                                                               FILED 

                                                           OCTOBER 27, 2015 

                                                        In the Office of the Clerk of Court 

                                                      W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )         No. 32457-5-III
                    Respondent,              )
                                             )
      v.                                     )
                                             )
DEVONN DESHEA KINSEY,                        )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      FEARING, J.     Devonn Kinsey appeals two facets of his judgment and sentence on

a conviction for felony harassment. First, he argues the trial court erred when declaring

his offender score to be nine plus. Second, he contends the trial court erred when levying

discretionary legal financial obligations (LFOs) without assessing his ability to pay. We

affirm Kinsey's sentence, but, based on State v. Blazina, 182 Wn.2d 827, 344 P.3d 680

(2015) we vacate his discretionary LFOs.

                                         FACTS

      Devonn Kinsey's conviction arises from an altercation with a police officer.

Pasco Police Officer David Herrera responded to a reported shooting at the Sage n Sun
No. 32457-5-111
State v. Kinsey


Motel in Pasco. After arriving near the motel, Officer Herrera saw a black BMW with

three occupants depart the Sage n Sun parking lot without signaling. Herrera stopped the

BMW. One ofthe passengers, Devonn Kinsey, argued with Herrera and other

responding officers. Officer Herrera discovered that Kinsey had an outstanding

Department of Corrections warrant and arrested him. When David Herrera and Devonn

Kinsey disembarked at the Franklin County Jail, Kinsey called the officers names and

threatened to shoot them once released on bail.

                                      PROCEDURE

       The State of Washington charged Devonn Kinsey with one count of felony

harassment in violation ofRCW 9A.46.020(1)(a)(i) and (2)(b)(iii), based on his threat to

kill a law enforcement officer. The jury found Kinsey guilty of felony harassment.

      At Devonn Kinsey's sentencing hearing, the State requested that the trial court

sentence Kinsey to sixty months' confinement, based on an offender score of nine plus.

Kinsey challenged the State's calculation of his offender score. He argued that the State

failed to prove the convictions comprising the score because it did not provide certified

copies of the judgment and sentences for each of his earlier offenses. Kinsey asked for a

low end sentence of fifty-one months.

      The trial court calculated Devonn Kinsey's offender score as nine plus and

sentenced Kinsey to sixty months' confinement. In so ruling, the lower court reviewed a

victim impact statement from Officer Herrera that attested to additional security

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   No. 32457-5-III
f    State v. Kinsey
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     precautions the officer underwent for himself and his family in light of Kinsey's threat.

     The trial court also reviewed Kinsey's criminal history as provided in the State's

     proposed judgment and sentence.

            After the trial court announced Devonn Kinsey's sixty month sentence, the

     prosecution handed the court a copy of Kinsey's criminal record taken from the

     Washington Judicial Information System and a copy of Kinsey's out-of-state criminal

     history. The criminal histories confirmed the convictions listed in the State's proposed

     judgment and sentence, and, in turn, corroborated an offender score of nine plus. The

     trial court then stated it would "admit that and has considered that." Verbatim Report of

     Proceedings at 145. The prosecution filed with the court Kinsey's conviction records

     with the final judgment and sentence.

            The trial court imposed $3,989.50 in legal financial obligations and ordered

     Devonn Kinsey to immediately begin $100.00 monthly payments on the LPOs.

     $1,964.50 of the LPOs are discretionary costs. The trial court checked the judgment box

     that contains the boilerplate language that Kinsey had the ability or likely future ability to

     pay his LPOs, but the court made no verbal inquiry into Kinsey's financial situation at his

     sentencing hearing.




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     No. 32457-5-III

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     State v. Kinsey


i
                                      LA W AND ANALYSIS
I
!
                                           Offender Score


I
          Devonn Kinsey first contends that insufficient evidence supports the trial court's

     calculation of his offender score as nine plus. He argues that, before the trial court

     announced its finding of his score, the State needed to provide certified copies of the

     judgment and sentence for each earlier conviction. He reasons that the trial court may not

     rely on the State's submission oflengthy abstracts of his criminal histories minutes, if not

     seconds, after the court overruled his objection to reliance on the proposed judgment and

     sentence and proclaimed an oral finding of Kinsey's offender score. Stated differently,

     Kinsey maintains that the State was not entitled to a second opportunity to submit

     evidence of his criminal history once the trial court found his offender score to be nine

     plus. He posits that allowing the State to admit evidence of his criminal history

     immediately after a verbal ruling against his objection is analogous to allowing the State

     to admit new evidence on remand for resentencing.

            In response, the State of Washington observes that Devonn Kinsey lacks any legal

     citation to support his assignment of error. For this reason, we affirm the offender score

     calculation and sentence.

            This court reviews a trial court's calculation of an offender score de novo. State v.

     Tili, 148 Wn.2d 350,358,60 P.3d 1192 (2003). At sentencing, the State bears the burden

     to prove the existence of prior convictions by a preponderance of the evidence. State v.

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No. 32457-5-II1
State v. Kinsey


Mendoza, 165 Wn.2d 913,920,205 P.3d 113 (2009). The State, not the defendant, must

assure that the record before the sentencing court supports the criminal history

determination. Mendoza, 165 Wn.2d at 920. The best evidence of a prior conviction is a

certified copy of the judgment. State v. Ford, 137 Wn.2d 472, 480, 973 P .2d 452 (1999).

Nevertheless, the State may introduce other comparable documents of record or

transcripts of prior proceedings to establish criminal history. State v. Ford, 137 Wn.2d at

480.

       No Washington decision precludes a trial court from considering evidence of

criminal convictions after it renders an oral finding of an offender score but before the

conclusion of the sentencing hearing. Conversely, no Washington decision authorizes a

trial court to review evidence of criminal convictions after announcing an offender score.

       Devonn Kinsey's analogy to a resentencing upon a remand from this reviewing

court suffers from a destructive flaw. The Washington Sentencing Reform Act of 1981

(SRA), ch. 9.94A RCW, expressly provides: "On remand for resentencing following

appeal or collateral attack, the parties shall have the opportunity to present and the court

to consider all relevant evidence regarding criminal history, including criminal history

not previously presented." RCW 9.94A.530(2). Our Supreme Court applied the statute

in holding that the State, upon a remand, could introduce new evidence to support a

criminal sentence. State v. Cobos, 182 Wn.2d 12, 15,338 P.3d 283 (2014).




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No. 32457-5-III
State v. Kinsey


       The analogy to resentencing triggers an affirmation ofDevonn Kinsey's trial

court. If this court agreed that the trial court committed error; we would remand for new

sentencing. On remand the outcome would not change, since the trial court could

consider that evidence that Kinsey argues must be ignored.

       Another reason compels rejecting Devonn Kinsey's assignment of error. For

purposes of collateral attacks, a criminal judgment and sentence becomes final on the

date of filing with the clerk of the trial court. RCW 10.73.090(3)(a). A sentence does not

become final upon the trial court's oral ruling. Thus, the trial court could rely on

admissible evidence in calculating Kinsey's offender score before entering the final

judgment and sentence.

       Devonn Kinsey's assignment of error is overly technical. Judges frequently alter

oral rulings before entering final judgments. Such a practice ensures accuracy in the

administration ofjustice.

                               Legal Financial Obligations

      Devonn Kinsey next contends that the trial court improperly assessed legal

financial obligations without considering his financial resources under RCW

10.01.160(3). Specifically, he challenges the discretionary costs imposed by the court

consisting of a $228.00 sheriff service fee, $300.00 bench warrant fee, $700.00 court-

appointed attorney fee, $236.50 defense costs recoupment, and $500.00 fine pursuant to




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No. 32457-5-II1
State v. Kinsey


RCW 9A.20.021. Kinsey did not object to the imposition of these costs at sentencing,

but argues that he may still raise the assignment of error for the first time on appeal.

       Whenever a person is convicted in superior court, the court may order the payment

ofLFOs as part of the sentence. RCW 9.94A.760(1). The financial obligations may

include certain costs, including expenses incurred by the State in prosecuting the

defendant. RCW 10.01.160(1), (2). A $500.00 victim assessment fee is mandated by

RCW 7.68.035, and a $100.00 DNA collection fee is mandated by RCW 43.43.754(1).

Neither fee is subject to the defendant's ability to pay. Kinsey only objects to the

discretionary fees listed above.

       By statute, the court is not authorized to order a defendant to pay discretionary

fees unless he or she is or will be able to pay them. RCW 10.01.160(3). In determining

the amount and method of payment of costs, the court shall take account of the financial

resources of the defendant and the nature of the burden that payment of costs will impose.

RCW 10.01.160(3); State v. Kuster, 175 Wn. App. 420, 424, 306 P.3d 1022 (2013).

       Devonn Kinsey does not address whether review is warranted in his appeal in light

of our Supreme Court's recent opinion in State v. Blazina, 182 Wn.2d 827, 344 P.3d 680

(2015). The State argues that Blazina allows appellate courts to exercise their discretion

under RAP 2.5 in deciding whether to address LFO challenges for the first time on

appeal. The State asks this court to follow its opinion in State v. Duncan, 180 Wn. App.

246,327 PJd 699 (2014), review granted, 183 Wn.2d 1013,353 PJd 641 (2015).

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No. 32457-5-III
State v. Kinsey


Because of the high amount of fees imposed, we exercise our discretion to entertain

Kinsey's argument.

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

clarified that RCW 10.01.160(3) requires the trial court "do more than sign a judgment

and sentence with boilerplate language stating that it engaged in the required inquiry."

Rather, the "record must reflect that the trial court made an individualized inquiry into

the defendant's current and future ability to pay." Blazina, 182 Wn.2d at 838. This

inquiry includes evaluating a defendant's financial resources, incarceration, and other

debts, including restitution. Blazina, 182 Wn.2d at 838-39. The Blazina court noted

reasons for review of legal financial obligations before collection activities. Devonn

Kinsey's trial court made no individual determination on the record as to Kinsey's ability

to pay financial obligations.

       This court would normally remand to the superior court to readdress Devonn

Kinsey's ability to pay. Nevertheless, the trial court judge who sentenced Kinsey serves

another judicial system now. Therefore, in the interest ofjudicial economy, we vacate

the discretionary LFOs and do not remand for another hearing.

                                      CONCLUSION

       We affirm the trial court's offender score calculation and sentence imposed on

Devonn Kinsey. We vacate Devonn Kinsey's discretionary legal financial obligations

and instruct the superior court to strike those obligations without an additional hearing.

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No. 32457-5-111
State v. Kinsey


      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:




~~    Brown, A . .J.                           





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