State Of Washington v. D.l.w. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 79286-5-I
Respondent,
DIVISION ONE
v.
PUBLISHED OPINION
D.L.W.,
Appellant.
SMITH, J. — When D.L.W. was 17 years old, he shot and injured two
people. He later pleaded guilty in adult court to two counts of second degree
assault, one with a firearm enhancement. In his plea agreement, D.L.W. agreed
to pay restitution in full under the adult restitution statute, RCW 9.94A.753. At
the restitution hearing, the trial court ordered D.L.W. to pay restitution to one of
the victim’s medical insurers in the amount requested by the insurer. In doing so,
the trial court rejected D.L.W.’s argument that because D.L.W. was a juvenile
when the offenses occurred and because the payment was to an insurer, the
court had discretion to order restitution in an amount less than that requested.
As an initial matter, we conclude that D.L.W. did not breach his plea
agreement when he requested that the trial court exercise its discretion to order a
restitution amount less than that requested by the insurer. As to the merits, we
hold that a trial court has discretion to consider the defendant’s status as a
juvenile and the payee’s status as an insurer when it determines the restitution
amount. We therefore conclude that the trial court erred when it relied on State
Citations and pin cites are based on the Westlaw online version of the cited material.
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v. A.M.R., 147 Wash. 2d 91, 51 P.3d 790 (2002), and State v. R.G.P., 175 Wash. App.
131, 302 P.3d 885 (2013), for the proposition that it had no discretion to order
restitution in an amount less than that requested by the insurer. We remand to
the trial court to conduct a restitution hearing consistent with this opinion.
FACTS
On May 26, 2017, 17-year-old D.L.W. shot and injured Kentrel Adams and
Emmery Porter. The State originally charged D.L.W. with two counts of first
degree assault; both counts included a firearm enhancement. Because the
charges involved serious violent crimes, the State charged D.L.W. in adult court.
After extensive negotiations, D.L.W. pleaded guilty to two counts of second
degree assault with a firearm enhancement on one count pursuant to the State’s
amended information.
As part of his plea agreement, D.L.W. agreed to “pay restitution in full to
the victim(s) on charged counts” pursuant to RCW 9.94A.753 “in an amount
TBD.” D.L.W.’s signed statement on the plea of guilty acknowledged that “the
judge will order [him] to make restitution, unless extraordinary circumstances
exist which make restitution inappropriate.” D.L.W. also agreed that if he
“violate[d] any . . . provision of [the plea] agreement, the State may either
recommend a more severe sentence, file additional or greater charges, or re-file
charges that were dismissed.” The court accepted D.L.W.’s guilty plea and
sentenced him to 53 months’ confinement, community custody, and a financial
obligation of $600 plus restitution. The court set a hearing date to determine the
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restitution amount.
Prior to the restitution hearing, Optum, an insurance claim collector for
Amerigroup Washington, sought $44,728.61 in restitution for Adams’ medical
expenses. At the hearing, D.L.W. asked the court to take his youthfulness into
account in determining the restitution amount. He agreed to pay restitution and
“want[ed] to be held accountable and responsible” for his actions. But he argued
that the agreement to pay restitution to be determined left “room . . . to argue
some of the equities in this situation” and that “[i]n juvenile court, there’s a statute
that children don’t have to pay restitution to insurance companies.” D.L.W.
explained that on that basis, he “would like the Court to take into consideration
his youthfulness and how he’s going to be starting out in life when he does
transition back into society.” D.L.W. confirmed that he was making an argument
“on the equities based on the restitution statute” for a “reduction in the amount” of
restitution owed.
The court ordered restitution in the full amount requested by Optum. In an
addendum to the court’s order on restitution, the trial court noted D.L.W.’s
request for the “[c]ourt to consider lowering the amount of restitution based on
RCW 13.40.190.” But it concluded it had no such discretion:
This Court is bound by State v. A.M.R., 147 Wash. 2d 91, 96 (2002),
and State v. R.G.P., 175 Wash. App. 131 (2013). These authorities
hold that restitution is mandatory and that the trial court does not
have discretion to consider ability to pay. While this Court
recognizes the significant amount sought in this matter, $44,728.61,
this Court lacks discretion to lower it.
Thereafter, the court found D.L.W. indigent. D.L.W. appeals.
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ANALYSIS
D.L.W. contends that the trial court had discretion to order restitution in an
amount less than the full amount requested by Optum and that the trial court
erred by concluding otherwise. The State counters that the trial court did not
have discretion to order a lower restitution amount and that by requesting a lower
amount, D.L.W. breached the plea agreement. We agree with D.L.W.
A “plea agreement is a contract between the State and defendant, where
the State agrees to recommend a specific sentence in exchange for the
defendant’s guilty plea.” State v. Wiatt, 11 Wash. App. 2d 107, 111, 455 P.3d 1176
(2019), review denied, 195 Wash. 2d 1019 (2020). If either party “breaches the plea
agreement, the nonbreaching party may either rescind or specifically enforce it.”
Wiatt, 11 Wash. App. 2d at 111. “A reviewing court applies an objective standard to
determine whether [a party] breached a plea agreement.” State v. MacDonald,
183 Wash. 2d 1, 8, 346 P.3d 748 (2015).
Here, D.L.W. agreed to pay restitution in full to the victims in an amount to
be determined by the trial court. He did not waive his right to argue that the trial
court had discretion to order less than the entire amount of restitution requested.
To this end, a defendant does not waive his right to counsel by entering into a
plea agreement, and D.L.W.’s counsel was entitled to argue in his best interest.
Furthermore, the plea agreement is, at best, ambiguous with regard to whether
payment “in full” refers to the full amount requested by the victims or victims’
insurers to the full amount ordered by the court. And ambiguities in a plea
agreement are construed against the State. State v. Bisson, 156 Wash. 2d 507,
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521-22, 130 P.3d 820 (2006). Thus, we conclude that D.L.W. did not breach the
plea agreement by arguing that the trial court had discretion to order an amount
lower than that requested.
Because the plea agreement stated that D.L.W. agreed to pay restitution
based on the adult statute, RCW 9.94A.753, the State contends that D.L.W.
breached the agreement when he argued that “the trial court should have
reduced his restitution obligations under the authority granted under
RCW 13.40.190.”1 But D.L.W. did not and does not make this argument.
Rather, D.L.W. argued below and asserts on appeal that the trial court had
discretion to reduce the amount of restitution based on D.L.W.’s status as a
juvenile. D.L.W. further argued that the court should consider—not apply—the
juvenile statute, RCW 13.40.190, in determining the amount of restitution owed.
Therefore, we are not persuaded by the State’s argument.
Having concluded that D.L.W. did not breach the plea agreement, we next
address the merits of D.L.W.’s argument. D.L.W. contends that the trial court
had discretion to consider his status as a juvenile and the requester’s status as
an insurer when it calculated restitution. We agree for three reasons and hold
that the trial court has discretion to order a juvenile to pay restitution in an
amount less than that requested by an insurer.
1RCW 13.40.190(g) provides, “At any time, the court may determine that
the respondent is not required to pay, or may relieve the respondent of the
requirement to pay, full or partial restitution to any insurance provider authorized
under Title 48 RCW if the respondent reasonably satisfies the court that he or
she does not have the means to make full or partial restitution to the insurance
provider.”
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First, discretion is inherent in the adult statute, RCW 9.94A.753. The
extent of the trial court’s discretion under that statute is a question of statutory
interpretation, which we review de novo. See, e.g., State v. J.A., 105 Wash. App.
879, 884-85, 20 P.3d 487 (2001) (reviewing de novo whether the juvenile court
had discretion under the Juvenile Justice Act of 1977, ch. 13.40 RCW). Under
RCW 9.94A.753(5), “[r]estitution shall be ordered whenever the offender is
convicted of an offense which results in injury to any person.” The court does not
have discretion to impose zero restitution “unless extraordinary circumstances
exist which make restitution inappropriate in the court’s judgment and the court
sets forth such circumstances in the record.” RCW 9.94A.753(5). And “the court
shall determine the amount of restitution due” within the specified time frame,
“tak[ing] into consideration the total amount of the restitution owed, the offender’s
present, past, and future ability to pay.” RCW 9.94A.753(1).
In short, under RCW 9.94A.753, the trial court must impose restitution, but
it has discretion to determine the amount. See State v. Kinneman, 155 Wash. 2d
272, 284, 119 P.3d 350 (2005) (“‘[T]he amount of restitution ordered is at the
discretion of the trial court.’” (alteration in original) (quoting State v. Kinneman,
122 Wash. App. 850, 859, 95 P.3d 1277 (2004))). Specifically, “the plain language
of the restitution statute allows the trial judge to 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, 166 P.3d 1167 (2007);
RCW 9.94A.753(3). And the statute does not bar the court’s consideration of the
defendant’s age at the time of the incident or the payee’s status as an insurer.
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Accordingly, the court may consider D.L.W.’s youthfulness and the fact that
D.L.W. would be paying restitution to an insurer as general considerations or
extraordinary circumstances and may order restitution in an amount less than
that requested by Optum.
Second, we recognize what has always been true, that children are
different. To this end, State v. Houston-Sconiers is instructive. 188 Wash. 2d 1,
391 P.3d 409 (2017). There, two teenagers on Halloween, “robbed mainly other
groups of children, and they netted mainly candy.” Houston-Sconiers, 188
Wash. 2d at 8. However, the juveniles were charged in adult court based on the
seriousness of their offenses. Houston-Sconiers, 188 Wash. 2d at 8. The trial court
sentenced both juveniles to zero months on each substantive crime for which
they were charged. Houston-Sconiers, 188 Wash. 2d at 13. But because the
juveniles’ sentences were subject to mandatory sentence enhancements, their
sentences were 26 and 31 years. Houston-Sconiers, 188 Wash. 2d at 13. Our
Supreme Court held that
sentencing courts must have complete discretion to consider
mitigating circumstances associated with the youth of any juvenile
defendant, even in the adult criminal justice system, regardless of
whether the juvenile is there following a decline hearing or not. To
the extent our state statutes have been interpreted to bar such
discretion with regard to juveniles, they are overruled. Trial courts
must consider mitigating qualities of youth at sentencing and must
have discretion to impose any sentence below the otherwise
applicable [Sentence Reform Act of 1984, ch. 9.94A RCW,] range
and/or sentence enhancements.
Houston-Sconiers, 188 Wash. 2d at 21 (emphasis added) (footnote omitted).
Although the aspect of the sentence at issue in Houston-Sconiers was its
length, Houston-Sconiers’ directive that trial courts “must consider mitigating
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qualities of youth at sentencing” is not limited to a sentence’s length because “the
Eighth Amendment to the United States Constitution compels us to recognize
that children are different.” See 188 Wash. 2d at 18, 21 (emphasis added). And
while D.L.W. does not argue that the restitution ordered in his case implicates
Eighth Amendment principles, “[o]ur legislature has . . . demonstrated its
‘ongoing concern for juvenile justice issues,’” and our Supreme Court has
consistently “recognize[d] that children warrant special protections in sentencing.”
State v. Bassett, 192 Wash. 2d 67, 81, 428 P.3d 343 (2018) (quoting State v.
Ramos, 187 Wash. 2d 420, 446, 387 P.3d 650 (2017)). Therefore, the trial court
has discretion to consider the mitigating qualities of youth in ordering restitution,
a sentencing decision.
Third and finally, the legislature has evidenced an intent to treat juveniles’
restitution obligations to insurers differently than restitution obligations owed to
persons who have suffered loss or damage. In 2004, the legislature amended
RCW 13.40.190 to give juvenile courts discretion not to impose restitution in
favor of insurers.2 Specifically, the legislature added subsection (g), which
provides that a juvenile court has discretion to reduce or eliminate restitution
when it is sought by an insurer, “if the respondent reasonably satisfies the court
that [they do] not have the means to make full or partial restitution to the
insurance provider.” RCW 13.40.190(1)(g). In short, while the statute provides
the juvenile court no discretion in imposing restitution owed to persons who have
suffered loss or damage, it provides the juvenile court discretion to reduce or
2 See LAWS OF 2004, ch. 120, § 6.
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eliminate restitution to insurance providers. For these reasons, the trial court
erred in concluding it had no discretion to order restitution in an amount less than
that requested by Optum.
The State disagrees and contends that both A.M.R. and R.G.P. “confirm
that sentencing courts must apply mandatory statutory language governing
restitution even as to crimes committed by someone who is a juvenile, even as to
payment to insurance companies . . . , and even when the juvenile asserts an
inability to pay.” Similarly, the trial court concluded that A.M.R. and R.G.P. “hold
that restitution is mandatory and that the trial court does not have discretion to
consider ability to pay.” But the State’s reliance on A.M.R. and R.G.P. is
misplaced, as was the trial court’s.
In A.M.R., the State charged one juvenile in juvenile court with vehicle
prowl and another with taking a motor vehicle without permission. 147 Wash. 2d at
93. The separate crimes both resulted in damage to the victims’ vehicles.
A.M.R., 147 Wash. 2d at 93. The juvenile court determined that the juvenile
defendants were required to pay only the victims’ out-of-pocket expenses and
subtracted the victims’ insurance providers’ expenses from the requested
restitution. A.M.R., 147 Wash. 2d at 93. Relying on a prior version of the juvenile
restitution statute, our Supreme Court held that the juvenile courts lacked the
discretion to reduce the amount of restitution because insurance companies are
“victims” and because the mandatory language of the statute required a juvenile
defendant to pay restitution to all victims of their crimes. A.M.R., 147 Wash. 2d at
97-98.
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In R.G.P., 17-year-old R.G.P. stabbed Nathan Martinez. 175 Wash. App. at
132-33. Martinez received medical treatment for his injuries, but neither Martinez
nor his father had medical insurance. R.G.P., 175 Wash. App. at 133. R.G.P.
pleaded guilty in juvenile court to one count of third degree assault. R.G.P., 175
Wash. App. at 133. At the restitution hearing months later, R.G.P. asserted that the
court “‘is to take into consideration the offender's present, past, and future ability
to pay.’” R.G.P., 175 Wash. App. at 134. The trial court reduced the restitution
amount to less than 10 percent of Martinez’s medical bills based on R.G.P.’s
ability to pay. R.G.P., 175 Wash. App. at 134-35. On appeal, we applied A.M.R.
and held that restitution to a person who has suffered loss or damage is
mandatory under RCW 13.40.190(1). R.G.P., 175 Wash. App. at 137-38. We
explained, “The legislature clearly intended to divest courts of the discretion to
reduce restitution based on a juvenile defendant’s ability to pay when it amended
the Juvenile Justice Act of 1977.” R.G.P., 175 Wash. App. at 138. Therefore, we
vacated the restitution award and remanded “to the trial court to consider the
restitution award without regard to RGP’s ability to pay.” R.G.P., 175 Wash. App. at
139.
These cases do not control here. Neither case applies RCW 9.94A.753,
which is the adult sentencing statute at issue. Furthermore, R.G.P. is readily
distinguishable because it involved restitution to an individual victim, not an
insurer-victim. And to that end, A.M.R. was decided before the legislature’s
amendment discussed above. For these reasons, the trial court erred by relying
on A.M.R. and R.G.P. to conclude that it had no discretion to order restitution in
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an amount less than that requested by an insurer.
In short, because (1) a trial court has discretion to determine the amount
of restitution owed, (2) “children are different,” and (3) the legislature has
demonstrated an intent to treat juveniles’ restitution obligations to insurers
differently than their restitution obligations to other victims, we conclude that an
adult court sentencing a juvenile has discretion to consider the defendant’s
youthfulness when it determines the amount of restitution owed to an insurer.3
We remand to the trial court to conduct a new restitution hearing consistent with
this opinion.
WE CONCUR:
3D.L.W. also asserts that State v. Blazina, 182 Wash. 2d 827, 344 P.3d 680
(2015), applies. We disagree; Blazina is inapplicable and not persuasive. In
Blazina, our Supreme Court interpreted RCW 10.01.160(3). 182 Wash. 2d at 837-
38. That statute is not at issue here and does not address whether an indigent
defendant is required to pay restitution.
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