IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

ANTHONY ROBERT FULKERSON,

Appellant.

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No. 39372-1-III

UNPUBLISHED OPINION

PENNELL, J. — A jury convicted Anthony Fulkerson of 16 felonies, all related 

to sex offenses against minor children. The court imposed an exceptional sentence 

upward, but did not enter written findings of fact and conclusions of law as required 

by the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. We remand with 

instructions to correct this omission. On remand, the court shall also strike the crime 

victim penalty assessment (VPA) and DNA collection fee in accordance with recent 

statutory changes.

FACTS

Mr. Fulkerson was charged with 16 felonies related to sexual abuse of his minor 

stepdaughters and possession of depictions of minors engaged in sexually explicit 

conduct. A jury convicted Mr. Fulkerson of all counts. The jury also found, through 

special interrogatory, 4 aggravating circumstances for 12 of the counts that involved:

FILED

MAY 16, 2024

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
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State v. Fulkerson

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(1) an ongoing pattern of sexual abuse over a long period of time, RCW 9.94A.535(3)(g),

(2) aggravated domestic violence, RCW 9.94A.535(3)(h), (3) a destructive and 

foreseeable impact on other persons, RCW 9.94A.535(3)(r), and (4) Mr. Fulkerson 

using his position of trust to facilitate said offense, RCW 9.94A.535(3)(n). For 10 counts, 

the jury also found that Mr. Fulkerson and the victims were part of the same family 

household.

At sentencing, the State presented two arguments in favor of an exceptional 

sentence. First, the State pointed to the various aggravators that had been found by the 

jury. Second, the State argued that Mr. Fulkerson’s multiple convictions resulted in an 

offender score that far exceeded what was contemplated by the sentencing grid, thus 

resulting in a number of convictions going unpunished. The State recommended a 40-year

(480-month) term of confinement. Defense counsel conceded that the sentencing court 

possessed the authority to impose an exceptional sentence, but recommended a sentence 

at or close to the standard range.

In its oral ruling, the sentencing court justified an exceptional sentence based on 

the aggravating factors found by the jury as well as the fact that some of Mr. Fulkerson’s

crimes would go unpunished under concurrent sentencing due to the high offender score.

The court imposed above-range sentences for 5 of the 16 counts (counts 1, 4, 6, 8, and 10)
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State v. Fulkerson

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and also ran 3 of the counts consecutively (counts 1, 2, and 4). In justifying this 

disposition, the court commented that “an aggravated sentence [was] appropriate.” 

Rep. of Proc. (Dec. 5, 2022) at 326. The total sentence imposed was 300 months. 

The court issued a standard felony judgment and sentence form related to Mr. 

Fulkerson’s sentence. Section II of the form is entitled “Findings.” Clerk’s Papers (CP) 

at 218. Section 2.4 addresses “Exceptional Sentence” findings. Id. at 223. This section 

begins on page six of the form and indicates Mr. Fulkerson received an above standard 

range sentence for Counts 1 through 12. Section 2.4 is continued onto page seven of the 

form and includes check boxes meant to designate the reasons for any aggravated 

sentence. 

Unfortunately, Mr. Fulkerson’s judgment and sentence form includes two page 

sevens. On the first page seven, the court checked the box that immediately preceded

“found by jury, by special interrogatory.” Clerk’s Papers (CP) at 224. On the second page 

seven, it is indicated that the aggravating factors were “found by the court after [Mr. 

Fulkerson] waived jury trial. Id. at 225. Later in this same section of the form on both 

page sevens, it indicates “[f]indings of fact and conclusions of law are attached in 

Appendix 2.4. X Jury’s special interrogatory is attached.” Id. Despite the form’s 
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preprinted language referencing Appendix 2.4, neither the appendix nor any special 

interrogatory was attached to the judgment and sentence.

The judgment and sentence states that the court found Mr. Fulkerson was 

“indigent.” Id. at 224-25. Nevertheless, the court imposed two legal financial obligations 

based on statutory requirements in effect at the time of the sentencing hearing: (1) a $500 

VPA under former RCW 7.68.035 (2018), and (2) $100 DNA collection fee under former 

RCW 43.43.7541 (2018). 

Mr. Fulkerson timely appeals.

ANALYSIS

Exceptional sentence

RCW 9.94A.535 requires that “[w]henever a sentence outside the standard 

sentence range is imposed, the court shall set forth the reasons for its decision in written 

findings of fact and conclusions of law.” Oral findings are insufficient. State v. Friedlund, 

182 Wn.2d 388, 390, 341 P.3d 280 (2015). When a sentencing court fails to make written 

findings in support of a sentence outside the standard range, the remedy is remand. Id.

“We review de novo whether a trial court’s reasons for imposing an exceptional sentence 

meet the requirements of the SRA.” Id. at 394. 
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The written judgment and sentence fails to set forth with clarity the reasons why 

the court imposed an exceptional sentence. On the first page seven, the court checked the

box on the judgment and sentence form indicating the exceptional sentence was based 

solely on “[a]ggravating factors . . . found by the jury.” CP at 224. But, the form also 

states that the aggravating factors were “found by the court.” Id. at 225. And, the 

form suggests written findings of fact and conclusions of law would be “attached in 

Appendix 2.4.” Id. at 225. However, no such attachment was included.

The judgment and sentence also fails to accurately reflect the counts for which

the court imposed an exceptional sentence upward. As noted, the court imposed aboverange sentences on counts 1, 4, 6, 8, and 10. And, the court ran counts 1, 2, and 4 

consecutively. But, the written judgment and sentence states the court imposed 

exceptional sentences on counts 1 through 12. Id. at 223.

The current record fails to satisfy the SRA’s requirement of written findings and 

conclusions. We therefore remand for this purpose. Friedland, 182 Wn.2d at 390. Given 

this disposition, it would be premature to address Mr. Fulkerson’s substantive challenges 

to the court’s sentence.

Legal financial obligations

Mr. Fulkerson contends that because his conviction is not yet finalized, he is 
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entitled to a waiver of his legal financial obligations due to recent statutory amendments. 

First, the VPA must be waived by the trial court’s finding of indigence pursuant to 

RCW 7.68.035(4). Second, the DNA collection fee must be waived pursuant to

RCW 43.43.7541(2). The State concedes that Mr. Fulkerson meets the necessary

conditions for waiving these financial obligations, and agrees the obligations may be 

waived on remand. We accept the State’s concession and remand accordingly.

CONCLUSION

For the reasons set forth above, this matter is remanded for entry of written 

findings of fact and conclusions of law. On remand, the trial court shall also strike the 

VPA and the DNA collection fee.

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:

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Lawrence-Berrey, C.J. Cooney, J.