                                                                          FILED
                                                                       AUGUST 20, 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. 36331-7-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
BRENDA RUTH THORNTON,                         )
                                              )
                     Appellant.               )

       SIDDOWAY, J. — A Klickitat County jury convicted Brenda Ruth Thornton of two

counts of felony bail jumping. At sentencing, Ms. Thornton did not acknowledge her

prior criminal history, and the State did not present evidence of that history for purposes

of calculating “wash out.” Because Ms. Thornton’s offender score was neither

acknowledged, nor proved, we remand to make that determination.

                                          FACTS

       At the time of sentencing in this case, Ms. Thornton’s criminal history consisted of

six prior felony convictions. Most of these convictions were for class C felonies. The

most recent felony conviction occurred on June 15, 2007. Ms. Thornton’s current

offenses occurred on or about July 7, 2014, and May 18, 2015.
No. 36331-7-III
State v. Thornton


       At sentencing, the State alleged Ms. Thornton’s criminal history did not

“wash out” despite more than five years without a felony conviction because she spent

one day in jail on March 21, 2014, on a felony probation violation. The State also alleged

that she had not spent five years crime free in the community, based on a March 31, 2011

misdemeanor conviction, which would have interrupted her five year “wash out” period.

       Ms. Thornton’s counsel did not stipulate to the offender score, but neither did her

counsel make an argument to the contrary. In fact, Ms. Thornton’s counsel argued for a

prison-based drug offender sentencing alternative using the same sentencing range

calculated by the State.

       In addressing the mandatory legal financial obligations, the State agreed that Ms.

Thornton was indigent. However, the State requested the court impose the $100 DNA1

collection fee because “we weren’t sure . . . whether or not DNA had been collected.”

Verbatim Report of Proceedings at 131. Neither Ms. Thornton nor her attorney made any

statements concerning the appropriateness of imposing the DNA collection fee.

       Following sentencing, Ms. Thornton timely appealed to this court.




       1
           Deoxyribonucleic acid.

                                             2
No. 36331-7-III
State v. Thornton


                                        ANALYSIS

       On appeal, Ms. Thornton raises two issues. The first issue is whether remand is

appropriate to recalculate Ms. Thornton’s offender score. The second is whether the trial

court erred in imposing the $100 DNA collection fee.

       “A court’s calculation of an offender score is reviewed de novo.” State v. Larkins,

147 Wn. App. 858, 862, 199 P.3d 441 (2008). Although Ms. Thornton did not challenge

her offender score calculation below, case law permits her to raise the issue for the first

time on appeal. State v. Rowland, 97 Wn. App. 301, 304, 983 P.2d 696 (1999).

       Ms. Thornton argues remand is appropriate because this court’s recent ruling in

State v. Schwartz applies to her offender score. 6 Wn. App. 2d 151, 429 P.3d 1080

(2018).2 In Schwartz, we held that time spent in custody on a probation violation for

failure to pay costs does not interrupt the “wash out” period for felonies.3 Because

Schwartz had not been published at the time of Ms. Thornton’s sentencing, and because

her case was not final at the time of its publication, she argues that she should have the

opportunity to be sentenced in accordance with that opinion.

       The State acknowledges that the felony probation violation at issue here was for

failure to pay and is thus controlled by Schwartz. But, the State also notes that Schwartz


       2
         We note that Schwartz is currently under review by the Washington State
Supreme Court. 192 Wn.2d 1023, 435 P.3d 287 (2019).
       3
         Normally, time spent in custody on a felony probation violation would reset the
felony “wash out” period. State v. Smith, 65 Wn. App. 887, 892, 830 P.2d 379 (1992).

                                              3
No. 36331-7-III
State v. Thornton


and the probation violation are not necessary for calculating Ms. Thornton’s offender

score because her offender score remains the same due to her March 31, 2011

misdemeanor conviction. Because Ms. Thornton did not acknowledge this misdemeanor

criminal history and because the State did not prove it at sentencing, remand is still

appropriate to determine Ms. Thornton’s offender score. Upon remand, both parties

shall have the opportunity to present evidence of Ms. Thornton’s criminal history.

RCW 9.94A.530(2); State v. Jones, 182 Wn.2d 1, 10-11, 338 P.3d 278 (2014).

       With respect to the DNA collection fee, Ms. Thornton refers this court to State v.

Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018) and asks us to strike the fee. In light of

the fact that this case must be remanded for resentencing, we do not address whether the

DNA fee should be re-imposed upon resentencing other than to direct the parties to State

v. Thibodeaux, 6 Wn. App. 2d 223, 230, 430 P.3d 700 (2018), review denied, 192 Wn.2d

1029 (2019).

       We also note that this appeal, and subsequent resentencing, could have been

avoided had the State asked Ms. Thornton to acknowledge her in-state history or

provided the sentencing court with the certified criminal history that it says it provided to

defense counsel as a part of discovery. State v. Cross, 156 Wn. App. 568, 586-87, 234

P.3d 288 (2010) (“We hold that for purposes of applying the Sentencing Reform Act of

1981’s (SRA), ch. 9.94A RCW, wash-out provisions, a DISCIS [District Court

Information System] printout, which is a document generated using the Judicial

                                              4
No. 36331-7-III
State v. Thornton


Information System (JIS), satisfies the State's burden of proving prior misdemeanor

convictions by a preponderance of the evidence.").

                                     CONCLUSION

      The case is remanded to superior court for resentencing in accordance with this

opinion.

      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, J.

WE CONCUR:




Lawrence-Berrey, C.J.
                        41     C.. ~.           Pennell, J.




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