State Of Washington v. Donald W. Morgan ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
THE STATE OF WASHINGTON,
No. 80030-2-I
Respondent,
v.
UNPUBLISHED OPINION
DONALD W. MORGAN,
Appellant.
PER CURIAM — The State charged Donald Morgan with two counts of first
degree theft and two counts of second degree theft relating to his commission of
insurance fraud. As part of a plea agreement, the State agreed to dismiss all but
one count of first degree theft, and Morgan agreed to pay restitution on the
dismissed charges.
The State and Morgan agreed to the sum of restitution for the second
degree thefts, but disputed the sum of restitution for the first degree thefts. Both
the State and Morgan presented physical evidence, including bank statements,
at a restitution hearing.
Morgan first contends he was denied due process because the trial court
did not allow him to confront and cross-examine adverse witnesses. But we
have already rejected the argument that the Sixth Amendment right to confront
witnesses applies to restitution hearings. State v. Fambrough, 66 Wash. App. 223,
226-27, 831 P.2d 789 (1992). And Morgan’s reliance on Morrissey v. Brewer,
408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), which involved due
process at parole revocation hearings, is misplaced because restitution hearings
do not involve the potential loss of a liberty interest.
No. 80030-2-I/2
Morgan furthermore argues that both the Sixth Amendment and article I,
section 21 of the Washington State Constitution require a jury determination of
the facts necessary to set a restitution amount. But this claim has been rejected
by the Washington Supreme Court in State v. Kinneman, 155 Wash. 2d 272, 285,
119 P.3d 350 (2005). Though Morgan contends that Alleyne v. United States,
570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), has eroded the
reasoning of Kinneman, Alleyne held only that a fact that increases the
mandatory minimum penalty for a crime is an element that must be submitted to
the jury. Restitution does not involve a mandatory maximum or minimum penalty
and Alleyne is not implicated here. Morgan’s citation to Sofie v. Fibreboard
Corp., 112 Wash. 2d 636, 648, 771 P.2d 711, 780 P.2d 260 (1989) is similarly
uncompelling because Sofie was a civil case in which the court concluded that a
statute placing a limit on noneconomic damages was unconstitutional, because it
interfered with the jury's traditional function to determine damages. Morgan
provides no analysis of why Sofie applies in a criminal setting to the
determination of restitution.
Affirmed.
FOR THE COURT: