State Of Washington v. Peter Abarca ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
November 5, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51673-0-II
Respondent,
v.
PETER ABARCA, UNPUBLISHED OPINION
Appellant.
CRUSER, J. — Peter Abarca appeals his exceptional sentence and legal financial
obligations (LFOs) following his guilty plea convictions for unlawful delivery of
methamphetamine, unlawful possession of methamphetamine with intent to manufacture or
deliver, and unlawful possession of a controlled substance (heroin) with intent to manufacture or
deliver, each with the major violation of the Uniform Controlled Substances Act, ch. 69.50 RCW
(VUCSA), aggravating factor. RCW 9.94A.535(3)(e).1 We hold that (1) the trial court did not err
when it imposed the exceptional sentence, (2) Abarca was not deprived of effective assistance of
counsel by his attorney’s decision not to seek an exceptional sentence below the standard range
based on Abarca’s youth, (3) under the recently amended LFO statutes, the imposition of a criminal
filing fee and a nonrestitution interest provision is not authorized, (4) under the recently amended
1
The legislature amended RCW 9.94A.535 in 2019. LAWS OF 2019, ch. 219, § 1. The 2019
amendment is not relevant to this appeal. Accordingly, we cite to the current version of the statute.
No. 51673-0-II
LFO statutes, the trial court properly imposed a deoxyribonucleic acid (DNA) collection fee, and
(5) the community custody supervision assessment was properly imposed because it was not a cost
subject to the recent amendments.
Accordingly, we affirm the exceptional sentence and the imposition of the DNA collection
fee and community custody supervision assessment. But we remand to the trial court to strike the
nonrestitution interest provision effective June 7, 2018 and to reassess whether to impose the
remaining LFOs under the current law.2
FACTS
I. ARREST, CHARGES, AND GUILTY PLEA
Following a drug investigation by the West Sound Narcotic Enforcement Team (WestNET)
that culminated in a series of controlled buys, Abarca was arrested for his participation in two drug
sales that he and his girlfriend, Yenilen Guzman, had engaged in in Kitsap County. Law
enforcement confiscated at least 5.6 pounds of methamphetamine and .3 pounds of heroin during
the controlled buys and a subsequent search of Guzman’s vehicle.
The State charged Abarca by amended information with unlawful delivery of
methamphetamine (count I), unlawful possession of methamphetamine with intent to manufacture
or deliver (count II), and unlawful possession of a controlled substance (heroin) with intent to
2
The trial court may also reconsider whether to impose the community custody supervision
assessment in light of Abarca’s ability to pay.
2
No. 51673-0-II
manufacture or deliver (count III).3 Count I was based on a controlled drug sale in June 2017;
Abarca was 19 years old at the time of this offense. Counts II and III were based on the drug “buy
bust” operation that led to Guzman’s arrest in mid-July; Abarca was 20 years old at the time of
these offenses. Clerk’s Papers (CP) at 7. The State alleged that each offense was a major violation
of the VUCSA under RCW 9.94A.535(3)(e).
The certificate of probable cause supporting the charges stated,
During late June 2017, WestNET conducted a controlled buy from Yenilen
Guzman. . . . . With the use of a Police Operative, WestNET ordered
methamphetamine directly from [Guzman]. [Guzman] transported the narcotics
from the Los Angeles, CA area up to Kitsap County.
Special Agent [(SA)] Kilgallen was able to place video cameras in a hotel room in
south Kitsap County without the use of any audio, and the [operative] arranged for
the deal to happen there. The [operative] held constant communication with
[Guzman] and the deal occurred as planned.
[Guzman] arrived to the deal in a rental vehicle and carried a black bag with her,
containing the meth. The [operative] was previously searched as well as the hotel
room, and the [operative] was handed a large amount of pre-recorded funds. ($8K)
[Guzman] brought a male with her, who was later identified as Peter Abarca. . . .
During the exchange, both [Guzman] and [Abarca] handled the meth and [Guzman]
accepted the money and counted it right in the room. Everything was captured on
video.
[Kitsap County Sheriff’s Detective Sean Kirkwood] later processed the evidence
that weighed approximately 2 pounds with packaging and displayed (2) separate
positive NIK test results.
On 7/12/17, WestNET conducted a buy bust operation from [Guzman]. WestNET
ordered 7 pounds of meth and 4 ounces of heroin from [Guzman]. The [operative]
spoke directly to and texted [Guzman] to arrange the deal. On the day that
[Guzman] arrived, the [operative] called her number to confirm arrangements and
[Abarca] picked up [Guzman’s] phone to speak directly to the [operative] regarding
the details of the deal. I know this, because I was listening to the call with the
[operative] and heard [Abarca] speak directly.
3
The original charges were the same as the charges in the amended information except that count
III in the original information was for possession of methamphetamine with intent to manufacture
or deliver rather than heroin. The amended information also added accomplice liability allegations
to each charge.
3
No. 51673-0-II
When [Guzman] arrived to serve the drugs, [Guzman] informed the [operative] that
she saw an unmarked police car in the driveway of the prearranged deal location
which was the Days Inn located in south Kitsap County. [Guzman] and another
female drove out of the area where a marked vehicle made a traffic stop
approximately 1 mile up the road. [Guzman] and the female were subsequently
taken into custody without a problem.
[Kirkwood] transported [Guzman] to the Kitsap County jail and Detective
Manchester got a warrant to search the rental vehicle. During questioning,
[Kirkwood] began by reading [Guzman] Miranda[4] warnings that she stated she
understood. SA Kilgallen and [Kirkwood] were in an interview room with
[Guzman]. [Kirkwood] showed [Guzman] pictures of her and [Abarca] doing the
controlled buy and she admitted that it was them. [Guzman] admitted that [Abarca]
was the one talking to the [operative] to arrange the deal safely for her. During that
conversation, [Abarca] stated that he had a lot more “work” for the [operative] and
that he had (2) kilos of cocaine on him right then at that time.
[Guzman] admitted that during the search warrant, we would find (5) pounds of
meth and (5) ounces of heroin in the trunk of the rental vehicle and that she was
here to sell it to the [operative].
[Guzman] also admitted that she was up here a third time, that we had not yet
discussed with her.
The result of the buy bust search warrant, was as follows:
Approximately 5.6 pounds of meth with packaging
And approximately .3 pounds of heroin with packaging.
The meth was in 5 separate 1 pound bundles and the heroin was on [sic] 1 bundle.
Each of said bundles was test[ed] and all of which showed presumptive positive
NIK test results.
There is probable cause to charge [Guzman] and [Abarca] with the following:
VUCSA delivery of meth
VUCSA delivery of meth and heroin
The [operative] has also been told, that both [Guzman] and [Abarca] are planning
to flee to Mexico. Currently WestNET has active pings on [Guzman’s] phone from
a previously obtained warrant and she is in the Los Angeles area preparing to leave.
CP at 7-8.
Abarca pleaded guilty to the amended charges and to the aggravating circumstances
related to each charge. Rather than state in his own words what made him guilty of the crimes, he
agreed that the trial court could “review the police reports and/or statement of probable cause
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4
No. 51673-0-II
supplied by the prosecution to establish a factual basis for the plea.”5 Id. at 62. The amended plea
agreement6 specified that the aggravating circumstances for each offense were that the offenses
were major violations of the VUCSA under RCW 9.94A.535(3)(e), but it did not specify which of
six possible factual grounds were the basis of the aggravating circumstances. The trial court
accepted Abarca’s guilty plea.
II. SENTENCING
A. KIRKWOOD’S TESTIMONY AND ABARCA’S ALLOCUTION
During the sentencing hearing,7 the trial court heard testimony from Kirkwood.8
Kirkwood’s testimony was consistent with the facts in the certificate of probable cause, but he
provided more detail. Kirkwood had been investigating suspected drug dealer Robert Pacheco for
two years. Pacheco was dating Guzman in mid-2016 through mid-2017, and she was involved in
his drug dealing activities. After Guzman and Pacheco’s relationship ended, Guzman decided to
develop her own drug operation using the connections she had developed while working for
Pacheco. Guzman then became a “primary target” for WestNET. Verbatim Report of Proceedings
(VRP) (Feb. 26, 2018) at 15.
5
The police reports are not part of the record on appeal.
6
The amended plea agreement was corrected to reflect an accurate offender score and accurate
standard ranges for the charged offenses.
7
Abarca and Guzman were sentenced at the same sentencing hearing.
8
Abarca does not argue that the trial court erred in hearing this testimony or that it erred to the
extent it relied on this testimony to support the exceptional sentence.
5
No. 51673-0-II
The police operative subsequently engaged in two controlled buys with Guzman in June
2017. Guzman conducted the first sale in the company of a man who was not Abarca. The other
man purchased approximately 2.06 pounds of methamphetamine from Guzman and introduced the
operative to Guzman. Kirkwood testified that the drugs purchased at the first controlled buy were
packaged to avoid detection and that this type of packaging was rarely seen unless the sale involved
“a high-level, sophisticated drug dealer.” Id. at 18.
About two weeks later, the operative was able to purchase two more pounds of
methamphetamine from Guzman. Abarca, who was now in a relationship with Guzman,
accompanied Guzman to this sale. During this sale, Abarca unpackaged the methamphetamine so
the operative could inspect and weigh it. This methamphetamine was packaged the same way as
the previously purchased methamphetamine.
In July, Kirkwood attempted to conduct a “buy/bust” operation. Id. at 29. When Guzman
arrived at the designated location, she thought saw an unmarked police car nearby. Guzman called
the operative and told him about her concern. Either Guzman or the operative called Abarca, who
was in California, and Guzman, Abarca, and the operative spoke to each other in a three-way call.
During this call, Abarca told Guzman to drive away and “ditch” the drugs. Id. at 32.
Guzman drove away as directed, and law enforcement officers stopped her. The officers
found approximately 5 pounds of methamphetamine and .3 pounds (135 to 136 grams) of heroin
hidden inside the vehicle. After the officers interviewed her, Guzman agreed to work with law
enforcement and was allowed to return to California.
As to Abarca’s involvement in the last attempted sale, Kirkwood testified that Abarca
was in a relationship with Guzman and that he was trying to provide security for her, but he
6
No. 51673-0-II
remained in California because he was on probation and was wearing an “ankle bracelet.” Id. at
43. Kirkwood further noted that Abarca had also appeared to be negotiating the price with the
operative during the last attempted sale.
Abarca later called Kirkwood. Ultimately, Abarca refused to talk to Kirkwood about his
(Abarca’s) involvement in the drug sale, refused to help Kirkwood in his investigations, and told
Kirkwood that he and Guzman were going to Mexico. Abarca and Guzman were subsequently
arrested in California.
In addition to testifying about the offenses, Kirkwood testified that a typical drug sale at
this level in Kitsap County was about a quarter of a pound of methamphetamine and between one
and two ounces of heroin and that he had never before seen this much methamphetamine in a
“state-level case” in Kitsap County. Id. at 35. He also stated that the drugs were the best quality
drugs he had seen locally.
Kirkwood opined that the seized methamphetamine would yield approximately 4,400
“servings” and that the seized heroin would yield 1,350 to 1,360 “servings.” Id. at 38. He
estimated that the total street value for both drugs was approximately $196,000. Kirkwood further
testified that this was a sophisticated drug operation and that it posed a danger to the community.
After Kirkwood’s testimony, the trial court allowed Abarca’s mother and Abarca to speak
to the court. Abarca’s mother stated that Abarca was still a “kid,” that he “doesn’t think as a grown
man,” and that he was “easily influenced by older people.” Id. at 95. Abarca stated that he took
“full responsibility for [his] actions” and that he was “aware of what [he] was doing.” Id. at 98.
But he further stated that he thought that the State’s recommended 180-month sentence was unfair.
7
No. 51673-0-II
B. SENTENCING ARGUMENTS AND SENTENCING
The State argued for 120-month concurrent sentences for counts II and III to run
consecutively to a 60-month sentence for count I, for a total sentence of 180 months. The State
asserted that this sentence was similar to the sentence Abarca would have received if this had been
a federal offense. It also argued that these offenses were “significan[t]” offenses due to the
quantity of drugs and that this amount of drugs would have been damaging to the community. Id.
at 93. Additionally, the State commented that “Abarca’s youth just does not compensate for the
level of operation and the amount of drugs that he was dealing to our community.” Id. at 94.
Defense counsel conceded that the offenses involved large amounts of drugs and stated
that Abarca was willing to accept a sentence above the standard range.9 But defense counsel
argued for a sentence of 20 months for each offense to run consecutively for a total sentence of 60
months.
Defense counsel further argued that the State’s recommended 180-month sentence was
excessive because it was nine times the top of the standard range for each offense and the
equivalent to the sentence a defendant might receive if he or she was convicted of murder. Defense
counsel noted that Abarca had taken responsibility for his actions and that his involvement in the
offenses was minimal, distinguishing Abarca from Pacheco, whom counsel characterized as a
high-level drug dealer.
Although defense counsel stated that Abarca was not seeking a sentence below the
standard range, she argued that the trial court should still consider Abarca’s youth. Apparently
9
The standard sentencing range for each offense was “12+ to 20” months. CP at 80.
8
No. 51673-0-II
referencing State v. O’Dell, 183 Wash. 2d 680, 358 P.3d 359 (2015),10 counsel noted that courts now
recognize that the brains of young men Abarca’s age are still developing and that these young men
are “more susceptible to outside influences.” VRP (Feb. 26, 2018) at 101-02.
The trial court stated that this case was “extraordinary” and noted that the amount of
drugs at issue had the potential to damage the community. Id. at 117. The court also stated that
although Abarca was young and easily influenced, he had a complete understanding of what he
was doing when he committed these offenses and that he knew what he was doing was wrong.
The court commented that even though the amount of drugs may not have been considered large
in the grander scheme, Abarca and Guzman still brought “massive quantities of illegal substances”
into the area, so an exceptional sentence was appropriate. Id. at 121.
The trial court imposed 60-month exceptional sentences on each count and ran the
sentence for count I consecutive to counts II and III and counts II and III concurrently for a total
term of confinement of 120 months. The court stated that the sentence took into consideration
“whatever mitigating factors that may exist.” Id.
The trial court subsequently entered written findings of fact and conclusions of law for
the exceptional sentence. The court found that Abarca had pleaded guilty to the aggravating
circumstances of a major violation of the VUSCA as charged in each count and that based on the
certificate of probable cause, there was a factual basis for this plea. The court concluded that the
10
In O’Dell, our Supreme Court held that a defendant’s youthfulness can be a possible mitigating
factor justifying an exceptional sentence below the standard range when the defendant was over
18 years old at the time of the offense. 183 Wash. 2d at 696.
9
No. 51673-0-II
aggravating circumstances to which Abarca pleaded were “substantial and compelling reasons to
impose [the] exceptional sentence.” CP at 123.
Without any discussion of Abarca’s financial situation, the trial court imposed LFOs
including a criminal filing fee and a DNA collection fee and ordered that Abarca pay interest on
all LFOs. As part of Abarca’s community custody conditions, the court also required Abarca to
pay a “[Department of Corrections] monthly supervision assessment.” Id. at 85.
Abarca appeals his sentence.
DISCUSSION
Abarca challenges his exceptional sentence and argues that he was deprived of effective
assistance of counsel because his counsel did not request an exceptional sentence below the
standard range based on his youth. He also challenges the criminal filing fee, the nonrestitution
portion of the interest provision in the judgment and sentence, the DNA collection fee, and the
community custody supervision assessment, arguing that these LFOs are no longer statutorily
authorized.
I. EXCEPTIONAL SENTENCE
Abarca first contends that the trial court’s written findings supporting the exceptional
sentence do not provide any reasoning that justifies the exceptional sentence. He also argues that
the resulting exceptional sentence was clearly excessive. These arguments fail.
A. PRINCIPLES OF LAW
The trial court may impose a sentence outside the standard range if there are “substantial
and compelling reasons justifying an exceptional sentence” and the court sets forth the reasons for
its decision in written findings of fact and conclusions of law. RCW 9.94A.535. RCW
10
No. 51673-0-II
9.94A.535(3) allows the trial court to impose an exceptional sentence if specific aggravating
circumstances are stipulated to by the defendant. RCW 9.94A.537(3).
RCW 9.94A.535(3)(e) provides for the aggravating circumstance at issue here, a major
violation of the VUSCA. RCW 9.94A.535(3)(e) provides,
The current offense was a major violation of the [VUSCA], related to trafficking in
controlled substances, which was more onerous than the typical offense of its
statutory definition: The presence of ANY of the following may identify a current
offense as a major VUCSA:
(i) The current offense involved at least three separate transactions in which
controlled substances were sold, transferred, or possessed with intent to do so;
(ii) The current offense involved an attempted or actual sale or transfer of
controlled substances in quantities substantially larger than for personal use;
(iii) The current offense involved the manufacture of controlled substances
for use by other parties;
(iv) The circumstances of the current offense reveal the offender to have
occupied a high position in the drug distribution hierarchy;
(v) The current offense involved a high degree of sophistication or
planning, occurred over a lengthy period of time, or involved a broad geographic
area of disbursement; or
(vi) The offender used his or her position or status to facilitate the
commission of the current offense, including positions of trust, confidence or
fiduciary responsibility (e.g., pharmacist, physician, or other medical professional).
If any one of the six enumerated factual alternatives is present, an exceptional sentence is justified.
State v. Solberg, 122 Wash. 2d 688, 707, 861 P.2d 460 (1993).
We review an exceptional sentence under RCW 9.94A.585(4), which provides,
To reverse a sentence which is outside the standard sentence range, the reviewing
court must find: (a) Either that the reasons supplied by the sentencing court are not
supported by the record which was before the judge or that those reasons do not
justify a sentence outside the standard sentence range for that offense; or (b) that
the sentence imposed was clearly excessive or clearly too lenient.
RCW 9.94A.585(4)(a) includes both a factual and a legal component. State v. Stubbs, 170
Wash. 2d 117, 123, 240 P.3d 143 (2010). Generally, we review the factual component, whether the
trial court’s reasons are supported by the record, for sufficiency of the evidence. We review the
11
No. 51673-0-II
legal component of the sentence, whether these reasons justify the exceptional sentence, de novo.
Id. at 124. And we review whether an exceptional sentence is clearly excessive for abuse of
discretion. State v. Souther, 100 Wash. App. 701, 721, 998 P.2d 350 (2000).
B. ADEQUATE FACTUAL FINDINGS
Abarca contends that the trial court failed to make the required factual determination
because it did not specify in its written findings of fact which of the six enumerated factual grounds
in RCW 9.94A.535(3)(e) it relied on. We disagree.
RCW 9.94A.537(3) allows the facts justifying an exceptional sentence to be determined in
any one of three ways: proven to a jury beyond a reasonable doubt, found by the court beyond a
reasonable doubt if jury is waived, or stipulation to the aggravating facts. Here, Abarca pleaded
guilty to the aggravating factor, and this plea is the equivalent of a stipulation to the aggravating
factor. In re Pers. Restraint of Reise, 146 Wash. App. 772, 782, 192 P.3d 949 (2008) (“a defendant
who pleads guilty admits factual and legal guilt for the charged crime”). Given the plea, the trial
court was not required to enter additional findings of fact supporting the aggravating factors.
Furthermore, although Abarca is correct that the trial court did not make findings regarding
which of the six alternative factual grounds listed in RCW 9.94A.535(3)(e) it was relying on,
Abarca fails to cite authority requiring the trial court make a factual finding as to the exact ground
supporting the aggravating factor when the defendant has pleaded guilty to the aggravating factor.
None of the cases he cites in his argument address whether written findings specifying the facts
establishing the aggravating factor are required when the trial court imposes an exceptional
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No. 51673-0-II
sentence based on a plea to the aggravating factor.11 Accordingly, Abarca fails to establish that
the trial court was required to make findings establishing which of the six factual grounds
established the major violation aggravating factor and this argument fails.
C. ADEQUATE LEGAL JUSTIFICATION
Abarca further argues that the trial court’s written findings do not “justify the exceptional
sentence” because the findings “do not describe how the aggravating circumstances were
‘substantial and compelling’ or how the aggravator justified an exceptional sentence.” Opening
Br. of Appellant at 13. This argument relates to the legal component of the sentence—whether the
reasons justify the exceptional sentence. Thus, our review of this issue is de novo. Stubbs, 170
Wash. 2d at 124.
RCW 9.94A.535 provides that “[t]he court may impose a sentence outside the standard
range for an offense if it finds, considering the purpose of this chapter, that there are substantial
and compelling reasons justifying an exceptional sentence.” Abarca’s plea to the aggravating
factor necessarily admitted that his offenses were major violations of the VUSCA. Under RCW
9.94A.535(3)(e), an offense is a major violation of the VUSCA when the offense is “more onerous
than the typical offense of its statutory definition.” The fact the offenses for which Abarca was
convicted were by definition “more onerous than the typical offense,” provides an ample basis for
the trial court to conclude that there was a substantial and compelling reason to distinguish this
11
See State v. Friedlund, 182 Wash. 2d 388, 390-92, 341 P.3d 280 (2015); State v. Pappas, 176
Wash. 2d 188, 190-91, 289 P.3d 634 (2012); Stubbs, 170 Wash. 2d at 122; Solberg, 122 Wash. 2d at 702-
05; State v. France, 176 Wash. App. 463, 469, 308 P.3d 812 (2013); State v. Hrycenko, 85 Wash. App.
543, 546, 933 P.2d 435 (1997), abrogated in part on other grounds by State v. Gonzales Flores,
164 Wash. 2d 1, 186 P.3d 1038 (2008).
13
No. 51673-0-II
offense from others in the same category. RCW 9.94A.535(3)(e). Accordingly, this argument
fails.
D. LENGTH OF SENTENCE
Abarca next argues that the 120-month sentence, which was six times the 20-month high-
end standard range sentence for each offense, was excessive given Abarca’s age at the time of the
offenses, his limited role as an accomplice in each offense, and his secondary role in the alleged
drug operation. We disagree.
The trial court has broad discretion to determine the appropriate length of an exceptional
sentence when substantial and compelling reasons are present. State v. Knutz, 161 Wash. App. 395,
410, 253 P.3d 437 (2011). And we have “considerable latitude” when assessing whether a sentence
is clearly excessive. State v. Halsey, 140 Wash. App. 313, 325, 165 P.3d 409 (2007).
A sentence is clearly excessive if (1) it is “clearly unreasonable,” i.e., was based on
untenable grounds or untenable reasons or (2) it was based on proper reasons, but its length
“‘shocks the conscience’” in light of the record. Knutz, 161 Wash. App. at 410-11 (internal quotation
marks omitted) (quoting State v. Kolesnik, 146 Wash. App. 790, 805, 192 P.3d 937 (2008)). A
sentence “shocks the conscience” if no reasonable person would have adopted it. Id. at 411.
Abarca does not argue that the sentence was based on untenable grounds or untenable reasons, so
we address only whether the length of the sentence “shocks the conscience.” Id.
The trial court imposed 60-month sentences on each offense, so the sentence for each
offense was three times the top of the 20-month standard range for the offenses. It then ran count
I consecutive to the concurrent sentences on counts II and III, resulting in a 120-month sentence.
The 120-month a sentence is six times the length of the top of the standard range for each individual
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No. 51673-0-II
offense. Although Abarca contends that the 120-month sentence is excessive in light of the nature
of Abarca’s involvement in the drug sales and other factors, he does not argue that this sentence
“shocks the conscience” in light of this record. And given that the amount of methamphetamine
involved in these offenses was the most Detective Kirkwood had ever seen in a “state-level case”
and the drugs would yield a total of more than 5,700 “servings,” with potentially damaging
consequences to the community, we cannot conclude that the 120-month sentence “shocks the
conscience.” VRP (Feb. 26, 2018) at 35, 38.
Given that the trial court has “‘all but unbridled discretion in setting the length of the
sentence,’” we conclude that the trial court’s exceptional sentence does not “‘shock the
conscience,’” especially in light of the egregious nature of the case. Knutz, 161 Wash. App. at 411
(internal quotation marks omitted) (quoting Halsey, 140 Wash. App. at 325). Accordingly, this
argument fails, and we affirm the exceptional sentence.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Abarca next argues that he was deprived of effective assistance of counsel when defense
counsel elected not to argue for an exceptional sentence downward under O’Dell. Again, we
disagree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee effective assistance of counsel. State v. Grier, 171 Wash. 2d 17,
32, 246 P.3d 1260 (2011) (citing Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)). To establish ineffective assistance of counsel, Abarca must show, based
on the record on appeal, that (1) defense counsel’s conduct was deficient and (2) the deficient
15
No. 51673-0-II
performance resulted in prejudice. Id. at 32-33. Abarca fails to establish deficient performance or
prejudice.
A. REASONABLE TACTICAL DECISION
Defense counsel’s “performance is deficient if it falls ‘below an objective standard of
reasonableness.’” Id. at 33 (quoting Strickland, 466 U.S. at 688). “[A] defendant alleging
ineffective assistance must overcome ‘a strong presumption that counsel’s performance was
reasonable.’” Id. (quoting State v. Kyllo, 166 Wash. 2d 856, 862, 215 P.3d 177 (2009)). If counsel’s
actions “‘can be characterized as legitimate trial strategy or tactics, performance is not deficient.’”
Id. (quoting Kyllo, 166 Wn.2d at 862). “Conversely, a criminal defendant can rebut the
presumption of reasonable performance by demonstrating that ‘there is no conceivable legitimate
tactic explaining counsel’s performance.’” Id. (quoting State v. Reichenbach, 153 Wash. 2d 126,
130, 101 P.3d 80 (2004)); see also In re Pers. Restraint of Lui, 188 Wash. 2d 525, 539, 397 P.3d 90
(2017).
Here, deciding to not seek an exceptional sentence downward was a reasonable tactical
decision because Abarca stipulated to an aggravating factor. In light of Abarca’s stipulation,
arguing for an exceptional sentence downward based on his youth would have been entirely
inconsistent with Abarca’s stipulation to the aggravating factor and could have been viewed as
unreasonable. By not seeking an exceptional sentence downward and instead arguing for an
aggravated sentence closer to the standard range based on Abarca’s youth, defense counsel was
pursuing a more reasonable argument that the trial court was more likely to consider and preserving
her and Abarca’s credibility. Because this tactic was reasonable, Abarca does not establish
deficient performance.
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No. 51673-0-II
B. NO PREJUDICE
Furthermore, even presuming that defense counsel’s performance was deficient, her choice
not to argue for an exceptional sentence downward would not have been prejudicial.
“To satisfy the prejudice prong of the Strickland test, [Abarca] must establish that ‘there is
a reasonable probability that, but for counsel’s deficient performance, the outcome of the
proceedings would have been different.’” Grier, 171 Wash. 2d at 34 (quoting Kyllo, 166 Wash. 2d at
862). Here, although defense counsel did not argue for a sentence below the standard range based
on Abarca’s youth, she successfully argued for a sentence substantially lower than the State’s
recommended sentence based, at least in part, on Abarca’s youth. The trial court was well aware
of Abarca’s youth, yet it still imposed an exceptional sentence above the standard range. Given
that the trial court imposed a sentence above the standard range despite knowing of the mitigating
factor of Abarca’s youth, there is no reasonable probability that the trial court would have imposed
a sentence below the standard range had defense counsel argued for such a sentence. Thus, even
presuming that defense counsel should have argued for an exceptional sentence downward, Abarca
fails to establish that defense counsel’s failure to argue for a sentence below the standard range
was prejudicial. Accordingly, Abarca’s ineffective assistance of counsel claim fails.
III. LFOs
Abarca next argues that under the recent changes to the LFO statutes and State v. Ramirez,
191 Wash. 2d 732, 426 P.3d 714 (2018), we should strike the criminal filing fee, the nonrestitution
interest on LFOs provision, the DNA collection fee, and the community custody supervision
assessment. He also contends that the trial court did not make an adequate, individualized inquiry
into his ability to pay before imposing any discretionary costs as required under RCW 10.01.160.
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The State concedes that the criminal filing fee, the interest provision, and the community
custody supervision assessment should be stricken. But it argues that the trial court properly
imposed the DNA collection fee because Abarca has never had his DNA collected in this state.
We affirm the imposition of the DNA collection fee and the community custody
supervision assessment, but we remand to the trial court to strike the interest provision on
nonrestitution LFOs and to reassess whether to impose the remaining costs under the current law
and after fully evaluating Abarca’s ability to pay. On remand, the trial court may also reconsider
whether to impose the discretionary community custody supervision assessment.
A. CRIMINAL FILING FEE
The trial court imposed a filing fee. RCW 36.18.020(2)(h) now provides that the trial court
cannot impose the filing fee if the defendant is indigent as defined in RCW 10.101.010(3)(a)
through (c). This version of the statute applies to Abarca. Ramirez, 191 Wash. 2d at 747.
Although the superior court found Abarca indigent, the record does not show that it found
him indigent under RCW 10.101.010(3)(a) through (c) rather than subsection (d). Accordingly,
remand to the superior court to determine whether Abarca is indigent under RCW 10.101.010(3)(a)
through (c) is required.
B. NONRESTITUTION INTEREST PROVISION
The sentencing court also imposed interest on the nonrestitution LFOs from the date of
judgment, February 26, 2018. But RCW 10.82.090(1) now provides that as of June 7, 2018, “no
interest shall accrue on non-restitution [LFOs].” Again, the amended version of RCW
10.82.090(1) applies to Abarca. Ramirez, 191 Wash. 2d at 747. Because the statute now prohibits
interest on nonrestitution LFOs “[a]s of June 7, 2018,” the interest provision in the judgment and
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sentence, to the extent it applies to nonrestitution LFOs after June 7, 2018, must be struck. RCW
10.82.090(1).
C. DNA COLLECTION FEE
Abarca further argues that under the recently amended statutes, the trial court could not
impose the DNA collection fee because he previously had DNA collected in California following
his convictions in that state. We disagree.
RCW 43.43.7541 now provides that “[e]very sentence imposed for a crime specified in
RCW 43.43.754[12] must include a fee of one hundred dollars unless the state has previously
collected the offender’s DNA as a result of a prior conviction.” (Emphasis added.) The plain
language of RCW 43.43.7541 requires that to waive the DNA collection fee, “the state” must have
previously collected the offender’s DNA; it does not provide that the DNA fee can be waived if
another state has previously collected the offender’s DNA. Because Abarca has never had his
DNA collected in this state, the trial court did not err when it imposed the DNA collection fee.
D. COMMUNITY CUSTODY SUPERVISION ASSESSMENT
As part of his supervision schedule, the trial court ordered Abarca to “[p]ay [a Department
of Corrections (DOC)] monthly supervision assessment.” CP at 85. Abarca argues that this
requirement was a discretionary “cost” imposed under RCW 9.94A.703(2)(d)13 and that he is not
required to pay this discretionary “cost” under RCW 10.01.160(3) because he is indigent and
because the trial court did not make an adequate inquiry into his ability to pay. Although the
12
RCW 43.43.754(1) requires a DNA sample if the offender has been convicted of a felony.
13
The legislature amended RCW 9.94A.703 in 2018. LAWS OF 2018, ch. 201, § 9004. Because
this amendment did not change the subsection at issue here, we cite to the current version of the
statute.
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waivable community custody supervision assessment is discretionary, it is not a cost. Thus, RCW
10.01.160(3) does not apply, and the trial court is not required to inquire into Abarca’s ability to
pay before imposing the supervision assessment.
RCW 10.01.160(3) now provides that the trial court shall not order a defendant to pay costs
if a defendant is indigent as defined in RCW 10.101.010(3)(a) through (c). Similarly, RCW
9.94A.760(1) now provides that the trial court cannot order “costs” as described in RCW 10.01.160
if the defendant is indigent as defined in RCW 10.101.010(3)(a) through (c). RCW 10.01.160(2)
defines “costs” as follows: “Costs shall be limited to expenses specially incurred by the state in
prosecuting the defendant or in administering the deferred prosecution program under chapter
10.05 RCW or pretrial supervision.”
The community custody supervision assessment was imposed under RCW
9.94A.703(2)(d), which states, “Unless waived by the court, as part of any term of community
custody, the court shall order an offender to . . . [p]ay supervision fees as determined by the DOC.”
The community custody supervision assessment is a discretionary LFO. State v. Lundstrom, 6
Wash. App. 2d 388, 396 n.3, 429 P.3d 1116 (2018), review denied, 193 Wash. 2d 1007 (2019). But the
fact that the community custody supervision assessment is a discretionary LFO does not make the
assessment a “cost” within the meaning of RCW 10.01.160(3). A community custody supervision
assessment clearly does not meet the definition of a cost under RCW 10.01.160(2) because it is
not an expense specially incurred by the State to prosecute the defendant, to administer a deferred
prosecution program, or to administer pretrial supervision. Because the community custody
supervision assessment is not a cost, the trial court was not required to conduct an inquiry into
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Abarca’s ability to pay under RCW 10.01.160(2). See State v. Clark, 191 Wash. App. 369, 374-75,
362 P.3d 309 (2015) (distinguishing fines from costs).
Accordingly, we decline to accept the State’s concession as to the community custody
supervision assessment. But since we are remanding for reconsideration of other LFOs in light of
Abarca’s financial status, we do not restrict the trial court from reconsidering the imposition of
this discretionary assessment as well.
As Division Three of this court noted in Clark, there are strong policy arguments that favor
the consideration of the defendant’s ability to pay discretionary LFOs even when such
consideration is not required. Id. at 376. In addressing whether the trial court had to consider the
defendant’s ability to pay a fine that was not a “cost” within the meaning of RCW 10.01.160(2),
the court stated,
[W]e strongly urge trial judges to consider the defendant’s ability to pay before
imposing fines. The barriers that LFOs impose on an offender’s reintegration to
society are well documented in Blazina and should not be imposed lightly merely
because the legislature has not dictated that judges conduct the same inquiry
required for discretionary costs.
Clark, 191 Wash. App. at 376. We agree that this important policy should be broadly supported.
Thus, on remand, although the trial court is not required to reevaluate imposing the community
custody supervision assessment in light of Abarca’s ability to pay, the trial court is encouraged to
do so.
CONCLUSION
We affirm Abarca’s exceptional sentence, the DNA collection fee, and the community
custody supervision fee. But we remand to the trial court to strike the nonrestitution interest
provision effective June 7, 2018 and to reassess whether to impose the remaining costs under the
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current law. In addition, the trial court can reconsider whether to impose the community custody
supervision assessment based on Abarca’s ability to pay.
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.
CRUSER, J.
We concur:
WORSWICK, J.
LEE, A.C.J.
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