IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

JEREMY WAYNE HIXSON,

Appellant.

No. 83877-6-I

DIVISION ONE

ORDER GRANTING MOTION 

FOR RECONSIDERATION AND 

WITHDRAWING AND 

SUBSTITUTING OPINION

Appellant filed a motion for reconsideration on July 7, 2023. After review 

of the motion, a panel of this court has determined that the motion for 

reconsideration should be granted. The panel has also determined that the 

opinion filed on June 20, 2023 should be withdrawn and a substitute opinion filed.

Now, therefore, it is hereby

ORDERED that the motion for reconsideration is granted; and it is further

ORDERED that the opinion filed on June 20, 2023 shall be withdrawn and 

a substitute opinion shall be filed. 

FOR THE COURT:
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

JEREMY WAYNE HIXSON,

Appellant.

No. 83877-6-I

DIVISION ONE

UNPUBLISHED OPINION

HAZELRIGG, A.C.J. — Jeremy Hixson appeals from a judgment and 

sentence entered after his guilty plea to one count of possession of stolen property 

in the second degree. He avers that the court finding that a motor vehicle was 

used in the commission of the crime, triggering suspension of his driver license by 

the Department of Licensing, is erroneous as it failed to apply the statutory 

definition as amended. Hixson further challenges both the imposition of 

community custody supervision fees and the victim penalty assessment. 

We agree, reverse, and remand for correction of the judgment and sentence.

FACTS

On July 22, 2021, the State charged Hixson with one count of organized 

retail theft in the second degree. According to the affidavit of probable cause,1

 1 The signed agreement of the parties, which was attached to the “Statement of Defendant 

on Plea of Guilty” and filed with the trial court, indicates Hixson’s consent for the judge to review 

and consider the probable cause affidavit for the “[f]acts to be considered for imposing sentence.” 

Accordingly, we similarly rely on those facts accepted by the parties and the judge.
No. 83877-6-I/2

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Hixson and another individual entered a beauty store in Lynnwood and took

various fragrances from the store without paying. The store manager reported the 

incident to police and provided a description of the people involved and the vehicle 

in which they left. The responding officer observed a car that matched the

description provided and conducted a traffic stop. The officer identified Hixson as 

the driver and noted that several boxes of fragrances were on the floorboard, and 

that the passenger in the back seat had a number of alarm sensors from the store 

in their lap. On February 17, 2022, pursuant to a plea agreement with the State,

Hixson entered a guilty plea to an amended charge of one count of possession of 

stolen property in the second degree. 

On March 31, 2022, the court conducted a sentencing hearing where the 

only contested matter was whether the court should enter a finding that a motor 

vehicle was used in the commission of the offense, pursuant to RCW 46.20.285(4), 

which would result in the Department of Licensing (DOL) suspending Hixson’s 

driver license for a period of one year. The State argued that such a finding was 

appropriate because the stolen property was located on the floorboard of the 

vehicle Hixson was driving. Hixson argued the vehicle merely served as a “mode 

of transportation,” not as a necessary part of the crime, and the stolen property 

was not hidden or concealed within the vehicle. According to the trial court, “them 

being in the vehicle and then moving it away from the owner of that property who 

had a right to possess it does implicate the vehicle.” Thus, the court found that the 

motor vehicle was used in the commission of the offense and checked the 

corresponding box on the judgment and sentence (J&S) to reflect the finding.
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Both parties and the Department of Corrections (DOC) recommended a

residential Drug Offender Sentencing Alternative2 (DOSA). The trial court imposed 

the residential DOSA “with the conditions recommended” as well as the $500 

victim penalty assessment (VPA),

3 but did not impose any discretionary fines or 

fees. The community custody section of the J&S included preprinted language

buried within several paragraphs under the broad heading of “COMMUNITY 

CUSTODY” that required Hixson to “pay supervision fees as determined by DOC.”

Hixson timely appealed.

ANALYSIS

Hixson avers the trial court erred in failing to apply the amended version of 

RCW 46.20.285(4), which became effective on January 1, 2022, and, therefore,

the finding that a motor vehicle was used in the offense under the applicable 

statutory definition was also erroneous. Hixson further challenges the imposition 

of DOC community custody supervision fees based on his indigency at the time of 

sentencing and the subsequently amended version of RCW 9.94A.703. He also

challenges the VPA as unconstitutionally excessive.

I. Failure To Apply Current Version of Statute

Hixson argues that the trial court abused its discretion by failing to apply the 

correct version of the statute on the use of a motor vehicle in the commission of a 

 2 RCW 9.94A.660.

3 Criminal law practitioners, trial courts, and different panels of this court, have variously 

referred to the mandatory fee imposed pursuant to RCW 7.68.035 as the “victim penalty 

assessment,” VPA, or “crime victim assessment,” CVA. In briefing, the parties use VPA and we 

use their chosen language herein for consistency.
No. 83877-6-I/4

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felony and, accordingly, that the corresponding finding on the issue was erroneous. 

We agree.

RCW 46.20.285 provides a list of offenses for which revocation of a driver 

license is required upon conviction. The statute dictates that the DOL,

4 “shall 

revoke the license of any driver for the period of one calendar year, unless 

otherwise provided in this section, upon receiving a record of the driver’s 

conviction” of one of the listed offenses “when the conviction has become final.” 

RCW 46.20.285. The previous version of RCW 46.20.285(4) required revocation 

based on “[a]ny felony in the commission of which a motor vehicle is used.” (LAWS 

OF 2005, ch. 288, § 4) (emphasis added). However, our legislature amended RCW 

46.20.285(4) and, as of January 1, 2022, a revocation based on this provision is 

limited to felonies wherein “a motor vehicle was used in a manner that endangered 

persons or property.” (Emphasis added.)

Because trial courts have discretion with sentencing we review their 

decisions with deference and will only reverse a sentence based on a “clear abuse 

of discretion or misapplication of the law.” State v. Elliott, 114 Wn.2d 6, 17, 785 

P.2d 440 (1990). A trial court abuses its discretion when it “applies the wrong legal 

standard, or bases its ruling on an erroneous view of the law.” State v. Lord, 161 

Wn.2d 276, 284, 165 P.3d 1251 (2007). We review the underlying questions of 

law de novo. Id. Here, the plain language of RCW 46.20.285(4) requires the DOL 

to revoke a defendant’s license upon conviction of a felony only in those 

circumstances “where the sentencing court determines that in the commission of 

 4 RCW 46.04.162 clarifies that the term “department,” as used in RCW 46.20.285, refers 

to the DOL.
No. 83877-6-I/5

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the offense a motor vehicle was used in a manner that endangered persons or 

property.” 

Although the sentencing hearing took place nearly three months after the 

amended version of RCW 46.20.285(4) went into effect, the trial court did not apply 

it or appear to be aware of the changes to the statute. However, the court did 

express appreciation for precisely the concerns that likely led the legislature to 

amend the statute in the first place. In deciding the motor vehicle issue, the court 

stated:

I do have to say that the legislature or the upper courts may want to 

rethink their revoking driver’s licenses based on offenses like this 

where driving itself doesn’t create a danger to the public, but I don’t 

think that it’s my place to do that. I understand that it can set 

someone back.

And so it is certainly not with any joy that I find that this case 

does fit with Batten[

5] and the license—I should not say that—I do 

find that the motor vehicle was used in the commission of the 

offense.

(Emphasis added.) On appeal, the State concedes that the trial court made its 

finding under the former version of RCW 46.20.285(4), which was no longer in 

effect at the time of Hixson’s sentencing.

However, rather than acknowledging that this finding was improper and 

based on a misapplication of controlling authority, and thus an abuse of discretion,

the State argues Hixson’s assignment of error is not ripe for review as his license 

has not yet been suspended and, alternatively, that he cannot challenge the finding 

on appeal because the DOL is the entity responsible for revoking an individual’s 

license and “[a]ny contention regarding what the DOL will do with the sentencing 

 5 State v. Batten, 140 Wn.2d 362, 997 P.2d 350 (2000).
No. 83877-6-I/6

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court’s motor vehicle finding under the old version of RCW 46.20.285(4) is pure 

speculation and conjecture at present.” This contention is meritless and directly at 

odds with the plain language of RCW 46.20.285, which provides that the DOL

“shall revoke the license of any driver for the period of one calendar year unless 

otherwise provided in this section, upon receiving a record of the driver’s conviction 

of any of the following offenses, when the conviction has become final.” (Emphasis 

added.) As a general rule, “the word ‘shall’ is presumptively imperative and 

operates to create a duty rather than conferring discretion.” State v. Bartholomew, 

104 Wn.2d 844, 848, 710 P.2d 196 (1985). As nothing in this statute indicates the 

word “shall” was intended to be “directory instead of mandatory,” we interpret it as 

the latter. Id. 

The court abused its discretion as to this finding by not applying the version 

of the statute in effect at the time of sentencing, and controlling case law.6 

Accordingly, the J&S must be corrected.

 6 The State further asserts that the older version of the statute should apply because that 

was the version in effect at the time the crime was committed, and that the finding under that version 

was proper based on the facts. While the first contention is true, that the State must charge under 

the statute in effect at the time of the alleged criminal conduct, case law is clear that sentencing is 

distinct with regard to remedial statutes, which “are generally enforced as soon as they are 

effective, even if they relate to transactions predating their enactment.” State v. Pillatos, 159 Wn.2d 

459, 473, 150 P.3d 1130 (2007).

“A statute is remedial when it relates to practice, procedure, or remedies and does not 

affect a substantive or vested right.” Miebach v. Colasurdo, 102 Wn.2d 170, 181, 685 P.2d 1074 

(1984). The revocation of licenses by the DOL is a “remedial sanction and not criminal 

punishment.” City of Spokane v. Wilcox, 143 Wn. App. 568, 572, 179 P.3d 840 (2008). As the 

provision and amendment at issue only relate to procedures, the amendment is remedial and was 

applicable at the time of sentencing. See Pillatos, 159 Wn.2d at 473. Because we have already 

determined that the application of the superseded version of the statute was an abuse of discretion, 

we need not entertain the State’s additional argument that the trial court properly applied the former 

version.
No. 83877-6-I/7

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II. Community Custody Supervision Fees

Hixson also assigns error to the trial court’s imposition of community 

custody supervision fees despite the fact that his attorney presented evidence of 

his indigency and the State agreed that only the mandatory victim penalty 

assessment should be imposed if the court concluded that Hixson was indigent. 

He contends the discretionary fees are improper in this case under both the former 

RCW 9.94A.703(2)(d) and the subsequently amended version of that statute. 

Hixson is correct on both points.

RCW 9.94A.703 provides a list of community custody conditions that are 

categorized as mandatory, waivable, and discretionary, along with special 

conditions that apply only under certain facts. The former version of RCW 

9.94A.703(2)(d), in effect at the time of Hixson’s sentencing, included fees for the 

cost of supervision by DOC among the waivable conditions: “Unless waived by the 

court, as part of any term of community custody, the court shall order an offender 

to . . . [p]ay supervision fees as determined by the [DOC].” LAWS OF 2022, ch. 29, 

§ 7. However, our legislature amended the statute, effective July 1, 2022, and 

struck that provision entirely. Id. 

Even under the former RCW 9.94A.703(2)(d), imposition of the community 

custody supervision fees here was error, likely a scrivener’s error at that. Under 

the former statute, because “‘supervisory fees [were] waivable by the trial court, 

they [were] discretionary [legal financial obligations].’” State v. Bowman, 198 

Wn.2d 609, 629, 498 P.3d 478 (2021) (quoting State v. Dillon, 12 Wn. App. 2d 133, 

152, 456 P.3d 1199 (2020)). “A sentencing court may not impose discretionary 
No. 83877-6-I/8

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costs on indigent defendants.” State v. Pervez, 15 Wn. App. 2d 265, 280, 478 

P.3d 103 (2020).

Hixson is indigent. Though the State makes much of the trial court’s failure 

to make an express finding of indigency on the record, this argument ignores case 

law establishing that such a finding is unnecessary when the record demonstrates 

that the court intended to impose only mandatory LFOs. Dillon, 12 Wn. App. 2d at

152. In Dillon, we struck the imposition of community custody supervision fees, 

located deep within the J&S, in the section on community custody conditions. Id. 

Because the trial court had stated that it would only impose the $500 VPA, and the 

community custody condition that required Dillon to pay supervisory fees was 

“buried in a lengthy paragraph on community custody,” we determined that the trial 

court intended to waive all discretionary LFOs and “inadvertently imposed the 

supervision fees because of its location in the judgment and sentence.” Id. 

The trial court in Dillon stated it was only imposing the VPA; the sentencing 

court here asserted the same. Further, just as in Dillon, the boilerplate language 

at issue here is buried in a lengthy paragraph on community custody conditions

within the 16-page J&S. Defense counsel included a separate section on 

indigency in Hixson’s sentencing memorandum and expressly asked the court to 

“only impose the mandatory court fees and fines of $500 [for the VPA]” on the basis 

of his indigency. The State’s sentencing memorandum also addressed Hixson’s 

indigency and asked that the court impose only the VPA and a $200 criminal filing 

fee as mandatory, but noted that the filing fee “may be waived if the court finds the 
No. 83877-6-I/9

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defendant indigent.” The trial prosecutor reiterated the State’s position orally at 

the sentencing hearing:

As far as legal financial obligations go, there’s a mandatory $500 

victim assessment and a $200 filing fee unless the defendant is 

found indigent, in which case we would waive the $200.

(Emphasis added.) While the State is correct that the court never explicitly made 

a finding as to Hixson’s indigency, the court clearly considered, and followed, the 

agreement of the parties in that regard. In imposing the sentence and 

accompanying legal financial obligations (LFOs), the court said, “So I’ll impose the 

residential DOSA with the conditions recommended, and I’ll impose the $500 crime 

victim fee. There was apparently no restitution.” Later, the following exchange 

occurred:

THE COURT: Otherwise, I believe that concludes everything. Would 

your client waive presence for signing? 

[DEFENSE]: He would. And I may have missed it, Your Honor, the 

financial obligations, I’m not sure if you—

THE COURT: Yes. I may not have said it, but it was implied by the 

fact I only imposed the 500. 

[DEFENSE]: Thank you, Your Honor. 

THE COURT: Thank you. All right.

The record could not be clearer that all parties considered Hixson to be indigent

and that, on that basis, the court did not impose the filing fee.

Accordingly, it is evident that, like the sentencing judge in Dillon, the trial court here 

overlooked the DOC supervision fee condition due to its location in the preprinted 
No. 83877-6-I/10

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language in the J&S.7 The footer on the J&S indicates that it was prepared by the 

prosecutor’s office. Considering the number of times this court has addressed this 

precise appellate issue in other opinions, it seems the simplest manner by which 

to address the recurring error would be for the State to update the forms it presents 

to the court at sentencing.8 Further, the State has now taken a position on appeal 

 7 While the State cites the rule that written orders control over oral rulings in its brief, this 

was not a situation where the court ruled one way in its oral ruling at sentencing and then, in 

memorializing its ruling in a written order, used language that was contradictory; this is a matter of 

boilerplate language in a standardized form with facts nearly identical to those set out in Dillon. 8 This Division alone has issued over 60 opinions since January 1, 2020 that reach this 

precise issue. Of those opinions from this court, more than half of them were issued in cases 

arising from this same superior court where this same prosecutor’s office represented the State. 

See State v. Dillon, 12 Wn. App. 2d 133, 456 P.3d 1199 (2020); see also State v. Meza, 22 Wn. 

App. 2d 514, 512 P.3d 608, review denied, 200 Wn.2d 1021 (2022); see also State v. Greenfield, 

21 Wn. App. 2d 878, 508 P.3d 1029 (2022); see also State v. Markovich, 19 Wn. App. 2d 157 

(2021), review denied, 198 Wn.2d 1036 (2022). 

While GR 14.1(c) directs that “Washington appellate courts should not, unless necessary 

for a reasoned decision, cite or discuss unpublished opinions,” the following list of unpublished 

cases is provided for the sole purpose of establishing that this is a well-settled legal issue: State

v. Winbush, 25 Wn. App. 2d 1028 (2023) (unpublished); State v. Darby, 24 Wn. App. 2d 1032 

(2022) (unpublished), review denied, 1 Wn.3d 1004 (2023); State v. Liptrap, 22 Wn. App. 2d 1031 

(2022) (unpublished); State v. Susnios, 22 Wn. App. 2d 1023 (unpublished), review denied, 200 

Wn.2d 1015 (2022); State v. Kankam, 21 Wn. App. 2d 1069 (unpublished), review denied, 200 

Wn.2d 1006 (2022); State v. Greenfield, 22 Wn. App. 2d 1013 (2022) (unpublished); State v.

Boudrieau, 21 Wn. App. 2d 1038 (unpublished), review denied, 199 Wn.2d 1026 (2022); State v.

Yaffee, 21 Wn. App. 2d 1011 (2022) (unpublished); State v. Stach, 20 Wn. App 2d 1055

(unpublished), review denied, 199 Wn.2d 1019 (2022); State v. Carmona-Cruz, 20 Wn. App. 2d 

1035 (2021) (unpublished), review denied, No. 100757-4 (Wash. Aug. 30, 2022); State v. SaidyKhan, 20 Wn. App. 2d 1023 (2021) (unpublished); State v. McDonald, 20 Wn. App. 2d 1013 (2021) 

(unpublished); State v. Hernandez Aguilar, 19 Wn. App. 2d 1054 (2021) (unpublished), review

denied, 199 Wn.2d 1007 (2022); State v. Purdy, 19 Wn. App. 2d 1023 (2021) (unpublished), review

denied, 198 Wn.2d 1043 (2022); State v. Allingham, 18 Wn. App. 2d 1058 (2021) (unpublished); 

State v. Baker, 18 Wn. App. 2d 1041 (2021) (unpublished), review denied, 198 Wn.2d 1033 (2022); 

State v. Bloom, 18 Wn. App. 2d 1031 (unpublished), review denied, 198 Wn.2d 1031 (2021); State

v. Snyder, 18 Wn. App. 2d 1032 (unpublished), review denied, 198 Wn.2d 1030 (2021); State v.

Maldonado-Alonzo, 17 Wn. App. 2d 1066 (2021) (unpublished); State v. Tatum, 17 Wn. App. 2d 

1036 (2021) (unpublished); State v. Schopf, 17 Wn. App. 2d 1016 (2021) (unpublished); State v.

Salas, 17 Wn. App. 2d 1005 (unpublished), review denied, 198 Wn.2d 1016 (2021); State v. Salih, 

17 Wn. App. 2d 1001 (2021) (unpublished); State v. Spieker, 16 Wn. App. 2d 1080 (2021) 

(unpublished); State v. Anderson, 16 Wn. App. 2d 1040 (2021) (unpublished), review denied, 197

Wn.2d 1019 (2021); State v. Anthony, 16 Wn. App. 2d, 1010 (2021) (unpublished); State v. Van 

Brackle, 15 Wn. App. 2d 1031 (2020) (unpublished); State v. Reyes-Rojas, 15 Wn. App. 2d 1023 

(2020) (unpublished); State v. Okler, 14 Wn. App. 2d 1060 (2020) (unpublished), review denied, 

196 Wn.2d 1044 (2021); State v. Elliott, 14 Wn. App. 2d 1056 (2020) (unpublished); State v. Rose, 

13 Wn. App. 2d 1107 (2020) (unpublished); State v. Smith, 13 Wn. App. 2d 1107 (2020) 

(unpublished); State v. Newbern, 13 Wn. App. 2d 1070 (2020) (unpublished); State v. Gonsalves, 

13 Wn. App. 2d 1019 (2020) (unpublished).
No. 83877-6-I/11

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that directly contradicts the one presented by the deputy prosecutor handling the 

matter in the trial court. Given that fact, and the wealth of case law on the issue, 

the State’s arguments here are not well taken.

Finally, Hixson properly notes in briefing that while the amendment to RCW 

9.94A.703(2)(d) that eliminated supervision fees for DOC community custody was 

not in effect at the time of Hixson’s sentencing in March 2022, it applies now as 

“amendments to statutes imposing costs on criminal defendants apply to cases on 

appeal.” State v. Wemhoff, 24 Wn. App. 2d 198, 199, 519 P.3d 297 (2022). The 

State’s position before this court is wholly unavailing in light of the clear record 

from the trial court, the bountiful and recent jurisprudence on this precise question, 

and the legislative amendment which directly applies to Hixson’s case.

III. Imposition of VPA on Indigent Offenders

Hixson’s final assignment of error goes to the imposition of the $500 VPA, 

which, he asserts, violates the excessive fines clause of our state constitution

because he is indigent. While the constitutionality of this assessment has long 

been settled, our legislature recently amended RCW 7.68.035 to prohibit trial 

courts from imposing the VPA on indigent defendants. 

Pursuant to the new provision of RCW 7.68.035(4), effective July 1, 2023,

trial courts shall not impose the VPA on defendants who are found indigent at the 

time of sentencing. LAWS OF 2023, ch. 449, § 1. Though this change took effect 

after Hixson’s sentencing, the new provision applies here as this case is on direct 

appeal. State v. Ellis, No. 56984-1-II, slip op. at 12 (Wash. Ct. App. June 13, 2023)
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www.courts.wa.gov/opinions/pdf/D2%2056984-1-II%20Published%20Opinion.pdf

(citing State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d 714 (2018)). 

We reverse and remand for correction of the J&S as to the finding under 

RCW 46.20.285(4) and to strike the language that imposes both the community 

custody supervision fees and VPA.

9

 

WE CONCUR:

 9 Again, it would behoove the State, if it continues to assume the responsibility of preparing 

and presenting the judgment and sentence to the court, to update its standardized forms to reflect 

the will of our legislature as demonstrated by the statutory amendment removing community 

custody supervision fees. This would not only be consistent with interests of judicial economy for 

both the trial and appellate courts, but would also relieve appellate prosecutors and defenders of 

the burden of having to continually relitigate a well-settled issue.