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

v. CLAYTON DENNIS JONES, Appellant. ) ) ) ) ) ) ) ) ) No. 39422

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UNPUBLISHED OPINION

P ENNELL , J.

— Clayton Jones appeals from his ju dgment and sentence for second degree assault, arguing he is entitled to resentencing without enhancements for sexual motivation and a deadly weapon. We reject this claim for relief

. W e instead remand with instructions to amend Mr. Jones’s judgment and sen tence so that it conforms with the factual findings necessitated by his 2004 guilty plea to second degree assault with sexual motivation and a deadly weapon . We further remand with instructions to strike the crime victim penalty assessment (VPA) and commun ity custody supervision fee s . 

### FILED JUNE 6, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 39422

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2 FACTS 2004 guilty plea and sentencing In 2004, Clayton Jones entered an Alfor d 1 plea to second degree assault with sexual motivation and a deadly weapon. On his “ Statement of Defendant on Plea of Guilty to Sex Offense,” he wro te “ see attached copy of original information” for the elements of the charge he pleaded guilty to. Clerk’s Papers (CP) at 9. Count II on the information alleged: SECOND DEGREE ASSAULT, committed as follows: That the defendant, CLAYTON DENNIS JONES, in the State of Washington, on or about August 03, 2004, did intentionally assault [M.L.] , with a deadly weapon, to

- wit: a knife, and the defendant being at said time armed with a deadly weapon other than a firearm under the provisions of RCW 9.94A.602 and [RCW] 9.94A.510(4), and further the defendant committed said crime with sexual motivation under the provisions of RCW 9.94A.835 and [RCW] 9.94A.030. Id. at 1. As part of the plea agreement, the parties agreed to a “ 24 month standard range sentence along with a 24 month weapon enhancement for a total sentence of 48 months.” Id. at 12. Mr. Jones stipulated that his offense carried a maximum

1 North Carolina v. Alford , 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).No. 39422

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3 term of life and acknowledged the offense included a mandatory deadly weapon enhancement. The 2004 judgment and sentence re lated to Mr. Jones’s plea reflects he was found guilty of “ S econd D egree A ssault with S exual M otivation

- D omestic V iolence . . . as charged in the I nformation.” Id. at 19

. 2 Despite his plea, the court did not mark that it made a special finding that the cri me was committed with a deadly weapon, and it is unclear whether it marked off a special finding for sexual motivation:

Id. at 20

. The court did, however, clearly mark that the charged crime i nvolved domestic violence :

Id

.

2 Within this subsection of the judgment, the following statutes are listed: RCW 9A.36.021(1)(c) ; f ormer RCW 9.94A.602 (1983), recodified as RCW 9.94A.825 ; and former RCW 9.94 A.835 (1999) . RCW 9A.36.021(1)(c) relates to second degree assault committed with a deadly weapon. RCW 9.94A. 825 pertains to deadly weapon special verdicts and, other than recodification, remains unchanged since its adoption in 1983

. Former RCW 9.94A.835 p rovides procedures for sexual motivation special allegations . T h is statute has had minimal amendments since 2004

.No. 39422

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4 The court calculated Mr. Jon es’s offender score as five , resulting in an initial standard range sentence of 22 to 29 months with a maximum term of lif e. The judgment included a 24

- month sentence enhancement in the box designated for either a firearm

or deadly weapon enhancement, for a n adjusted range of 46 to 53 months . Based on the range, the court sentenced Mr. Jones to 48 months confinement with a maximum term of life. Additionally, the court imposed community custody for life w ith the condition that
Mr. Jones register as a sex offender . The court a lso imposed a $500 VPA , $110 in court costs, and a $100 DNA collection fee.
2022 Blake resentencing In 2022, after nearly 18 years of incarceration, Mr. Jones returned to court for resentencing based on changes to his offender score as a result of our Supr eme Court’s decision in State v. Blake , 197 Wn.2d 170, 481 P.3d 521 (2021)

. 3 At the hearing, the
court resentenced Mr. Jones based on his new offender score and his conviction for

“ assault in the second degree with sexual motivation that has a domestic vio lence tag to it.” 1 Rep

. of Proc

. (RP) (Dec. 5, 2022) at 6. The court added a 24

- month enhancement

3 In Blake , a conviction for possession of a controlled substance under former RCW 69.50.4013 (1) (20 03 ) was vacated after the Supreme Court he ld the former statute violated due process and was constitutionally void. 197 Wn.2d at 195. This decision has necessitated resentencing hearings for individuals held in custody under offender scores that were impacted by convictions under the former statut e .No. 39422

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5 per “ the domestic violence ta g ” for a new minimum of 37 months, and reinstated a maximum term of life p ursuant to the sexual motivation enhancement. Id. at 5

- 6; see CP at 35

- 36. The court explained that, based on his crime of conviction, it could only adjust Mr. Jones’ s low end of the sentence range, but that the high end would remain life “ because that’s what the statute required.” 1 RP (Dec. 5, 2022) at 6. T he court pronounced Mr. Jones’ s new sentence of 37 months to life, and required that he register as a sex offender upon release as part of his lifetime community custody, consistent with the original judgment and sentence. After finding Mr. Jones indigent, the court waived the $110 in court costs and $100 DNA collection fee , but reinstated the $500 VPA , stating “[t]he payments stay the same as were originally ordered.” Id. at 8. Mr. Jones interjected, stating , “ There was no sexual motivation at all. There was

no

— there was nothing sexual about this crime.” Id . The court explained, “ You pled guilty to the Count II, the second degree assault with sexual motivation, which is why you were being resentenced to a second degree assault with sexual motivation. You’v e indicated that there was no sexual motivation involved, but that’s what you entered a guilty plea
to.” Id. at 9. Other than Mr. Jones’s interjection after his sentence was pronounced, there were no objections to the amended sentence. Once again, on the j udgment and sentence itself, the resentencing court did not mark that special findings were made for either aNo. 39422

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6 deadly weapon or sexual motivation, but did mark that the crime involved domestic violence. On December 19, 2023, the Department of Corrections requested clarification from the parties regarding the 24

- month enhancement, noting inconsistencies in the findings and sentence imposed. Later that same day, Mr. Jones filed a notice of appeal of his amended judgment and sentence

. M oti on for relief from judgment under CR 7.8(b)(4)
While Mr. Jones’ s appeal was pending before this court, the State moved in the trial court under CrR 7.8(b)(4) to amend the new judgment and sentence after it realized the discrepancies in both of the 2004 and 2022 judgments. The State sought to amend the judgment to add : (1) a special finding of a deadly weapon to support the 24

- month enhancement , and (2) a special finding of sexual motivation to support the portions of
Mr. Jones’ s sentence only possible with a finding of sexual motivation. The superior court held a hearing on Jan uary 27, 2023. The State argued the omission of the findings on the original 2004 judgment and the 2022 amended judgment was a scrivener’s error, claiming the original sentenc ing court in 2004 clearly intended
to make the findings based on the plea agreement and the sentence given. Mr. Jones’ s counsel told the court that Mr. Jones’s original attorney had informed her that theNo. 39422

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7 24

- month enhancement was because of the sexual motiv ation rather than a deadly
weapon . No evidence was presented to corroborate this claim

. Upon review of the original plea, sentencing paperwork, the information, and statement of facts, the resentencing court granted the motion and amended the judgment
to r eflect findings of sexual motivation and a deadly weapon, stating both “ should have been part of the original judgment and sentence.” 1 RP (Jan

. 27, 2023) at 20

- 21. The State then filed a motion with this court to permit entry of the amended judgment and s entence pursuant to RAP 7.2(e). In a subsequent filing, t he State asserted it was unable to procure a transcript of Mr. Jones’ s 2004 sentencing hearing. The original sentencing judge had retired, the original court reporter who covered the hearing had
pass ed away, and current court reporters were unable to decipher the original court reporter’s notes in order to produce a legible transcript. Mr. Jones opposed the State’s motion to allow entry of the amended judgment and sentence.
A c ommissioner of this cour t denied the State’s motion , finding the State failed
to prove the 2004 sentencing court intended to enter findings of sexual motivation or

use of a deadly weapon. A panel of t his court denied the State’s motion to modify the commissioner’s ruling.No. 39422

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8 ANALYSI S Legality of sentence of incarceration
S econd degree assault is generally a class B felony with a statutory maximum of 10 years confinement

. RCW 9A.36.021(2)(a) ; RCW 9A.20.021(1(b)

. But u nder the Sentencing Reform Act of 1981 , chapter 9.94A RCW, this maximum term can be increased based on sentencing enhancements. For example, if there is a finding of sexual motivation, s econd degree assault will be elevated to a class A felony with a statutory maximum of life . RCW 9A.36.021(2)(b); former RCW 9.94A.030( 38 ) (c) (2001 ) ; former RCW 9.94A.835 (1999)

. 4 In addition, second degree assault can be accompanied by a 24

- month sentencing enhancement if there is a special finding that the crime was committed through use of a deadly weapon. RCW 9.94A.533(4)(a)

. 5
A s entenc ing enhancement that increase s a defendant’s maximum term of confinement is accorded the jury trial protections under the Sixth Amendment to the United States Constitution

. See Apprendi v. New Jersey , 530 U.S. 466, 490, 494,

4 At the time of Mr. Jones’s original sentencing, the sexual motivation enhancement was found in former RCW 9.94A.712 (2001) , recodified as RCW 9.94A.507 . In addition, the definition for “sex offense” found in former RCW 9.94A.030(38)(c) is now located in RCW 9.94A.030(47)(c)

. Any subsequent changes to the se statutory provisions are not relevant to the issues on review

. 5 The relevant portion of RCW 9.94A.533 was the same at the time of Mr. Jones’s original sentencing hearing.No. 39422

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9 120 S. C t . 2348, 147 L. Ed. 2d 435 (2000)

. What this means is that u nless the defendant
consents to a judicial fact

- finding , a jury

— not a judge

— must make all required factual findings beyond a reasonable doubt. Blakely v. Washington , 542 U.S. 296, 310, 124
S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In the case of a guilty plea, the Sixth Amendment requires that the defendant admit all facts necessary for impos ition of any aggravated
sentence. See id. at 299, 310. If a defendant’s guilty plea includes an admission to sentencing enhancements, then the facts necessary for the enhancements are deemed proven for purposes of the Sixth Amendment. See State v. Dillon , 142 Wn. App. 269, 275, 174 P.3d 1201 (2007). The fact that a defendant enters an Alford plea as opposed to a traditional plea does not change the Sixth Amendment analysis. See State v. Poston , 138 Wn. App. 898,
90 2

- 90 3 , 909, 158 P.3d 1286 (2007). An Alford plea is a guilty plea in which a defendant does not admit factual guilt but acknowledges that the State’s evidence will likely result in a conviction. 400 U.S. 25. A court may accept an Alford plea only if it first “ finds that it is knowingly, voluntarily, and intelligently made and that there is a satisfactory evidentiary basis to accept the plea.” In re Pers. Restraint of Cross , 178 W n.2d 519,
525

- 26, 309 P.3d 1186 (2013); see CrR 4.2(d). Thus, while a defendant technically does not admit guilt through an Alford plea , the independent factual basis found by theNo. 39422

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10 court for each element of the crime substitutes for an admission of guilt, a nd the plea has the same effect as a guilty plea. State v. D.T.M ., 78 Wn. App. 216, 220, 896 P.2d 108 (1995). Here, Mr. Jones entered an Alford plea to c ount II of the information (second degree assault ) , which included allegations of sexual motivation and use of a deadly
weapon. Mr. Jones does not challenge th e nature of his plea or attempt to withdraw his plea

. 6 Given the court accepted Mr. Jones’s plea in 2004, the facts required for the sexual motivation and deadly weapon enhancements were necessarily e stablished beyond a reasonable doubt at the time of the plea as required by the Sixth Amendment

. 7

6 The record supports that Mr. Jones did, in fact, plead guilty to assault in the second degree with sexual motivation and a deadly weapon. Mr. Jones submitted his plea on a statement on plea of guilty to a sex offense

. See CP at 9. He specifically wrote on the statement that he ple aded guilty to second degree assault “ with sexual motivation,” and to the elements as charged on the information. Id. at 9, 15. The elements of the charge were that Mr. Jones intentionally committed the crime of assault while armed with a deadly weapon and with sexual motivation. Id. at 1. Mr. Jones’ s plea also stipulated that the crime he pleaded guilty to carried a maximum term of life. See id. at 10. Additionally, his plea acknowledged the offense he pleaded guilty to includes a mandatory deadly weapon o r firearm enhancement. Id. at 14. It also shows the parties agreed as part of the plea to a 24

- month standard range plus a 24

- month “ weapon enhancement.” Id. at 12. Mr. Jones signed and acknowledged that he read and understood both the plea statement and o ffender registration attachment. See id. at 15. 7 The fact that an Alford plea does not have preclusive effect in civil proceedings is irrelevant to our analysis.No. 39422

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11 Because the 2004 plea established the factual basis for the sexual motivation and deadly weapon enhancements, the 2022 resentencing court properly relied on the plea
to impose the two sentencing enhancements. There was no further requirement of any independent fact

- finding. Indeed, had there been a requirement of independent judicial fact

- finding to justify the sexual motivation or deadly weapon enhancements, the sentence would violate the Sixth Amendment rule set forth in Apprendi

. Mr. Jones might be heard to argue that despite the fact the sentencing court

was authorized to impose the two sentencing enhancements, it chose not to do so. To the extent Mr. Jone s makes this argument, it is unconvincing. For one thing, the enhancements at issue were not optional. See former RCW 9.94A.712(1) (a)(ii), (3) (2001) ( “ [T] he court shall impose a sentence to a maximum term consisting of the statutory maximum for the offens e ” upon a finding of sexual motivation

. ); former
RCW 9.94A.5 3 3(4)(e) (200 2 ) ( “ [A] ll deadly weapon enhancements under this section

are mandator y . ”). And in addition, the terms of incarceration imposed on Mr. Jones
in both 2004 and 2022 reflected the 24

- mont h enhancement required by the deadly
weapon finding and the maximum life term required by the finding of sexual motivation. The only error in this case wa s the failure to memorialize the sexual motivation and deadly weapons findings on the judgment and se ntence form as required by f ormerNo. 39422

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12 RCW 9.94A.127 (2) ( 1999 ), recodified as RCW 9.94A.835(2) , and former RCW 9.94A.602 (1983), recodified as RCW 9.94A.825

. 8 Because the task of correcting the judgment and sentence to conform with the facts necessarily establi shed by Mr. Jones’s guilty plea is purely ministerial , we remand with instructions that the trial court make the applicable correction. See State v. Ramos , 171 Wn.2d 46, 48, 246 P.3d 811 (2011)

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VPA Mr. Jones argues the recently amended VPA statute applies to his case pending

on direct appeal , and the VPA imposed on him should be struck accordingly from his judgment and sentence. The State argues the amended VPA statute does not apply to
Mr. Jones’ s appeal from a Blake resentencing because the resentencing did no t interrupt the finality of his legal financial obligations ( LFO s)

.

8 The substance of the recodified statutes, which requires the court to make written findings , has not changed. 9 Mr. Jones argues that our commissioner’s ruling on the State’s motion to permit filing of a second amended judgment and sentence is now law of the case and prevents the State from relitigating the issue of whether an amended judgment m ay issue. We disagree. The commissioner’s ruling was limited to an assessment of the intent of the sentencing court in 2004. But because a Blake resentencing involves a full resentencing, it is the 2022 sentencing hearing that controls. See State v. Dunbar , 27 Wn. App. 2d 238, 243, 532 P.3d 652 (2023). This was not addressed in our commissioner’s ruling. Furthermore, this court’s denial of a motion to modify can be based on a variety of reasons and should not be interpreted as an adoption of the basis for c ommissioner’s ruling.No. 39422

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13 Former RCW 7.68.035(1)(a) (2018) required a VPA be imposed on any individual found guilty of a crime in superior court. In 2023, the legislature amended the statute to prohibit imposition of a VPA on indigent defendants. RCW 7.68.035(4) , 5((b)

. The amendment took effect on July 1, 2023 , and applies prospectively to cases pending

on direct appeal that are not yet final. State v. Ellis , 27 Wn. App. 2d 1, 16 , 530 P.3d 1048 (2023).
Mr. Jones’ s resentencing took place prior to the effective date of the amendment. His direct appeal of the judgment and sentence following a full Blake resentencing hearing is pending review

. See State v. Dunbar , 27 Wn. App. 2d 238, 243, 532 P.3d 652 (2023) ( Blake res entencings are full resentencing hearings

. ). Thus, Mr. Jones enjoys the benefit of the amended statute as his case is not yet final for the purposes of sentencing. Because the sentencing court found Mr. Jones to be indigent, we remand with instructions
to str ike the VPA from the judgment and sentence

. Community custody supervision fees Mr. Jones argues the resentencing court erred by imposing community custody supervision fees because the 2022 amendment s to former RCW 9.94A.703 (2)(d) (2008) , effective at the time of his resentencing, now prohibit the imposition of such fees. Although Mr. Jones did not preserve an objection in the trial court to community custodyNo. 39422

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14 fees, this is not a bar to relief. See State v. Blazina , 182 Wn.2d 827, 832

- 34, 344 P.3d 680 (2015) (exercising discretion to review improper LFO raised for the first time on appeal). We therefore grant Mr. Jones his requested relief and remand with instructions to strike the community custody supervision fees. CONCLUSION We remand this matter with ins tructions to amend Mr. Jones’s judgment and sentence to memorialize special findings of sexual motivation and a deadly weapon.
We further remand with instructions to strike the VPA and community custody supervision fee s . A majority of the panel has determ ined 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:

__________________________ __ Lawrence

- Berrey, C.J.

Cooney, J.