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

Respondent,

v. ALYN JAMES SCHWINGE,

Appellant. ) ) ) ) ) ) ) ) No. 36284

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UNPUBLISHED OPINION

K ORSMO , J.

— Alyn J. Schwinge appeals his Klickitat County conviction for attempting to elude a police vehicle. He contends the evidence was insufficient to support the conviction because the State failed to prove the essential element that the officers were in uniform at the time of the pursuit. The State conce des the error. We reverse and dismiss the attempting to elude conviction and remand for resentencing on the remaining conviction for second degree assault

— d omestic violence , with a deadly weapon enhancement that Mr. Schwinge does not challenge on appeal. In view of recent caselaw and Mr. Schwinge’s indigency, w e also order the court to strike two cost s t hat

w ere imposed as legal financial obligation s (LFO s )
. FACTS Alyn Schwinge ’s attempting to elude conviction originated from a September 27, 2018 incident in which he was alleged to have assaulted his ex

- girlfriend, Kcarsidy Tylor, 

### FILED APRIL 1 6 , 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 36284

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State v. Schwinge

2 with a knife inside their camper trailer. 1 Ms. Tyler’s mother called law enforcement and reported the incident. Sheriff’s Deputy Edward Gunnyon was first to respond. U pon seeing the deputy, Mr. Schwinge went to his car and sat in it
. When the deputy approached, Mr. Schwinge started the car and refused the deputy’s repeated requests to turn off the engine and talk to him. Instead, Mr. Schwinge spun out and sped off in the

car
— nearly hitting the patrol car of another deputy who had just arrived and attempted to block him from leaving. Both deputies gave chase in their patrol vehicles until Mr. Schwinge’s vehicle became high centered and he fled on foot
. The State prese nted evidence that the d eputies utiliz ed lights and sirens , but t he State did not produce any evidence that either deputy was in uniform at the time of the pursuit
. The jury found Mr. Schwinge guilty of attempting to elude. The court imposed a 26

- month s entence ( including a 12

- month deadly weapon enhancement ) for the assault, and a concurrent 5

- month sentence for the attempting to elude. The court also imposed LFOs including a $500 victim assessment, a $100 domestic violence assessment, a $200 criminal filing fee, and a $100 deoxyribonucleic acid (DNA) collection fee. The court made no express inquiry or finding as to Mr. S ch winge’s ability to pay LFOs, but on the day after sentencing found him indigent for

1 Mr. Schwinge was also tried on two counts of second degree assault domestic violence with a deadly weapon and was acquitted on one of those counts. The facts pertaining to the unchallenged assault count of conviction predated the September 27 incident and are unimportant to this appeal
.No. 36284

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State v. Schwinge

3 appeal purposes b ased on his declar ation that he had no income in the past 12 months, had $5000 in debt, and sup ported three dependent children. Mr. Schwinge timely appealed to this court. A panel considered his appeal without hearing oral argument.

ATTEMPTING TO ELUDE CONVICTION Mr. Schwinge contends the evidence was insufficient to support the attempting to elud e conviction because the State did not submit any proof that the deputies were in uniform at the time of the pursuit. The test for determining the sufficiency of the evidence is whether , viewing the evidence and all reasonable inferences from that evidence in the light most favorable to the State, any rational trier of fact could have found the crime ’ s essential elements beyond a reasonable doubt. State v. Salinas , 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The requirement that the police officer be in uni form is an express element of attempt ing to elude a police vehicle. RCW 46.61.024; State v. Fussell , 84 Wn. App. 126, 128, 925 P.2d 642 (1996). The State concedes there was no such proof here , and that the evidence is therefore insufficient to support Mr
. Schwinge’s conviction. We agree and accept the State’s concession

. The attempting to elude conviction is reversed and the charge dismissed. With a reduction in his offender score, Mr. Schwinge must be resentenc ed for the second degree assault conviction.No. 36284

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State v. Schwinge

4 LFOs Mr. Schwinge had received no income for 12 months at the time of sentencing and was indigent as defined by RCW 10.101.010(3)(c) (receiving income of one hundred twenty
- five percent or less of the current federally established poverty level ). He remains indigent on appeal. He thus contends the $200 criminal filing fee and $100 domestic violence assessment must be struck from his judgment and sentence based on State v. Ramirez , 191 Wn.2d 732, 426 P.3d 714 (2018). House Bill 1783, which beca me effective June 7, 2018, prohibits trial courts from imposing discretionary LFOs on defendants who are indigent at the time of sentencing. LAWS OF 2018, ch. 269, § 6(3); State v. Ramirez , 191 Wn.2d at 745

- 47. Among the changes was an amendment to former RCW 36.18.020(2)(h) to prohibit the imposition of the $200 criminal filing fee on indigent defendants. L AWS OF 2018 , ch. 269, § 17(2)(h). As held in Ramirez , the 2018 amendments to the LFO statutes apply prospectively to
cases “pending on direct r eview and thus not final when the amendments were enacted.” Ramirez , 191 Wn.2d at 747. Accordingly, the change s in law appl y to Mr. Schwinge’s

case . The $200 criminal filing fee should be struck pursuant to Ramirez
. Also, the $ 100 domestic violence assessment is a discretionary cost. RCW 10. 99.080(1)
. As such, it falls under the Ramirez umbrella and should be struck. In its response brief , the State does not address the $100 domestic violence assessment but concedes that the $100 DNA fee should be struck. We perceive this as an

### No. **36284-1-III**

**State v.**  **Schwinge**


### inadvertent **reference to**  **the DNA**  **fee, which**  **Mr. Schwinge**  **does not**  **seek to**  **strike. The**  **$100 DNA**  **collection fee**  **is mandatory**  **"unless the**  **State has**  **previously collected**  **the offender's**  **DNA as**  **a result**  **of a**  **prior conviction."**  **RCW 43.43.**  **7541. Mr.**  **Schwinge's criminal**  **history includes**  **one prior**  **felony-an Oregon**  **theft conviction.**  **On remand,**  **the court**  **should determine**  **whether his**  **DNA has**  **been previously**  **collected and**  **either retain** 
**or strike**  **the fee**  **accordingly. Mr.**  **Schwinge also**  **requests that**  **we deny**  **the State an**  **award of**  **appellate costs**  **in the**  **event the**  **State substantially prevails. In**  **light of**  **his ongoing**  **indigency and**  **because the**  **State has**  **not substantially**  **prevailed on**  **appeal, no**  **costs will**  **be awarded**  **under RAP**  **14.2. The**  **conviction for**  **attem pting**  **to elude**  **a police**  **vehicle is**  **reversed and dismissed.**  **Remanded for**  **resentencing and**  **to strike**  **LFOs in**  **accordance with**  **this opinion.**  **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:**  **Fearing,] Siddoway,**  **J. 5**