                                                               FILED
                                                           DECEMBER 24, 2019
                                                        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,                            )         No. 36340-6-III
                                                )
                      Respondent,               )
                                                )
              v.                                )         UNPUBLISHED OPINION
                                                )
ELIAS FRANCISCO VARGAS,                         )
                                                )
                      Appellant.                )

       LAWRENCE-BERREY, C.J. — Elias Vargas appeals his sentence after his conviction

for second degree assault, two counts of felony harassment, and witness tampering. He

argues the trial court erred in calculating his offender score and also erred in not

sufficiently inquiring into his current and likely future ability to pay discretionary legal

financial obligations (LFOs). The State correctly concedes several issues. We reverse

Vargas’s sentence and remand for resentencing.

                                           FACTS

       The facts supporting the charges are unnecessary in our review of the issues

presented. By the time of trial, Vargas faced charges of second degree assault, two counts

of felony harassment, and one count of witness tampering. The State alleged a domestic
No. 36340-6-III
State v. Vargas


violence component for all charges except the second felony harassment count. A jury

found Vargas guilty on all counts and returned a special verdict supporting the domestic

violence component on the three counts where it was alleged.

       At sentencing, the trial court considered Vargas’s criminal history. The judgment

and sentence includes a 2008 conviction for first degree assault and that Vargas had

committed the current offenses while on community placement or custody. Vargas did

not object to his criminal history.1 The trial court calculated Vargas’s offender score as

follows: count I—8, count II—7, count III—5, and count IV—7.

       After asking Vargas a few questions, the trial court also imposed several LFOs,

including a $200 criminal filing fee, a $100 DNA2 collection fee, and $400 toward

recoupment of court-appointed attorney fees.

       Vargas timely appealed to this court.

                                        ANALYSIS

       MISCALCULATED OFFENDER SCORE

       Vargas argues the court miscalculated his offender score. The State concedes the

offender score was miscalculated, but disagrees with Vargas’s calculation.


       A defendant’s failure to object to his criminal history is treated as an
       1

acknowledgment of its correctness. RCW 9.94A.530(2).
       2
           Deoxyribonucleic acid.

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State v. Vargas


       This court reviews offender score calculations de novo. State v. Hernandez, 185

Wn. App. 680, 684, 342 P.3d 820 (2015). A trial court abuses its statutory authority when

it imposes a sentence based on a miscalculated offender score. State v. Rowland, 97 Wn.

App. 301, 304, 983 P.2d 696 (1999). A miscalculated offender score is a sentencing error

that may be raised for the first time on appeal. Id.

       RCW 9.94A.525(1) states:

       A prior conviction is a conviction which exists before the date of sentencing
       for the offense for which the offender score is being computed.
       Convictions entered or sentenced on the same date as the conviction for
       which the offender score is being computed shall be deemed “other current
       offenses” within the meaning of RCW 9.94A.589.

       According to Vargas’s judgment and sentence, his only prior conviction was first

degree assault, with a conviction date of September 15, 2008. Vargas’s current

conviction of second degree assault is a violent offense, while the other three convictions

are nonviolent.

       RCW 9.94A.589(1)(a) provides in part:

       [W]henever a person is to be sentenced for two or more current offenses,
       the sentence range for each current offense shall be determined by using all
       other current and prior convictions as if they were prior convictions for the
       purpose of the offender score . . . .

       Thus, the “other current offenses” count as prior convictions when calculating

Vargas’s score for each conviction.

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State v. Vargas


                 Count I:

       Count I is assault in the second degree, with a special allegation

of domestic violence. To calculate the offender score, one follows the directive of

RCW 9.94A.525(21)(a)-(d): (1) 2 points for a prior serious violent felony, (2) 2 points for

one current offense of domestic violence harassment because that crime is included in

RCW 9.94A.525(21)(a), (3) 1 point each for the other two nonviolent felony

convictions. In addition, 1 point for committing the offense while on community custody.

RCW 9.94A.525(19). Vargas’s offender score for count I is 7.

                 Count II:

       Count II is felony harassment with a special allegation of domestic violence.

Harassment is not a violent offense. As a result, Vargas’s prior conviction for first degree

assault counts for 1 point. See RCW 9.94A.525(7). Other than that distinction, this

domestic violence offense is scored the same as count I. Vargas’s offender score for

Count II is 6.

                 Count III:

       Count III is a nondomestic violence charge of felony harassment. The offense is

scored according to RCW 9.94A.525(7)—1 point for each current offense and 1 point for

each prior adult felony conviction. Vargas’s offender score for count III is 5.


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State v. Vargas


              Count IV:

       Count IV is tampering with a witness with a special allegation of domestic

violence. This is scored almost the same way as count II, a nonviolent domestic

offense. The difference is that domestic violence harassment is included in

RCW 9.94A.525(21)(a), which allows for 2 points, while tampering with a witness is only

counted as 1 point. Vargas’s offender score for count IV is 5.

       LFOS

       Vargas contends the trial court did not conduct an individualized inquiry into his

ability to pay before imposing discretionary LFOs. We agree.

       In State v. Blazina, 182 Wn.2d 827, 839, 344 P.3d 680 (2015), the Supreme Court

held that former RCW 10.01.160(3) (2015) requires a court to conduct an individualized

inquiry on the record concerning a defendant’s current and likely future ability to pay

before imposing discretionary LFOs. As part of the inquiry, the trial court must consider

“important factors,” such as incarceration and the defendant’s other debts, when

determining a defendant’s ability to pay. Blazina, 182 Wn.2d at 839. Courts must also

consider GR 34, which lists the ways a person may prove indigent status for the purpose

of seeking a waiver of filing fees and surcharges. Id. “[I]f someone does meet the GR 34




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State v. Vargas


standard for indigency, courts should seriously question that person's ability to pay

LFOs." Id.

       Here, the trial court asked Vargas about his work history. Vargas responded that

he had worked as a shipping supervisor and had been a certified firefighter for the

Department of Natural Resources for several years. Vargas also said he could pay $50

per month once released. This was insufficient under Blazina. The information gleaned

does not establish that Vargas could currently pay discretionary LFOs. Nor does it

establish what other debts he had, or his ability, once released, to work and pay his other

debts and discretionary LFOs. On remand, we direct the trial court to conduct a sufficient

Blazina inquiry prior to imposing discretionary LFOs.

      Reversed and remanded for resentencing.

      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.




WE CONCUR:




                                          Fearing, J.

                                             6
