State Of Washington, V. Carl Harris ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 84809-7-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
CARL ALEXANDER HARRIS,
Appellant.
COBURN, J. — Carl Harris appeals several legal financial obligations (LFOs),
including a restitution order, imposed following his assault in the fourth degree domestic
violence conviction. The State agrees that it failed to meet its burden of proof at the
restitution hearing for medical expenses incurred after the offense date, but maintains
that it should be allowed to submit new evidence supporting restitution on remand. We
disagree. Harris specifically objected to certain expenses at the restitution hearing and
the State is not permitted to introduce new evidence on remand. State v. Dennis, 101
Wn. App. 223, 229, 6 P.3d 1173 (2000). We accept the State’s concession as to the
other challenged LFOs.
We remand for the trial court to reduce the restitution amount to reflect only
expenses up through December 29, 2018, to strike the Victim Penalty Assessment
(VPA), the non-restitution LFO interest, and the costs of collecting LFOs. Because the
record suggests that the trial court imposed the Domestic Violence Penalty (DVP) after
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the prosecutor inaccurately stated the penalty was mandatory, the court may reconsider
the DVP consistent with RCW 10.99.080. Because amended RCW 10.82.090 took
effect after sentencing, but while this case was on appeal, the court may also reconsider
its imposition of interest on restitution.
FACTS 1
After a jury convicted Harris of assault in the fourth degree domestic violence, the
trial court imposed various LFOs. At sentencing in October 2022, the court asked “I
don’t think there are any mandatory fines, are there?” The prosecution responded, “I
think there would be the $500 criminal assessment fee, along with the $100 domestic
violence fee.” The court then stated it “will impose those fees.” The judgment and
sentence reflect a $500 VPA and a $100 DVP. The pre-printed form included
boilerplate language that required Harris to pay the costs of services to collect unpaid
LFOs and interest on the imposed LFOs.
Without objection, the court reserved restitution for 180 days. The court held a
restitution hearing on December 6, 2022. The State presented a lone ledger from the
Crime Victims Compensation Program (CVCP) which listed $3,163.94 for the funds paid
to the victim by the CVCP. The report, dated September 1, 2020, 2 identified at the top
of the report the victim’s name, the offender’s name, the date of incident, and a cause
number. The ledger was a list of procedures by shortened name only, dates, billed
amounts, and paid amounts. The State did not submit any additional evidence. Harris’s
counsel observed that items in the CVCP ledger included events beyond December
29th that were not related to or flowed from the assault four conviction. Harris objected
1
The facts underlying Harris’s conviction are not relevant to this opinion.
2
Harris was convicted on September 16, 2022.
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to restitution “for any of the visits occurring after the initial exam on December 29th.”
The State disagreed and argued that “all of these expenses are causally related to the
assault that Mr. Harris committed.”
The trial court entered a restitution order for the full amount requested by State,
$3,163.94, which matched the total sum from the CVCP ledger. The restitution order
states that the defendant’s obligation “shall bear interest from the date of this order until
payment in full . . . . Only if the principal of the restitution is paid in full may the court
consider reducing or waiving the interest.”
Harris appeals.
DISCUSSION
Restitution
As to restitution, Harris appeals only those medical expenses for care after the
victim’s initial December 29 hospital visit. 3 Harris maintains that the State failed to meet
its burden of proof at the restitution hearing and that portion of the restitution should be
vacated.
The trial court’s authority to order restitution is derived solely from statute. State
v. Hahn, 100 Wn. App. 391, 397-98, 996 P.2d 1125 (2000). The statutes authorizing
restitution for misdemeanors are RCW 9.95.210(2)(b) and RCW 9.92.060(2). State v.
Marks, 95 Wn. App. 537, 539-40, 977 P.2d 606 (1999). The imposition of restitution “is
generally within the discretion of the trial court and will not be disturbed on appeal
absent an abuse of discretion.” State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374(1991). “A trial court abuses its discretion if its decision is manifestly unreasonable or
3
The total amount challenged is $933.03.
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based on untenable grounds or untenable reasons.” In re Marriage of Littlefield, 133
Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
Only losses which have a causal connection to the crime may be awarded
restitution. State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008). A summary of
medical treatment alone that “does not indicate why medical services were provided,
fails to establish the required causal connection between the victim’s medical expenses
and the crime committed.” State v. Bunner, 86 Wn. App. 158, 160, 936 P.2d 419(1997). “Where a defendant disputes material facts for purposes of restitution, the
sentencing court must either not consider those facts or grant an evidentiary hearing
where the State must prove the restitution amount by a preponderance of the evidence.”
State v. Dedonado, 99 Wn. App. 251, 256, 991 P.2d 1216 (2000). When the State fails
to meet its burden of proof following a specific objection, this court must vacate the
restitution order. Dennis, 101 Wn. App. at 229.
The State concedes “that no testimony discussed follow-up care, nor was
additional documentation submitted in support of the restitution sought for subsequent
care.” But the parties disagree as to the proper remedy. Harris asks that the portion of
the restitution order listing post-December 29 medical expenses be vacated. The State
asks us to permit the submission of additional evidence on remand.
The State’s entire argument rests on the fact that the statutes governing
misdemeanor restitution do not impose any express time limit on when the restitution
hearing must be held. 4 See RCW 9.95.210(2) and RCW 9.92.060(2). This difference
from the felony restitution statute, RCW 9.94A.753, the State argues, distinguishes the
See Marks, 95 Wn. App. at 538-40 (holding that a trial court did not err in setting
4
misdemeanor restitution hearing more than 180 days after sentencing).
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holding from Griffith where the Supreme Court held in a felony case that “[i]ntroducing
new evidence on remand would conflict with the statutory requirement that restitution be
set within 180 days after sentencing.” 164 Wn.2d at 968 fn. 6. But the issue in the
instant case is not whether the trial court is required to set a restitution hearing within
180 days for a non-felony conviction. The trial court, in fact, elected to reserve
restitution for 180 days and the hearing was set well within that timeframe. The issue is
whether the State is allowed a second bite at the apple.
While it is true that restitution for felonies must be determined within 180 days of
sentencing unless the court extends this period for good cause, that is not the only
limitation on remanding for another restitution hearing. In Dennis, the trial court held the
restitution hearing and entered the restitution order within the 180-day limit as required
by RCW 9.94A.142, 5 but the State failed to establish the required causal connection
between the injuries and the assault after defendant objected at the restitution hearing.
101 Wn. App. at 229-30. This court vacated the restitution order because the State
failed to establish a causal connection between defendant’s actions and the damages
and “the State must not be given a further opportunity to carry its burden of proof after it
fails to do so following a specific objection.” Id. at 229. As an example, in Dennis we
cited State v. McCorkle, 137 Wn.2d 490, 496, 973 P.2d 461 (1999) (refusing to allow
the State to introduce new evidence on remand to prove defendant's prior out-of-state
convictions after the State failed to carry its burden of proof at sentencing). The State
cites to no authority supporting its assertion that it may be permitted to introduce new
evidence on remand at a restitution hearing after it failed to carry its burden at a hearing
5
Recodified as RCW 9.94A.753 effective July 1, 2001.
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that was properly set where the defendant specifically objected. “‘Where no authorities
are cited in support of a proposition, the court is not required to search out authorities,
but may assume that counsel, after diligent search, has found none.’” State v. Logan,
102 Wn. App. 907, 911 fn. 1, 10 P.3d 504 (2000) (quoting DeHeer v. Seattle Post-
Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).
Because Harris does not challenge the entire restitution order, instead of
vacating the order, the proper remedy is to remand and order that the trial court reduce
the amount of restitution to exclude the amount requested for services after December
29, 2018.
Harris also asks us to direct the trial court to reconsider its order of interest on
restitution in light of recent legislative amendments. LAWS OF 2022, ch. 260, § 12. As
amended, RCW 10.82.090 permits the trial court to waive interest on restitution where
the defendant is indigent and the “victim’s input, if any” is considered by the trial court
“as it relates to any financial hardship caused to the victim if interest is not imposed.”
The parties agree that Harris is indigent.
Though the amended statute went into effect after Harris’s sentencing, it still
applies to Harris because his matter is on direct appeal. State v. Ellis, 27 Wn. App. 2d
1, 16, 530 P.3d 1048 (2023) (citing State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d
714 (2018)). The State agrees that on remand, the trial court could consider Harris’
motion to waive interest on restitution consistent with the amended statute.
Other LFOs
As with other discretionary decisions, a trial court’s decision of whether to impose
LFOs is reviewed for abuse of discretion. State v. Moreno, 14 Wn. App. 2d 143, 166,
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470 P.3d 507 (2020). “A trial court abuses its discretion if its decision is manifestly
unreasonable or based on untenable grounds or untenable reasons.” Marriage of
Littlefield, 133 Wn.2d at 46-47. Failure to exercise discretion is an abuse of discretion.
Kucera v. Dep’t of Transp., 140 Wn.2d 200, 224, 995 P.2d 63 (2000).
A. Victim Penalty Assessment
The court imposed the $500 VPA under RCW 7.68.035, which was amended
during the pendency of this appeal. LAWS OF 2023, ch. 449, § 27. The amended statute
prohibits courts from imposing a penalty assessment “if the court finds that the
defendant, at the time of sentencing, is indigent as defined in RCW 10.01.160(3).”
RCW 7.68.035(4). The parties agree that the VPA should be stricken on remand. Ellis,
27 Wn. App. 2d at 16.
B. Domestic Violence Penalty
Harris argues that the court mistakenly imposed the $100 discretionary domestic
violence penalty (DVP) fee after it had expressed an intent to waive any non-mandatory
fees. The State concedes that the prosecutor had erroneously advised the trial court
that the DVP, under RCW 10.99.080, was mandatory. But because the imposition of the
DVP does not rest on the defendant’s indigency, the State maintains, the matter should
be remanded for the trial court’s consideration. The DVP’s
focus on hardship to the victim indicates that courts may decline to impose
the assessment if doing so would hinder the defendant’s ability to meet
financial obligations to the victim, such as restitution or child support. But
if the assessment does not negatively impact the victim, then the penalty
may be ordered without further concern for the defendant’s financial
circumstances or ability to pay.
State v. Smith, 9 Wn. App. 2d 122, 128, 442 P.3d 265 (2019). To the extent that the
record suggests the court did not understand it had discretion to impose the DVP, we
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agree that remand for the court to exercise its discretion, consistent with RCW
10.99.080, is appropriate.
C. Discretionary costs
We agree with the parties that it appears the trial court inadvertently imposed the
costs of collecting LFOs because of boilerplate language on the judgment and sentence
form. The trial court is not to order a defendant to pay discretionary costs when he is
indigent at the time of sentencing. Ramirez, 191 Wn.2d at 738-39 (citing former RCW
10.01.160(3)). A “trial court commit[s] procedural error by imposing a discretionary fee
where it had otherwise agreed to waive such fees.” State v. Bowman, 198 Wn.2d 609,
629, 498 P.3d 478 (2021). A “scrivener's error” is a clerical mistake that, when
amended, would correctly convey the trial court's intention based on other evidence.
State v. Davis, 160 Wn. App. 471, 478, 248 P.3d 121 (2011). We remand for the trial
court to strike the discretionary LFO collection fees. State v. Ortega, 21 Wn. App. 2d
488, 499-500, 506 P.3d 1287 (2022).
D. Interest on non-restitution LFOs
The judgment and sentence included the following preprinted language: “[t]he
financial obligations imposed in this judgment shall bear interest from the date of the
judgment until payment in full, at the rate applicable to civil judgments.” However, RCW
10.82.090(1) provides: “As of June 7, 2018, no interest shall accrue on nonrestitution
legal financial obligations.” The trial court shall strike this provision from the judgment
and sentence on remand. State v. Spaulding, 15 Wn. App. 2d 526, 537, 476 P.3d 205(2020).
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CONCLUSION
We vacate portions of the restitution order that includes payment for services
beyond December 29, 2018 and remand to the sentencing court to correct the amount
of restitution. See State v. Dedonado, 99 Wn. App. 251, 257-58, 991 P.2d 1216 (2016).
The trial court also shall strike the $500 VPA, the imposition of costs for collecting
LFOs, and non-restitution interest. On remand, the trial court may exercise its
discretion in reconsidering the $100 DVP consistent with RCW 10.99.080, as well as
imposition of interest on restitution consistent with RCW 10.82.090.
WE CONCUR:
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