### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OFWASHINGTON, 

### ) No. 79270-9-I

Respondent, v. 

### ) UNPUBLISHED OPINION EUGENE WILLIS SIMS, 

### ) ) FILED: March 2, 2020 Appellant. VERELLEN, J.

— Eugene Sims appeals from resentencing following a successful appeal of his original sentence. Sims contends the court erred by imposing a communitycustody condition requiring that he paythe costs of community supervision. Because Sims was indigent and the court expressed its intent notto impose any nonmandatory legal financial obligation (LFO), it appears the supervision fees were inadvertently imposed and should be stricken. Sims also argues the court erred by maintaining his original term of incarceration after calculating a loweroffenderscore at resentencing. Because Sims’s offenderscore changed from 11 to 10 but all offenderscores above 9 have the same standard range, Sims fails to showthe court erred. We affirm the term ofSims’s incarceration but remand to strikethe LFO imposing supervision fees.No. 79270-9-1/2
FACTS In 2017, Sims pled guiltyto witness tampering and attempted second degree assault with a sexual motivation as an act ofdomesticviolence.1 The court calculated an offenderscore of 11 on the attempted assault conviction. Although it did not affectthe standard range of his sentence, Sims appealed and argued the court should have calculated an offenderscore of 1 Q2 The State conceded the error, and this court remanded for resentencing.3 Sims was resentenced in November of2018. Sims was indigent atthe time of resentencing, and in its oral ruling, the court “waiv[ed] any-all nonmandatory legal financial obligations.”4 But as a communitycustody condition, the court required that Sims “[p]ay supervision fees as determined bythe Department of Corrections.”5 Sims appeals the supervision fee of his community custody conditions and, in his statement ofadditional grounds, assigns errorto the duration of his term of incarceration.

1 State v. Sims, No. 76900-6-I, slip op. at 1 (Wash. Ct. App. Sept. 10, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/769006.pdf.

2 Id. at2.

~ Id.

~ Report of Proceedings (RP) (Nov. 13, 2018) at 31.

~ Clerk’s Papers (CP) at 52.

2No. 79270-9-1/3
ANALYSIS

As athreshold issue, the State argues Sims did not objectto paying supervision fees as a condition ofcommunity custody and cannot raise the issue forthe firsttime on appeal. We have discretion to considerchallenges to community custody conditions raised forthe firsttime on appeal.6 This discretion exists to ensure sentencing uniformity.7 Erroneously imposing an LFO does not raise this concern.8 Thus, a defendantwho fails to objectto imposition ofan LFO cannot, generally, challenge it on appeal.9 “This rule exists to givethe trial court an opportunityto correctthe errorand to give the opposing party an opportunityto respond.”1° Here, however, Sims’s apparentfailure to object is somewhat understandable. The trial court said itwas “waiving any-all non-mandatory legal financial obligations” and declined to require any restitution.11 The supervision fee was listed as a communitycustody condition and was not in the section ofthe judgment and sentence addressing LFOs. And Sims was indigentwhen sentenced. We will considerthe merits of Sims’s argument.12

6 State v. Casimiro, 8 Wn. App. 2d 245, 249, 438 P.3d 137, reviewdenied, 193 Wn.2d 1029 (2019); RAP 2.5(a).

~ State v. Blazina, 182 Wn.2d 827, 834, 344 P.3d 680 (2015). 8 Id. old. at 832. 10 ki. at 832-33.

~ RP (Nov. 13, 2018) at 31. 12 RAP 2.5(a); RAP 1.2(a).

3No. 79270-9-1/4
In our recentdecision in State v. Dillon, we reasoned that supervision fees can be waived bythe trial court and, thus, are discretionary LFOs.13 In Dillon, an indigent defendant argued the trial court improperly imposed community custody supervision fees.14 We remanded to strike the fees because the record showed “thatthe trial court intended to waive all discretionary LFOs, but inadvertently imposed supervision fees because of its location in thejudgment and sentence.”15 We are presented with a substantiallysimilar record here and similarly conclude that remand is appropriateto strike the imposition ofsupervision fees. In his statement ofadditional grounds, Sims argues the court erred by not imposing a shorterterm of incarceration because his offenderscore changed from 11 to 10. The offenderscore changed onlyforSims’s conviction forattempted second degree assault,16 so he appears to challenge his term of incarceration for that crime alone. Forthat conviction, the court calculated an offenderscore of 10. ROW 9.94A.510 is the sentencing table forthe Sentencing Reform Act of 1981. The table setsthe same standard range forall offenses atthe same seriousness level with an offenderscore above 9. As the court explained to Sims at

13 No. 78592-3-I, slip op. at 17 (Wash. Ct. App. Feb. 3, 2020), https://www.courts.wa.gov/opinions/pdf/785923

.pdf. 14k~.at 17-18. 15 Id. at 18. 16 Compare CP at22 (offender score of 11 forconviction for attempted assault), with CP at45 (offenderscore of 10 forthe same).

4No. 79270-9-1/5

resentencing, adjusting his offenderscore from 11 to 10 did not affectthe standard range of his sentence. The courtwas not compelled to give a lowersentence and did not err. Therefore, we affirm Sims’s term of incarceration but remand to strike imposition ofsupervision fees.



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WE CONCUR: