FILED
                                                               MAY 9, 2018
                                                      In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                         )         No. 35726-1-III
                                             )
                     Respondent,             )
                                             )
       v.                                    )         UNPUBLISHED OPINION
                                             )
NICHOLAS ANDRES FUENTES III,                 )
                                             )
                     Appellant.              )

       PENNELL, A.C.J. — Nicholas Andres Fuentes III appeals his conviction for second

degree assault. Mr. Fuentes argues that the case against him should have been dismissed

based on the delayed disclosure of a State’s witness. Mr. Fuentes also challenges the trial

court’s imposition of legal financial obligations (LFOs). We affirm Mr. Fuentes’s

conviction but remand for correction of LFOs as warranted by recent statutory changes.

                                         FACTS

       In March 2017, Mr. Fuentes attempted to steal a can of beer from a gas station

convenience store. His actions caught the attention of the store clerk. When the clerk

confronted Mr. Fuentes about the attempted theft, Mr. Fuentes became irate. Mr. Fuentes

went around the store’s checkout counter and began physically attacking the clerk.

During the skirmish, Mr. Fuentes broke one of the clerk’s fingers before the clerk escaped
No. 35726-1-III
State v. Fuentes


to outside the store. Once outside, the store clerk called for help from customers who

were fueling their cars. Mr. Fuentes briefly chased the clerk before fleeing the scene.

       Bruce Rhimer was one of the customers pumping gas during the altercation. He

saw portions of the interaction between Mr. Fuentes and the store clerk. Mr. Rhimer

also called 911.

       Mr. Fuentes was charged with attempted first degree robbery and second degree

assault. Trial was scheduled to begin on Monday, July 17, 2017. The Wednesday before

trial, the State disclosed that it would be calling Mr. Rhimer as a witness. Although Mr.

Rhimer’s identity was previously disclosed through the 911 records, this was the first time

the State had indicated that Mr. Rhimer would testify. The State explained its delay as

attributable to difficulties making contact with Mr. Rhimer.

       The disclosure of Mr. Rhimer as a State witness prompted Mr. Fuentes to make

an oral motion for dismissal of charges under CrR 8.3(b). Mr. Fuentes also sought an

alternative remedy of a short continuance of the trial date. However, Mr. Fuentes

complained that the State’s late disclosure should not force him to “choose between

waiving his speedy trial right or going . . . to trial unprepared.” Report of Proceedings

(RP) (July 17, 2017) at 2. The trial court denied Mr. Fuentes’s motion to dismiss, but

granted a short continuance.


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State v. Fuentes


       At trial, the State called four witnesses: the store clerk, Mr. Rhimer, and two

police officers. Mr. Fuentes testified on his own behalf. After conclusion of the State’s

case-in-chief, the court dismissed the charge of attempted first degree robbery on grounds

of insufficient evidence. A jury convicted Mr. Fuentes of the remaining second degree

assault charge. The court sentenced Mr. Fuentes to 72 months’ confinement and 18

months’ community custody.

       Mr. Fuentes now brings this timely appeal.

                                        ANALYSIS

Dismissal motion

       A trial court may dismiss a criminal charge under CrR 8.3(b) “due to arbitrary

action or governmental misconduct when there has been prejudice to the rights of the

accused which materially affect the accused’s right to a fair trial.” Disposition of a

CrR 8.3(b) motion is reviewed for abuse of discretion. State v. Williams, 193 Wash. App.
906, 909, 373 P.3d 353 (2016).

       Dismissal based on CrR 8.3(b) can be predicated on “simple mismanagement,”

rather than “evil or dishonest” conduct on behalf of the State. State v. Garza, 99 Wn.

App. 291, 295, 994 P.2d 868 (2000). Nevertheless, dismissal is an “extraordinary

remedy.” State v. Moen, 150 Wash. 2d 221, 226, 76 P.3d 721 (2003). When it comes to


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No. 35726-1-III
State v. Fuentes


a CrR 8.3(b) motion based on an alleged discovery violation, dismissal is inappropriate

if a lesser remedial action, such as suppression of testimony, can adequately address

prejudice to the defense. State v. Salgado-Mendoza, 189 Wash. 2d 420, 430-31, 403 P.3d 45

(2017).

       Here, Mr. Fuentes fails to show dismissal was necessary to preserve his right to

a fair trial. Mr. Rhimer had long been identified as a witness to the events at the gas

station. Mr. Rhimer did not offer any new information in support of the State’s case.

He instead corroborated the store clerk’s testimony. In addition, although the State did

not include Mr. Rhimer’s name on its initial witness list, it did disclose Mr. Rhimer as

a State’s witness several days before trial. Mr. Fuentes never formally asked for

suppression of the witness’s testimony instead of dismissal. The only affirmative

alternative to dismissal was a short continuance. 1 Given the foregoing circumstances,

it was not manifestly unreasonable for the trial court to deny Mr. Fuentes’s motion to

dismiss. We find no abuse of discretion.




       1
          During the hearing on the motion to dismiss, counsel for the State suggested that,
if the trial court found there was prejudice, suppression would be a more appropriate
remedy than dismissal. While defense counsel affirmed that she would be “happy with
suppression,” she reiterated that the “primary objective” of the motion was dismissal with
an alternative remedy of continuance. RP (July 17, 2017) at 6.

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State v. Fuentes


LFOs

       Citing State v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714 (2018), Mr. Fuentes has

filed a supplemental brief, arguing the trial court erred in imposing a $200 criminal filing

fee and a $100 deoxyribonucleic acid (DNA) collection fee at sentencing. 2 Ramirez was

decided after Mr. Fuentes filed his opening brief. That decision held that the 2018

amendments 3 to Washington’s LFO scheme apply prospectively to cases on direct

appellate review at the time of enactment. Ramirez, 191 Wash. 2d at 747. The 2018

amendments prohibit imposition of a $200 criminal filing fee on defendants who are

“indigent” at the time of sentencing as that term is defined by RCW 10.101.010(3)(a)-(c).

RCW 36.18.020(2)(h). Also prohibited is the assessment of a DNA database fee if the

state has previously collected the defendant’s DNA as a result of a prior conviction.

RCW 43.43.7541.

       The record supports Mr. Fuentes’s claim for relief from the $200 criminal filing

fee and $100 DNA collection fee. Mr. Fuentes has no financial resources. He is

unemployed and has no prospects for future employment. Accordingly, Mr. Fuentes

meets the definition of indigence set forth by RCW 10.101.010(3)(c). In addition, the



       2
           The State has not responded to Mr. Fuentes’s supplemental assignment of error.
       3
           LAWS OF 2018, ch. 269.

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No. 35726-1-III
State v. Fuentes


record reflects that Mr. Fuentes has a lengthy felony history. We therefore accept defense

counsel's uncontested representation that Mr. Fuentes has previously paid a $100 DNA

collection fee.

       Mr. Fuentes's request for LFO relief is granted. We direct the trial court to

strike the $200 criminal filing fee and the $100 DNA collection fee from Mr. Fuentes's

judgment and sentence.

                                     CONCLUSION

       The judgment of conviction is affirmed. This matter is remanded to the trial court

with instructions to strike the $200 criminal filing fee and $100 DNA collection fee from

the judgment and sentence.

       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.

                                             Q
                                          Pennell, A.CJ.
                                                           .St.   I   ft: