        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                            No. 80636-0-I

                               Respondent,       DIVISION ONE

                  v.                             UNPUBLISHED OPINION

 VIRGINIA BETH SHOFNER,

                                  Appellant.     FILED: January 21, 2020


       CHUN, J.    —   Virginia Shofner pleaded guilty to felony driving under the

influence (DUI), driving while license suspended (DWLS), and driving without an

ignition interlock. The trial court sentenced Shofner to 24 months in prison,

rejecting her request for an exceptional downward sentence on the basis of her

struggles with bipolar disorder.

       On appeal, Shofner argues the trial court failed to exercise its sentencing

discretion, insofar as it did not consider her history of mental health issues.

Thus, she argues we should remand for resentencing. Shofner also argues the

trial court improperly imposed a $200 criminal filing fee and a $100 DNA

collection fee, because she is an indigent defendant. We affirm Shofner’s

sentence but remand to the trial court to strike the criminal filing fee and DNA

collection fee.
No. 80636-0-112


                                 I. BACKGROUND

       Shofner pleaded guilty to felony DUI, DWLS, and driving without an

ignition interlock.

       At sentencing, Shofner’s parents spoke about her struggles with bipolar

disorder and her use of alcohol as a form of self-medication. Shofner’s chemical

dependency counselor also spoke at sentencing, requesting the trial court give

Shofner an opportunity to enter treatment.

       Shofner’s felony DUI conviction had a standard range of 22—29 months.

At sentencing, the State requested a 29-month sentence. Shofner requested a

24-month sentence based on a claimed prior agreement with the State and, in

the alternative, an exceptional downward sentence based on diminished

culpability arising from her mental health issues. The trial court imposed a

24-month sentence for the felony DUI count with 12 months of community

custody, and 364 days for the DWLS and driving without an ignition interlock

counts, to run concurrently.

                                   II. ANALYSIS

   A. Resentencing

       Shofner argues she is entitled to resentencing because the trial court

abused its discretion by failing to consider her mental health as a possible

mitigating factor and reason for an exceptional downward sentence. The State

argues the trial court did not refuse to consider such circumstance as a possible

mitigating factor. We agree with the State.




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       A trial court may impose an exceptional downward sentence if it finds, by

a preponderance of the evidence, that “[t]he defendant’s capacity to appreciate

the wrongfulness of [their] conduct, or to conform [their] conduct to the

requirements of the law, was significantly impaired,” except in instances of

voluntary use of drugs or alcohol. RCW 9.94A.535(1)(e). When a trial court

denies a defendant’s request for an exceptional downward sentence, our “review

is limited to 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. Garcia—Martinez, 88 Wn. App.

322, 330, 944 P.2d 1104 (1997). A trial court that has considered the facts and

concluded that no basis exists to impose a sentence outside the standard range

has exercised its discretion. Garcia—Martinez, 88 Wn. App. at 330. A “failure to

exercise discretion is itself an abuse of discretion subject to reversal.” State v.

O’Dell, 183 Wn.2d 680, 697, 358 P.3d 359 (2015).

       Here, the record reflects the court’s awareness that Shofner suffered from

mental illness. At sentencing, the trial court allowed Shofner’s parents to discuss

her struggles with bipolar disorder. Shofner’s chemical dependency counselor

also spoke, saying that Shofner’s mental health issues need to be addressed,

and that she believed Shofner genuinely wanted help with her mental health

issues. The court also accepted information establishing Shofner’s bipolar

diagnosis.




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          The trial court then considered these facts, stated that it did not “question

[Shofner’sJ mental health issue,” and referred to her diagnosis as “legitimate.”

The trial court also noted its respect for the opinion of Shofner’s chemical

dependency counselor, stating that the counselor has “a sixth sense about

knowing who’s serious and who’s not[,] and who’s got potential and who doesn’t.”

However, the trial court concluded that it did not view Shofner’s “mental health

issue as a legally sufficient basis for an exceptional [downward] sentence.” By

considering these facts, the trial court exercised its discretion; thus, the trial court

did not abuse its discretion.

       B. Legal Financial Obligations

          Shofner argues that we must strike the $200 criminal filing fee and $100

DNA collection fee because Shofner is an indigent defendant with prior

convictions. The State concedes this point and we agree.

          Under State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018),

discretionary costs may not be imposed on indigent defendants. The $200

criminal filing fee is discretionary. Ramirez, 191 Wn.2d at 748. The $100 DNA

collection fee cannot be imposed on a defendant if the State has previously

collected their DNA as the result of a prior conviction. RCW 43.43.7541.

          Shofner is an indigent defendant with prior convictions. Thus, we remand

to the trial court to strike the $200 criminal filing fee and the $100 DNA collection

fee.




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       Sentence affirmed, with remand to strike the criminal filing fee and DNA

collection fee.




                                                               /
WE CONCUR:




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