IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,

v. LARRY LYNN WINTERS , Appellant. ) ) ) ) ) ) ) ) ) No. 37584

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UNPUBLISHED OPINION

P ENNELL , 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 g ra nt him relief as to the LFOs. FACTS Mr. Winters entered an Alford 1 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. Wi nters 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 IIINo. 37584

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2 wife in the face befor e 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 a buse from his wife

. According
to a psychologist who testified at the sentencing hearing, the emotional abuse allegedly
in flicted on Mr. Winters by his wife had the same potential for devastation as would physical abuse. The psychologist recommended Mr. Win ters receive a therapeutic sentence in lieu of prison. The trial court declined to impose a sentence below the standard range , explain ing 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 1 4, 2020) at 295

. Acc ording to the court, the disharmony between Mr. Winters and his wife did “not reach that standard.” Id . at 296. The court noted that the conflictNo. 37584

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3 between Mr. Winters and h is 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 d o 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 considerat ion, 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

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. 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 y ears’ 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

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4 ANALYSIS Mitigated e xceptional s entence Appeal s of standard range sentences are general ly 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 th e 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. T his 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 359No. 37584

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5 (2015). But to justify a below

- guideline sentence , the defendant’s age must have some bearing on their offense conduct

. Id

. at 689. H ere, 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 , publ ic 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 S tate’s compassionate releas e program. RCW 9.94A.728(1)(d). B ut 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 i t 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

cus tody su pervision 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

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6 A trial court’s authority to impose community cus tody supervision fees is set by RCW 9.94A.703(2)(d). This statute provides that “[u]nle ss 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 tri al 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 co urt erred by failing to specify his mandatory
LFOs (the $500 crime victim penalty assessment and $10 0 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 clea r and the State has not attempted to collect LFOs from Mr. Winters’s benefits.No. 37584

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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). CONCL USION 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 ) m a y not be satisfied from Mr. Winters’ s s ocial

s ecurity benefits. A majority of the panel has determined this opi nion will not be printed in the Washington Appellate Reports, but it will be filed fo r public record pursuant to
RCW 2.06.040.

_________________________________ Pennell , J.
WE CONCUR:

__________________________ __ Siddoway, C. J. Staab, J.