State of Washington v. Abel Perez Morales ( 2015 )

FILED
NOVEMBER 10, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32782-5-III
Respondent, )
)
v. )
)
ABEL PEREZ-MORALES, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, J. Abel Perez-Morales appeals a restitution order imposed after his
guilty plea for theft. We reverse in part and affinn in part the order. We affmn that
portion of the order that imposed restitution for the value of those goods stolen under the
charge to which Perez-Morales pled guilty. We reverse that portion of the restitution
order that ordered payment of the value of goods stolen, for which the State did not
charge Perez-Morales nor has evidence connecting him to the theft. To the State's credit,
it concedes the need for the partial reversal.
FACTS
On November 18, 2013, Abel Perez-Morales stole more than $750 worth of
batteries and cables from Bert Gledhill, a resident of rural Franklin County.
PROCEDURE
On November 25,2013, the State of Washington charged Abel Perez-Morales
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State v. Perez-Morales
with trafficking in stolen property in the first degree and theft in the second degree. For
the theft charge, the State alleged, "That ... Abel Perez-Morales in the County of
Franklin, State of Washington, on or about November 18,2013, then and there, did
wrongfully obtain, batteries, property of another belonging to Bert Gledhill of a value
exceeding seven hundred fifty dollars ($750.00), with intent to deprive Bert Gledhill of
such property." Clerk's Papers (CP) at 29-30.
On March 11,2014, Abel Perez-Morales pled guilty to theft in the second degree.
On the statement of defendant on plea of guilty, Perez-Morales admitted: "I stole over
$750 worth of property in Franklin Co [County] WA." CP at 26. The written statement
contains no further description of the theft nor mentions or describes any other theft. The
trial court sentenced Perez-Morales to sixty days' confinement and imposed $1,653 in
legal financial obligations (LFOs). The LFOs did not comprise restitution.
The judgment and sentence signed by the trial court read concerning restitution:
[X] The above total does not include all restitution or other legal financial
obligations, which may be set by later order of the court. An agreed
restitution order may be entered. RCW 9.94A 753. A restitution
hearing:
[X] shall be set by the prosecutor
[ ] is scheduled for _ _ _ _ _ _ _ _ _ _ _ _ __
[X] Defendant waives any right to be present at any
restitution hearing (sign initials): /s/ APM
CP at 11.
On May 28, 2014, Abel Perez-Morales' court-appointed attorney, Christine
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Bennett, withdrew from representation of Perez-Morales. On August 12,2014, the State
scheduled a restitution status conference for August 19,2014. The notice of issue and
note for motion docket declared that the State sent the notices to "Christine Bennett,
attorney for the defendant." CP at 4. The notices did not disclose whether the State sent
them to Perez-Morales.
On September 2,2014, the trial court conducted a restitution hearing. Christine
Bennett appeared for Abel Perez-Morales. Perez-Morales was not present for the
hearing. The State expressed a belief that Perez-Morales had been deported. Bennett did
not know Perez-Morales' location or residence. In Perez-Morales' absence, Bennett
asked the trial court to cancel the hearing on the ground that Perez-Morales lacked notice.
In tum, the State objected to Bennett's presence because of her earlier notice of
withdrawal. The trial court denied Bennett's motion to cancel the hearing since Perez-
Morales waived notice in his statement of guilty plea. The trial court did not expressly
grant the State's objection to the presence of counsel Bennett, although the court noted
the effectiveness of her withdrawal and questioned her standing to object to admission of
an exhibit. The trial court allowed Bennett to forward motions and objections and to
argue against the merits of the State's request for restitution.
At the restitution hearing, the State reported that a burglar stole jewelry, luggage,
tools, computer hardware, camping and hiking equipment, cuff links, a leather briefcase,
a laptop, and other goods from Franklin County residents Scott and Tamlee McGary.
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The State also declared that the burglar damaged the McGary home. The McGary's
insurer, Mutual of Enumclaw, compensated the couple $1,206.05.
At the restitution hearing, the State further averred that a burglar broke a window
in the home of Stanley Needles, another Franklin County resident, and stole a firearm.
Police recovered the firearm, but Needles replaced the shattered window at a cost of
$914.05. Finally, the State alleged, at the hearing, that a burglar severed and purloined
batteries from commercial vehicles and tractors owned by Franklin County resident,
Maynard Bailie, and Bailie sustained a loss of $4,065.42 because of the theft. Bailie's
insurer compensated him $3,065.42, an amount equaling his total loss less a $1,000.00
deductible.
At the September 2 restitution hearing, the State characterized Abel Perez-Morales
as the "ring leader" of the Gledhill, Needles, McGary and Bailie thefts. The prosecution
declared:
Mr. Perez Morales was the ring leader to all of the thefts. He was
the one trafficking in stolen batteries at a recycling facility. His
fingerprints were found at the burglaries.
The co-defendants pled to unrelated charges like drug possession
and forgery as opposed to theft because the State couldn't prove that they
were involved in this. They might have been present when the search
warrant was served, however Mr. Perez Morales, we had evidence that he
was trafficking in stolen property at the metal recycling facilities.
Report of Proceedings (RP) at 8. The record contains no evidence that substantiates the
State's claim that fingerprint evidence tied Perez-Morales to all four thefts.
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The State of Washington sought restitution from Abel Perez-Morales in the
aggregate sum of $9,448.10: $1,000.00 for Maynard Bailie, $3,065.42 for Nationwide
Insurance, $2,390.75 for Scott and Tamlee McGary, $1,206.05 for Mutual of Enumclaw,
$871.83 for Bert Gledhill, and $914.05 for Stanley Needles.
Bert Gledhill completed a "Restitution Estimate Form," on which he claimed lost
batteries and cables worth $871.83. Ex. 1 at 33. The form listed the crimes associated
with the theft as "GAL VAN-AMBRIZ: ALIEN IN POSSESSION OF A FIREA[R]M
& POSSESSION OF STOLEN PROPERTY IN THE SECOND DEGREE; PEREZ­
MORALES: TRAFFICING [sic] IN STOLEN PROPERTY IN THE FIRST
DEGREE & THEFT IN THE SECOND DEGREE." Ex. 1 at 33.
At the restitution hearing, the State submitted a document labeled Exhibit 1 in
order to substantiate the restitution claim of $9,448.1 O. Bert Gledhill's restitution
estimate form was included in Exhibit 1. Exhibit I also contained a proposed order for
restitution with the above totals and a multitude of receipts and estimates that
substantiated the totals. See generally Ex 1. Beyond Gledhill's restitution form, nothing
in Exhibit 1 described the four thefts or connected the thefts to Abel Perez-Morales.
At the restitution hearing, attorney Christine Bennett, on behalf of Abel Perez-
Morales, objected to admission of Exhibit 1 on the ground that no witness authenticated
the documents contained in the exhibit. Counsel also objected to the exhibit on the
ground that she untimely received a copy of the exhibit and documents enclosed in the
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exhibit were irrelevant since they were unrelated to the crime to which Abel Perez-
Morales pled guilty. Bennett expressed frustration at receiving the exhibit "less than a
month ago." RP at 5.
The trial court admitted Exhibit 1. The trial court nonetheless agreed that no facts
connected Abel Perez-Morales to the losses incurred by the McGarys, Mutual of
Enumclaw, or Stanley Needles. The trial court ordered $4,937.25 in restitution. The
order directed Perez-Morales to pay $1,000.00 to Maynard Bailie, $3,065.42 to
Nationwide Insurance, and $871.83 to Bert Gledhill.
LA W AND ANALYSIS
On appeal, Abel Perez-Morales contends: (1) the State failed to provide him with
proper notice of the restitution hearing in violation of his right to due process, (2) the trial
court erred when it admitted Exhibit 1 at the restitution hearing, and (3) no evidence
supports the trial court's order of restitution to Maynard Bailie or Nationwide Insurance.
The State concedes error in restitution for Bailie and, by implication, error in the award
for Bailie's insurer, Nationwide Insurance. We accept the State's concession and vacate
the portion of the restitution order favoring Bailie and Nationwide Insurance.
Ifwe agreed with Abel Perez-Morales' first two assignments of error, we would
vacate the entire restitution order. We reject Perez-Morales' first two assignments error
and affirm the restitution award in favor of Bert Gledhill.
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Notice of Hearing
Abel Perez·Morales contends the State failed to provide him with compulsory
notice of the restitution hearing in violation of his right to due process. Perez·Morales
argues the State never notified him or even attempted to notifY him of the hearing. He
further contends that his signed waiver relinquished his right to be present at the
restitution hearing, but not to notice of the hearing.
The State maintains that it notified Abel Perez·Morales of the restitution hearing
through his counsel, Christine Bennett. The State further argues that service on Bennett
was sufficient since Bennett's withdrawal from representing Perez·Morales was not yet
effective. We agree with the State.
The constitutional guaranty of due process of law in its essence requires notice and
an opportunity to be heard. State v. Rogers, 127 Wash. 2d 270, 275,898 P.2d 294 (1995).
The notice must be reasonably calculated to inform the affected party of the pending
action and of the opportunity to object. City o/Redmond v. Arroyo-Murillo, 149 Wn.2d
607,612,70 P.3d 947 (2003); State v. Dolson, 138 Wash. 2d 773, 777, 982 P.2d 100 (1999).
The means employed must be such as one desirous of actually informing the absentee
might reasonably adopt to accomplish it. Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 315, 70 S. Ct. 652, 94 L. Ed. 865 (1950). A restitution hearing entered
without proper notice is invalid. State v. Saunders, 132 Wash. App. 592, 608, 132 P.3d 743
(2006).
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Restitution is an integral part of sentencing. State v. Dedonado, 99 Wash. App. 251,
257,991 P.2d 1216 (2000). The authority to impose restitution is statutory. State v.
Deskins, 180 Wn.2d 68,81,322 P.3d 780 (2014). Under RCW 9.94A.753(1), "the court
shall determine the amount of restitution due at the sentencing hearing or within one
hundred eighty days."
Neither RCW 9.94A.753 nor the Superior Court Criminal Rules establish specific
notice requirements for restitution hearings. Nor does the Franklin County Local Court
Rules specify a notice requirement. CrR 8.4 provides: "CR 5 shall govern service and
filing of written motions (except those heard ex parte) in criminal causes." Our Supreme
Court has relied on CR 5 to assess whether service under that rule is sufficient to provide
notice. State v. Clark, 129 Wash. 2d 805, 814,920 P.2d 187 (1996). CR 5(b) provides:
"Whenever under these rules service is required or permitted to be made upon a party
represented by an attorney the service shall be made upon the attorney unless service
directly upon the party is ordered by the court." (Emphasis added.) Thus, the State
needed to serve Christine Bennett rather than Perez-Morales with notice of the restitution
hearing, assuming Bennett still represented Perez-Morales.
Abel Perez-Morales argues that service on Christine Bennett was ineffective
because she earlier withdrew from representing him. We disagree with Perez-Morales'
presumption that Bennett had withdrawn. Bennett never procured a court order
permitting withdrawal. We conclude a court order was necessary and thus counsel's
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No. 32782-5-111
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notice of withdrawal was ineffective.
CrR 3.1 reads:
(e) Withdrawal of Lawyer. Whenever a criminal cause has been
set for trial, no lawyer shall be allowed to withdraw from said cause, except
upon written consent of the court, for good and sufficient reason shown.
CrR 3.1 requires a court order for criminal defense counsel to withdraw but the express
terms of the rule apply only with a pending trial date. The rule does not declare that a
court order must be obtained after completion of trial.
CR 71 controls an attorney's withdrawal from representation in a civil proceeding.
The rule provides:
(a) Withdrawal by Attorney. Service on an attorney who has
appeared for a party in a civil proceeding shall be valid to the extent
permitted by statute and rule 5(b) only until the attorney has withdrawn in
the manner provided in sections (b), (c), and (d). Nothing in this rule
defines the circumstances under which a withdrawal might be denied by the
court.
(b) Withdrawal by Order. A court appointed attorney may not
withdraw without an order of the court. The client of the withdrawing
attorney must be given notice of the motion to withdraw and the date and
place the motion will be heard.
CR 71 demands that a court appointed attorney secure a court order before withdrawing
and does not limit the time during which an order must be obtained. The rule does not
apply, however, to criminal cases.
No Washington decision expressly holds that criminal defense counsel must
garner a court order before withdrawing from representation after sentencing. Many
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No. 32782-5-111
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Washington decisions assume the need for criminal defense counsel to obtain a court
order for an effective withdrawal at any time during the criminal proceeding. Some of
the decisions involve posttrial motions and appeals. State v. Bird, 31 Wash. 2d 777, 198
P.2d 978 (1948); State v. Chavez, 162 Wn. App. 431,257 P.3d 1114 (2011); State v.
Fualaau, 155 Wash. App. 347, 228 P.3d 771 (2010); State v. Rooks, 130 Wash. App. 787,
125 P.3d 192 (2005); State v. Vicuna, 119 Wash. App. 26, 79 P.3d 1 (2003); State v.
Berrysmith, 87 Wash. App. 268, 944 P.2d 397 (1997); State v. Ramos, 83 Wash. App. 622,
922 P.2d 193 (1996); State v. Robinson, 58 Wash. App. 599, 794 P.2d 1293 (1990),
abrogated on other grounds by State v. Taylor, 140 Wn.2d 229,996 P.2d 571 (2000);
State v. Hegge, 53 Wash. App. 345, 766 P.2d 1127 (1989); State v. Marker,4 Wn. App.
681,483 P.2d 853 (1971); State v. Haverty, 3 Wn. App. 495,475 P.2d 887 (1970). A
criminal defendant's constitutional right to counsel at all stages of the criminal procedure
compels a conclusion that counsel needs a court order to withdraw from representation of
a defendant.
Here Christine Bennett withdrew with the expectation of an upcoming restitution
hearing. She knew of the need of Perez-Morales for representation at the hearing.
We note that, despite filing the withdrawal of counsel, Christine Bennett, to her
credit, appeared at the restitution hearing. She met her obligations as counsel for Abel
Perez-Morales. She vigorously objected to the motion and the State's exhibit, and she
ably argued against the merits of the State's request for restitution.
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At the restitution hearing, the State urged the trial court to deny Christine Bennett
standing to represent Abel Perez-Morales on the ground that Bennett had withdrawn. On
appeal, the State argues notice to Bennett was proper as her withdrawal was not effective
under CR 71. Nevertheless, Abel Perez-Morales does not request application ofjudicial
estoppel.
Exhibit 1
Abel Perez-Morales next contends that the trial court erred when it admitted
Exhibit 1. When disputed, the facts supporting a restitution award must be proved by a
preponderance of the evidence. State v. Deskins, 180 Wash. 2d at 82 (2014). RCW
9.94A.753 does not explicitly require that the State summon witnesses or submit
documentation to address a defendant's challenges. State v. Dedonado, 99 Wash. App. at
257 n.ll (2000). Nevertheless, the evidence presented by the State must afford a
reasonable basis for estimating loss. State v. Dedonado, 99 Wash. App. at 257 n.ll.
Courts may rely on a broad range of evidence, including hearsay, because the rules of
evidence do not apply to sentencing hearings. State v. Deskins, 180 Wash. 2d at 83; ER
1101(c)(3).
Abel Perez-Morales underscores that the State failed, in conflict with ER 104, 602,
and 902, to call a witness to authenticate Exhibit 1. As already declared, since restitution
is part of sentencing, the rules of evidence do not apply. Abel Perez-Morales argues the
trial court admitted the exhibit in violation of his right to confront witnesses against him.
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In breach of RAP 10.3(a)(6), Perez-Morales cites no authority in support of his
constitutional claim that the right to confront witnesses attaches to a restitution hearing.
We refuse to address the argument. In re Pers. Restraint ofErickson, 146 Wash. App. 576,
588, 191 P.3d 917 (2008).
Abel Perez-Morales also argues that the State failed to provide him a copy of
Exhibit 1 prior to the restitution hearing and this omission violated his due process rights.
Nevertheless, at the hearing, Perez-Morales' counsel conceded to receiving Exhibit 1
weeks before the hearing. As discussed above, service of the exhibit on counsel was also
effective service of the exhibit on Perez-Morales. Perez-Morales identifies no specific
prejudice by reason of weeks' notice of the exhibit. She never specified the number of
weeks before the hearing when she acquired the exhibit.
Because the State concedes error in restitution for Maynard Bailie and Nationwide
Insurance, this court need only consider the reasonableness of the evidence pertaining to
Bert Gledhill. Gledhill's completed restitution estimate form and the attached receipts
afforded a reasonable basis for estimating his losses.
Causal Connection
Abel Perez-Morales last contends no evidence supported the trial court's order of
restitution to Maynard Bailie or Nationwide Insurance. The State concedes the validity
of this contention. We accept the State's concession.
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Restitution is authorized only by statute, and a trial court exceeds its statutory
authority in ordering restitution when the loss suffered is not causally related to the
offense committed by the defendant. State v. Woods, 90 Wash. App. 904, 907, 953 P.2d
834 (1998); State v. Vinyard, 50 Wash. App. 888, 891, 751 P.2d 339 (1988). UnderRCW
9 .94A. 7 53(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 ... unless extraordinary circumstances exist which make
restitution inappropriate in the court's judgment and the court sets forth
such circumstances in the record. In addition, restitution shall be ordered to
pay for an injury, loss, or damage if the offender pleads guilty to a lesser
offense or fewer offenses and agrees with the prosecutor's recommendation
that the offender be required to pay restitution to a victim of an offense or
offenses which are not prosecuted pursuant to a plea agreement.
Under the statute, a court may order restitution for an offense an offender did not plead
guilty to only if the offender agrees. In determining any sentence, including restitution,
the sentencing court may rely on no more information than is admitted by the plea
agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.
State v. Dedonado, 99 Wash. App. at 256 (2000).
Abel Perez-Morales pled guilty to only theft in the second degree. The charging
information identifies only a single theft that occurred on November 18, 2013. Perez-
Morales' plea contained no mention of any other theft. Nothing in the plea or judgment
and sentence connected Perez-Morales to the losses incurred by Maynard Bailie or his
Insurer.
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The dismissed charge of trafficking in stolen property in the first degree may have
related to Maynard Bailie's losses. But Perez-Morales did not agree to restitution
regarding the dropped charge. Restitution for loss beyond the scope of the crime charged
is properly awarded only when the defendant enters into an express agreement, as part of
the plea bargain process, to make such restitution. State v. Woods, 90 Wash. App. at 909
(1998).
CONCLUSION
We reverse the trial court's restitution award and remand with instructions to
strike the restitution ordered for Maynard Bailie and Nationwide Insurance in the
aggregate sum of $4,065.42. We affirm the restitution award to Bert Gledhill.
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.
WE CONCUR:
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