State of Washington v. David Michael Romish

FILED
April 9, 2020
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36730-4-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
DAVID MICHAEL ROMISH, )
)
Appellant. )
FEARING, J. — David Romish appeals the sentencing court’s award of $3,408.34 in
restitution. We affirm.
FACTS
David Romish possessed a Bobcat front loader and other equipment earlier
reported as stolen.
PROCEDURE
David Romish pled guilty to possessing stolen property in the first degree. At a
restitution hearing, the sentencing court ordered Romish to pay restitution totaling
$9,825.88. On appeal, Romish challenged the trial court’s imposition of the restitution
order. This court reversed the restitution amount. We concluded that the State did not
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establish causation between Romish’s possessing the Bobcat front loader and some of the
claimed damages to the Bobcat.
This court remanded for a new restitution hearing, with specific limitations:
On remand, the trial court has discretion to calculate the amount of
restitution causally connected to Mr. Romish’s August 23, 2016, offense
conduct date. This would include service costs, rental fees for the day the
Bobcat was discovered in Mr. Romish’s possession, and rental fees for the
period that the Bobcat was out of use for servicing. But pursuant to the
terms of this opinion, restitution cannot include the costs of repainting the
Bobcat or replacing the taillight [sic]. Also excluded are rental fees
incurred prior to August 23 or for the period that the Bobcat was out of use
solely for repainting and repair of the tail light.
State v. Romish, 7 Wash. App. 2d 510, 517, 434 P.3d 546 (2019).
The sentencing court conducted the new restitution hearing. During the hearing,
and for the first time, the State requested that the court double the amount of restitution
pursuant to statute. The trial court ruled:
[THE COURT]: So on the evidence I have, what I’m going to order
is two days of rental. One day for August 23rd, when Mr. Romish had the
Bobcat in his possession, one day for the reasonable repair work that would
have had to be done, at least one day, but I have no evidence it’s more than
one day. So that’s $104.86 per day, based on the estimates that I was given
from the State and their request in their motion indicating that the total cost
divided by 47 days was $104.86 per day.
I will order the requested amount for the repair that took out the
taillight and the painting, that was $994.45. I will also order repayment to
the victim of $500 that he had to pay for his deductible. That’s a total of
$1,704.17. The State has requested that I exercise discretion to make the
victim whole. The statute does allow for up to double of that amount. I
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will grant that. That means the total amount of restitution will be
$3,408.34.
Report of Proceedings at 9-10.
In response, David Romish argued that the State sought to double the restitution to
punish him for winning on appeal. Romish also emphasized his indigency status and his
documented history of mental health issues as reasons to forgo doubling the restitution.
The State replied that the sentencing court should double the restitution in order to make
the victim whole. The sentencing court did not change its ruling. The court set
repayment at five dollars per month.
LAW AND ANALYSIS
David Romish appeals the second restitution order. Romish contends that the
language of RCW 9.94A.750(3) does not support doubling the entire amount of the
recalculated restitution. Romish further argues that doubling the $1,704.17 restitution
amount was not required to make the victim whole. Romish does not argue that the trial
court should have denied doubling the amount because the State punished him by
appealing the earlier order. Nor does Romish argue that the trial court erred by imposing
double the amount because this court’s earlier opinion did not expressly authorize the trial
court to do so. The State contends that, because restitution serves both punitive and
compensatory goals, the trial court did not abuse its discretion when it doubled the
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amount of restitution owed for each victim’s loss.
The sentencing court holds discretion when imposing a restitution order, and we
will not disturb the order on appeal absent an abuse of discretion. State v. Tobin, 161
Wash. 2d 517, 523, 166 P.3d 1167 (2007); State v. Mead, 67 Wash. App. 486, 490, 836 P.2d
257 (1992). A trial court’s authority to order restitution is purely statutory. State v.
Griffith, 164 Wash. 2d 960, 965, 195 P.3d 506 (2008). Whether a trial court exceeded its
statutory authority is an issue of law reviewed de novo. State v. Peterson, 174 Wash. App.
828, 856, 301 P.3d 1060 (2013).
The controlling statute, RCW 9.94A.753, declares in part:
(1) When restitution is ordered, the court shall determine the amount
of restitution due at the sentencing hearing or within one hundred eighty
days except as provided in subsection (7) of this section. . . . The court
should take into consideration the total amount of the restitution owed, the
offender’s present, past, and future ability to pay, as well as any assets that
the offender may have.
....
(3) Except as provided in subsection (6) of this section, restitution
ordered by a court pursuant to a criminal conviction shall be based on easily
ascertainable damages for injury to or loss of property, actual expenses
incurred for treatment for injury to persons, and lost wages resulting from
injury. . . . The amount of restitution shall not exceed double the amount of
the offender’s gain or the victim’s loss from the commission of the crime.
....
(5) 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 or as provided in subsection (6) of this section unless extraordinary
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circumstances exist which make restitution inappropriate in the court’s
judgment and the court sets forth such circumstances in the record.
Under subsection (3) of the statute, the sentencing judge may order restitution ranging
from zero in extraordinary circumstances up to double the offender’s gain or the victim’s
loss. State v. Tobin, 161 Wash. 2d 517, 524 (2007).
RCW 9.94A.010 lists the purposes behind restitution:
(1) Ensure that the punishment for a criminal offense is
proportionate to the seriousness of the offense and the offender’s criminal
history;
(2) Promote respect for the law by providing punishment which is
just;
(3) Be commensurate with the punishment imposed on others
committing similar offenses;
(4) Protect the public;
(5) Offer the offender an opportunity to improve himself or herself;
(6) Make frugal use of the state’s and local governments’ resources;
and
(7) Reduce the risk of reoffending by offenders in the community.
Washington courts, when interpreting restitution statutes, recognize that the law
intends to require the offender to face the consequences of their criminal misconduct.
State v. Davison, 116 Wash. 2d 917, 922, 809 P.2d 1374 (1991). We do not engage in
overly technical construction that would permit a defendant to escape from just
punishment. State v. Tobin, 161 Wash. 2d at 524. The legislature intended to grant broad
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powers of restitution to the sentencing court. State v. Tobin, 161 Wash. 2d at 524; State v.
Davison, 116 Wash. 2d at 920.
Restitution furthers both punitive and compensatory purposes. State v. Kinneman,
155 Wash. 2d 272, 279, 119 P.3d 350 (2005). RCW 9.94A.753(3) in particular promotes
restitution as punitive because the statute authorizes an amount that exceeds the amount
necessary to compensate the victim. State v. Kinneman, 155 Wash. 2d at 280. The
sentencing court, however, should double restitution only after a consciously exercised
choice utilized to further the purposes of the restitution statute. State v. Fleming, 75 Wn.
App. 270, 276, 877 P.2d 243 (1994).
David Romish’s sentencing court consciously exercised its choice to order
restitution above the actual damages established at the new restitution hearing.
RCW 9.94A.753(3) does not require that the trial court articulate its reasons for
exercising its discretion to impose the doubling provision.
Whereas David Romish contends that the plain language of the restitution statute
does not support doubling the recalculated restitution amount, his argument conflicts with
the statutory language. He also fails to provide authority showing that the trial court erred
when it doubled the amount for the actual loss for both victims.
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CONCLUSION
We affirm the sentencing court’s restitution award of $3,408.34.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Fearing, J.
WE CONCUR:
Lawrence-Berrey, J.
Siddoway, J.
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