In re Personal Restraint Petition of Sappenfield, 138 Wash.2d 588, 980 P.2d 1271 (Wash. 07/29/1999)

[1] Washington Supreme Court


[2] No. 65577-4, No. 67380-2


[3] 138 Wash.2d 588, 980 P.2d 1271


[4] July 29, 1999


[5] IN THE MATTER OF THE PERSONAL RESTRAINT PETITION OF BRANDT E. SAPPENFIELD


[6] Source of Appeal: Appeal from Superior Court, Benton County; 86-1-00118-6


[7] Counsel for Petitioner(s) Eric Broman Nielsen Broman & Assoc. Pllc 810 3rd Ave Ste 320 Seattle, WA 98104 Brandt E. Sappenfield (Appearing Pro Se) Airway Heights Correction Ctr. #908698 P.o. Box 2049 Airwayheights, WA 99001-2049 Counsel for Respondent(s) John S. Blonien Assistant Attorney General Asst. Atty Gen-Corr.DIV P.o. Box 40116 Olympia, WA 98504-0116 Thomas J. Young Asst Atty General Correction Div PO Box 40116 Olympia, WA 98504-0116


[8] Faith E Ireland Richard P. Guy Charles Z. Smith Charles W. Johnson Barbara A. Madsen Gerry L. Alexander Philip A. Talmadge Richard B. Sanders


[9] The opinion of the court was delivered by: Ireland, J.


[10] En Banc


[11] Sappenfield filed two separate personal restraint petitions (PRPs) in different divisions of the Court of Appeals. In both PRPs, Sappenfield challenged the Department of Correction's ongoing attempt to collect payments owed on restitution orders stemming from 1986 convictions in two different counties. The two Court of Appeals decisions reached different results, and those decisions were consolidated for review. We find the sentencing courts' jurisdiction over those 1986 restitution orders lapsed and order the Department of Corrections to stop its collection efforts on the 1986 orders.


[12] FACTS


[13] On April 24, 1986, Brandt Sappenfield was convicted in Benton County for possession of stolen property in the second degree. Soon thereafter, he was transferred to King County where, on July 10, 1986, he was convicted for committing four different crimes. The King County crimes occurred in both 1985 and 1986, and the Benton County crime occurred in 1986. Sappenfield was ordered to pay restitution in both counties as a result of his convictions. He served his time on both convictions and was released from prison on August 16, 1987. In 1989, Sappenfield was convicted of second degree murder, and he is still incarcerated on the murder conviction.


[14] In early 1997, Sappenfield filed two PRPs in the Court of Appeals. One PRP regarding the Benton County restitution order was filed in Division Three, and the other PRP regarding the King County restitution orders was filed in Division One. In both PRPs, Sappenfield claimed the 1986 restitution orders expired in 1996, so the Department of Corrections (DOC) should not continue collecting the unpaid portions of those 1986 orders. The State argued Sappenfield's reincarceration in 1989 tolls the court's jurisdiction over his 1986 restitution orders.


[15] Division Three of the Court of Appeals dismissed the PRP and allowed the DOC to continue collecting on the 1986 restitution order from Benton County. In re Personal Restraint of Sappenfield, No. 16412-8-III, (Wash.Ct.App. June 7, 1997) (unpublished order). In contrast, Division One of the Court of Appeals issued a published decision finding for Sappenfield, and the court ordered the DOC to stop collecting funds owed under the 1986 King County orders. In re Personal Restraint of Sappenfield, 92 Wn. App. 729, 964 P.2d 1204 (1998). Sappenfield sought review of the Division Three decision, and the State sought review of the Division One decision. The cases were consolidated for review.


[16] ANALYSIS


[17] A court's authority to order restitution is purely statutory. State v. Hennings, 129 Wn.2d 512, 519, 919 P.2d 580 (1996). Statutes authorizing restitution are to be broadly construed in order to carry out the Legislature's intent of providing restitution. Id. If, however, the language of a statute is plain and clear, the court must apply the language as written. Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997) (The court should not "question the wisdom of a statute even though its results seem unduly harsh.").


[18] The State claims a 1994 amendment to RCW 9.94A.142, in conjunction with a 1988 amendment to RCW 9.94A.170, tolls the sentencing court's jurisdiction over restitution orders. When Sappenfield committed the crimes for which restitution orders were imposed, former RCW 9.94A.142(1) (1986) contained the following sentence:


[19] "For the purposes of this section, the offender shall remain under the court's jurisdiction for a maximum term of ten years subsequent to the imposition of sentence."


[20] Under this former version, the courts' jurisdiction over Sappenfield's restitution orders unambiguously expired 10 years after the imposition of Sappenfield's King County and Benton County sentences in 1986. In 1994 the Legislature passed the following amendment:


[21] "For the purposes of this section, the offender shall remain under the court's jurisdiction for a maximum term of ten years (({begin strike- through} subsequent to the imposition of sentence {end strike-through})) {begin underline} following the offender's release from total confinement or ten years subsequent to the entry of the Judgement and sentence, whichever period is longer {end underline}." Laws of 1994, ch. 271, sec. 602 (amending RCW 9.94A.142).


[22] If this amendment applies, it would have extended the life of Sappenfield's restitution orders from April 24 and July 10, 1996 (10 years after his sentencing in Benton and King Counties, respectively) to August 16, 1997 (10 years after his release from total confinement served for all of the 1986 convictions).


[23] The 1988 amendment to RCW 9.94A.170 tolls the DOC's period of supervision over defendants "during any period of time the offender is in confinement for any reason." Laws of 1988, ch. 153, sec. 9 (codified at RCW 9.94A.170(3)). The DOC claims this "tolling" in conjunction with the "release from confinement" language of the 1994 amendment to RCW 9.94A.142 operates to toll Sappenfield's 1986 restitution orders.


[24] Division One disagreed with the State. In its briefs to Division One, the State claimed the 10-year life of the 1986 restitution orders began running in 1987, but started to toll in 1989, such that the restitution orders are still enforceable, and will continue for 8 years after Sappenfield is released from total confinement served for his 1989 conviction. Division One disputed the State's argument in a well-reasoned analysis:


[25] "The State does not adequately explain how it derives its theory from the words of the 1994 amendment, "the offender shall remain under the court's jurisdiction for a maximum term of ten years following the offender's release from total confinement." The 1994 amendment does not use the word "toll." It does not provide for the 10-year term to be suspended every time the offender goes to prison. Instead, it creates a single alternative expiration date for the court's jurisdiction over restitution. The court's jurisdiction begins with the imposition of sentence. It ends either 10 years later or 10 years after the offender's release from total confinement. When the offender is released from total confinement, it is a 10-year term that begins to elapse, not an eight year term. We conclude from this that the phrase "release from total confinement" can only mean release from confinement for the crime for which restitution was ordered." In re Sappenfield, 92 Wn. App. at 736 (footnote omitted).


[26] Division One's reading of the 1994 amendment is correct. No language in the amendment provides for the tolling argued by the State. Furthermore, RCW 9.94A.142(1), as amended in 1994, is not so ambiguous as to allow one to read a tolling provision into the statute. The statute provides a court's jurisdiction over restitution orders expires 10 years after sentencing or release from confinement. Sappenfield was released from confinement in 1987, so the court's jurisdiction expired in 1997, 10 years after his release. Sappenfield's subsequent reincarceration in 1989 had no impact on the life of the 1986 restitution orders, and no language within RCW 9.94A.142(1) provides otherwise.


[27] The State's reliance upon RCW 9.94A.170(3) is misplaced. RCW 9.94A.170 addresses the DOC's "period of supervision," but the statute has no bearing on the more fundamental issue of the sentencing court's jurisdiction over restitution orders. RCW 9.94A.142 specifically addresses the sentencing court's jurisdiction. If a court's jurisdiction over a restitution order lapses under RCW 9.94A.142, that restitution order becomes void, and it cannot be revived simply because RCW 9.94A.170 extends the DOC's period of supervision over the defendant.


[28] The State claims victims will go uncompensated if this court refuses to read a tolling provision into RCW 9.94A.142, and the State points out that restitution statutes should be broadly construed to allow restitution. See State v. Davison, 116 Wn.2d 917, 920, 809 P.2d 1374 (1991). The Legislature has already seen fit to address the State's concern about restitution orders expiring, as demonstrated by the Legislature's 1997 amendment of the statute. See Laws of 1997, ch. 121, sec. 4. Under this 1997 amendment, the State can petition the court to extend the court's jurisdiction over restitution orders an additional 10 years.*fn1 Since the Legislature's 1997 amendment addresses the State's concerns, we will not attempt to "fix" the prior version of the statute by reading in a tolling provision. See Hazel v. Van Beek, 135 Wn.2d 45, 64, 954 P.2d 1301 (1998).


[29] At oral argument, the State wisely conceded that if we disagreed with the State's tolling argument, then the State would have no other ground but to continue collecting on Sappenfield's 1986 restitution orders. Finding no tolling, it is unnecessary to address Sappenfield's attack on the constitutionality of the 1994 amendment to RCW 9.94A.142.*fn2 If the amendment applies in this case, Sappenfield's restitution orders expired in August 1997. If the amendment does not apply, the orders expired in 1996. Either way, the DOC is clearly without authority, at this point in time, to collect restitution owed under the 1986 orders.


[30] In his supplemental brief filed with this court, Sappenfield asks for these consolidated cases to be remanded to superior court to determine how much the DOC has improperly collected. This requested remedy, however, is beyond the scope of relief of a PRP. The restraint Sappenfield complains of is the DOC's continued enforcement of the 1986 restitution orders. This court can order only the removal of the illegal restraint i.e., order the DOC to stop collecting money on the 1986 orders. Sappenfield must resort to a civil action for further relief.


[31] In Conclusion, the unpublished order from Division Three of the Court of Appeals is reversed, and the published decision from Division One of the Court of Appeals is affirmed.



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Opinion Footnotes

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[32] *fn1 The 1997 amendment is discussed in the companion case, State v. Shultz, No. 67776-0 (Wash. July 29, 1999).


[33] *fn2 Whether application of the 1994 amendment to a previously imposed restitution order violates ex post facto is addressed in State v. Shultz, No. 67776-0.

State v. Johnson, 96 Wash.App. 813, 981 P.2d 25 (Wash.App.Div.3 07/27/1999)

[1] Washington Court of Appeals


[2] No. 17119-1-III


[3] 96 Wash.App. 813, 981 P.2d 25, 1999


[4] July 27, 1999


[5] STATE OF WASHINGTON, RESPONDENT,
v.
CHARLES A. JOHNSON, APPELLANT.


[6] Source of Appeal: Appeal from Superior Court of Spokane County Docket No: 96-1-01204-2 Judgement or order under review Date filed: 11/24/1997 Judge signing: Hon. Robert Austin


[7] Counsel: Counsel for Appellant(s) Dennis C. Cronin Maxey Law Offices W. 1835 Broadway Spokane, WA 99201 Counsel for Respondent(s) Kevin M. Korsmo Spokane County Prosecutor's Office W. 1100 Mallon Spokane, WA 99260 Janet G. Gemberling Box 285 1314 S Grand Blvd #2 Spokane, WA 99202 Counsel for Other Parties Ann Prideaux (Appearing Pro Se) Official Court Reporter 1116 West Broadway Spokane, WA 99260


[8] The opinion of the court was delivered by: Brown, J.


[9] Concurring: John A. Schultheis, Frank L. Kurtz


[10] Panel Five


[11] PUBLISHED OPINION


[12] Charles A. Johnson was convicted on his guilty plea of attempted first degree assault. The order setting the restitution hearing was entered more than 180 days after sentencing, exceeding the limit provided in RCW 9.94A.142(1). The trial Judge found good cause to continue the hearing and set restitution. Mr. Johnson, disputing good cause, appealed. We decide the trial court acted without statutory authority. Additionally, inadvertence or attorney oversight does not establish good cause under RCW 9.94A.142(1). Harmless error is inapplicable even without a showing of prejudice to Mr. Johnson. Accordingly, we reverse and vacate the restitution order.


[13] FACTS


[14] At sentencing on March 31, 1997, a restitution hearing was ordered to be set within 30 days. It was not. No agreement or stipulation regarding restitution is before us. Mr. Johnson did not waive his right to be present at the restitution hearing. Mr. Johnson was at some point sent to the Shelton Correction Facility. On July 15, 1997, the court ordered Mr. Johnson be transported back to Spokane "as soon as possible." No date for hearing was set. Mr. Johnson was not returned to Spokane pursuant to the July 15 order. The record is thereafter silent until September 30, 1997, 183 days after sentencing. Then, the trial court entered another transportation order and set a restitution hearing for November 21, 1997.


[15] At the scheduled restitution hearing, 235 days after sentencing, Mr. Johnson's counsel argued the delay violated the 180-day limit set in RCW 9.94A.142(1). The court, however, concluded good cause existed for the delay. The court found it was beyond the prosecutor's control to obtain Mr. Johnson's presence at an earlier date. It then entered a restitution schedule, ordering Mr. Johnson to pay $12,631.83 to the Crime Victim's Compensation Program and $22,230.22 to the Department of the Air Force. Mr. Johnson appealed.


[16] ANALYSIS


[17] A. Statutory Authority


[18] The issue is whether the trial court erred by exceeding its statutory authority when ordering a restitution hearing beyond the 180-day limit set in RCW 9.94A.142(1), and concluding it had the authority to do so under the good cause provisions of that subsection.


[19] The authority to impose restitution is statutory. State v. Martin, 137 Wn.2d 149, 155, 969 P.2d 450 (1999) (citation omitted); State v. Hennings, 129 Wn.2d 512, 519, 919 P.2d 580 (1996). The sentencing court in the context of restitution may not exceed the authority granted under the controlling statute. Martin, 137 Wn.2d at 155. A restitution order is void if statutory provisions are not followed. State v. Duback, 77 Wn. App. 330, 332, 891 P.2d 40 (1995); State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991).


[20] Generally, the choice, interpretation, and application of a statute are matters of law reviewed de novo. See Clark v. Falling, 92 Wn. App. 805, 809-10, 965 P.2d 644 (1998). RCW 9.94A.142(1) provides in pertinent part:


[21] 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 (4) of this section. The court may continue the hearing beyond the one hundred eighty days for good cause.


[22] Former RCW 9.94A.142(1) was construed in State v. Krall, 125 Wn.2d 146, 881 P.2d 1040 (1994), as meaning the time limit for setting restitution is mandatory. Thus, under the present statute with the one exception provided, trial courts must determine the amount of restitution at the sentencing hearing or within 180-days unless good cause is shown. RCW 9.94A.142(1). Although it is possible to understand the language to mean the court may hear and decide a request for continuance made beyond the time limit, that is not the apparent intent of the statute or the way the parties have argued. Rather, the parties argue whether under these facts good cause was shown for a continuance.


[23] Accordingly, we proceed as did the parties and the trial court, with the understanding that the September 30 order effected a continuance based on a cause developed during the 180-day time limit, the failed transport order of July 15. Necessarily, the trial court interpreted RCW 9.94A.142(1) to give it the power to exercise its discretion to grant a continuance on September 30, after the expiration of the 180-day limit. Thus, the threshold question is whether the trial court correctly interpreted RCW 9.94A.142(1) as giving it that authority.


[24] First, in view of the mandatory nature of the statute it would be illogical to allow consideration of a continuance that is raised after the time limit has expired. Second, the statute does not provide for requests for continuances made after the expiration of the time limit. Third, to permit such a practice is inconsistent with the purposes of the restitution statute described in Krall and would not advance finality. To accept the State's argument would be to permit an order nunc pro tunc without a record action within the time limits. This we cannot do. See State v. Nicholson, 84 Wn. App. 75, 925 P.2d 637 (1996), review denied, 131 Wn.2d 1025 (1997). Therefore, we conclude the trial court lacked statutory authority to grant a continuance. Reaching this Conclusion, it is not necessary to discuss good cause.


[25] However, even if the court had statutory authority to consider a continuance after the expiration of the time limit, good cause is not shown. Courts in other contexts have construed the term "good cause" to require a showing of some external impediment that did not result from a self-created hardship that would prevent a party from complying with statutory requirements. See State v. Tomal, 133 Wn.2d 985, 989, 948 P.2d 833 (1997) (regarding motion to dismiss appeal); State v. Dearbone, 125 Wn.2d 173, 883 P.2d 303 (1994) (regarding notice of intent to seek the death penalty); State v. Crumpton, 90 Wn. App. 297, 302, 952 P.2d 1100 (regarding inclusion of testimonial affidavits with motion for new trial), review denied, 136 Wn.2d 1016 (1998). Inadvertence or attorney oversight is not "good cause." Tomal, 133 Wn.2d at 989; Dearbone, 125 Wn.2d at 180.


[26] B. Harmless Error


[27] The State contends that the court's error, if any, was harmless as Mr. Johnson was not prejudiced by the delay. This argument was rejected in State v. Moen, 129 Wn.2d 535, 548, 919 P.2d 69 (1996). However, in advancing its harmless error theory, the State asserts that because the victim was entitled to benefits under the Crime Victim's Compensation Act, the Department of Labor and Industries would have requested restitution if the prosecutor did not. RCW 9.94A.142(4); RCW 7.68.120. We do not consider this more than a speculative assertion. Our record does not indicate that the Department took such a step or is a party to this appeal. Thus, we decline to enter an advisory opinion on a subject not before us. Walker v. Munro, 124 Wn.2d 402, 414, 879 P.2d 920 (1994) (no advisory opinions given in Washington courts). Further, no authority is cited allowing the State to collaterally assert the Department's interest. State v. Lord, 117 Wn.2d 829, 853, 822 P.2d 177 (1991) (review of argument unsupported by legal authority may be declined), cert. denied, 506 U.S. 856 (1992); RAP 10.3(a)(5). Moreover, the record presented does not show the issue was argued below, normally a prerequisite for review. Moen, 129 Wn.2d at 543; RAP 2.5(a).


[28] CONCLUSION


[29] We hold the trial court incorrectly interpreted RCW 9.94A.142(1) to give it the statutory authority to order a restitution hearing beyond the 180-day mandatory time limit set in the statute. Even if it had the authority, good cause is not established through inadvertence or attorney oversight. A harmless error analysis is inapposite in view of the holding in Moen. Lack of prejudice to Mr. Johnson is thus, irrelevant. Finally, we decline to consider the State's argument that collaterally raises the exceptions recognized in RCW 9.94A.142(1) and RCW 9.94A.142(4), for petitions from the Department of Labor and Industries for recovery of benefits paid under the Crime Victim's Compensation Program. The restitution order is vacated.


[30] Reversed.


[31] WE CONCUR: Schultheis, C.J., Kurtz, J.