IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

LARRY LYNN WINTERS,

Appellant.

)

)

)

)

)

)

)

)

)

No. 37584-6-III

UNPUBLISHED OPINION

PENNELL, J. — Larry Lynn Winters appeals his sentence for first degree assault, 

arguing the trial court failed to recognize its discretion to award an exceptional sentence 

downward and committed legal error in imposing legal financial obligations (LFOs). 

We disagree with Mr. Winters’s former argument, but grant him relief as to the LFOs.

FACTS

Mr. Winters entered an Alford1 plea to assaulting his wife with a deadly weapon. 

The allegation was that Mr. Winters pointed a gun at his wife’s face after a verbal 

dispute. When his wife grabbed the gun to move it away, Mr. Winters fired the gun and 

shot his wife through the thumb. Mr. Winters then unsuccessfully attempted to shoot his 

 1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

FILED

MARCH 10, 2022

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37584-6-III

State v. Winters

2

wife in the face before she escaped their home. Mr. Winters had consumed a large 

amount of alcohol prior to the shooting and claimed to have very little memory of the 

incident.

Mr. Winters sought an exceptional sentence downward based on a combination 

of mitigating circumstances including his age, poor health, lack of criminal history, 

voluntary victim compensation, and own experience as a victim of domestic violence. 

In summary, Mr. Winters was 69 years old at the time of his offense conduct and 

suffering from rectal cancer. Mr. Winters also carried several mental health diagnoses, 

which he said were exacerbated by alcohol and emotional abuse from his wife. According 

to a psychologist who testified at the sentencing hearing, the emotional abuse allegedly 

inflicted on Mr. Winters by his wife had the same potential for devastation as would 

physical abuse. The psychologist recommended Mr. Winters receive a therapeutic 

sentence in lieu of prison.

The trial court declined to impose a sentence below the standard range, explaining

that a downward departure must be based on circumstances “sufficiently substantial and 

compelling to distinguish this crime in question from others.” Report of Proceeding (RP) 

(May 14, 2020) at 295. According to the court, the disharmony between Mr. Winters and 

his wife did “not reach that standard.” Id. at 296. The court noted that the conflict 
No. 37584-6-III

State v. Winters

3

between Mr. Winters and his wife was similar to what is commonly presented in divorce 

cases. 

In discussing its sentencing decision, the trial court expressed sympathy toward 

Mr. Winters’s age and health. However, the court explained these factors were beyond its 

consideration: 

You know, there is something here that I can’t consider, and I kind 

of wish I could in some cases, and this might be one, is you take a look at a 

person’s age and their medical condition, I think the legislature should look 

at this. But I can’t make them do that. I mean do the people really want 

someone in Mr. Winters’[s] medical condition at his age in the prison 

system for ten years and helping take care of him, is that really what we 

want to do too?

I’ve often thought that there should be some consideration, just like 

there is for very young people, we’re seeing that more and more with youth, 

special considerations that, you know, certain people might get at a certain 

age with their limitations on mobility and the like, that they might be less 

likely. But that’s not a door that’s open to me.

Id. at 297-98.

Based on an offender score of zero, Mr. Winters’s standard sentencing range was 

93 to 123 months, followed by a 60-month sentencing enhancement. The court imposed a 

low-end sentence followed by three years’ community custody. The court also ordered 

mandatory LFOs including a $500 crime victim penalty assessment and a $100 DNA 

(deoxyribonucleic acid) collection fee.

Mr. Winters timely appeals his sentence. 
No. 37584-6-III

State v. Winters

4

ANALYSIS

Mitigated exceptional sentence

Appeals of standard range sentences are generally prohibited. RCW 9.94A.585(1). 

When a defendant challenges the denial of an exceptional sentence downward, appellate 

review turns on proof of legal error, such as a categorical refusal to exercise discretion or 

the mistaken belief of a lack of discretion to impose a nonguideline sentence. State v. 

McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017); State v. Grayson, 154 Wn.2d 333, 

342, 111 P.3d 1183 (2005).

We discern no legal error in the trial court’s denial of Mr. Winters’s departure 

request. Contrary to Mr. Winters’s assertions on appeal, the court did not rule that it was 

prohibited from departing because the abuse alleged by Mr. Winters was emotional rather 

than physical. Instead, the court’s decision was based on the fact that Mr. Winters had not 

shown an exceptional level of emotional abuse when compared to other cases that come 

before the court. This was an appropriate basis for denying the departure. See State v. 

Law, 154 Wn.2d 85, 97-98, 110 P.3d 717 (2005).

The trial court’s lament that it lacked discretion to depart downward based on 

Mr. Winters’s age was not legal error. We agree with Mr. Winters that age can sometimes

be a mitigating factor at sentencing. See State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 
No. 37584-6-III

State v. Winters

5

(2015). But to justify a below-guideline sentence, the defendant’s age must have some 

bearing on their offense conduct. Id. at 689. Here, there was no evidence Mr. Winters’s 

age impacted his crime. Thus, there was no basis to depart.

As pointed out by the trial court at sentencing, public policy would seem to 

support an alternative to incarceration for an individual, such as Mr. Winters, who is 

aged and in need of significant medical care. Indeed, this policy plays a role in the State’s 

compassionate release program. RCW 9.94A.728(1)(d). But this type of policy concern is 

not relevant to the question of a mitigated sentencing decision under the Sentencing 

Reform Act of 1981, chapter 9.94A RCW. Law, 154 Wn.2d at 101. The trial court 

appropriately recognized it lacked discretion to depart based on Mr. Winters’s age and 

health issues.

LFOs

Mr. Winters makes two objections to the LFOs assessed in his judgment and 

sentence. First, he complains the trial court erroneously imposed discretionary community 

custody supervision fees. Second, he argues his mandatory LFOs cannot be satisfied 

through attaching his social security benefits. The State essentially concedes the 

substance of both arguments.
No. 37584-6-III

State v. Winters

6

A trial court’s authority to impose community custody supervision fees is set 

by RCW 9.94A.703(2)(d). This statute provides that “[u]nless waived by the court, 

as part of a term of community custody, the court shall order an offender to . . . [p]ay 

supervision fees as determined by the [Department of Corrections].” Given that

supervision fees are waivable, they are discretionary. However, they are not a “‘cost’”

under RCW 10.01.160(3) that “‘shall not’” be imposed against an indigent defendant. 

See State v. Spaulding, 15 Wn. App. 2d 526, 536, 476 P.3d 205 (2020).

Here, the trial court’s sentencing disposition reflected an intent to waive all 

discretionary LFOs based on Mr. Winters’s indigence. The imposition of supervision 

fees appears to have been inadvertent. The language imposing the fees is contained in a 

lengthy paragraph of the prewritten judgment and sentence form. As the parties agree, 

the supervision fees should be struck on remand. 

Mr. Winters also contends the trial court erred by failing to specify his mandatory 

LFOs (the $500 crime victim penalty assessment and $100 DNA fee) cannot be satisfied 

from his social security benefits. The State concedes it cannot collect social security 

benefits for payment of LFOs. See 42 U.S.C. § 407(a). Nevertheless, it argues remand is 

unnecessary because the law on this point is clear and the State has not attempted to 

collect LFOs from Mr. Winters’s benefits. 
No. 37584-6-III

State v. Winters

7

We have no reason to disagree with the State’s claim that it has not attempted to 

collect LFOs from Mr. Winters’s social security benefits. Nevertheless, because this 

matter is being remanded for correction of the judgment and sentence as to supervision 

fees, we direct that the trial court also specify in the judgment and sentence that payment 

of LFOs cannot be enforced against social security funds per 42 U.S.C. § 407(a).

CONCLUSION

Mr. Winters’s sentence is affirmed. We remand to strike community custody

supervision fees and to clarify that the mandatory LFOs (the $500 crime victim penalty 

assessment and $100 DNA collection fee) may not be satisfied from Mr. Winters’s social 

security benefits.

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.

_________________________________

Pennell, J.

WE CONCUR:

____________________________

Siddoway, C.J. Staab, J.