State of Washington v. Jason Dean Flett (Majority)
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FILED SEPTEMBER 20, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, v. JASON D. FLETT, Appellant. ) ) ) ) ) ) ) ) ) No. 38452-7-III UNPUBLISHED OPINION SIDDOWAY, C.J. — Jason Flett is presently serving the sentence imposed for his 2014 conviction of a first degree murder committed in 2012. At his original sentencing, Mr. Flett’s offender score was determined to be 7, which included two convictions for simple possession of a controlled substance. After former RCW 69.50.4013(1) (2017) was held to be unconstitutional in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), Mr. Flett moved the trial court for resentencing. At resentencing, the court explained to Mr. Flett that because the murder conviction for which he was being resentenced remained valid, the only change the court was going to make was an arithmetic reduction to account for the corrected offender score’s impact on the standard range. It reduced his term of confinement from 588 months to 526 months based on a corrected offender score of 5. No. 38452-7-III State v. Flett Consistent with the court’s position that it was not otherwise modifying the judgment and sentence, it made a handwritten notation—“previously imposed”—on the sections of the amended judgment and sentence dealing with terms of community custody and legal financial obligations (LFOs). Clerk’s Papers (CP) at 51-52. In Mr. Flett’s original judgment and sentence, both sections had been completed. The section dealing with terms of community custody had originally been completed to identify six conditions that applied. The LFO section was originally completed to identify $6,550 in total LFOs, consisting of a $500 victim assessment fee, $200 in court costs, a $100 DNA (deoxyribonucleic acid) collection fee, and $5,750 in restitution. As can be seen by the sections of the amended judgment and sentence dealing with community custody and LFOs, which we include in an appendix, the court left those provisions of the judgment and sentence form uncompleted apart from its “previously imposed” notation. Mr. Flett timely appealed, an order of indigency was entered by the trial court, and Mr. Flett was appointed counsel for the appeal. ANALYSIS The only error assigned on appeal is that in resentencing Mr. Flett, the trial court imposed a “repeat” DNA fee “after having previously collected DNA” and “after previously collecting a DNA fee.” Appellant’s Opening Br. at 1-2. Mr. Flett argues that this is prohibited by RCW 43.43.7541, which provides in relevant part: 2 No. 38452-7-III State v. Flett Every sentence imposed for a crime specified in RCW 43.43.754 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. The collection of offender DNA from felons has been required by Washington statutes since 2002. See LAWS OF 2002, ch. 289, §§ 2, 4. Mr. Flett has prior felonies. Nevertheless, as the State points out, the record on appeal is silent on whether the State has in fact previously collected Mr. Flett’s DNA, or the DNA fee, as a result of a prior conviction. Contrary to Mr. Flett’s contention, the amended judgment and sentence does not impose a “repeat” DNA fee. It includes what the State characterizes as “autofilled” entries for the DNA and victim assessment fees in the LFO section. Br. of Resp’t at 1. There is no entry of any “total” liability for LFOs on the amended judgment and sentence. Reasonably read, it incorporates, rather than reproducing, the community custody terms and LFOs earlier imposed. While there were other ways to complete the amended judgment and sentence (including ways that could be more helpful to the Department of Corrections (DOC)1) no risk of Mr. Flett being double-charged is shown. Just as the amended judgment and sentence would not be read as imposing an additional 526 months’ confinement on top of 1 Knowing that resentencing courts will work from a proposed judgment and sentence submitted by the prosecutor, we propose that the State, in the future, work from a photocopy of the original judgment and sentence, making redactions or additions as needed. That way, DOC will need to refer only to the amended judgment and sentence itself, without the need to look back to the original judgment and sentence. 3 No. 38452-7-III State v. Flett the 588 months’ confinement previously imposed, it would not be read as imposing a second $100 DNA fee for the first degree murder committed by Mr. Flett in 2012. The result of the resentencing was an “amended” judgment and sentence, not a supplemental one. Affirmed. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Siddoway, C.J. WE CONCUR: Fearing, J. Lawrence-Berrey, J. 4 No. 38452-7-III State v. Flett APPENDIX (Relevant provisions of amended felony judgment and sentence) No. 38452-7-III State v. Flett Appendix 6 No. 38452-7-III State v. Flett Appendix CP at 51-53. 7
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