State v. Griffith , 164 Wash. 2d 960 ( 2008 )

Madsen, J.

¶23 (concurring/dissenting) — While I agree that this matter should be remanded for a new hearing to determine the amount of restitution due, I disagree with the majority’s statement that no new evidence may be admitted. The majority’s prohibition is antithetical to a primary purpose of an award of restitution — compensation to the victim of the crime. It is also antithetical to the legislature’s intent that sentences be accurate.

¶24 In the past the court reasoned that some aspects of a sentence generally require the State to carry its burden of proof at the time of sentencing. For example, the court held that the State has the burden of proving criminal history for purposes of determining a defendant’s offender score. In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876, 123 P.3d 456 (2005); State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999). In the normal case where the State failed to carry this burden after specific objection, the State was held to the existing record. Ford, 137 Wn.2d at 485 (citing State v. McCorkle, 88 Wn. App. 485, 500, 945 P.2d 736 (1997), aff’d, 137 Wn.2d 490, 973 P.2d 461 (1999)); McCorkle, 137 Wn.2d at 496-97.

¶25 But restitution is not of the same nature. Restitution is both punitive and compensatory. State v. Kinneman, 155 Wn.2d 272, 279-81, 119 P.3d 350 (2005). When the State produces evidence of the amount of restitution, it is doing so not only in aid of punishing the defendant commensurate with the losses caused by the criminal act, but also in aid of compensating the victim for those losses. Restitution contains “a strong remedial component” because by statute it is connected to the victim’s losses. State v. Shultz, 138 Wn.2d 638, 643-44, 980 P.2d 1265 (1999). Indeed, “restitution payments are paid to the superior court clerk and disbursed directly to the victims, not to the State.” Id. at 644.

¶26 Significantly, the legislature has expressly determined that one of a victim’s rights in this state is the right “to entry of an order of restitution by the court in all felony cases” absent extraordinary circumstances. RCW 7.69-.030(15). When this statutory right is at stake, it is critical that relevant available evidence be considered. In a similar vein, the people of this state adopted the victims’ rights amendment to our state constitution, demonstrating a high commitment to victims of criminal offenses. See Const, art. I, § 35. While the victims’ rights amendment does not directly apply here, the public policy underlying the amendment nevertheless strongly suggests that the majority is wrong in arbitrarily prohibiting additional evidence bearing on whether and to what extent restitution should be awarded to the victim of a crime.

¶27 Even to the extent that restitution is punitive, refusing to permit consideration of new evidence on restitution is contrary to the legislature’s intent that sentences be accurately determined. Recently, the legislature overturned this court’s decisions in Ford, McCorkle, and Cadwallader insofar as the court held in these cases that the State could not establish additional criminal history on resentencing under certain circumstances. The legislature explained that “ [g]iven [the court’s decisions in Ford, McCorkle, and Cadwallader], the legislature finds it is necessary to amend the provisions in [the Sentencing Reform Act] in order to ensure that sentences imposed accurately reflect the offender’s actual, complete criminal history, whether imposed at sentencing or upon resentencing.” Laws of 2008, ch. 231, § 1. The legislature accordingly amended RCW 9.94A.525 to provide that £<[p]rior convictions that were not included in criminal history or in the offender score shall be included upon any resentencing to ensure imposition of an accurate sentence.” Laws of 2008, ch. 231, § 3(21) (emphasis added); RCW 9.94A.525(21); see also Laws of 2008, ch. 231, § 4(2) (amending RCW 9.94A.530 to provide that ££[o]n remand for resentencing following appeal or collateral attack, the parties shall have the opportunity to present and the court to consider all relevant evidence regarding criminal history, including criminal history not previously presented” (emphasis added)); RCW 9.94A.530(2). The provisions are retroactive. Laws of 2008, ch. 231, § 5.

¶28 While criminal history is not at issue here, the 2008 amendments support my view that whenever restitution is calculated, whether at the original sentencing or upon resentencing, additional evidence should be admitted to ensure that restitution accurately reflect the losses caused by the defendant’s criminal conduct. The legislature intends that sentences be accurate.

¶29 For all of these reasons, when a case is remanded for a new restitution hearing, new evidence should be generally admissible so that a court can make a proper determination of restitution necessary to fairly compensate the victim.

¶30 The justification offered by the majority for its refusal to permit additional evidence to be admitted on remand is the restitution statute and State v. Dennis, 101 Wn. App. 223, 229-30, 6 P.3d 1173 (2000), which the majority cites for the proposition that “[introducing new evidence on remand would conflict with the statutory requirement that restitution be set within 180 days after sentencing.” Majority at 968 n.6. Thus, under the majority opinion, a new restitution order cannot be entered if more than 180 days has passed regardless of whether the court takes new evidence. This rule necessarily bars correction or revision of restitution orders following appeals! Given the rule it adopts, the majority does not explain why its remand in this case for determining a new amount of restitution after the 180-day statutory period has passed is permissible but taking new evidence after the 180-day period is not. In each instance the result is a new order and a new amount of restitution due entered beyond the 180-day period.

¶31 The majority’s reasoning is also inconsistent with our cases in which, following appeal and discretionary review, we have remanded for entry of new restitution orders after the 180-day period has expired. For example, in Kinneman, 155 Wn.2d 272, we remanded for an evidentiary hearing on restitution over three and one-half years after the defendant’s original sentencing hearing, at which the defendant tendered a check as restitution.

¶32 Further, both this court and the Court of Appeals have permitted additional evidence on remand for a redetermination of the amount of restitution due. E.g., State v. A.M.R., 147 Wn.2d 91, 97-98, 51 P.3d 790 (2002) (trial court improperly limited restitution awards to vehicle owners’ out-of-pocket costs and declined to award restitution to insurers; this court remanded with instructions to enter restitution orders subject to sufficient proof of loss); State v. Hahn, 100 Wn. App. 391, 400, 996 P.2d 1125 (2000) (remanding restitution orders to the trial court for the taking of additional evidence); State v. Kisor, 68 Wn. App. 610, 620, 844 P.2d 1038 (1993); State v. Pollard, 66 Wn. App. 779, 786-87, 834 P.2d 51 (1992).

¶33 Finally, in Dennis, 101 Wn. App. at 229-30, the Court of Appeals relied on McCorkle for its refusal to permit additional evidence establishing the required causal connection between the defendant’s crime and injuries sustained. But as explained above, unlike the criminal history at issue in McCorkle and Ford, restitution has an important compensatory component that should lead to a different result. Further, as also explained, the legislature has overturned McCorkle and it is not viable authority for refusing to permit recalculation of restitution based on new evidence introduced at resentencing proceedings.

¶34 I would hold that new evidence may be presented on the amount of restitution due. Because the majority does not, I dissent.

C. Johnson, J., concurs with Madsen, J.