* State Of Washington, Respondent V. James Dean Schultz, Appellant

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JAMES DEAN SCHULTZ,
Appellant.
No. 84570-5-I
(consolidated with
No. 84972-7-I)
DIVISION ONE
PUBLISHED OPINION
HAZELRIGG, A.C.J. — James Schultz was convicted of murder in the second
degree and the trial court imposed a standard range sentence of 220 months and
ordered him to pay restitution. On appeal, he argues the judge did not meaningfully
consider his intellectual disability as a mitigating factor for an exceptional sentence
below his standard range, presents a number of challenges to the award of
restitution, and assigns error to the imposition of certain legal financial obligations
(LFOs) based on his indigency. 	We affirm the sentence and matters relating to
restitution, but remand for the trial court to strike the LFOs and consider the
statutory factors regarding imposition of interest on the award of restitution.
FACTS
On June 18, 2020, Schultz and a group of other people, including Nicholas
Germer, gathered at a bonfire near the Cedar River in unincorporated King County.
Schultz and Germer did not know each other. Germer and another individual got
into an argument about current events. A tattooed man in a white T-shirt, red hat,
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/2
- 2 -
and light-colored pants with paint on them, later identified as Schultz, approached
the discussion and punched Germer in the face. 	Germer then hit Schultz in the
head with a vodka bottle, causing him to fall over an embankment. Schultz went
to his truck in the parking area while two other individuals attempted to calm
Germer down. Schultz’s companion who had arrived at the bonfire with him saw
blood on Schultz’s head and attempted to get Schultz into the truck, but Schultz
said he was going to “get that guy.” 	His companion urged him “not to go back
there” but Schultz pushed him into the bushes and returned to the bonfire,
concealing a handgun behind his back. When he reached Germer, Schultz pulled
the gun from behind his back and shot Germer at least three times in the chest,
abdomen, and leg. 	At approximately 11:39 p.m., one of the individuals who had
been at the bonfire called 911 and reported that someone had been shot.
Four deputies from the King County Sheriff’s Office (KCSO) responded to
the scene. They discovered Germer below the firepit and partially in the river. One
deputy pulled Germer out of the water, observed a gunshot wound to the chest,
and began performing CPR1 while waiting for emergency medical aid to arrive.
The deputies were able to identify Germer using a fingerprint scanner. 	Germer
was transported by ambulance to the hospital where he later died during surgery
as a result of his injuries.
Deputies surveyed the scene by the river and located four shell casings on
the trail by the firepit, a hat at the bottom of the embankment, and broken branches
and shrubbery in the area. 	They also discovered alcohol bottles, including a
1 Cardiopulmonary resuscitation.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/3
- 3 -
broken vodka bottle. Two detectives from the KCSO major crimes unit arrived on
scene and collected additional evidence, including blood drops, saliva, footprints,
bottles, cigarette butts, and the victim’s cell phone and clothing. 	Through a
discussion with Germer’s friend, the detectives were able to locate and speak with
several individuals who had observed the incident. 	Several of these witnesses
identified Schultz with varying degrees of certainty through photo montages.
Schultz turned himself in to the precinct, where he was advised of his Miranda2
rights before participating in a recorded interview with police that lasted over four
hours. In the statement Schultz provided to police, he denied that he had been hit
with a bottle, possessed a gun, or shot anyone. Schultz claimed that he had been
drinking and fell down the embankment. On June 29, 2020, Schultz was charged
with murder in the first degree with a firearm enhancement.
The parties reached a plea agreement on April 26, 2022, wherein Schultz
would plead guilty to a reduced charge of murder in the second degree, a class A
felony, with the firearm enhancement and the State would recommend a sentence
of 280 months in prison, including a mandatory consecutive term of 60 months for
the firearm enhancement pursuant to RCW 9.94A.533. 	However, the plea
agreement expressly noted that there was no agreement as to the length of
incarceration; the State sought a high-end sentence and the defense requested an
exceptional sentence below Schultz’s standard sentencing range. 	The terms of
the plea negotiations also included an agreement to a no contact order with
Germer’s family and other individuals, community custody, and restitution, and
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/4
- 4 -
stipulated to the facts set out in the probable cause affidavit for purposes of the
plea and sentencing. Schultz entered his guilty plea on May 5 and, in his statement
of defendant on plea of guilty, recanted his earlier statements to police disclaiming
involvement in any shooting and declared that he “intentionally, and without
premeditation, caused the death of Nicholas Germer, a human being, by shooting
him with a firearm.”
Schultz filed a sentencing memorandum that requested an exceptional
mitigated sentence of 78 months, below his standard range of 123-220 months,
based on his offender score of zero. He argued that the court should consider that
he has permanent brain damage as a result of a neurodevelopmental disorder
associated with prenatal alcohol exposure (ND-PAE), a type of fetal alcohol
spectrum disorder, that Germer was the initial aggressor of the incident by striking
him with a bottle, and that he has no history of felony convictions or violence. To
support the first factor, he presented expert testimony by Dr. Megan Carter, a
forensic psychologist, and a report by Dr. Natalie Novick Brown, a clinical
psychologist. 	Novick Brown conducted interviews with Schultz and his family,
gathered a chronology of Schultz’s academic, medical, and criminal history, and
executed 	several 	standardized 	psychological 	tests. 	Although 	the 	testing
demonstrated that Schultz’s IQ3 “ruled out” an intellectual disability, his scores
were low in other areas that were also evaluated. 	Novick Brown’s report stated
that Schultz “functions within the intellectually disabled range in unstructured
environments where he must think independently in order to problem solve—a
3 Intelligence quotient.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/5
- 5 -
finding that has direct implications for his alleged conduct in the instant offense.”
She diagnosed Schultz with ND-PAE and opined that the condition “directly
influenced his alleged offense conduct.”
At the sentencing hearing on September 16, 2022, Carter concurred with
Novick Brown’s diagnosis and testified that the ND-PAE would have impacted
Schultz’s behavior regardless of his alcohol consumption, but agreed that alcohol
may have contributed to the actions as well. Carter stated that Schultz’s diagnosis
could impact memory, an inability to understand the future impacts of statements
made to the police, and the display of emotionally inappropriate behavior. 	The
State countered this evidence with testimony from KCSO Sergeant James Belford,
the lead detective on the case. 	Belford stated that, based on his training and
experience, Schultz had exhibited behavior designed to evade responsibility for
his conduct. Belford also said that, during the four-hour recorded interview, he did
not have any difficulty communicating with Schultz and that he was not concerned
that Schultz had any difficulty tracking the information they were discussing.
After expressly considering the purpose of the Sentencing Reform Act of
1981 (SRA),4 the testimony presented, the written materials of the parties,
including the expert reports, and oral argument, the trial court imposed a high-end
sentence of 280 months. In setting out the reasoning for the sentence, the judge
noted that Schultz had left the scene of the initial altercation with Germer to retrieve
the gun from his truck and that he disregarded his companion’s attempts to stop
him. 	Although the judgment and sentence (J&S) indicated that restitution would
4 Ch. 9.94A RCW.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/6
- 6 -
be determined at a future hearing, the judge ordered Schultz to pay the $100 DNA5
collection fee and $500 victim penalty assessment (VPA) as was required by
statute at the time.6
On November 2, 2022, the State submitted documentation in support of its
request for restitution. The evidence included documentation of the bereavement
leave and paid time off (PTO) that each of Germer’s parents used following their
son’s death; 10 days of missed work for Germer’s mother between June 19 and
July 2, 2020, and 9 days of missed work for his father between June 22 and July
6, 2020. 	The State sought an award of restitution in the amount of $1,784.72 to
Germer’s mother and $2,334.08 to his father based on the reported loss. 	It also
sought $45.00 to reimburse Germer’s sister for counseling and $6,375.87 for
repayment to the crime victims’ compensation fund for Germer’s funeral expenses.
The total amount of restitution requested by the State was $10,539.67. 	On
December 19, 2022, Schultz filed a response and argued that he was entitled to a
jury trial to determine the amount of restitution under the Sixth Amendment to the
United States Constitution and that the portion of the award that the State was
requesting for Germer’s parent’s PTO constituted an excessive fine in violation of
the Eighth Amendment to the United States Constitution and article I, § 14 of the
Washington Constitution.
A restitution hearing was held on January 31, 2023. After considering oral
argument from both parties, the trial court awarded the full amount of restitution
sought by the State. It concluded that case law did not provide the right to a jury
5 Deoxyribonucleic acid.
6 Former RCW 43.43.7541 (2018); former RCW 7.68.035 (2018).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/7
- 7 -
trial for a determination of restitution and that the amount of the award did not
constitute 	an 	excessive 	fine. 	The 	court 	also 	expressly 	stated 	that 	it 	had
“considered the factors that the Ramos[7] case . . . directs [it] to consider, including
the nature and extent of the crime, the violation itself, the extent of the harm
caused, other penalties that may be imposed for this crime, and [] Schultz’s ability
to pay or inability to pay” and that the restitution request was reasonable in light of
those factors.
Schultz timely appealed.
ANALYSIS
Schultz raises multiple challenges relating to his J&S. 	As a threshold
matter, the SRA states that “a sentence within the standard sentence range . . . for
an offense shall not be appealed.” 	RCW 9.94A.585(1). 	When the trial court
imposes a standard range sentence over a party’s request for an exceptional
sentence, review is only permissible in “‘circumstances where the court has
refused to exercise discretion at all or has relied on an impermissible basis for
refusing to impose an exceptional sentence below the standard range.’” State v.
McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017) (internal quotation marks
omitted) (quoting State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002). 	If
reviewable, 	this 	court will 	only find 	that the 	trial 	court erred 	if 	it 	“‘refuses
categorically to impose an exceptional sentence below the standard range under
any circumstances’ or when it operates under the ‘mistaken belief that it did not
7 State v. Ramos, 24 Wn. App. 2d 204, 520 P.3d 65 (2022), review denied, 200 Wn.2d
1033 (2023).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/8
- 8 -
have the discretion to impose a mitigated exceptional sentence for which a
defendant may have been eligible.’” Id. (quoting State v. Garcia-Martinez, 88 Wn.
App. 322, 330, 944 P.2d 1104 (1997); In re Pers. Restraint of Mulholland, 161
Wn.2d 322, 333, 166 P.3d 677 (2007)).
We 	conduct 	our 	review 	under 	the 	exceptions 	to 	the 	SRA’s 	general
prohibition on appeals of the imposition of a standard range sentence.
I. 	Consideration of Mitigation Information at Sentencing
Schultz first challenges his standard range sentence and argues that the
trial court erred when it failed to meaningfully consider how his intellectual disability
reduced 	his 	capacity 	to 	conform 	his 	conduct 	to 	the 	law 	under 	RCW
9.94A.535(1)(e). 	RCW 9.94A.535 permits a court to “impose a sentence outside
the standard sentence range for an offense if it finds . . . that there are substantial
and compelling reasons justifying an exceptional sentence.” The statute provides
several illustrative examples of mitigating factors, including that the “defendant’s
capacity to appreciate the wrongfulness of [their] conduct, or to conform [their]
conduct to the requirements of the law was significantly impaired.” 	RCW
9.94A.535(1)(e). 	Again, because the trial court entered a sentence within the
standard range, this court’s review of the sentencing decision is limited to
circumstances where the trial court has refused to exercise discretion at all or used
an impermissible basis for refusing to impose an exceptional sentence. 	Garcia-
Martinez, 88 Wn. App. at 330 (emphasis added).
As a preliminary matter, the record establishes that the trial court may have
reasonably found that Schultz does not actually have an intellectual disability. His
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/9
- 9 -
mitigation expert, Novick Brown, explicitly acknowledged in her report that,
because Schultz’s IQ was 80, “intellectual disability is [] ruled out.” Carter likewise
testified that although Schultz’s IQ “is a little bit below average, it’s not considered
intellectually disabled.” 	Although Novick Brown also explained that Schultz
behaved “within the intellectually disabled range” in certain situations, the court
may not have been convinced that her assessment and diagnoses presented a
condition that would be considered an intellectual disability to the extent that the
request for an exceptional downward departure on that basis was sufficiently
supported. Schultz does not present any evidence that ND-PAE, particularly when
paired with an IQ score above the standard indicative of intellectual disability, is
widely accepted by the medical or psychiatric community as an intellectual
disability.
More critically, even accepting Novick Brown’s diagnosis of ND-PAE and
assuming the condition to be an intellectual disability, there is no legal precedent
requiring the trial court to deviate from the standard sentencing range on that basis.
Both our federal and state constitutions forbid the imposition of cruel and unusual
punishment. U.S. CONST. amend. VIII; W ASH. CONST. art. 1 § 14. These provisions
stem from the premise that punishment for a crime should be proportionate to both
the offender and the offense. 	Miller v. Alabama, 567 U.S. 460, 469, 132 S. Ct.
2455, 183 L. Ed. 2d 407 (2012). The concept of proportionality is viewed according
to “‘the evolving standards of decency that mark the progress of a maturing
society.’” Id. 469-70 (internal quotation marks omitted) (quoting Estelle v. Gamble,
429 U.S. 97, 102, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)). Courts have used these
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/10
- 10 -
principles to place limitations on sentencing in criminal cases. 	See id. at 465
(courts may not impose mandatory life imprisonment without parole on juvenile
defendants); Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed.
2d 1 (2005) (courts may not levy capital punishment on offenders under 18 at time
of crime); Kennedy v. Louisiana, 554 U.S. 407, 413, 128 S. Ct. 2641, 171 L. Ed.
2d 525 (2008) (death penalty may not be ordered for nonhomicide crimes);
Graham v. Florida, 560 U.S. 48, 62, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)
(courts may not give life sentence without possibility of parole for juveniles
convicted of nonhomicide offenses). Particularly relevant to this appeal, Atkins v.
Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) prohibited capital
punishment for defendants with intellectual disabilities. However, to date, there is
no federal or Washington authority that prohibits courts from imposing standard
range sentences where intellectual disability has been presented as a mitigating
factor.
Even so, there is evidence in the record that the trial court here did consider
Schultz’s diagnosis of ND-PAE. 	Unlike the heightened requirements for the
consideration of mitigating factors of youth, the trial court here was not required to
follow a particular metric of “meaningful” consideration or provide a precise
evaluation of each factor on the record. 	As the trial court imposed a standard
range sentence, there need only be evidence in the record establishing that it
exercised any amount of discretion at all. Garcia-Martinez, 88 Wn. App. at 330.
After hearing the testimony of Schultz’s expert witness and reading the reports that
were provided, the trial court judge stated:
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/11
- 11 -
I spent time this week preparing for the sentencing today, including
considering the written materials that were provided to me. Without
limitation, those include the expert opinions that were provided,
letters from family members, a letter from the defendant himself. I’ve
also considered and have been taking notes in regard to the
testimony given today and the arguments and statements made
today. I’ve also considered the purposes and rationale of the [SRA].
Looking at the record as a whole, particularly these statements, the trial court
clearly considered the mitigating evidence that Schultz provided. He does not offer
authority that requires a sentencing court to do anything more. 	Accordingly,
Schultz’s argument on this issue fails.
II. 	Challenges To Restitution
An award of restitution in a criminal case is authorized by the SRA. RCW
9.94A.750, .753. 	Schultz assigns error to both the ultimate determination on
restitution and the process by which it was reached. 	He asserts the trial court
violated his constitutional right to have a jury determine restitution, that there was
not a sufficient causal connection between his criminal conduct and the amount
awarded, and that the award of restitution was unconstitutionally excessive. Each
of Schultz’s arguments on restitution fail.
A. 	No Constitutional Right to Jury Trial on Restitution
Schultz next asserts that the trial court erred when it denied his motion for
a jury determination of restitution under both the federal and state constitutions. A
party arguing that a provision of the state constitution offers greater protection than
a similar provision in the federal constitution must first provide an analysis under
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/12
- 12 -
State v. Gunwall8 or we only review the federal provision. 	See State v. Ladson,
138 Wn.2d 343, 347-48, 979 P.2d 833 (1999). Because Schultz does not appear
to argue greater protection under our state constitution or engage in a Gunwall
analysis to demonstrate how it might provide greater protection than the Sixth
Amendment, 	our 	evaluation 	of 	his 	challenge 	is 	constrained 	to 	the 	federal
constitution. The Sixth Amendment guarantees the accused the right to a jury trial.
U.S. CONST. amend. VI. The role of the jury “is to determine whether the State has
proved the charged offenses beyond a reasonable doubt.” 	State v. Emery, 174
Wn.2d 741, 760, 278 P.3d 653 (2012). Although current case law necessitates a
jury 	determination 	for 	increases 	in 	prison 	sentences 	beyond 	the 	statutory
maximum, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L.
Ed. 2d 425 (2000), and certain criminal fines, Southern Union Co. v. United States,
567 U.S. 343, 360, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), there is no existing
right to, or precedent supporting a jury determination on restitution.
Schultz primarily relies on Apprendi and Southern Union to support his
argument that this court should expand the protections of the Sixth Amendment to
include a requirement for a jury determination of restitution. 	Apprendi held that
any fact that increases imprisonment “for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. at 490. 	Twelve years later, Southern Union applied the principles of
Apprendi to the imposition of certain criminal penalties and ruled that there is no
8 106 Wn.2d 54, 720 P.2d 808 (1986).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/13
- 13 -
basis for treating criminal fines differently than imprisonment so long as the fine is
substantial enough to trigger the right to a jury trial. Id. at 349-50, 352.
Schultz argues that the reasoning from Apprendi and Southern Union
extends to restitution which, like imprisonment or criminal fines, is an aspect of
punishment 	imposed upon 	conviction. 	However, 	our 	state 	Supreme 	Court
expressly ruled in State v. Kinneman that, under United States Supreme Court
precedent, there is no federal constitutional right to a jury determination of
restitution. 	155 Wn.2d 272, 281-82, 119 P.3d 350 (2005). 	In Kinneman, our
Supreme Court explained:
[W]hile restitution is punishment, it does not require jury fact-finding
under the post-Blakely[9] decision in United States v. Booker, 543
U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). In Booker, the
Court held that provisions making the Federal Sentencing Guidelines
mandatory and setting forth the standard of review on appeal were
unconstitutional because they violated the Sixth Amendment right to
a 	jury 	trial. 	The 	Court 	severed 	these 	provisions, 	leaving 	the
Guidelines as effectively advisory. The Sixth Amendment was then
not implicated because statutes that do not impose mandatory,
binding requirements on sentencing judges do not implicate the right
to a jury trial. 	Booker, 543 U.S. at 233 (Stevens, J.) (“when a trial
judge exercises [their] discretion to select a specific sentence within
a defined range, the defendant has no right to a jury determination
of the facts that the judge deems relevant.”); id. at 257 (Breyer, J.).
Washington’s restitution statutes are more like the advisory
Federal Sentencing Guidelines after Booker than the mandatory
sentencing guidelines found to violate the Sixth Amendment in
Blakely. 	RCW 	9.94A.753(5) provides that “restitution shall be
ordered whenever the offender is convicted of an offense which
results in injury to any person or damage to or loss of property . . .
unless extraordinary circumstances exist which make restitution
inappropriate in the court’s judgment.” . . .
While the restitution statute directs that restitution “shall” be
ordered, 	it 	does 	not 	say 	that 	the 	restitution 	ordered 	must 	be
equivalent to the injury, damage or loss, either as a minimum or a
maximum, nor does it contain a set maximum that applies to
restitution. 	Instead, RCW 9.94A.753 allows the judge considerable
9 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/14
- 14 -
discretion in determining restitution, which ranges from none (in
some extraordinary circumstances) up to double the offender’s gain
or the victim’s loss. . . .
Given the broad discretion accorded the trial judge by the
statute, the lack of any set maximum, and the deferential abuse of
discretion review standard, the restitution statute provides a scheme
that is more like indeterminate sentencing not subject to Sixth
Amendment 	jury 	determinations 	than 	the 	SRA’s 	determinate
sentencing scheme at issue in Blakely. . . .
There is no right to a jury trial to determine facts on which
restitution is based under RCW 9.94A.753.
Id. (emphasis added) (third alteration in original).
Southern Union did not overrule or otherwise abrogate Booker or our state
precedent in Kinneman, and there is no other case law binding this court to
Schultz’s requested interpretation that Apprendi applies to restitution. 	Recent
unpublished opinions of this court have plainly and consistently followed Kinneman
and denied the exact challenge Schultz now presents.10 	See, e.g., State v.
Youngkeun Lee, No. 72828-8-I, slip op. at 7 (Wash. Ct. App. Jan. 19, 2016)
(unpublished) (“Although Lee rejects the Kinneman court’s reasoning, Kinneman is
still good law in Washington.”), https://www.courts.wa.gov/opinions/pdf/728288.pdf;
State v. Carde, No. 73324-9-I, slip op. at 15 (Wash. Ct. App. Jan. 30, 2017)
(unpublished) (explaining Washington Supreme Court held there is no right to jury trial to
determine facts on restitution), https://www.courts.wa.gov/opinions/pdf/733249.pdf;
State v. Beasley, No. 75002-0-I, slip op. at 10 (Wash. Ct. App. Aug. 7, 2017)
(unpublished) 	(“We 	adhere 	to 	the 	Washington 	Supreme 	Court 	decision 	in
Kinneman and hold there is no right to a jury trial to determine the facts establishing
10 Pursuant to GR 14.1(c), we may cite to unpublished opinions as “necessary for a
reasoned decision.” We provide them here only to demonstrate the scope of the judicial recognition
of Kinneman as controlling authority.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/15
- 15 -
the amount of restitution.”), https://www.courts.wa.gov/opinions/pdf/750020.pdf;
State v. Kao Cho Saephanh, No. 75844-6-I, slip op. at 9 (Wash. Ct. App. Jan. 22,
2018) (unpublished) (holding Southern Union does not implicate restitution and
Kinneman is binding), https://www.courts.wa.gov/opinions/pdf/758446.pdf. Nearly
two decades ago, our state’s highest court thoughtfully and explicitly considered
the precise challenge presented here, analyzing it within the framework of federal
case law, and rejected it. 	As an intermediate appellate court bound to follow the
controlling 	precedent 	of 	the Washington 	State 	Supreme 	Court, 	we 	decline
Schultz’s invitation to expand the holdings in Apprendi and Southern Union.
B. 	Causal Connection and Award of Restitution
Schultz next contends that the trial court erred in awarding restitution to
Germer’s parents because the State did not demonstrate that the use of their PTO
was connected to an injury as required by law.11 Restitution is governed by statute.
State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007). 	Absent a finding of
extraordinary circumstances, the SRA anticipates an order of restitution when a
defendant “is convicted of an offense which results in injury to any person or
damage to or loss of property.” 	RCW 9.94A.753(5). 	Restitution includes “easily
ascertainable damages for injury to or loss of property, actual expenses incurred
for treatment for injury to persons, and lost wages resulting from injury.” 	RCW
9.94A.753(3)(a). 	It does not include “reimbursement for damages for mental
11 Schultz also avers, as a threshold matter, that PTO is not the equivalent of lost wages
because Germer’s parents were paid by their employers for their time off of work. We reject this
initial argument as this court has already determined that PTO constitutes property under the
restitution statute. State v. Long, 21 Wn. App. 2d 238, 243, 505 P.3d 550, review denied, 200
Wn.2d 1004 (2022).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/16
- 16 -
anguish, pain and suffering, and other intangible losses.” 	Id. 	Restitution is only
permitted for losses that are “causally connected” to the crime, which is established
if the loss would not have occurred but for the criminal act. 	Tobin, 161 Wn.2d at
524 (quoting Kinneman, 155 Wn.2d at 286).
If a defendant disputes the amount of restitution requested by the State, the
court must hold a hearing to determine the amount to be awarded. 	RCW
9.94A.753(1). 	The State must prove the amount requested by a preponderance
of the evidence. State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008). As
the legislature intended restitution to be a financial consequence of the defendant’s
criminal conduct, the trial court is granted broad powers to determine the award.
Tobin, 161 Wn.2d at 524. 	“So long as the court [] imposed a type of restitution
authorized by statute, we will reverse its award only if it abused its discretion.”
State v. Thomas, 138 Wn. App. 78, 81, 155 P.3d 998 (2007). While acknowledging
our courts have recognized that emotional distress may result in the tangible lost
wages restitution is designed to reimburse, Schultz asserts that the State did not
demonstrate the required causal connection between the emotional distress
experienced by Germer’s parents and their use of PTO. However, he waived this
assignment of error as he expressly conceded a causal connection in both his
briefing and argument to the trial court. At the restitution hearing, Schultz admitted
that “there is certainly a nexus between, you know, their loss and grief and inability
to work.”
Even if Schultz had not so conceded, all the trial court was required to find
in order to award the amount of restitution requested by the State was that the
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/17
- 17 -
expenses for which reimbursement was sought were causally connected to the
crime. 	Tobin, 161 Wn.2d at 524. 	Germer’s parents testified to the emotional
distress they experienced as a result of their son’s murder and presented
accompanying documentation of their resulting use of PTO. 	Schultz’s challenge
on this issue fails.
C. 	Purely Compensatory Restitution
Schultz argues that the Eighth Amendment and art. I, § 14 prohibit the trial
court from awarding the full $10,539.67 in restitution without consideration of his
inability to pay. In the trial court, he only raised this challenge as to the portion of
restitution ordered payable to Germer’s parents. As Schultz does not allege that
a manifest constitutional error occurred regarding restitution for the crime victims’
compensation fund or Germer’s sister’s counseling, we evaluate this challenge
exclusively in the context of the restitution he was ordered to pay for Germer’s
parent’s use of PTO.
The provisions of both our federal and state constitutions prohibit the
imposition of “excessive fines.” U.S. CONST. amend. VIII; W ASH. CONST. art. I, § 14.
The United States Supreme Court has held that excessive fines should be viewed
under a standard of proportionality and that a punitive fine violates the Eighth
Amendment if it is “grossly disproportional to the gravity of the offense.” 	United
States v. Bajakajian, 524 U.S. 321, 324, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998).
Generally, “we view article I, section 14 and the Eighth Amendment as coextensive
for the purposes of excessive fines.” City of Seattle v. Long, 198 Wn.2d 136, 159,
493 P.3d 94 (2021).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/18
- 18 -
To determine whether the amount of restitution is excessive in violation of
the Eighth Amendment, the reviewing court must first ascertain whether the
financial assessment constitutes “punishment.” 	State v. Ramos, 24 Wn. App. 2d
204, 215, 520 P.3d 65 (2022), review denied, 200 Wn.2d 1033 (2023). 	For
example, in Ramos, the court concluded that the penalty was partially punitive
based on the particular facts of that restitution award. 	Id. at 226. 	If a financial
penalty is found to be punitive, and therefore a “fine,” “[t]he second question is
whether the sanction is grossly disproportional to the offense.” 	Id. at 215.
Separately, Washington law provides that trial courts may consider a defendant’s
ability to pay when determining the minimum monthly payment ordered in an award
of restitution, but expressly “may not reduce the total amount of restitution ordered
because the offender may lack the ability to pay the total amount.” 	RCW
9.94A.753(1), (4) (emphasis added).
The restitution that Schultz was ordered to pay to Germer’s parents directly
compensated them for their use of PTO following the death of their son due to
Schultz’s conduct. 	Again, Schultz conceded the causal connection between
Germer’s murder and his parents’ use of bereavement leave. 	Germer’s parents
provided documentation of those losses and restitution was awarded in that exact
amount. 	This portion of the restitution award was therefore compensatory, not a
fine subject to an excessive fines analysis, and we need not reach the second step
of the Ramos inquiry.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/19
- 19 -
III. 	Legal Financial Obligations
Finally, Schultz asserts that, because he is indigent, recent legislative
changes require this court to strike the LFOs, specifically the $500 VPA and the
$100 DNA fee. He further asks that the trial court be directed to consider striking
the interest on the restitution award. The trial court found that Schultz was indigent
and the RAPs presume continued indigency throughout appellate review. State v.
Sinclair, 192 Wn. App. 380, 393, 367 P.3d 612 (2016), RAP 15.2(f) (“The appellate
court will give a party the benefits of an order of indigency throughout the review
unless the trial court finds the party’s financial condition has improved.”).
A. 	VPA and DNA Collection Fee
The 	Washington 	Legislature 	eliminated 	the 	DNA 	collection 	fee 	for
defendants who have been found indigent as of July 1, 2023, after Schultz was
sentenced. 	RCW 	43.43.7541(2). 	On 	that 	same 	date, 	another 	legislative
amendment became effective that prohibited the imposition of the VPA if the
defendant is indigent. RCW 7.68.035(5).
Although the revisions occurred after Schultz was sentenced, our state
Supreme Court held in State v. Ramirez that amendments of this kind apply
prospectively to cases pending direct review. 191 Wn.2d 732, 747, 426 P.3d 714
(2018). 	The court considered the applicability of other legislative revisions
concerning the court’s ability to impose costs on a criminal defendant who is
indigent at the time of sentencing and concluded that, because the defendant’s
case was on appeal as a matter of right, the case was not final pursuant to RAP
12.7 and he was entitled to the benefit of the changes. Id. at 749. The statutory
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/20
- 20 -
changes in this case, RCW 43.43.7541(2) and RCW 7.68.035(5), also pertain to
the imposition of costs on a criminal defendant found indigent at the time of
sentencing and, by the reasoning in Ramirez, Schultz is entitled to the benefit of
the amendments as his case is pending appeal.
The 	State 	does 	not 	agree 	that 	these 	LFOs 	are 	costs 	under 	RCW
10.01.160(3) and, on that basis, argues that Ramirez does not control. However,
this court has consistently held that the VPA and DNA fees are captured within
these statutory amendments and indigent defendants are entitled to relief if their
appeal is pending. See, e.g., State v. Phillips, 6 Wn. App. 2d 651, 677, 431 P.3d
1056 (2018); State v. Wemhoff, 24 Wn. App. 2d 198, 201, 519 P.3d 297 (2022);
Ellis, 27 Wn. App. 2d at 16. 	We see no reason to deviate from this court’s
consistent practice of remand for the trial court to amend the J&S to comply with
the statutory amendments.
B. 	Interest on Restitution
In a related assignment of error, Schultz seeks relief from the court’s
imposition of interest on the award of restitution. Effective January 1, 2023, after
Schultz’s sentencing hearing, RCW 10.82.090 was revised to include the following
language:
The court may elect not to impose interest on any restitution
the court orders. Before determining not to impose interest on
restitution, the court shall inquire into and consider the following
factors: 	(a) 	Whether 	the 	offender 	is 	indigent 	as 	defined 	in
RCW 10.01.160(3) or general rule 34; (b) the offender’s available
funds, 	as 	defined 	in 	RCW 10.101.010(2), 	and 	other 	liabilities
including child support and other legal financial obligations; (c)
whether the offender is homeless; and (d) whether the offender is
mentally ill, as defined in RCW 71.24.025. The court shall also
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84570-5-I/21
- 21 -
consider the victim’s input, if any, as it relates to any financial
hardship caused to the victim if interest is not imposed. The court
may also consider any other information that the court believes, in
the interest of justice, relates to not imposing interest on restitution.
After 	consideration 	of 	these 	factors, 	the 	court 	may 	waive 	the
imposition of restitution interest.
RCW 10.82.090(2).
Schultz argues that because his case is still pending appeal he is entitled
to benefit from changes in the law. 	This court agreed with Schultz’s position in
State v. Reed and held “restitution interest is analogous to costs for purposes of
applying the rule that new statutory mandates apply in cases, like this one, that are
on direct appeal.” 	28 Wn. App. 2d 779, 782, 538 P.3d 946 (2023). As Schultz’s
case is on direct appeal, he is entitled to remand for the trial court to consider
whether to impose interest on restitution in light of the statutory factors and its prior
finding of indigency.
Affirmed in part, reversed in part, and remanded.
WE CONCUR:
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.