State v. Moen , 129 Wash. 2d 535 ( 1996 )

Talmadge, J.

(dissenting) — The majority concludes an order of restitution must be reversed because it was not timely under former RCW 9.94A.142 and State v. Krall, 125 Wn.2d 146, 881 P.2d 1040 (1994).⁶ A defendant, however, may waive the 60-day time limit of that statute. State v. Hunsicker, 129 Wn.2d 554, 919 P.2d 79 (1996). Moreover, the victim here has a right to restitution., RCW 9.94A.142(2). Because I believe Moen clearly waived the statutory time limit of RCW 9.94A.142, and there is no reason to deprive the victim of his right to restitution, I respectfully dissent.

It was not disputed that either Moen or his friend Brian Wilcox attacked Garrett Nakamoto with a homemade, two-and-one-half-foot-long bat Moen owned. It was undisputed they left Nakamoto lying on the street, partially unconscious, with his face crushed.

In closing arguments, Moen’s counsel told the jury what happened to Nakamoto was "horrible,” and "Moen will be convicted of a theft and Judge Gain will impose the appropriate sentence on Christopher Moen’s [inaudible] theft, and he will see that Mr. Nakamoto’s reimbursed.” Report of Proceedings at 408.

The jury found Moen guilty of theft and first degree robbery with a deadly weapon. At the sentencing hearing, Moen’s counsel asked him: "Chris, have you heard Mr. Nakamoto [the father of the victim] request that the restitution be paid fully and properly?” Chris Moen replied, "Yes I have. And I plan on doing that to the best of my ability.” Id. at 456. Moen’s counsel then told the court:

I’m not in a position to speak on behalf of Mr. Nakamoto because I don’t represent him. He’s requesting full and prompt restitution. Mr. Moen does have the ability to work. . . . [H]e has told me in private that he wishes to compensate Mr. Nakamoto fully. The sooner he’s released, the sooner he’s able to do that. . . . We think that the process we’re asking for is a rehabilitative process. Mr. Moen will be best addressed; society will be best addressed as well.

Id. at 461 (emphasis added).

The trial court said it was "satisfied that the restitution in this case will be substantial.” The State asked the court if it wished to set a restitution hearing. The court said, "I will follow my normal procedure, and that’s to leave it up to you and [defense counsel]. If you can’t agree, then we’ll set a hearing date.” The State responded affirmatively and asked if the defendant waived his presence at any hearing, if one were to be set. Moen’s counsel responded, "He will waive his presence.” Id. at 469-70. On February 14, 1994, a judgment and sentence was entered sentencing Moen to 60 months’ imprisonment for the robbery charge, two months’ imprisonment for theft, and ordering restitution, without any amount indicated.

On May 4, 1994, the court signed an order setting restitution in the total amount of $16,566.79. The restitution order stated "[additional restitution will be ordered if further expenses related to the crime are processed.” Moen’s counsel signed the order under the notation, "Copy received; Notice [of] Presentation waived.” Clerk’s Papers at 69-70. This order was entered May 13, 1994, over 60 days after the sentencing hearing. Moen did not object to the order, but instead appealed.

The majority does not cite, and declines to follow, Hun-sicker, 129 Wn.2d 554 (1996), where we held the 60-day time limit of former RCW 9.94A.142 can be waived by a defendant. In Hunsicker, the defendant waived the statutory time limit under the terms of a plea agreement. Here, Moen waived the time limit by his trial conduct and his assent to an agreed restitution order. Moreover, the majority ignores the victim’s right to restitution.

A. An Agreed Restitution Order Waives the 60-Day Time Limit

The majority essentially ignores Moen’s trial conduct and asserts the restitution order at issue was not an agreed order because "[t]he record does not reflect any actual agreement between the State and the defense.” Majority op. at 540. Instead, the majority finds the order was neither "agreed” nor "stipulated,” and asserts "the most that should be said about the order is that entry of the order was not contested.” Majority op. at 541. This is not correct.

Civil Rule 2A provides an agreement between parties or attorneys will be enforced by the court if "made and assented to in open court on the record.” (Civil rules may apply in criminal proceedings. Majority op. at 540 n.2.) Here Moen agreed in open court, on the record, to pay restitution, to work out the amount with the State, and to set a hearing on the issue if agreement could not be reached. It is unfair to the victim Nakamoto to allow Moen to profess his willingness to pay restitution, to gain jury sympathy, and to allow him to work out the amount out of court, but then to relieve him of liability for restitution because he failed to have the restitution order entered in a timely fashion.

Further, the majority’s characterization of the restitution order as not being agreed despite Moen’s counsel’s signature is deeply troubling. Majority op. at 539-42. The majority’s characterization of the order ignores the context in which the order arose and normal practice in the courts of our state. The trial court here directed the lawyers to come to an agreement on the amount of restitution. In fact, the lawyers did come to an agreement, which is reflected in the order entered by the trial court.

In practice, when a lawyer signs an order prepared by his or her opponent with a notation such as "copy received, notice of presentation waived,” that lawyer may ordinarily be agreeing only to the entry of the order in the format prepared by the opposing counsel. In effect, counsel acknowledges the other side won the day before the court and the order embodies the trial court’s ruling.

However, that was not the case here. Initially, there was no decision by the trial court on the amount of restitution. The trial court requested the parties to come to an agreement as to the amount of restitution. They agreed. They then agreed to an amount of restitution which is reflected in the order signed by Moen’s counsel. In these circumstances, where Moen’s counsel signed the order "copy received, notice of presentation waived,” an agreed order was present. Moen’s counsel not only agreed to the format of the order, but agreed to the content of it, reflecting the agreement he reached with the deputy prosecutor on the amount of restitution. Moen may not now challenge it on appeal.

Even if Moen’s counsel had not signed the proposed order, a mere failure to object to entry of the order also would have sufficed to indicate consent and make the restitution order enforceable. The majority cites with approval State v. Ryan, 78 Wn. App. 758, 899 P.2d 825, review denied, 128 Wn.2d 1006 (1995), where the Court of Appeals stated even an ex parte restitution order is final and enforceable if the defendant does not object to it. Ryan, 78 Wn. App. at 762; Majority op. at 540-41. It is undisputed Moen did not object to the restitution order here. Majority op. at 537-38. Accordingly, Moen’s right to object under Krall was lost by his failure to exercise it.⁷

B. The Victim’s Right to Restitution

The most troublesome aspect of the majority opinion is its failure to heed the statutory and constitutional rights of Mr. Nakamoto, the victim of Moen’s cruel assault. Victims of crime and their survivors have standing in the criminal justice and sentencing process, and, in the absence of "extraordinary circumstances,” have a right to restitution. Former RCW 9.94A.142(2) provides restitution "shall” be ordered whenever the defendant is convicted of offenses involving personal injury or property loss "unless extraordinary circumstances exist which make restitution inappropriate in the court’s judgment.” RCW 7.69.030 requires the state to make "reasonable efforts” to ensure rights to crime victims, survivors and witnesses, including the right "to entry of an order of restitution by the court in all felony cases, even when the offender is sentenced to confinement, unless extraordinary circumstances exist which make restitution inappropriate in the court’s judgment.” RCW 7.69.030(15). See also 1985 Final Legislative Report at 84 (victims have right to restitution absent extraordinary circumstances).

The Legislature recognized victims’ and survivors’ rights in RCW 7.69.010:

In recognition of the severe and detrimental impact of crime on victims, survivors of victims, and witnesses of crime and the civic and moral duty of victims, survivors of victims, and witnesses of crimes to fully and voluntarily cooperate with law enforcement and prosecutorial agencies, and in further recognition of the continuing importance of such citizen cooperation to state and local law enforcement efforts and the general effectiveness and well-being of the criminal justice system of this state, the legislature declares its intent, in this chapter, to grant to the victims of crime and the survivors of such victims a significant role in the criminal justice system. The legislature further intends to ensure that all victims and witnesses of crime are treated with dignity, respect, courtesy, and sensitivity; and that the rights extended in this chapter to victims, survivors of victims, and witnesses of crime are honored and protected by law enforcement agencies, prosecutors, and judges in a manner no less vigorous than the protections afforded criminal defendants.

(Emphasis added.) Victims’ rights were incorporated into our Constitution through adoption in 1989 of a victims’ rights provision. Wash. Const., art. I, § 35 (amend. 84) grants "basic and fundamental rights” to victims and survivors; and seeks to "ensure victims a meaningful role in the criminal justice system and accord them due dignity and respect.” In State v. Gentry, 125 Wn.2d 570, 628-29, 888 P.2d 1105, cert. denied, 116 S. Ct. 131, 133 L. Ed. 2d 79 (1995), we recognized this amendment speaks powerfully to the fundamental principle of restoring what is taken from a victim of crime.

In construing RCW 9.94A.142, particularly in the present case where Moen agreed to pay restitution, we must give voice to the rights of crime victims.⁸ Moen agreed to pay restitution in open court to enlist jury sympathy at trial. Moen agreed in open court at sentencing to settle the amount of restitution through negotiation with the State. He did not object to the restitution order. His lawyer signed an agreed order of restitution. No extraordinary circumstances are present, as required under the statute, to justify depriving Garrett Nakamoto, his family and insurers, of their right to restitution of some $16,566, as part of the costs of the severe injuries he suffered. Given the unambiguous statutory and constitutional policies affording simple justice to crime victims like Mr. Nakamoto, we are compelled to conclude Moen waived any statutory time limits for entry of the order of restitution. We should not permit Moen to victimize his victim yet again.⁹

Durham, C.J., and Dolliver and Guy, JJ., concur with Talmadge, J.

6 RCW 9.94A.142(1) formerly provided: "When restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within sixty days.” In 1995, the time period was made 180 days, which may be enlarged for good cause. Laws of 1995, ch. 231, § 2.

7 The majority states: "[djespite the dissent’s urging that we interpret the former RCW 9.94A.142 in light of the facts of this case, our decision in Krall is to the contrary.” Majority op. at 542. This is not correct. Krall did not involve a defendant who waived the 60-day time limit or who promised restitution to appeal for jury sympathy. Therefore, Krall does not control this case.

8 The majority errs in stating Krall holds the 60-day time limit of former RCW 9.94A.142 to prevail over victims’ statutory right to restitution. A decision is precedential only as to the arguments it considers, and Krall does not consider or even mention the statutes concerning victims’ right to restitution.

9 The suggestion by the majority that a strict view of the 60-day time limit serves the "victim’s best interest” is odd. Majority op. at 543. The victim is not served by cutting oif the right to restitution or by refusing to recognize a defendant’s waiver of the time limit. Consideration of the victim’s interest would suggest the 60-day limit should not be a means by which a defendant may escape the obligation to make restitution.