IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

JAMES DEAN SCHULTZ,

Appellant.

No. 84570-5-I

(consolidated with

No. 84972-7-I)

DIVISION ONE

PUBLISHED OPINION

HAZELRIGG, A.C.J. — James Schultz was convicted of murder in the second 

degree and the trial court imposed a standard range sentence of 220 months and 

ordered him to pay restitution. On appeal, he argues the judge did not meaningfully 

consider his intellectual disability as a mitigating factor for an exceptional sentence

below his standard range, presents a number of challenges to the award of 

restitution, and assigns error to the imposition of certain legal financial obligations 

(LFOs) based on his indigency. We affirm the sentence and matters relating to 

restitution, but remand for the trial court to strike the LFOs and consider the 

statutory factors regarding imposition of interest on the award of restitution.

FACTS

On June 18, 2020, Schultz and a group of other people, including Nicholas 

Germer, gathered at a bonfire near the Cedar River in unincorporated King County. 

Schultz and Germer did not know each other. Germer and another individual got 

into an argument about current events. A tattooed man in a white T-shirt, red hat, 
No. 84570-5-I/2

- 2 -

and light-colored pants with paint on them, later identified as Schultz, approached 

the discussion and punched Germer in the face. Germer then hit Schultz in the 

head with a vodka bottle, causing him to fall over an embankment. Schultz went 

to his truck in the parking area while two other individuals attempted to calm 

Germer down. Schultz’s companion who had arrived at the bonfire with him saw 

blood on Schultz’s head and attempted to get Schultz into the truck, but Schultz 

said he was going to “get that guy.” His companion urged him “not to go back 

there” but Schultz pushed him into the bushes and returned to the bonfire, 

concealing a handgun behind his back. When he reached Germer, Schultz pulled 

the gun from behind his back and shot Germer at least three times in the chest, 

abdomen, and leg. At approximately 11:39 p.m., one of the individuals who had 

been at the bonfire called 911 and reported that someone had been shot. 

Four deputies from the King County Sheriff’s Office (KCSO) responded to 

the scene. They discovered Germer below the firepit and partially in the river. One 

deputy pulled Germer out of the water, observed a gunshot wound to the chest, 

and began performing CPR1 while waiting for emergency medical aid to arrive. 

The deputies were able to identify Germer using a fingerprint scanner. Germer 

was transported by ambulance to the hospital where he later died during surgery 

as a result of his injuries.

Deputies surveyed the scene by the river and located four shell casings on 

the trail by the firepit, a hat at the bottom of the embankment, and broken branches 

and shrubbery in the area. They also discovered alcohol bottles, including a 

 1 Cardiopulmonary resuscitation.
No. 84570-5-I/3

- 3 -

broken vodka bottle. Two detectives from the KCSO major crimes unit arrived on 

scene and collected additional evidence, including blood drops, saliva, footprints, 

bottles, cigarette butts, and the victim’s cell phone and clothing. Through a 

discussion with Germer’s friend, the detectives were able to locate and speak with 

several individuals who had observed the incident. Several of these witnesses 

identified Schultz with varying degrees of certainty through photo montages. 

Schultz turned himself in to the precinct, where he was advised of his Miranda2

rights before participating in a recorded interview with police that lasted over four 

hours. In the statement Schultz provided to police, he denied that he had been hit 

with a bottle, possessed a gun, or shot anyone. Schultz claimed that he had been 

drinking and fell down the embankment. On June 29, 2020, Schultz was charged 

with murder in the first degree with a firearm enhancement. 

The parties reached a plea agreement on April 26, 2022, wherein Schultz 

would plead guilty to a reduced charge of murder in the second degree, a class A 

felony, with the firearm enhancement and the State would recommend a sentence 

of 280 months in prison, including a mandatory consecutive term of 60 months for 

the firearm enhancement pursuant to RCW 9.94A.533. However, the plea 

agreement expressly noted that there was no agreement as to the length of 

incarceration; the State sought a high-end sentence and the defense requested an 

exceptional sentence below Schultz’s standard sentencing range. The terms of 

the plea negotiations also included an agreement to a no contact order with 

Germer’s family and other individuals, community custody, and restitution, and 

 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 84570-5-I/4

- 4 -

stipulated to the facts set out in the probable cause affidavit for purposes of the 

plea and sentencing. Schultz entered his guilty plea on May 5 and, in his statement 

of defendant on plea of guilty, recanted his earlier statements to police disclaiming 

involvement in any shooting and declared that he “intentionally, and without 

premeditation, caused the death of Nicholas Germer, a human being, by shooting 

him with a firearm.”

Schultz filed a sentencing memorandum that requested an exceptional 

mitigated sentence of 78 months, below his standard range of 123-220 months,

based on his offender score of zero. He argued that the court should consider that 

he has permanent brain damage as a result of a neurodevelopmental disorder 

associated with prenatal alcohol exposure (ND-PAE), a type of fetal alcohol 

spectrum disorder, that Germer was the initial aggressor of the incident by striking 

him with a bottle, and that he has no history of felony convictions or violence. To 

support the first factor, he presented expert testimony by Dr. Megan Carter, a 

forensic psychologist, and a report by Dr. Natalie Novick Brown, a clinical 

psychologist. Novick Brown conducted interviews with Schultz and his family, 

gathered a chronology of Schultz’s academic, medical, and criminal history, and 

executed several standardized psychological tests. Although the testing 

demonstrated that Schultz’s IQ3 “ruled out” an intellectual disability, his scores 

were low in other areas that were also evaluated. Novick Brown’s report stated

that Schultz “functions within the intellectually disabled range in unstructured 

environments where he must think independently in order to problem solve—a 

 3 Intelligence quotient.
No. 84570-5-I/5

- 5 -

finding that has direct implications for his alleged conduct in the instant offense.” 

She diagnosed Schultz with ND-PAE and opined that the condition “directly 

influenced his alleged offense conduct.” 

At the sentencing hearing on September 16, 2022, Carter concurred with 

Novick Brown’s diagnosis and testified that the ND-PAE would have impacted 

Schultz’s behavior regardless of his alcohol consumption, but agreed that alcohol 

may have contributed to the actions as well. Carter stated that Schultz’s diagnosis 

could impact memory, an inability to understand the future impacts of statements 

made to the police, and the display of emotionally inappropriate behavior. The 

State countered this evidence with testimony from KCSO Sergeant James Belford, 

the lead detective on the case. Belford stated that, based on his training and 

experience, Schultz had exhibited behavior designed to evade responsibility for 

his conduct. Belford also said that, during the four-hour recorded interview, he did 

not have any difficulty communicating with Schultz and that he was not concerned 

that Schultz had any difficulty tracking the information they were discussing.

After expressly considering the purpose of the Sentencing Reform Act of 

1981 (SRA),4 the testimony presented, the written materials of the parties, 

including the expert reports, and oral argument, the trial court imposed a high-end 

sentence of 280 months. In setting out the reasoning for the sentence, the judge 

noted that Schultz had left the scene of the initial altercation with Germer to retrieve 

the gun from his truck and that he disregarded his companion’s attempts to stop 

him. Although the judgment and sentence (J&S) indicated that restitution would 

 4 Ch. 9.94A RCW.
No. 84570-5-I/6

- 6 -

be determined at a future hearing, the judge ordered Schultz to pay the $100 DNA5

collection fee and $500 victim penalty assessment (VPA) as was required by 

statute at the time.

6

On November 2, 2022, the State submitted documentation in support of its 

request for restitution. The evidence included documentation of the bereavement 

leave and paid time off (PTO) that each of Germer’s parents used following their 

son’s death; 10 days of missed work for Germer’s mother between June 19 and 

July 2, 2020, and 9 days of missed work for his father between June 22 and July 

6, 2020. The State sought an award of restitution in the amount of $1,784.72 to 

Germer’s mother and $2,334.08 to his father based on the reported loss. It also 

sought $45.00 to reimburse Germer’s sister for counseling and $6,375.87 for 

repayment to the crime victims’ compensation fund for Germer’s funeral expenses. 

The total amount of restitution requested by the State was $10,539.67. On 

December 19, 2022, Schultz filed a response and argued that he was entitled to a 

jury trial to determine the amount of restitution under the Sixth Amendment to the 

United States Constitution and that the portion of the award that the State was 

requesting for Germer’s parent’s PTO constituted an excessive fine in violation of 

the Eighth Amendment to the United States Constitution and article I, § 14 of the 

Washington Constitution.

A restitution hearing was held on January 31, 2023. After considering oral 

argument from both parties, the trial court awarded the full amount of restitution 

sought by the State. It concluded that case law did not provide the right to a jury 

 5 Deoxyribonucleic acid.

6 Former RCW 43.43.7541 (2018); former RCW 7.68.035 (2018).
No. 84570-5-I/7

- 7 -

trial for a determination of restitution and that the amount of the award did not 

constitute an excessive fine. The court also expressly stated that it had 

“considered the factors that the Ramos[7] case . . . directs [it] to consider, including 

the nature and extent of the crime, the violation itself, the extent of the harm 

caused, other penalties that may be imposed for this crime, and [] Schultz’s ability 

to pay or inability to pay” and that the restitution request was reasonable in light of 

those factors.

Schultz timely appealed.

ANALYSIS

Schultz raises multiple challenges relating to his J&S. As a threshold 

matter, the SRA states that “a sentence within the standard sentence range . . . for 

an offense shall not be appealed.” RCW 9.94A.585(1). When the trial court 

imposes a standard range sentence over a party’s request for an exceptional 

sentence, review is only permissible in “‘circumstances where the court has 

refused to exercise discretion at all or has relied on an impermissible basis for 

refusing to impose an exceptional sentence below the standard range.’” State v. 

McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017) (internal quotation marks

omitted) (quoting State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002). If 

reviewable, this court will only find that the trial court erred if it “‘refuses 

categorically to impose an exceptional sentence below the standard range under 

any circumstances’ or when it operates under the ‘mistaken belief that it did not 

 7 State v. Ramos, 24 Wn. App. 2d 204, 520 P.3d 65 (2022), review denied, 200 Wn.2d 

1033 (2023). 
No. 84570-5-I/8

- 8 -

have the discretion to impose a mitigated exceptional sentence for which a 

defendant may have been eligible.’” Id. (quoting State v. Garcia-Martinez, 88 Wn. 

App. 322, 330, 944 P.2d 1104 (1997); In re Pers. Restraint of Mulholland, 161 

Wn.2d 322, 333, 166 P.3d 677 (2007)). 

We conduct our review under the exceptions to the SRA’s general 

prohibition on appeals of the imposition of a standard range sentence. 

I. Consideration of Mitigation Information at Sentencing

Schultz first challenges his standard range sentence and argues that the 

trial court erred when it failed to meaningfully consider how his intellectual disability 

reduced his capacity to conform his conduct to the law under RCW 

9.94A.535(1)(e). RCW 9.94A.535 permits a court to “impose a sentence outside 

the standard sentence range for an offense if it finds . . . that there are substantial 

and compelling reasons justifying an exceptional sentence.” The statute provides 

several illustrative examples of mitigating factors, including that the “defendant’s 

capacity to appreciate the wrongfulness of [their] conduct, or to conform [their] 

conduct to the requirements of the law was significantly impaired.” RCW 

9.94A.535(1)(e). Again, because the trial court entered a sentence within the 

standard range, this court’s review of the sentencing decision is limited to 

circumstances where the trial court has refused to exercise discretion at all or used 

an impermissible basis for refusing to impose an exceptional sentence. GarciaMartinez, 88 Wn. App. at 330 (emphasis added).

As a preliminary matter, the record establishes that the trial court may have 

reasonably found that Schultz does not actually have an intellectual disability. His 
No. 84570-5-I/9

- 9 -

mitigation expert, Novick Brown, explicitly acknowledged in her report that, 

because Schultz’s IQ was 80, “intellectual disability is [] ruled out.” Carter likewise 

testified that although Schultz’s IQ “is a little bit below average, it’s not considered 

intellectually disabled.” Although Novick Brown also explained that Schultz 

behaved “within the intellectually disabled range” in certain situations, the court 

may not have been convinced that her assessment and diagnoses presented a 

condition that would be considered an intellectual disability to the extent that the 

request for an exceptional downward departure on that basis was sufficiently 

supported. Schultz does not present any evidence that ND-PAE, particularly when 

paired with an IQ score above the standard indicative of intellectual disability, is 

widely accepted by the medical or psychiatric community as an intellectual 

disability.

More critically, even accepting Novick Brown’s diagnosis of ND-PAE and 

assuming the condition to be an intellectual disability, there is no legal precedent 

requiring the trial court to deviate from the standard sentencing range on that basis. 

Both our federal and state constitutions forbid the imposition of cruel and unusual 

punishment. U.S. CONST. amend. VIII; WASH. CONST. art. 1 § 14. These provisions

stem from the premise that punishment for a crime should be proportionate to both 

the offender and the offense. Miller v. Alabama, 567 U.S. 460, 469, 132 S. Ct. 

2455, 183 L. Ed. 2d 407 (2012). The concept of proportionality is viewed according 

to “‘the evolving standards of decency that mark the progress of a maturing 

society.’” Id. 469-70 (internal quotation marks omitted) (quoting Estelle v. Gamble,

429 U.S. 97, 102, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)). Courts have used these 
No. 84570-5-I/10

- 10 -

principles to place limitations on sentencing in criminal cases. See id. at 465 

(courts may not impose mandatory life imprisonment without parole on juvenile 

defendants); Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed.

2d 1 (2005) (courts may not levy capital punishment on offenders under 18 at time 

of crime); Kennedy v. Louisiana, 554 U.S. 407, 413, 128 S. Ct. 2641, 171 L. Ed.

2d 525 (2008) (death penalty may not be ordered for nonhomicide crimes);

Graham v. Florida, 560 U.S. 48, 62, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) 

(courts may not give life sentence without possibility of parole for juveniles

convicted of nonhomicide offenses). Particularly relevant to this appeal, Atkins v. 

Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) prohibited capital 

punishment for defendants with intellectual disabilities. However, to date, there is 

no federal or Washington authority that prohibits courts from imposing standard 

range sentences where intellectual disability has been presented as a mitigating 

factor. 

Even so, there is evidence in the record that the trial court here did consider 

Schultz’s diagnosis of ND-PAE. Unlike the heightened requirements for the 

consideration of mitigating factors of youth, the trial court here was not required to 

follow a particular metric of “meaningful” consideration or provide a precise

evaluation of each factor on the record. As the trial court imposed a standard 

range sentence, there need only be evidence in the record establishing that it 

exercised any amount of discretion at all. Garcia-Martinez, 88 Wn. App. at 330. 

After hearing the testimony of Schultz’s expert witness and reading the reports that 

were provided, the trial court judge stated:
No. 84570-5-I/11

- 11 -

I spent time this week preparing for the sentencing today, including 

considering the written materials that were provided to me. Without 

limitation, those include the expert opinions that were provided, 

letters from family members, a letter from the defendant himself. I’ve 

also considered and have been taking notes in regard to the 

testimony given today and the arguments and statements made 

today. I’ve also considered the purposes and rationale of the [SRA].

Looking at the record as a whole, particularly these statements, the trial court 

clearly considered the mitigating evidence that Schultz provided. He does not offer

authority that requires a sentencing court to do anything more. Accordingly, 

Schultz’s argument on this issue fails.

II. Challenges To Restitution

An award of restitution in a criminal case is authorized by the SRA. RCW 

9.94A.750, .753. Schultz assigns error to both the ultimate determination on 

restitution and the process by which it was reached. He asserts the trial court 

violated his constitutional right to have a jury determine restitution, that there was 

not a sufficient causal connection between his criminal conduct and the amount 

awarded, and that the award of restitution was unconstitutionally excessive. Each 

of Schultz’s arguments on restitution fail.

A. No Constitutional Right to Jury Trial on Restitution

Schultz next asserts that the trial court erred when it denied his motion for 

a jury determination of restitution under both the federal and state constitutions. A 

party arguing that a provision of the state constitution offers greater protection than 

a similar provision in the federal constitution must first provide an analysis under
No. 84570-5-I/12

- 12 -

State v. Gunwall8 or we only review the federal provision. See State v. Ladson, 

138 Wn.2d 343, 347-48, 979 P.2d 833 (1999). Because Schultz does not appear 

to argue greater protection under our state constitution or engage in a Gunwall 

analysis to demonstrate how it might provide greater protection than the Sixth 

Amendment, our evaluation of his challenge is constrained to the federal 

constitution. The Sixth Amendment guarantees the accused the right to a jury trial. 

U.S. CONST. amend. VI. The role of the jury “is to determine whether the State has 

proved the charged offenses beyond a reasonable doubt.” State v. Emery, 174 

Wn.2d 741, 760, 278 P.3d 653 (2012). Although current case law necessitates a 

jury determination for increases in prison sentences beyond the statutory 

maximum, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. 

Ed. 2d 425 (2000), and certain criminal fines, Southern Union Co. v. United States, 

567 U.S. 343, 360, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), there is no existing 

right to, or precedent supporting a jury determination on restitution. 

Schultz primarily relies on Apprendi and Southern Union to support his 

argument that this court should expand the protections of the Sixth Amendment to 

include a requirement for a jury determination of restitution. Apprendi held that 

any fact that increases imprisonment “for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 

530 U.S. at 490. Twelve years later, Southern Union applied the principles of 

Apprendi to the imposition of certain criminal penalties and ruled that there is no 

 8 106 Wn.2d 54, 720 P.2d 808 (1986).
No. 84570-5-I/13

- 13 -

basis for treating criminal fines differently than imprisonment so long as the fine is 

substantial enough to trigger the right to a jury trial. Id. at 349-50, 352. 

Schultz argues that the reasoning from Apprendi and Southern Union 

extends to restitution which, like imprisonment or criminal fines, is an aspect of

punishment imposed upon conviction. However, our state Supreme Court 

expressly ruled in State v. Kinneman that, under United States Supreme Court 

precedent, there is no federal constitutional right to a jury determination of 

restitution. 155 Wn.2d 272, 281-82, 119 P.3d 350 (2005). In Kinneman, our 

Supreme Court explained:

[W]hile restitution is punishment, it does not require jury fact-finding 

under the post-Blakely[9] decision in United States v. Booker, 543 

U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). In Booker, the 

Court held that provisions making the Federal Sentencing Guidelines 

mandatory and setting forth the standard of review on appeal were 

unconstitutional because they violated the Sixth Amendment right to 

a jury trial. The Court severed these provisions, leaving the 

Guidelines as effectively advisory. The Sixth Amendment was then 

not implicated because statutes that do not impose mandatory, 

binding requirements on sentencing judges do not implicate the right 

to a jury trial. Booker, 543 U.S. at 233 (Stevens, J.) (“when a trial 

judge exercises [their] discretion to select a specific sentence within 

a defined range, the defendant has no right to a jury determination 

of the facts that the judge deems relevant.”); id. at 257 (Breyer, J.).

Washington’s restitution statutes are more like the advisory 

Federal Sentencing Guidelines after Booker than the mandatory 

sentencing guidelines found to violate the Sixth Amendment in 

Blakely. RCW 9.94A.753(5) provides that “restitution shall be 

ordered whenever the offender is convicted of an offense which 

results in injury to any person or damage to or loss of property . . . 

unless extraordinary circumstances exist which make restitution 

inappropriate in the court’s judgment.” . . .

While the restitution statute directs that restitution “shall” be 

ordered, it does not say that the restitution ordered must be 

equivalent to the injury, damage or loss, either as a minimum or a 

maximum, nor does it contain a set maximum that applies to 

restitution. Instead, RCW 9.94A.753 allows the judge considerable 

 9 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
No. 84570-5-I/14

- 14 -

discretion in determining restitution, which ranges from none (in 

some extraordinary circumstances) up to double the offender’s gain 

or the victim’s loss. . . .

Given the broad discretion accorded the trial judge by the 

statute, the lack of any set maximum, and the deferential abuse of 

discretion review standard, the restitution statute provides a scheme 

that is more like indeterminate sentencing not subject to Sixth

Amendment jury determinations than the SRA’s determinate 

sentencing scheme at issue in Blakely. . . .

There is no right to a jury trial to determine facts on which 

restitution is based under RCW 9.94A.753.

Id. (emphasis added) (third alteration in original).

Southern Union did not overrule or otherwise abrogate Booker or our state 

precedent in Kinneman, and there is no other case law binding this court to 

Schultz’s requested interpretation that Apprendi applies to restitution. Recent 

unpublished opinions of this court have plainly and consistently followed Kinneman

and denied the exact challenge Schultz now presents.

10 See, e.g., State v. 

Youngkeun Lee, No. 72828-8-I, slip op. at 7 (Wash. Ct. App. Jan. 19, 2016) 

(unpublished) (“Although Lee rejects the Kinneman court’s reasoning, Kinneman is 

still good law in Washington.”), https://www.courts.wa.gov/opinions/pdf/728288.pdf;

State v. Carde, No. 73324-9-I, slip op. at 15 (Wash. Ct. App. Jan. 30, 2017) 

(unpublished) (explaining Washington Supreme Court held there is no right to jury trial to 

determine facts on restitution), https://www.courts.wa.gov/opinions/pdf/733249.pdf; 

State v. Beasley, No. 75002-0-I, slip op. at 10 (Wash. Ct. App. Aug. 7, 2017)

(unpublished) (“We adhere to the Washington Supreme Court decision in 

Kinneman and hold there is no right to a jury trial to determine the facts establishing 

 10 Pursuant to GR 14.1(c), we may cite to unpublished opinions as “necessary for a 

reasoned decision.” We provide them here only to demonstrate the scope of the judicial recognition 

of Kinneman as controlling authority.
No. 84570-5-I/15

- 15 -

the amount of restitution.”), https://www.courts.wa.gov/opinions/pdf/750020.pdf;

State v. Kao Cho Saephanh, No. 75844-6-I, slip op. at 9 (Wash. Ct. App. Jan. 22, 

2018) (unpublished) (holding Southern Union does not implicate restitution and 

Kinneman is binding), https://www.courts.wa.gov/opinions/pdf/758446.pdf. Nearly 

two decades ago, our state’s highest court thoughtfully and explicitly considered 

the precise challenge presented here, analyzing it within the framework of federal 

case law, and rejected it. As an intermediate appellate court bound to follow the 

controlling precedent of the Washington State Supreme Court, we decline 

Schultz’s invitation to expand the holdings in Apprendi and Southern Union.

B. Causal Connection and Award of Restitution

Schultz next contends that the trial court erred in awarding restitution to 

Germer’s parents because the State did not demonstrate that the use of their PTO 

was connected to an injury as required by law.11 Restitution is governed by statute. 

State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007). Absent a finding of 

extraordinary circumstances, the SRA anticipates an order of restitution when a 

defendant “is convicted of an offense which results in injury to any person or 

damage to or loss of property.” RCW 9.94A.753(5). Restitution includes “easily 

ascertainable damages for injury to or loss of property, actual expenses incurred 

for treatment for injury to persons, and lost wages resulting from injury.” RCW 

9.94A.753(3)(a). It does not include “reimbursement for damages for mental 

 11 Schultz also avers, as a threshold matter, that PTO is not the equivalent of lost wages 

because Germer’s parents were paid by their employers for their time off of work. We reject this 

initial argument as this court has already determined that PTO constitutes property under the 

restitution statute. State v. Long, 21 Wn. App. 2d 238, 243, 505 P.3d 550, review denied, 200 

Wn.2d 1004 (2022).
No. 84570-5-I/16

- 16 -

anguish, pain and suffering, and other intangible losses.” Id. Restitution is only 

permitted for losses that are “causally connected” to the crime, which is established 

if the loss would not have occurred but for the criminal act. Tobin, 161 Wn.2d at 

524 (quoting Kinneman, 155 Wn.2d at 286). 

If a defendant disputes the amount of restitution requested by the State, the 

court must hold a hearing to determine the amount to be awarded. RCW 

9.94A.753(1). The State must prove the amount requested by a preponderance 

of the evidence. State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008). As 

the legislature intended restitution to be a financial consequence of the defendant’s 

criminal conduct, the trial court is granted broad powers to determine the award. 

Tobin, 161 Wn.2d at 524. “So long as the court [] imposed a type of restitution 

authorized by statute, we will reverse its award only if it abused its discretion.” 

State v. Thomas, 138 Wn. App. 78, 81, 155 P.3d 998 (2007). While acknowledging 

our courts have recognized that emotional distress may result in the tangible lost 

wages restitution is designed to reimburse, Schultz asserts that the State did not 

demonstrate the required causal connection between the emotional distress 

experienced by Germer’s parents and their use of PTO. However, he waived this 

assignment of error as he expressly conceded a causal connection in both his 

briefing and argument to the trial court. At the restitution hearing, Schultz admitted 

that “there is certainly a nexus between, you know, their loss and grief and inability 

to work.”

Even if Schultz had not so conceded, all the trial court was required to find 

in order to award the amount of restitution requested by the State was that the 
No. 84570-5-I/17

- 17 -

expenses for which reimbursement was sought were causally connected to the 

crime. Tobin, 161 Wn.2d at 524. Germer’s parents testified to the emotional 

distress they experienced as a result of their son’s murder and presented 

accompanying documentation of their resulting use of PTO. Schultz’s challenge 

on this issue fails.

C. Purely Compensatory Restitution

Schultz argues that the Eighth Amendment and art. I, § 14 prohibit the trial 

court from awarding the full $10,539.67 in restitution without consideration of his 

inability to pay. In the trial court, he only raised this challenge as to the portion of 

restitution ordered payable to Germer’s parents. As Schultz does not allege that 

a manifest constitutional error occurred regarding restitution for the crime victims’

compensation fund or Germer’s sister’s counseling, we evaluate this challenge 

exclusively in the context of the restitution he was ordered to pay for Germer’s 

parent’s use of PTO.

The provisions of both our federal and state constitutions prohibit the 

imposition of “excessive fines.” U.S. CONST. amend. VIII; WASH. CONST. art. I, § 14. 

The United States Supreme Court has held that excessive fines should be viewed 

under a standard of proportionality and that a punitive fine violates the Eighth 

Amendment if it is “grossly disproportional to the gravity of the offense.” United 

States v. Bajakajian, 524 U.S. 321, 324, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998). 

Generally, “we view article I, section 14 and the Eighth Amendment as coextensive 

for the purposes of excessive fines.” City of Seattle v. Long, 198 Wn.2d 136, 159, 

493 P.3d 94 (2021).
No. 84570-5-I/18

- 18 -

To determine whether the amount of restitution is excessive in violation of 

the Eighth Amendment, the reviewing court must first ascertain whether the 

financial assessment constitutes “punishment.” State v. Ramos, 24 Wn. App. 2d 

204, 215, 520 P.3d 65 (2022), review denied, 200 Wn.2d 1033 (2023). For 

example, in Ramos, the court concluded that the penalty was partially punitive 

based on the particular facts of that restitution award. Id. at 226. If a financial 

penalty is found to be punitive, and therefore a “fine,” “[t]he second question is 

whether the sanction is grossly disproportional to the offense.” Id. at 215.

Separately, Washington law provides that trial courts may consider a defendant’s 

ability to pay when determining the minimum monthly payment ordered in an award 

of restitution, but expressly “may not reduce the total amount of restitution ordered 

because the offender may lack the ability to pay the total amount.” RCW 

9.94A.753(1), (4) (emphasis added).

The restitution that Schultz was ordered to pay to Germer’s parents directly 

compensated them for their use of PTO following the death of their son due to 

Schultz’s conduct. Again, Schultz conceded the causal connection between 

Germer’s murder and his parents’ use of bereavement leave. Germer’s parents 

provided documentation of those losses and restitution was awarded in that exact 

amount. This portion of the restitution award was therefore compensatory, not a 

fine subject to an excessive fines analysis, and we need not reach the second step 

of the Ramos inquiry.
No. 84570-5-I/19

- 19 -

III. Legal Financial Obligations

Finally, Schultz asserts that, because he is indigent, recent legislative 

changes require this court to strike the LFOs, specifically the $500 VPA and the 

$100 DNA fee. He further asks that the trial court be directed to consider striking 

the interest on the restitution award. The trial court found that Schultz was indigent 

and the RAPs presume continued indigency throughout appellate review. State v. 

Sinclair, 192 Wn. App. 380, 393, 367 P.3d 612 (2016), RAP 15.2(f) (“The appellate 

court will give a party the benefits of an order of indigency throughout the review 

unless the trial court finds the party’s financial condition has improved.”).

A. VPA and DNA Collection Fee

The Washington Legislature eliminated the DNA collection fee for 

defendants who have been found indigent as of July 1, 2023, after Schultz was 

sentenced. RCW 43.43.7541(2). On that same date, another legislative 

amendment became effective that prohibited the imposition of the VPA if the 

defendant is indigent. RCW 7.68.035(5). 

Although the revisions occurred after Schultz was sentenced, our state 

Supreme Court held in State v. Ramirez that amendments of this kind apply 

prospectively to cases pending direct review. 191 Wn.2d 732, 747, 426 P.3d 714 

(2018). The court considered the applicability of other legislative revisions 

concerning the court’s ability to impose costs on a criminal defendant who is 

indigent at the time of sentencing and concluded that, because the defendant’s

case was on appeal as a matter of right, the case was not final pursuant to RAP 

12.7 and he was entitled to the benefit of the changes. Id. at 749. The statutory 
No. 84570-5-I/20

- 20 -

changes in this case, RCW 43.43.7541(2) and RCW 7.68.035(5), also pertain to 

the imposition of costs on a criminal defendant found indigent at the time of 

sentencing and, by the reasoning in Ramirez, Schultz is entitled to the benefit of 

the amendments as his case is pending appeal.

The State does not agree that these LFOs are costs under RCW 

10.01.160(3) and, on that basis, argues that Ramirez does not control. However, 

this court has consistently held that the VPA and DNA fees are captured within 

these statutory amendments and indigent defendants are entitled to relief if their 

appeal is pending. See, e.g., State v. Phillips, 6 Wn. App. 2d 651, 677, 431 P.3d 

1056 (2018); State v. Wemhoff, 24 Wn. App. 2d 198, 201, 519 P.3d 297 (2022); 

Ellis, 27 Wn. App. 2d at 16. We see no reason to deviate from this court’s 

consistent practice of remand for the trial court to amend the J&S to comply with 

the statutory amendments.

B. Interest on Restitution

In a related assignment of error, Schultz seeks relief from the court’s 

imposition of interest on the award of restitution. Effective January 1, 2023, after 

Schultz’s sentencing hearing, RCW 10.82.090 was revised to include the following 

language:

The court may elect not to impose interest on any restitution 

the court orders. Before determining not to impose interest on 

restitution, the court shall inquire into and consider the following 

factors: (a) Whether the offender is indigent as defined in 

RCW 10.01.160(3) or general rule 34; (b) the offender’s available 

funds, as defined in RCW 10.101.010(2), and other liabilities 

including child support and other legal financial obligations; (c) 

whether the offender is homeless; and (d) whether the offender is 

mentally ill, as defined in RCW 71.24.025. The court shall also 
No. 84570-5-I/21

- 21 -

consider the victim’s input, if any, as it relates to any financial 

hardship caused to the victim if interest is not imposed. The court 

may also consider any other information that the court believes, in 

the interest of justice, relates to not imposing interest on restitution. 

After consideration of these factors, the court may waive the 

imposition of restitution interest.

RCW 10.82.090(2).

Schultz argues that because his case is still pending appeal he is entitled 

to benefit from changes in the law. This court agreed with Schultz’s position in 

State v. Reed and held “restitution interest is analogous to costs for purposes of 

applying the rule that new statutory mandates apply in cases, like this one, that are 

on direct appeal.” 28 Wn. App. 2d 779, 782, 538 P.3d 946 (2023). As Schultz’s 

case is on direct appeal, he is entitled to remand for the trial court to consider 

whether to impose interest on restitution in light of the statutory factors and its prior 

finding of indigency.

Affirmed in part, reversed in part, and remanded.

WE CONCUR: