State v. Barbee ( 2019 )

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GHtEF JUSTICE
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 96490-4
Respondent,
V.
En Banc
SHACON FONTANB BARBEB,
Petitioner. Filed: JUL 0 3 2019
YU,J.— ROW 9.94A.753(1) provides that restitution must be determined
within 180 days of"the sentencing hearing." In this case, petitioner Shacon
Barbee had two sentencing hearings—an initial sentencing hearing in 2013 and a
resentencing on remand in 2017. We must determine which one is "the sentencing,,
hearing" for restitution purposes. The Court of Appeals correctly held that in this
case,"the sentencing hearing" is the resentencing on remand, so the trial court did
not exceed its statutory authority by entering a second restitution award following
resentencing. We affirm.
State V. Barbee, No. 96490-4
FACTUAL AND PROCEDURAL BACKGROUND
"Barbee was a pimp who made money from prostitutes working under his
supervision." State v. Barbee, 187 Wash. 2d 375, 378, 386 P.3d 729(2017). In 2013,
Barbee was convicted ofthe following offenses:
• Count 1: Promoting commercial sexual abuse of a minor
• Count 2: Promoting commercial sexual abuse of a minor
• Count 4: Promoting prostitution in the second degree
• Count 5: Promoting prostitution in the second degree
• Count 6: Leading organized crime
• Count 7: Theft in the first degree from the United States Social Security
Administration(SSA)
• Count 8: Theft in the first degree from the SSA
• Count 9; Theft in the second degree from the Department of Social and
Health Services, now known as the Washington Health Care Authority
(HCA)
Barbee was given exceptional sentences on Counts 1, 2, and 6, and standard-range
sentences on the other counts. After a restitution hearing, the court entered a
timely restitution award in favor ofthe SSA for $15,078.
Barbee appealed, contending in relevant part that the "two counts of second
degree promoting prostitution [Counts 4 and 5] constitute a single unit of
prosecution." Id. at 381. This court affirmed Barbee's convictions for Counts 4
and 5 but held that Barbee's "exceptional sentence on [Count 1] exceeded the
statutory maximum and that he is entitled to a resentencing hearing." Id. at 392.
The trial court held a resentencing hearing on March 22, 2017, at which
point the State's attorney noted that "we're doing a resentencing as opposed to an
State V. Barbee, No. 96490-4
order simply correcting the Judgment and Sentence because the Court is still using
its discretion to determine where in that standard range for Count I between 108
and 120 the Court wants to sentence the defendant." Suppl. Verbatim Report of
Proceedings(VRP)(Mar. 22, 2017) at 10-11. At the hearing, the court entered "a
brand-new Judgment and Sentence," which imposed a 120-month term of
confinement for Count 1 "to run concurrent with all the other sentences on the
respective counts." Id. at 12, 15. The new judgment and sentence also imposed
the same terms of confinement previously ordered for Barbee's other convictions
and further included two checked boxes stating, "Restitution to be determined at
future restitution hearing," on a "Date to be set." Clerk's Papers at 215.
A restitution investigator in the King County Prosecutor's Office Victim
Assistance Unit sent Barbee's attorney a letter, an unsigned proposed order.setting
restitution, and supporting documentation. This restitution order included both the
$15,078.00 previously awarded to the SSA and an additional $4,150.09 in favor of
the HCA. Barbee's attorney signed the restitution order, returned it to the
restitution investigator, and waived notice of presentation. On June 14, 2017, the
court entered the order setting restitution as agreed.
Barbee appealed this second restitution award, and the Court of Appeals
affirmed in an unpublished opinion. State v. Barbee, No. 76618-0-1(Wash. Ct.
App. Oct. 8, 2018)(unpublished), http://www.courts.wa.gov/opinions/pdf/
State V. Barbee, No. 96490-4
766180.PDF. We granted Barbee's petition for review "only on the issue of
whether the trial court had authority to enter the second restitution award."' Order
Granting Review, State v. Barbee, No. 96490-4(Wash. Feb. 6, 2019).
ISSUE
Did the trial court have authority to enter the second restitution award?
ANALYSIS
"'Restitution' means a specific sum of money ordered by the sentencing
court to be paid by the offender to the court over a specified period of time as
payment of damages. The sum may include both public and private costs." ROW
9.94A.030(43). "The authority to impose restitution is not an inherent power of
the court, but is derived from statutes." State v. Davison, 116 Wash. 2d 917, 919, 809
P.2d 1374(1991). The statute at issue here is RCW 9.94A.753(1), which provides
in relevant part,"When restitution is ordered, the court shall determine the amount
of restitution due at the sentencing hearing or within one hundred eighty days."
"The time limit is mandatory unless extended for good cause." State v. Gray, 174
Wash. 2d 920, 925, 280 P.3d 1110 (2012).
'To the extent that this case potentially implicates other issues including but not limited
to the scope of this court's remand, the law ofthe case doctrine, finality of a judgment and
sentence, and prosecutorial or judicial vindictiveness, such issues are beyond the scope of our
order granting review, and we decline to address them.
State V. Barbee, No. 96490-4
To determine whether the second restitution award in this case complied
with the statutory time limit, we must decide whether the statute directs us to
measure timeliness from Barbee's initial sentencing hearing in 2013, as Barbee
contends, or his resentencing hearing in 2017, as the State contends.^ This is a
question of statutory interpretation, reviewed de novo. State v. Gonzalez, 168
Wash. 2d 256, 263, 226 P.3d 131 (2010), Because there is no statutory definition of
"the sentencing hearing," we must examine the statutory context to determine the
legislature's intent. See id.
As Barbee correctly notes, the statutoiy context and our own precedent show
that "a restitution award is linked to a particular victim and a particular offense."
Suppl. Br. of Pet'r at 8. RCW 9.94A.753(3) makes it clear that restitution is
imposed "pursuant to a criminal conviction" and is determined by reference to "the
offender's gain or the victim's loss from the commission of the crime."
Accordingly, we have held that restitution generally may be awarded only for "the
crime or crimes on which a conviction is specifically based," State v. Eilts, 94
Wash. 2d 489, 492-93, 617 P.2d 993 (1980), and "is statutorily connected to the
victims' losses," State v. Kinneman, 155 Wash. 2d 111, 280, 119 P.3d 350 (2005).
Barbee is therefore correct that "the sentencing hearing" does not refer broadly to
^ The parties agree that the second restitution award is not a "modification" of the first
award because restitution awards cannot be modified to add new victims. See RCW
9.94A.753(4); State v. Chipman, 176 Wash. App. 615, 622, 309 P.3d 669 (2013).
State V. Barbee, No. 96490-4
any sentencing hearing for any offense against any victim. Rather,"the sentencing
hearing" generally refers to "the hearing at which the offender is sentenced for the
particular offense for which restitution is to be imposed."^ Suppl. Br. of Pet'r at 9.
However,the record unequivocally shows that Barbee was sentenced for his
theft from the HCA (Count 9)at his 2017 resentencing hearing. At that hearing,
the trial court stated that it was entering "a brand-new Judgment and Sentence" and
Barbee's counsel confirmed that "the Court's correct in characterizing the position
of the case and what's going to happen today." Suppl. VRP (Mar. 22, 2017) at 12.
Barbee's new judgment and sentence, filed on March 22, 2017, unambiguously
ordered a term of confinement for Count 9(and all ofthe other counts of
conviction) and clearly noted that restitution was to be determined at a later date.
Nevertheless, Barbee argues that "the sentencing hearing" for Count 9 refers
only to the hearing at which the court initially imposed a term of confinement for
Count 9—that is, the 2013 sentencing hearing. This narrow reading, unsupported
by any statutory language, is contrary to the purpose ofthe restitution statute in
general and its mandatory timeline in particular.
^ This general definition does not apply where "the defendant enters into an express
agreement to pay restitution in the case of uncharged crimes." Kinneman, 155 Wash. 2d at 286.
Clearly an offender cannot be sentenced for uncharged crimes, but restitution can nevertheless be
imposed for those offenses pursuant to RCW 9.94A.753(5).
State V. Barbee, No. 96490-4
Restitution serves both to rehabilitate the defendant and to compensate the
victim. Gray, 174 Wash. 2d at 929-30. We have repeatedly recognized that the plain
language of RCW 9.94A.753 indicates a "legislative intent that the applicable
restitution statute be interpreted broadly to allow restitution." Davison, 116 Wash. 2d
at 920; see also Gray, 174 Wash. 2d at 925; Gonzalez, 168 Wash. 2d at 265-66.
Barbee's narrow reading would directly undermine the legislature's intent and the
purposes of restitution by allowing him to avoid the financial consequences of his
undisputed theft from the HCA.
In addition, Barbee's proposed interpretation does nothing to advance the
specific purpose ofthe statutory time limit. "The legislature certainly values
finality in sentencing, and we have recognized that victims' 'rights will be cut off
when the State fails to comply with the 180 day time limit." Gray, 174 Wash. 2d at
929 (quoting State v. Moen, 129 Wash. 2d 535, 542,919 P.2d 69(1996)). Therefore,
"[ujndoubtedly, the purpose for the mandatory 60-day(now 180-day) limit is to
avoid delay in the resolution of a criminal charge." State v. Duvall, 86 Wash. App.
871, 875, 940 P.2d 671 (1997). However,this legislative purpose was not
undermined by the second restitution award here because all the restitution in favor
of both the SSA and the HCA was awarded in a single, timely, agreed order.
State V. Barbee, No. 96490-4
CONCLUSION
Barbee was unambiguously sentenced for his theft from the HCA at the
2017 resentencing hearing. Therefore, that resentencing hearing is "the sentencing
hearing" for purposes of ROW 9.94A.753(1). The second restitution award was
entered within 180 days of that hearing and thus was within the trial court's
statutory authority. We affirm.
State V. Barbee, No. 96490-4
WE CONCUR:
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