State Of Washington v. Tami Michelle Reeves ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 81845-7-I
)
Respondent, )
) DIVISION ONE
v. )
)
TAMI MICHELLE REEVES, )
) UNPUBLISHED OPINION
Appellant. )
)
MANN, C.J. — Tami Reeves appeals the trial court’s judgment and sentence
requiring her to pay restitution to the State of Washington’s “Drug Task Force,” arguing
that the State is not a “victim” under RCW 9.94A.753(3). We agree, and remand to the
trial court to strike the Drug Task Force restitution.
I.
The State charged Reeves with one count of violation of the uniform controlled
substances act: delivery, in violation of RCW 69.50.401(1) and (2)(b). The charge
arose from a controlled buy of methamphetamine, orchestrated by the Cowlitz
Wahkiakum Narcotics Task Force, using a confidential informant.
Citations and pin cites are based on the Westlaw online version of the cited material.
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A jury convicted Reeves as charged and the court imposed 72 months of
confinement followed by 12 months of community custody. Defense counsel agreed to
the imposition of a $40 Drug Task Force restitution. The court also imposed a $500
mandatory “Victim assessment” fee. Reeves appeals.
II.
Reeves argues that the State was not a “victim” entitled to restitution in her case,
and that her counsel was deficient in agreeing to the imposition of the Drug Task Force
restitution. We agree.
A.
We reverse a court’s sentencing decision only if we find a clear abuse of
discretion or misapplication of the law on appeal. State v. Porter, 133 Wash. 2d 177, 181,
942 P.2d 974 (1997). The trial court’s authority to award restitution is based purely on
statute. State v. Smith, 119 Wash. 2d 385, 389, 831 P.2d 1082 (1992).
“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.” RCW
9.94A.753(3). There must be a causal connection between the caused crime and
damages that resulted from that crime. State v. Tobin, 161 Wash. 2d 517, 527, 166 P.3d
1167 (2007).
The trial court may only award restitution to victims. State v. Kinneman, 122 Wn.
App. 850, 866, 95 P.3d 1277 (2004). A victim is defined as “any person who has
sustained emotional, psychological, physical, or financial injury to person or property as
a direct result of the crime charged.” RCW 9.94A.030(54). An individual or an entity is
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a victim if the defendant’s offense either (1) directly victimized them or (2) the offense
caused the individual or entity to incur expenses to assist others directly victimized.
State v. Cawyer, 182 Wash. App. 610, 617, 330 P.3d 219 (2014).
While the State may be a victim for restitution purposes, here, Reeves’s crime
did not harm the State in a way that would justify such an award. In Tobin, for example,
our Supreme Court upheld the State’s extensive investigative, administrative, and
resurveying costs as proper restitution when the defendant illegally harvested a large
amount of crab and geoduck from Puget Sound. 161 Wash. 2d at 527. The trial court did
not include the ordinary investigation costs incurred by the detectives, but only the
investigation costs required to determine the actual loss resulting from the defendant’s
illegal harvesting. Tobin, 161 Wash. 2d at 522, 528. The court determined that this award
was proper because the defendant’s actions caused extensive State environmental
loss, thus directly victimizing the State. Tobin, 161 Wash. 2d at 529.
In contrast, in Cawyer, the court held that the State’s costs for extraditing the
defendant were not proper restitution awards under RCW 9.94A.753. 182 Wash. App. at
615. This was so, because Cawyer was convicted of custodial interference—an offense
that victimized her former husband and children. The court determined that because
Cawyer’s offense neither directly victimized the State, nor caused the State to incur
expenses to assist those directly victimized by the offense, restitution was improper.
Thus the extradition costs related to Cawyer’s prosecution and were not properly
awarded as restitution. 182 Wash. App. at 618. 1
1
While the State relies on State v. Forbes, 43 Wash. App. 793, 799, 719 P.2d 941 (1986), this case
examined restitution as condition of probation, and does not have the same “victim” requirement under
RCW 9.94A.753(3).
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Reeves’s case is more analogous to Cawyer because her crime did not directly
victimize the State, or cause the State to incur expenses to assist others directly
victimized by the offense. Any costs incurred by the task force constituted ordinary
investigation costs. Reeves delivered a small amount of methamphetamine in a
controlled buy; the task force did not incur any direct damages as in Tobin. For these
reasons, the State was not a victim under RCW 9.94A.753(3).
B.
Reeves argues that her counsel’s failure to challenge the Drug Task Force
restitution at trial denied her the right to effective assistance of counsel. We agree.
To establish ineffective assistance of counsel, a defendant must show both that
counsel’s performance was deficient and that the deficiency prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
State v. Grier, 171 Wash. 2d 17, 32-33, 246 P.3d 1260 (2011). Representation is deficient,
if after considering all the circumstances, it falls below an objective standard of
reasonableness. Grier, 171 Wash. 2d at 34. Prejudice exists if there is a reasonable
probability but for counsel’s errors, the result of the proceeding would be different.
Grier, 171 Wash. 2d at 34.
“Reasonable conduct for an attorney includes carrying out the duty to research
the relevant law.” State v. Kyllo, 166 Wash. 2d 856, 862, 215 P.3d 177 (2009). This
includes statutes governing the imposition of restitution. State v. Hassan, 184 Wash. App.
140, 151-52, 336 P.3d 99 (2014) (a defendant has the right to effective assistance of
counsel at a restitution hearing).
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Reeves’s counsel was deficient in failing to object to the imposition of the Drug
Task Force restitution because the State was not a victim under RCW 9.94A.753(3).
Imposition of the Drug Task Force restitution prejudiced Reeves. When trial counsel’s
deficient performance leads the trial court to impose restitution in excess of its statutory
authority, the remedy is to remand with instructions to strike the unlawful amount.
Hassan, 184 Wash. App. at 140, 152-53.
We remand to the trial court to strike the imposition of the Drug Task Force
restitution.
WE CONCUR:
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