IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

DUSTIN GENE ABRAMS,

Appellant.

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No. 39048-9-III

UNPUBLISHED OPINION

FEARING, J. — Dustin Abrams seeks, on appeal, a ruling striking a victim penalty 

assessment (VPA) entered for six 2004 convictions and the vacation of the six

convictions. The latter request requires that we discern whether RCW 9.94A.640(2) 

allows a vacatur when the offender is incarcerated for offenses other than the offenses 

sought to be vacated. We grant Abrams’ request to remove the VPA. We read 

RCW 9.94A.640(2) to permit a vacatur when the applicant remains in prison for other 

offenses, but reject, without prejudice, Abrams’ request to vacate the 2004 convictions

because of no showing of rehabilitation. 

FACTS

In April 2004, the State charged, under Grant County cause number 04-1-00255-1, 

Dustin Abrams with four counts of possessing a stolen firearm, four counts of theft of a 

firearm, and four counts of unlawful possession of a firearm in the second degree. Mike 

FILED

APRIL 9, 2024

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 39048-9-III

State v. Abrams

2

Mallon, a 79-year-old man who lived in a remote area of Grant County, was the victim of 

the thefts. In June 2004, the State amended the information to reduce the number of 

charged crimes to six. Abrams pled guilty to those six charges: four counts of theft of a 

firearm, one count of theft in the first degree, and one count of theft in the second degree. 

We collectively refer to those six convictions as the 2004 convictions. The trial court 

sentenced Abrams to thirty months in confinement and ordered him to pay the following 

legal financial obligations: a $500.00 VPA, a $110.00 criminal filing fee, a $509.10 

sheriff services fee, and a $500.00 fee for his court-appointed attorney. 

During Dustin Abrams’ time in prison for the theft convictions, Grant County 

detectives unearthed evidence that Abrams killed Mike Mallon. Abrams remained 

incarcerated, after completion of his sentence for the thefts, while awaiting trial for 

murder. He later pled guilty to the murder charge. He remains in prison today and has 

never been released since 2004. 

On November 29, 2021, Dustin Abrams filed a motion for an order waiving all of 

his legal financial obligations from the 2004 prosecution. On December 6, 2021, the 

superior court granted the motion in part. The order confirming the ruling declares: “[a]ll 

discretionary LFO’s [sic] are waived and interest.” Clerk’s Papers (CP) at 82. We read 

the order as retaining in effect all mandatory obligations. The order did not distinguish 

between discretionary and nondiscretionary legal financial obligations. 
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3

PROCEDURE

On June 1, 2022, Dustin Abrams filed another motion with the superior court for

an order waiving legal financial obligations. The motion did not identify the discrete 

obligations that Abrams requested be stricken. The June 1 motion is one of two motions 

now being reviewed by this court. Abrams filed with the motion a declaration that 

avowed his financial inability to pay obligations. 

On June 15, 2022, the superior court denied, without any argument, Dustin 

Abrams’ second motion to waive legal financial obligations. The written order explained 

that the court denied the motion because “RCW 10.82.090(2) allows for waiver 

‘following the offender’s release from total confinement.’ [sic] Defendant is in custody 

at DOC.” CP at 89. 

On June 17, 2022, Dustin Abrams filed a motion and declaration for an order 

vacating the record of his six 2004 felony convictions. This motion is the second motion 

on review before this court. That same day, the trial court denied the motion on the 

ground that, under RCW 9.94A.640(2), the offender may not gain a vacatur until five 

years after the offender’s release from confinement. 

On August 15, 2022, Dustin Abrams filed, with the superior court, a motion for an 

order of indigency, in which he certified:

[(1)] That I am the named defendant and I wish to appeal the 

judgment that was entered in the above-entitled case; (2) I own no real 

property; (3) That I own no personal property other than my personal 
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effects; (4) No income whatsoever; (5) That I have undischarged LFOs in 

all Grant County Superior Court Cases; (6) That I am without other means 

to prosecute said appeal and desire that public funds are expended for that 

purpose; (7) That I can contribute $0.00; (8) That brief statement was 

already filed with this court; (9) I ask that the court to [sic] provide the 

following at public expense: All filing fees, attorney fees, preparation, 

reproduction, and distribution of briefs, preparation of verbatim report of 

proceedings, and preparation of necessary clerk’s papers; (10) I do not have 

the funds to pay for an appeal, I have been indigent since March 31, 2004 

to date and will always be indigent.

CP at 95. On August 16, the superior court granted the motion and entered an order of 

indigency. 

LAW AND ANALYSIS

Legal Financial Obligations

Before addressing the merits of Dustin Abrams’ motion to strike legal financial 

obligations, we entertain the State’s argument that Abrams lacks a right to appeal as a 

matter of right the superior court’s denial of the second motion to strike. The State may 

be correct in accordance with State v. Wilson, 198 Wn. App. 632, 635, 393 P.3d 892 

(2017). But, in accordance with State v. Abrams, No. 39050-1-III (Wash. Ct. App. Aug. 

22, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/390501_unp.pdf, 

wherein Dustin Abrams sought the striking of legal financial obligations for convictions 

other than his 2004 convictions, we exercise our discretion to grant discretionary review 

on our own motion. RAP 1.2(c); State v. Blazina, 182 Wn.2d 827, 832, 344 P.3d 680 

(2015). 
No. 39048-9-III

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Dustin Abrams filed two motions for an order waiving legal financial obligations

entered in the 2004 prosecution: first on November 29, 2021 and again on June 1, 2022. 

On December 6, 2021, the trial court granted the November 29 motion and struck all 

“discretionary” legal financial obligations with interest. The order did not identify those 

obligations deemed discretionary. 

In 2018, the Washington Legislature amended the law to prohibit charging the 

$200 criminal filing fee to defendants who are indigent at the time of sentencing. LAWS 

Of 2018, ch. 269, § 17; State v. Ramirez, 191 Wn.2d 732, 748, 426 P.3d 714 (2018). The 

legislature also revoked, for indigent offenders, imposition of expenses incurred by the 

State in prosecuting the defendant, such as sheriff’s fees. RCW 10.01.160(2); State v.

Landrum, No. 33812-6-III (Wash. Ct. App. June 20, 2017) (unpublished), 

https://www.courts.wa.gov/opinions/pdf/338126_unp.pdf. Finally, court-appointed 

attorney fees became discretionary. State v. Glover, 4 Wn. App. 2d 690, 695, 423 P.3d 

290 (2018). Thus, when the superior court signed the December 6 order, only the $500 

VPA remained as a judgment against Dustin Abrams. 

When Dustin Abrams filed, on June 1, 2022, his second motion for waiver of legal 

financial obligations, Washington law still deemed the VPA to be a mandatory 

obligation. Nevertheless, in April 2023, the Washington Legislature adopted Engrossed 

Substitute House Bill 1169, and this law became effective on July 1, 2023. LAWS OF

2023, ch. 449, § 27. Under this bill, the superior court may no longer impose a VPA if 
No. 39048-9-III

State v. Abrams

6

the court adjudges the defendant to be indigent at the time of sentencing. LAWS OF 2023, 

ch. 449, § 1. RCW 7.68.035(4) now reads: 

The court shall not impose the penalty assessment under this section 

if the court finds that the defendant, at the time of sentencing, is indigent as 

defined in RCW 10.01.160(3).

Dustin Abrams argues that RCW 7.68.035(4) applies to his case because the 2023 

bill went into effect while this direct appeal was pending. We agree. Changes in the law 

with regard to legal financial obligations apply to cases pending on direct review and not 

yet final at the time the new law became effective. State v. Ramirez, 191 Wn. 2d 732, 

747 (2018). 

We still must decide whether Dustin Abrams was indigent at the time of 

sentencing in 2004. RCW 10.01.160 states, in relevant part, that

a defendant is “indigent” if the defendant: 

(a) Meets the criteria defined in RCW 10.101.010(3) (a) through (c); 

(b) is homeless or mentally ill as defined in RCW 71.24.025; 

(c) has household income above 125 percent of the federal poverty 

guidelines and has recurring basic living costs, as defined in RCW 

10.101.010, that render the defendant without the financial ability to pay; or 

(d) has other compelling circumstances that exist that demonstrate an 

inability to pay.

RCW 10.01.160(3). RCW 10.101.010(3) provides that

“[i]ndigent” means a person who, at any stage of a court proceeding, 

is:

(a) Receiving one of the following types of public assistance: 

Temporary assistance for needy families, aged, blind, or disabled assistance 

benefits, medical care services under RCW 74.09.035, pregnant women 

assistance benefits, poverty-related veterans’ benefits, food stamps or food 
No. 39048-9-III

State v. Abrams

7

stamp benefits transferred electronically, refugee resettlement benefits, 

medicaid, or supplemental security income; or

(b) Involuntarily committed to a public mental health facility; or

(c) Receiving an annual income, after taxes, of one hundred twentyfive percent or less of the current federally established poverty level.

RCW 10.101.010(3)(a)-(c). 

The record establishes that Dustin Abrams has been incarcerated since before his 

2004 convictions, is unemployed, has no income or assets, and cannot afford counsel. He 

receives public assistance. He owns no property. The superior court signed an order of 

indigency on August 16, 2022. Although the superior court did not expressly find 

Abrams to be indigent at the time of the June 2004 sentencing, Abrams averred that he 

has been indigent since March 2004. No facts contradict that Abrams was indigent at the 

time of sentencing in June 2004. Therefore, we remand to the trial court with instructions 

to strike the $500.00 VPA. 

Vacatur of 2004 Convictions

Dustin Abrams assigns error to the superior court’s denial of his motion to vacate 

his 2004 convictions. The superior court denied the motion after reading the controlling 

statute, RCW 9.94A.640(2)(e)(ii), as demanding that the applicant be released from all

confinement, including confinement for other convictions, for at least five years. Abrams 

has been incarcerated continuously since his 2004 convictions. 
No. 39048-9-III

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The 2019 New Hope Act, codified in RCW 9.94A.640, seeks to promote 

successful reentry into society by offenders. LAWS OF 2019, ch. 331, § 3. 

RCW 9.94A.640 declares, in relevant part:

(1) Every offender who has been discharged under RCW 9.94A.637 

may apply to the sentencing court for a vacation of the offender’s record of 

conviction. If the court finds the offender meets the tests prescribed in 

subsection (2) of this section, the court may clear the record of conviction 

by: (a) Permitting the offender to withdraw the offender’s plea of guilty and 

to enter a plea of not guilty; or (b) if the offender has been convicted after a 

plea of not guilty, by the court setting aside the verdict of guilty; and (c) by 

the court dismissing the information or indictment against the offender.

(2) An offender may not have the record of conviction cleared if:

(a) There are any criminal charges against the offender pending in 

any court of this state or another state, or in any federal court;

(b) The offense was a violent offense as defined in RCW 9.94A.030 

or crime against persons as defined in RCW 43.43.830. . ..

. . . .

(e) The offense is a class B felony and less than ten years have 

passed since the later of: (i) The applicant’s release from community 

custody; (ii) the applicant’s release from full and partial confinement; or 

(iii) the applicant’s sentencing date. 

(f) The offense was a class C felony, other than a class C felony 

described in RCW 46.61.502 or 46.61.504, and less than five years have 

passed since the later of: (i) The applicant’s release from community 

custody; (ii) the applicant’s release from full and partial confinement; or 

(iii) the applicant’s sentencing date.

(Emphasis added.) Theft of a firearm and theft in the first degree, two of Dustin Abrams’ 

crimes, are class B felonies subject to section (2)(e) of RCW 9.94A.640. RCW 

9A.56.030, RCW 9A.56.300. Second degree theft, the other 2004 offense, constitutes a 

class C felony subject to subsection (2)(f) of RCW 9.94A.640. RCW 9A.56.040. 
No. 39048-9-III

State v. Abrams

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RCW 9.94A.640 takes a step forward to remedy the problem of an offender facing 

obstacles when released from incarceration. Under public policy, a deserving offender 

should be restored to his preconviction status as a full-fledged citizen. State v. Hawkins, 

200 Wn.2d 477, 495, 519 P.3d 182 (2022). This legislative intent aligns with the overall 

purposes of the Sentencing Reform Act of 1981, ch. 9.94A, RCW, which include 

protecting the public and offering the offender an opportunity to improve himself or 

herself. RCW 9.94A.010(4), (5); State v. Hawkins, 200 Wn.2d 477, 495 (2022). 

RCW 9.94A.640 addresses the myriad of debilitating problems felons face when 

attempting to reintegrate into society. State v. Hawkins, 200 Wn.2d 477, 489 (2022). 

Long after serving their sentences, people with criminal histories face severe collateral 

consequences that can include barriers to voting, serving on a jury, holding public office, 

securing employment, obtaining housing, receiving public assistance, owning a firearm, 

getting a driver’s license, qualifying for financial aid and college admission, qualifying 

for military service, and deportation for noncitizens. State v. Hawkins, 200 Wn.2d 477, 

489 (2022).

Vacatur entitles an individual to rejoin society free of all penalties and disabilities 

resulting from the offense. RCW 9.94A.640(4)(a). In fact, the statute allows an offender, 

whose conviction has been vacated, to state that he has never been convicted of that 

crime for all purposes, including responding to questions on employment applications. 

State v. Hawkins, 200 Wn.2d 477, 489-90 (2022). A conviction vacated under 
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RCW 9.94A.640 is removed from the offender’s criminal history. 

RCW 9.94A.030(11)(b). 

RCW 9.94A.640(1) outlines a two-step process for vacating an offender’s 

convictions. First, a trial court must determine whether the convictions meet the legal 

requirements identified in RCW 9.94A.640(2). If the court determines that the 

conviction satisfies subsection (2) of the statute, the court engages in the second step and 

exercises its discretion to determine whether or not to clear the record of conviction. 

RCW 9.94A.640(1). In line with the statutory purpose, the trial court must focus on 

whether the applicant has demonstrated sufficient postconviction change to show 

rehabilitation. State v. Hawkins, 200 Wn.2d 477, 495 (2022). 

Because some of Dustin Abrams’ crimes were class B felonies, ten years must 

have passed from some event in order to qualify him for vacation of all 2004 convictions. 

RCW 9.94A.640(2)(e). The State argues that the ten years has not even begun to 

commence because Abrams remains incarcerated. The State maintains that interpreting 

RCW 9.94A.640(2)(e)(ii) to mean that ten years have passed since the offender’s release 

from full or partial confinement for the specific Class B felony at issue and interpreting 

RCW 9.94A.640(2)(f)(ii) to mean that five years have passed since the offender’s release 

from full or partial confinement for the specific Class C felony would defeat the purposes 

of the statute, place the statute in conflict with related statutes, and lead to absurd results. 

Abrams reads the statute to only demand that ten years have passed since his 
No. 39048-9-III

State v. Abrams

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incarceration for the 2004 crimes, which confinement ended sometime around 2006. We 

must decide whether RCW 9.94A.640(2)(e) and (f)’s references to release from 

community custody, release from confinement, and sentencing date relate only to the 

crimes sought to be vacated or extend to other crimes. 

The court’s primary duty in statutory interpretation is to discern and implement the 

legislature’s intent. Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012). 

In so doing, the court relies on many tested, commonsensical, and intelligent principles to 

divine the meaning of the statute, principles employed when interpreting other important 

and even sacred texts. State v. Jimenez, 200 Wn. App. 48, 52, 401 P.3d 313 (2017). We 

discern legislative intent from the plain language enacted by the legislature, considering 

the text of the provision in question, the context of the statute in which the provision is 

found, related provisions, amendments to the provision, and the statutory scheme as a 

whole. Association of Washington Spirits & Wine Distributors. v. Washington State

Liquor Control Board, 182 Wn.2d 342, 350, 340 P.3d 849 (2015). We also apply basic 

rules of grammar. In re Forfeiture of One 1970 Chevrolet Chevelle, 166 Wn.2d 834, 839, 

215 P.3d 166 (2009). 

We note that RCW 9.94A.640(2) repeatedly refers to “the offense,” presumably 

the offense that the applicant seeks to vacate. Thus, the statute employs the definite 

article “the.” We focus on RCW 9.94A.640(2)(e), which controls Class B felonies. 
No. 39048-9-III

State v. Abrams

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RCW 9.94A.640(2)(f), governing Class C felonies, uses the same critical language. 

Subsection 2(e) reads:

The offense is a class B felony and less than ten years have passed 

since the later of: (i) The applicant’s release from community custody; (ii) 

the applicant’s release from full and partial confinement; or (iii) the 

applicant’s sentencing date.

(Emphasis added.) We note that the subsection lists all three triggering events for the 

commencement of the ten years in the same sentence as “the offense.” We recognize that 

subsections (i), (ii), and (iii) do not specifically mention release from custody or 

confinement or the sentencing date as a result of any specific offense. Nevertheless, 

based on ordinary sentence structure, those three events relate to “the offense.” Nowhere 

does the sentence structure suggest that any of the operative dates connect to other or 

later crimes. The applicant’s sentencing date would likely not refer to sentencing for 

another offense since it refers to one date only. We should read the qualifying events in 

subsection (i) and (ii) accordingly. 

Use of a definite article is a recognized indication of statutory meaning. 

Guardado v. Guardado, 200 Wn. App. 237, 243, 402 P.3d 357 (2017); Department of

Ecology v. City of Spokane Valley, 167 Wn. App. 952, 965, 275 P.3d 367 (2012). The 

use of the definite article “the” often signifies a narrowing intent, a reference to 

something specific, either known to the reader or listener or uniquely specified. Hickey v.

Scott, 370 Or. 97, 107, 515 P.3d 368 (2022). Whereas definite articles like “the” restrict 
No. 39048-9-III

State v. Abrams

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the noun that follows as particularized in scope or previously specified by context, the 

indefinite “a” has generalizing force. Nielsen v. Preap, 586 U.S. ___, 139 S. Ct. 954, 

965, 203 L. Ed. 2d 333 (2019) (citing Merriam-Webster’s Collegiate Dictionary 1294 

(11th ed. 2005)). The articles in a statutory text—the definite articles and the indefinite 

articles—should not be overlooked or discounted, but should be treated as being chosen 

by design and as intending a particularizing effect. In re A.P., 245 W. Va. 248, 858 

S.E.2d 873, 879 (2021). 

In Guardado v. Guardado, 200 Wn. App. 237 (2017), this court highlighted the 

placement of the article “the” before the noun “cause” in CR 60(e)(1), which demanded 

that any motion to vacate a judgment be filed in “the cause.” Based on a plain reading of 

the entire rule, the rule’s language referenced the cause of action in which the judgment 

from which the movant sought relief was entered. This court reversed the superior 

court’s vacation of a judgment because the movant filed her motion in a different cause. 

In RCW 9.94A.640(2)(a), the legislature disqualified an offender from a vacatur if 

“any criminal charges” are pending against the offender. This subsection of the 

controlling statute illustrates that the legislature knew when it wished to reference other 

offenses. The legislature could have, but chose not to, insert the phrase “for any criminal 

charges” in RCW 9.94A.640(2)(e) and (f) when referencing community custody, 

confinement, and sentencing for purposes of triggering the five- and ten-year waiting 

periods. 
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We adopt Dustin Abrams’ reading of RCW 9.94A.640(2)(e). The statute’s 

reference to release from community custody or confinement extends only to release by 

reason of the offense or offenses sought to be vacated, not other offenses that may keep 

the offender incarcerated. 

The State highlights that Dustin Abrams’ interpretation of RCW 9.94A.640 would 

create a conflict between crimes that have community custody and those that do not. The 

offender serves community custody time at the end of all confinement time, including 

that time imposed on unrelated charges. RCW 9.94A.171(3)(a). Under Abrams’

interpretation, crimes that require community custody would be ineligible for vacation 

until after the offender’s ultimate release, and crimes that do not have community custody 

would be eligible for vacation years, if not decades, earlier, while the offender remains in 

prison. 

The State makes an excellent point that almost persuades us to adopt its 

interpretation. But, the continued use of the phrase “the offense” in the statute convinces 

us of the correctness of our exegesis. We note that crimes that do not demand 

community custody typically entail less harm to the general public such that the 

legislature could legitimately distinguish for purposes of vacatur between those offenses 

that demand community custody and those that do not. 

We also note that entry of a vacatur before the offender leaves prison affords little 

benefit to the offender. This recognition also almost persuades us to adopt the State’s 
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interpretation of RCW 9.94A.640. The offender will later need to seek a vacatur of the 

convictions for which he remains incarcerated in order to claim being conviction free. 

But, under RCW 9.94A.640 and the policy of promoting and furthering rehabilitation 

while in prison, the offender should still be able to gain what little profit is available 

while in prison from the opportunity to gain vacatur of old crimes. 

Our adoption of Dustin Abrams’ reading of RCW 9.94A.640(2) does not 

necessarily lead to vacation of his 2004 convictions. The court must meaningfully 

consider evidence of mitigation and rehabilitation since the time of the crime and 

exercise its discretion based on its assessment of the extent of rehabilitation. State v.

Hawkins, 200 Wn.2d 477, 481 (2022). The legislature’s use of the word “may” in 

RCW 9.94A.640 constitutes a clear grant of discretion to the trial court. State v.

Hawkins, 200 Wn.2d 477, 495 (2022). 

When filing his vacatur motion, Dustin Abrams supplied the superior court with 

no evidence of rehabilitation that the superior court could weigh in exercising its 

discretion when determining vacatur. Therefore, we do not reverse the superior court’s 

denial of the vacatur. Abrams remains free to file a new motion for vacatur with 

evidence of any rehabilitation. 

The State emphasizes that Dustin Abrams has not reentered the community. 

According to the State, a person serving a murder sentence in state custody is not 

someone the legislature would wish have restored to his preconviction status as a full-
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fledged citizen. We disagree. Someone convicted of murder can gain rehabilitation, 

return safely to society, and benefit from restoration of full citizen status. The 2019 New 

Hope Act recognizes the possibility of redemption. 

CONCLUSION

We affirm the superior court’s denial of Dustin Abrams’ petition for vacatur of his 

2004 convictions without prejudice to Abrams filing a new petition with evidence of 

rehabilitation. 

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.

_________________________________

Fearing, J.

WE CONCUR:

______________________________

Lawrence-Berrey, C.J.

______________________________

Cooney, J.