State Of Washington v. Luis Ugalde, Petittioner

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 74324-4-1
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
LUIS A. UGALDE, )
)
Appellant. ) FILED: January 16, 2018
SCHINDLER, J. — On May 20, 2010, Luis A. Ugalde pleaded guilty to intentional
murder in the second degree. Ugalde argues that under State v. Blazina, 182 Wash. 2d
827, 344 P.3d 680 (2015), the court erred by imposing restitution without inquiring into
his ability to pay. We disagree, and affirm.
The State charged Luis A. Ugalde with intentional and felony murder in the
second degree in violation of RCW 9A.32.050(1)(a) and (b) while armed with a firearm
in violation of former RCW 9.94A.125 (1983) or former RCW 9.94A.602(2001).1
Ugalde pleaded guilty to intentional murder in the second degree. On June 2, 2010, the
court imposed a standard range sentence of 200 months. The court imposed the $500
1 RCW 9.94A.125 was recodified as RCW 9.94A.602 in 2001. LAWS OF 2001, ch. 10,§ 6. RCW
9.94A.602 was recodified as RCW 9.94A.825 in 2009. LAWS OF 2009, ch. 28,§ 41.
No. 74324-4-1/2
victim assessment fee, $200 criminal filing fee, and $100 DNA2 collection fee. The
court scheduled a restitution hearing for June 23.
On June 23, the court entered an "Agreed Order of Restitution." The court found,
"There is a basis to impose restitution in this case according to the agreement of the
parties" in the amount of $50,313.32. The court ordered restitution to be paid jointly and
severally with Ugalde's codefendant, David A. Ugalde. The restitution order identifies
the Washington State Crime Victim Compensation Program (CVC)as the recipient of
the restitution.
On January 15, 2015, Ugalde filed a motion to modify restitution pursuant to CrR
7.8 and RCW 9.94A.753. Ugalde asserted the court exceeded its authority in
calculating the amount of restitution because records from CVC showed the victim's
actual loss was only $10,338.34. The court denied the motion. The February 13, 2015
order denying the motion to modify restitution states, in pertinent part:
THE COURT FINDS that $50,338.34 [sic] was properly ordered as
restitution to the Crime Victims Compensation Fund pursuant to the
agreement of the parties in the order dated 6/23/10. Further, this
restitution was properly ordered pursuant to RCW 9.94A.753(7) and State
v. McCarthy, 178 Wash. App. 290[, 313 P.3d 1247](2013) which require
restitution to be made to the Fund for benefits paid to the victim under the
crime victims' compensation act[, chapter 7.68 RCW].
On September 28, 2015, Ugalde filed a motion to modify or terminate legal
financial obligations(LF0s) and interest. Ugalde cited State v. Blazina, 182 Wash. 2d 827,
344 P.3d 680(2015), to argue the court erred in imposing restitution without finding
Ugalde has the ability to pay. The court denied the motion. The court ruled Ugalde
may raise the issue of waiving interest after his release.
2 Deoxyribonucleic acid.
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Ugalde filed a notice of appeal on November 18, 2015. We treated the notice of
appeal as a motion for discretionary review. A commissioner of this court ruled on the
motion as follows:
To the extent that Ugalde seeks review under Blazina and RCW
10.82.090, it appears that an appeal as of right is not available and he
would be required to demonstrate review is warranted under RAP 2.3(b).
But to the extent he seeks review of the trial court order denying his CrR
7.8 motion that collaterally attacked the restitution order as outside the
agreement and/or outside the court's authority, it appears that review is
available by appeal under RAP 2.2(a)(10).
The commissioner directed the parties to address the appealability issues as well as the
substantive arguments.
Ugalde does not address the issue of appealability and does not challenge the
court's order denying his CrR 7.8 motion. Instead, Ugalde relies on Blazina and City of
Richland v. Wakefield, 186 Wash. 2d 596, 380 P.3d 459(2016), to argue the court erred by
imposing restitution without considering his ability to pay. Even if review were
warranted, neither Blazina nor Wakefield support Ugalde's argument.
The imposition of restitution is mandatory. RCW 9.94A.753(5) states,
"Restitution shall be ordered whenever the offender is convicted of an offense which
results in injury to any person or damage to or loss of property."3 RCW 9.94A.753(7)
states, "[The court shall order restitution in all cases where the victim is entitled to
benefits under the crime victims' compensation act, chapter 7.68 RCW."4 Subsection
(7) of RCW 9.94A.753 is broader than subsection (5) and requires the court to impose
restitution in all such cases without regard to the causation requirements of subsection
(5). McCarthy, 178 Wash. App. at 300-01.
3 Emphasis added.
4 Emphasis added.
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In Blazina, the court addressed the imposition of only discretionary LFOs and
held RCW 10.01.160(3) requires the sentencing court to make an individualized inquiry
into a defendant's ability to pay discretionary LFOs. Blazina, 182 Wash. 2d at 837-38.
Wakefield also did not address restitution or other mandatory fees. In Wakefield, the
defendant moved under RCW 10.01.160(4) to remit only discretionary costs. Wakefield,
186 Wash. 2d at 601. The court held the "'manifest hardship'"standard fora motion to
remit discretionary costs requires the court to consider the person's ability to meet basic
needs. Wakefield, 186 Wash. 2d at 605-06 (quoting RCW 10.01.160(4)).
Unlike discretionary LF05, the legislature unequivocally requires the court to
impose mandatory LFOs without regard to finding the ability to pay. State v. Shelton,
194 Wash. App. 660, 673-74, 378 P.3d 230(2016); see State v. Lundy, 176 Wash. App. 96,
102, 308 P.3d 755 (2013). The court was not required to inquire into Ugalde's ability to
pay before imposing restitution under RCW 9.94A.753(7).
In his statement of additional grounds, Ugalde asserts the trial court exceeded its
authority by awarding either restitution for uncharged crimes or restitution unconnected
to the crime. RCW 9.94A.753(7) does not require a causal connection between the loss
and the crime. See McCarthy, 178 Wash. App. at 300-01.
Ugalde also argues the court erred by failing to notify Ugalde that it denied his
motion to terminate LFOs. On March 8, 2011, Ugalde filed a motion to terminate LFOs.
Ugalde argued the court failed to make factual findings about his ability to pay before
imposing LFOs. The court denied the motion to terminate LFOs on April 13, 2011. This
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argument depends on matters outside the record. See State v. Hecht, 179 Wash. App.
497, 511-12, 319 P.3d 836 (2014).
We affirm.
WE CONCUR:
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