 P.3d 65, 79 (2022) (“As
this court explained in Tatum, we are bound by [Curry’s] holding here.”).
Griepsma argues the VPA is partially punitive and we should not rely on
Tatum or Curry. According to Griepsma, Tatum “avoided the issue of whether
the [VPA] is punitive,” and Curry “did not address a challenge under the
excessive fines clause[s].” But in Tatum, we recognized that the reasoning in
Curry is “vague” and “does not state precisely what constitutional arguments it
took into account.” 23 Wn. App. 2d at 130. Still, we explained that the Supreme
Court’s concern in Curry was “the constitutionality of the [VPA] statute in light of
indigent defendants’ potential inability to pay.” Id. So, we are bound by the
holding in Curry. See State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984)
(“once [our Supreme Court] has decided an issue of state law, that interpretation
is binding on all lower courts”).
Finally, Griepsma contends we should not follow Curry because our
Supreme Court would likely reach a different result now. He argues this is so
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No. 83720-6-I/4
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because recent United States and Washington Supreme Court cases make clear
that the VPA is at least partially punitive. In support of his argument, Griepsma
points to Timbs, 139 S. Ct. at 686-91 (holding that the Eighth Amendment is an
incorporated protection applicable to the states through the Fourteenth
Amendment and that civil in rem forfeitures are fines for purposes of the Eighth
Amendment when they are at least partially punitive), and Long, 198 Wn.2d at
162-63 (holding that the impoundment of a vehicle and associated costs amount
to fines subject to an excessive fines clause analysis). But neither case
addresses whether the VPA is subject to an excessive fines clause analysis.
And our Supreme Court denied review of Tatum after Timbs and Long were
issued. Tatum, 200 Wn.2d at 1021. Regardless, it is the province of the
Supreme Court to decide whether to reject its prior holdings. See State v. Jones,
159 Wn.2d 231, 239 n.7, 149 P.3d 636 (2006) (it is the Supreme Court’s
prerogative alone to reject a prior holding).
We affirm the trial court’s imposition of the mandatory $500 VPA.
WE CONCUR:
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State v. James Griepsma Jr., No. 83720-6-I
DWYER, J. (concurring) — Once again we are asked to disregard a directly
controlling decision of our Supreme Court because, the appellant’s counsel believes, a
new, different, and better argument is being advanced than was advanced by those
poor, timid, uninspired attorneys who lost the previous cases.
My view on this entreaty is borrowed from a fine jurist, writing for a talented
panel, several years ago.
Repeatedly, in decisions that no one thinks fossilized, the Justices
have directed trial and appellate judges to implement the Supreme Court’s
holdings even if the reasoning in later opinions has undermined their
rationale. “If a precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917,
104 L. Ed. 2d 526 (1989). . . . If a court of appeals could disregard a
decision of the Supreme Court by identifying, and accepting, one or
another contention not expressly addressed by the Justices, the Court’s
decisions could be circumvented with ease. They would bind only judges
too dim-witted to come up with a novel argument.
Nat’l Rifle Ass’n of Am., Inc. v. City of Chicago, 567 F.3d 856, 857-58 (7th Cir. 2009)
(Easterbrook, C.J., authoring; Bauer, J. and Posner, J., concurring), rev’d on other
grounds sub nom. McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177 L.
Ed. 2d 894 (2010).
If I could have said it better, I would have.
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