State Of Washington, Respondent V. Terawon Antonio Smith, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 58004-7-II
Respondent,
v. UNPUBLISHED OPINION
TERAWON ANTONIO SMITH, AKA
TERAWON A SMITH, TERAWON SMITH,
TEREON A SMITH,
Appellant.
MAXA, P.J. – Terawon Smith appeals the trial court’s failure to strike a vacated
conviction for theft of a firearm from his judgment and sentence. He also challenges the trial
court’s imposition of the $500 crime victim penalty assessment (VPA).
On remand from this court, the trial court entered an order vacating Smith’s conviction
for theft of a firearm. However, the court did not strike references to the vacated conviction
from the judgment and sentence. The judgment and sentence also imposed a $500 VPA.
We hold that (1) as the State concedes, the trial court erred in failing to strike the vacated
conviction from the judgment and sentence; and (2) as the State concedes, the VPA must be
stricken under RCW 7.68.035(4). Accordingly, we remand for the trial court to remove all
references to the vacated theft of a firearm conviction from Smith’s judgment and sentence and
to strike the VPA.
Filed
Washington State
Court of Appeals
Division Two
February 6, 2024

No. 58004-7-II
2
FACTS
In 2021, a jury found Smith guilty of first degree robbery, theft of a firearm, and second
degree unlawful possession of a firearm. Smith appealed his theft of a firearm conviction. On
appeal, this court held the two convictions violated double jeopardy and remanded the case to the
trial court to vacate the theft of a firearm conviction.
On remand, the trial court entered an order vacating the theft of firearm conviction.
However, the trial court did not remove references to the vacated conviction from the judgment
and sentence.
In the 2021 judgment and sentence, the trial court imposed a mandatory VPA. The court
also found that Smith was indigent.
Smith appeals his judgment and sentence.
ANALYSIS
A. REMOVAL OF REFERENCES TO THE VACATED CONVICTION
Smith argues, and the State concedes, that any reference to his vacated conviction for
theft of a firearm should be removed from his judgment and sentence. We agree.
When a conviction is vacated because of a double jeopardy violation, merely entering an
order vacating the conviction is insufficient. State v. Caril, 23 Wn. App. 2d 416, 435, 515 P.3d
1036 (2022), review denied, 200 Wn.2d 1025, cert. denied, 144 S. Ct. 125 (2023). The judgment
and sentence cannot have any references to the vacated conviction. Id.
Accordingly, we hold that any references to the vacated conviction must be removed
from the judgment and sentence.

No. 58004-7-II
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B. CRIME VICTIM PENALTY ASSESSMENT
Smith argues, and the State concedes, the $500 VPA should be stricken under the
recently amended RCW 7.68.035(4). 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,
530 P.3d 1048 (2023). Although this amendment took effect after Smith’s sentencing, it applies
to cases pending on appeal. Id.
The trial court found that Smith was indigent, but the court did not reference RCW
10.01.160(3). Nevertheless, the State does not object to striking the VPA. Accordingly, we
agree that the $500 VPA must be stricken from Smith’s judgment and sentence.
CONCLUSION
We remand for the trial court to remove all references to the vacated theft of a firearm
conviction from Smith’s judgment and sentence and to strike the VPA.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, P.J.
We concur:
PRICE, J.
CHE, J.