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

v. ANTHONY ROBERT FULKERSON, Appellant. ) ) ) ) ) ) ) ) ) No. 39372

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UNPUBLISHED OPINION

P ENNELL , J.

— A jury convicted A nthony Fulkerson o f 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 felon ies re lated 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. T he 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 IIINo. 39372

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2 (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) , a nd (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 argument s 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 result ed in an offender score that far exceeded what was contempl ated 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 se ntence , 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 wou ld go unpunished under concurrent sentencing due to the high offender score. The court imposed above

- range sentences for 5 of the 16 counts ( c ounts 1, 4, 6, 8, and 10)No. 39372

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3 and also ran 3 of the counts consecutively ( c ount s 1, 2, and 4) . In justifying this disp osition, 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 sentenc e. 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 senten ce 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.
U nfortunately, Mr. Fulkerson’s judgment and sentence form includes two page
sevens. O n th e first page seven, t he court check ed the box that immediately preceded

“ found by jury, by special interrogatory.” Clerk’s Papers (CP) at 22 4

. On the second page

seven, it is indicated that the aggravating factors were “found by the court after [Mr.
Fulker son] 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’sNo. 39372

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4 prepri nted language referenc ing Appendix 2.4, neither the appendix n or 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 cou rt 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 s entence 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.” O ral 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 t rial court’s reasons for imposing an exceptional sentence meet the requirements of the SRA.” Id . at 394.No. 39372

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5 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 check ed 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 22 5 . 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 above

range sentences on c ounts 1, 4, 6, 8, and 10. And , the court ran c ounts 1, 2, and 4 consecutively. But , the written judgment and sentence states the court imposed exceptio nal sentences on c ounts 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 prematu re 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 isNo. 39372

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6 entitled to a waiver of his legal financial obligations due to recent s tatutory 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 43.43.754 1(2) . The State concedes that Mr. Fulkerson meets the necessary conditions for waiving the se 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
findi ngs 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 opi nion will not be printed in
the Washington Appellate Reports, but it will be filed fo r publ ic record pursuant to
RCW 2.06.040.

Pennell , J.
WE CONCUR:

__________________________ __ Lawrence

- Berrey, C.J. Cooney, J.