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Jail Term Imposed for Non-Payment of Fine Upheld in Washington
A Washington appeals court held that the imposition of jail time for the willful non-payment of fines in violation of stipulated probation terms was within the trial court’s authority.
On September 1, 2005, Jimmy Young pled guilty to one count of third degree theft. The court accepted his plea and imposed a legal financial obligation of $860. Nearly a year later, on July 3, 2006, Young had made no payments and he then signed an order agreeing to pay $70 per month or report to jail by January 24, 2007 to serve a 60-day sentence.
Young argued in his appeal that he did not willfully stop making payments but that an accumulation of events made him unable to pay. Those events included his mother falling ill, him losing his job and the state taking custody of his kids.
In a probation violation hearing, the state must only prove the defendant violated the terms of probation. The burden is then shifted to the defendant to show the violation was not willful. To prove that, Young had to submit the following: records of actual income, reasonable expenses, efforts to find steady income, and efforts to acquire resources from which to pay fines.
Young failed to prove that his failure to pay the fine was not willful; he also never attempted to stay the order of July 3, 2006 that required him to make payments or serve jail time. Therefore, the appellate court affirmed the lower court’s ruling which violated Young and imposed the 60-day jail sentence. See: Washington v. Young, Wash. App., Div. 3, No. 26150-6-III (Aug. 28, 2008).
On September 1, 2005, Jimmy Young pled guilty to one count of third degree theft. The court accepted his plea and imposed a legal financial obligation of $860. Nearly a year later, on July 3, 2006, Young had made no payments and he then signed an order agreeing to pay $70 per month or report to jail by January 24, 2007 to serve a 60-day sentence.
Young argued in his appeal that he did not willfully stop making payments but that an accumulation of events made him unable to pay. Those events included his mother falling ill, him losing his job and the state taking custody of his kids.
In a probation violation hearing, the state must only prove the defendant violated the terms of probation. The burden is then shifted to the defendant to show the violation was not willful. To prove that, Young had to submit the following: records of actual income, reasonable expenses, efforts to find steady income, and efforts to acquire resources from which to pay fines.
Young failed to prove that his failure to pay the fine was not willful; he also never attempted to stay the order of July 3, 2006 that required him to make payments or serve jail time. Therefore, the appellate court affirmed the lower court’s ruling which violated Young and imposed the 60-day jail sentence. See: Washington v. Young, Wash. App., Div. 3, No. 26150-6-III (Aug. 28, 2008).
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Related legal case
Washington v. Young
| Year | 2008 |
|---|---|
| Cite | Wash. App., Div. 3, No. 26150-6-III (Aug. 28, 2008) |
| Level | State Court of Appeals |
The State of Washington, Respondent, v. Jimmy Don Young, Appellant.
No. 26150-6-III
COURT OF APPEALS OF WASHINGTON, DIVISION THREE
August 28, 2008, Decided
NOTICE: RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.
OPINION
¶1 Sweeney Click for Enhanced Coverage Linking Searches, J. ? The court imposed a jail sentence because the defendant failed to pay financial obligations imposed as a condition of probation. The defendant contends, among other things, that the State did not show that his violation was willful (a necessary prerequisite for imposition of jail time here). We conclude that the burden was on the defendant to show that his failure to pay was not willful. And we conclude that the court had authority to impose the jail time. We therefore affirm the court's conclusion that he violated the terms of his probation.
FACTS
¶2 Jimmy Young waived his right to a jury trial and entered an Alford 1 plea to a charge of third degree theft on September 1, 2005. The court accepted his plea and entered judgment and sentence. The court imposed legal financial obligations of $ 860.
FOOTNOTES
1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
¶3 Mr. Young did not pay his financial obligations. He then agreed to pay at least $ 70 per month or report to jail by January 24, 2007, to serve 60 days. He signed an order to that effect on July 3, 2006. He also agreed to pay the clerk's office $ 150 by [*2] July 7, 2006. Mr. Young again failed to comply with the payment schedule and did not report to jail on January 24, 2007.
¶4 The court held a probation violation hearing on April 27, 2007. The collection deputy for the clerk's office testified that Mr. Young paid $ 150 by July 7, 2006, and made two $ 70 payments, one on August 3, 2006, and the other on August 31, 2006, but made no further payments. And Mr. Young did not report to jail as required by the order.
¶5 Mr. Young paid a total of $ 340 toward his obligations; this left a balance of $ 816.03, which includes $ 146.03 in interest.
¶6 Mr. Young's defense counsel told the court that Mr. Young stopped making payments at the same time that his mother became ill, he lost his job, and the State took his children. The court, however, noted that Mr. Young did not move to stay the order that required him to report to jail by January 24, 2007.
¶7 The court then concluded that Mr. Young's failure to pay his financial obligations was willful because: ?He signed an order to the effect that he would get this taken care of; he didn't do it. ? Sounds like Mr. Young's priorities weren't taking care of this obligation and requirement that was ordered and that [*3] he subsequently agreed to follow up on.? Report of Proceedings (RP) (Apr. 27, 2007) at 13. The court then sentenced him to 60 days' jail time, the punishment he agreed to serve for failing to comply with his payment schedule.
DISCUSSION
Sufficiency of the Evidence to Support a Finding of Willful
¶8 The State must prove that the defendant violated the conditions of his probation. State v. Woodward, 116 Wn. App. 697, 703, 67 P.3d 530 (2003). The burden then shifts to the defendant to show that the violation was not willful. Id.
¶9 The question before us is whether the court's finding that Mr. Young willfully failed to make his payments is supported by evidence in this record?substantial evidence. See id.; see also State v. Morris, 87 Wn. App. 654, 659, 943 P.2d 329 (1997).
¶10 The State showed that Mr. Young owed $ 860 in restitution and court costs. It showed his agreement to pay, his failure to pay, and his failure to report to jail as agreed. The burden of proof then shifted to him to show that the failure was not willful. He argued that his failure to pay his legal financial obligations was not willful because his mother was ill and he lost his job. But he failed to show that he did not have the [*4] money to pay his legal financial obligations. Indeed, he said he would be willing to pay $ 200 per month if the court would release him.
¶11 And Mr. Young would have had to do more than plead poverty. Woodward, 116 Wn. App. at 704. He would have had to show his (1) actual income, (2) reasonable expenses, (3) efforts to find steady employment, and (4) efforts to acquire resources from which to pay his obligations. Id.
¶12 He did none of this. He simply argued that ?[h]e wants to get out; get this job going that he believes he has?he is almost guaranteed it if he gets out; and make these payments.? RP (Apr. 27, 2007) at 9. And, while the court would have been within the evidence to find that the failure to pay was not willful, the opposite finding is also supported by this record: Mr. Young ?willfully failed to report as directed, failed to pay his financial obligations as directed.? Clerk's Papers (CP) at 122 (Finding of Fact 13).
Restitution Order Fails to Meet the Requirements of Timeliness and Certainty
¶13 The choice, interpretation, and application of a statute to particular facts are questions of law and so our review is de novo. State v. Ayala, 108 Wn. App. 480, 484, 31 P.3d 58 (2001).
¶14 Mr. Young [*5] contends the court's order of restitution fails to meet standards of timeliness and certainty under former RCW 9.94A.142 (2000), because the court's findings of fact and conclusions of law, which were entered August 24, 2007, do not set forth the amount he owes for restitution.
¶15 A trial court's authority to order restitution is purely statutory; it does not follow from the court's inherent power. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991) (referring to former RCW 9.94A.142 rather than RCW 9.94A.753). The restitution order is then void if the trial court exceeds its statutory authority under the restitution statute or fails to follow the statutory provisions. State v. Johnson, 96 Wn. App. 813, 815, 981 P.2d 25 (1999).
¶16 Former RCW 9.94A.142 does not apply here. The law in effect at the time a criminal offense is actually committed controls. State v. Schmidt, 143 Wn.2d 658, 673-74, 23 P.3d 462 (2001). Mr. Young committed his crime in 2004. And former RCW 9.94A.142 was recodified as RCW 9.94A.753 in 2001. Laws of 2001, ch. 10, § 6. RCW 9.94A.753 therefore applies.
¶17 The court must determine the amount an offender owes in restitution at the sentencing hearing or within 180 days [*6] of the sentencing hearing. RCW 9.94A.753(1). Here, the trial judge determined at the sentencing hearing that Mr. Young owed $ 250 in restitution. RP (Sept. 1, 2005) at 27. She entered that specific amount in the judgment and sentence and in the schedule of restitution. CP at 66, 70. The judgment and sentence and the schedule of restitution therefore comply with RCW 9.94A.753(1)'s time requirements. They are not void.
Nature of Punishment
¶18 Mr. Young also argues that ?he fell prey to an unfounded punishment? when the trial court ordered 60 days of jail time for failing to comply with his sentence conditions. Appellant's Br. at 11-12. But the court notified him of his legal financial obligations in its judgment and sentence. CP at 66-67, 70. And the court may punish him with jail time if he does not comply with the conditions or requirements of his sentence. RCW 9.94A.760(10); RCW 9.94A.634(3)(a)(i), (c). The State showed that Mr. Young did not comply with the terms of his sentence. And the court appropriately exercised its discretion under RCW 9.94A.634(3)(c) when it imposed jail time for Mr. Young's noncompliance.
¶19 Mr. Young specifically complains about a blank space in finding of fact 12. [*7] Finding of fact 12 states: ?Probation Hearing was held on April 27, 2007 and as of the hearing date, the defendant had paid $ ___ towards his legal financial obligations.? CP at 122. The court failed to enter the amount paid. This finding does not dictate Mr. Young's legal financial obligations, whether the blank is filled or not. The court determined that amount on September 1, 2005. The challenged finding should show how much Mr. Young paid toward his legal financial obligations, including restitution. It therefore does not affect the original judgment and sentence or schedule of restitution.
¶20 We will nonetheless remand for correction. See State v. Moten, 95 Wn. App. 927, 929, 976 P.2d 1286 (1999). A collection deputy testified that Mr. Young paid $ 340 toward his legal financial obligations as of the day of the hearing.
Statement of Additional Grounds
¶21 Mr. Young attempts to raise a number of issues that are not related to this probation violation and therefore are not timely raised. RAP 5.2(a). We will not consider those assignments of error. His statement of additional grounds is limited to ?those matters which [he] believes have not been adequately addressed by the brief filed by the [*8] defendant/appellant's counsel.? RAP 10.10.
¶22 Mr. Young points out that his original judgment and sentence does not warn that he can be punished if he does not pay his obligations. First, there is no obligation that he be so warned. See RCW 9.94A.634. Next, he was warned about the potential consequences when he first failed to pay. And a Washington statute provides notice that an offender is subject to penalties for noncompliance, which include jail time. RCW 9.94A.634(3)(c).
¶23 He also complains that he was not read his Miranda 2 rights. We will not consider that argument. See RAP 5.2(a). The same is true for his argument that he did not waive his right to a jury trial. See id.
FOOTNOTES
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
¶24 Mr. Young next contends that the trial court improperly shifted the burden of proof to him at his probation violation hearing. Again, the State had to prove violation at the hearing. His attorney briefed and argued this assignment of error, and we have addressed it.
¶25 Finally, Mr. Young contends that the court's authority to make him pay his obligations expired on September 1, 2007. He relies on the prosecutor's statement to the court that ?our [*9] two years to collect this money is up 9/1 ? of ?07? to support his argument. RP (Apr. 27, 2007) at 7. Mr. Young is mistaken.
¶26 The court can enforce an offender's financial obligations for an offense committed after July 1, 2000, as long as the offender remains under the court's jurisdiction. RCW 9.94A.760(4). And the court retains jurisdiction ?over the offender, for purposes of the offender's compliance with payment of the legal financial obligations, until the obligation is completely satisfied, regardless of the statutory maximum for the crime.? RCW 9.94A.760(4). Moreover, the county clerk may ?collect unpaid legal financial obligations at any time the offender remains under the jurisdiction of the court for purposes of his ? legal financial obligations.? Id.
¶27 Mr. Young committed his offense on March 18, 2004, which is post-2000. The court then has jurisdiction until he pays in full. The court's authority to collect money from Mr. Young has not expired.
¶28 We affirm the court's imposition of jail time for this probation violation. And we remand to the trial court to correct finding of fact 12.
¶29 A majority of the panel has determined that this opinion will not be printed in the Washington [*10] Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Kulik, A.C.J., and Brown, J., concur.
No. 26150-6-III
COURT OF APPEALS OF WASHINGTON, DIVISION THREE
August 28, 2008, Decided
NOTICE: RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.
OPINION
¶1 Sweeney Click for Enhanced Coverage Linking Searches, J. ? The court imposed a jail sentence because the defendant failed to pay financial obligations imposed as a condition of probation. The defendant contends, among other things, that the State did not show that his violation was willful (a necessary prerequisite for imposition of jail time here). We conclude that the burden was on the defendant to show that his failure to pay was not willful. And we conclude that the court had authority to impose the jail time. We therefore affirm the court's conclusion that he violated the terms of his probation.
FACTS
¶2 Jimmy Young waived his right to a jury trial and entered an Alford 1 plea to a charge of third degree theft on September 1, 2005. The court accepted his plea and entered judgment and sentence. The court imposed legal financial obligations of $ 860.
FOOTNOTES
1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
¶3 Mr. Young did not pay his financial obligations. He then agreed to pay at least $ 70 per month or report to jail by January 24, 2007, to serve 60 days. He signed an order to that effect on July 3, 2006. He also agreed to pay the clerk's office $ 150 by [*2] July 7, 2006. Mr. Young again failed to comply with the payment schedule and did not report to jail on January 24, 2007.
¶4 The court held a probation violation hearing on April 27, 2007. The collection deputy for the clerk's office testified that Mr. Young paid $ 150 by July 7, 2006, and made two $ 70 payments, one on August 3, 2006, and the other on August 31, 2006, but made no further payments. And Mr. Young did not report to jail as required by the order.
¶5 Mr. Young paid a total of $ 340 toward his obligations; this left a balance of $ 816.03, which includes $ 146.03 in interest.
¶6 Mr. Young's defense counsel told the court that Mr. Young stopped making payments at the same time that his mother became ill, he lost his job, and the State took his children. The court, however, noted that Mr. Young did not move to stay the order that required him to report to jail by January 24, 2007.
¶7 The court then concluded that Mr. Young's failure to pay his financial obligations was willful because: ?He signed an order to the effect that he would get this taken care of; he didn't do it. ? Sounds like Mr. Young's priorities weren't taking care of this obligation and requirement that was ordered and that [*3] he subsequently agreed to follow up on.? Report of Proceedings (RP) (Apr. 27, 2007) at 13. The court then sentenced him to 60 days' jail time, the punishment he agreed to serve for failing to comply with his payment schedule.
DISCUSSION
Sufficiency of the Evidence to Support a Finding of Willful
¶8 The State must prove that the defendant violated the conditions of his probation. State v. Woodward, 116 Wn. App. 697, 703, 67 P.3d 530 (2003). The burden then shifts to the defendant to show that the violation was not willful. Id.
¶9 The question before us is whether the court's finding that Mr. Young willfully failed to make his payments is supported by evidence in this record?substantial evidence. See id.; see also State v. Morris, 87 Wn. App. 654, 659, 943 P.2d 329 (1997).
¶10 The State showed that Mr. Young owed $ 860 in restitution and court costs. It showed his agreement to pay, his failure to pay, and his failure to report to jail as agreed. The burden of proof then shifted to him to show that the failure was not willful. He argued that his failure to pay his legal financial obligations was not willful because his mother was ill and he lost his job. But he failed to show that he did not have the [*4] money to pay his legal financial obligations. Indeed, he said he would be willing to pay $ 200 per month if the court would release him.
¶11 And Mr. Young would have had to do more than plead poverty. Woodward, 116 Wn. App. at 704. He would have had to show his (1) actual income, (2) reasonable expenses, (3) efforts to find steady employment, and (4) efforts to acquire resources from which to pay his obligations. Id.
¶12 He did none of this. He simply argued that ?[h]e wants to get out; get this job going that he believes he has?he is almost guaranteed it if he gets out; and make these payments.? RP (Apr. 27, 2007) at 9. And, while the court would have been within the evidence to find that the failure to pay was not willful, the opposite finding is also supported by this record: Mr. Young ?willfully failed to report as directed, failed to pay his financial obligations as directed.? Clerk's Papers (CP) at 122 (Finding of Fact 13).
Restitution Order Fails to Meet the Requirements of Timeliness and Certainty
¶13 The choice, interpretation, and application of a statute to particular facts are questions of law and so our review is de novo. State v. Ayala, 108 Wn. App. 480, 484, 31 P.3d 58 (2001).
¶14 Mr. Young [*5] contends the court's order of restitution fails to meet standards of timeliness and certainty under former RCW 9.94A.142 (2000), because the court's findings of fact and conclusions of law, which were entered August 24, 2007, do not set forth the amount he owes for restitution.
¶15 A trial court's authority to order restitution is purely statutory; it does not follow from the court's inherent power. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991) (referring to former RCW 9.94A.142 rather than RCW 9.94A.753). The restitution order is then void if the trial court exceeds its statutory authority under the restitution statute or fails to follow the statutory provisions. State v. Johnson, 96 Wn. App. 813, 815, 981 P.2d 25 (1999).
¶16 Former RCW 9.94A.142 does not apply here. The law in effect at the time a criminal offense is actually committed controls. State v. Schmidt, 143 Wn.2d 658, 673-74, 23 P.3d 462 (2001). Mr. Young committed his crime in 2004. And former RCW 9.94A.142 was recodified as RCW 9.94A.753 in 2001. Laws of 2001, ch. 10, § 6. RCW 9.94A.753 therefore applies.
¶17 The court must determine the amount an offender owes in restitution at the sentencing hearing or within 180 days [*6] of the sentencing hearing. RCW 9.94A.753(1). Here, the trial judge determined at the sentencing hearing that Mr. Young owed $ 250 in restitution. RP (Sept. 1, 2005) at 27. She entered that specific amount in the judgment and sentence and in the schedule of restitution. CP at 66, 70. The judgment and sentence and the schedule of restitution therefore comply with RCW 9.94A.753(1)'s time requirements. They are not void.
Nature of Punishment
¶18 Mr. Young also argues that ?he fell prey to an unfounded punishment? when the trial court ordered 60 days of jail time for failing to comply with his sentence conditions. Appellant's Br. at 11-12. But the court notified him of his legal financial obligations in its judgment and sentence. CP at 66-67, 70. And the court may punish him with jail time if he does not comply with the conditions or requirements of his sentence. RCW 9.94A.760(10); RCW 9.94A.634(3)(a)(i), (c). The State showed that Mr. Young did not comply with the terms of his sentence. And the court appropriately exercised its discretion under RCW 9.94A.634(3)(c) when it imposed jail time for Mr. Young's noncompliance.
¶19 Mr. Young specifically complains about a blank space in finding of fact 12. [*7] Finding of fact 12 states: ?Probation Hearing was held on April 27, 2007 and as of the hearing date, the defendant had paid $ ___ towards his legal financial obligations.? CP at 122. The court failed to enter the amount paid. This finding does not dictate Mr. Young's legal financial obligations, whether the blank is filled or not. The court determined that amount on September 1, 2005. The challenged finding should show how much Mr. Young paid toward his legal financial obligations, including restitution. It therefore does not affect the original judgment and sentence or schedule of restitution.
¶20 We will nonetheless remand for correction. See State v. Moten, 95 Wn. App. 927, 929, 976 P.2d 1286 (1999). A collection deputy testified that Mr. Young paid $ 340 toward his legal financial obligations as of the day of the hearing.
Statement of Additional Grounds
¶21 Mr. Young attempts to raise a number of issues that are not related to this probation violation and therefore are not timely raised. RAP 5.2(a). We will not consider those assignments of error. His statement of additional grounds is limited to ?those matters which [he] believes have not been adequately addressed by the brief filed by the [*8] defendant/appellant's counsel.? RAP 10.10.
¶22 Mr. Young points out that his original judgment and sentence does not warn that he can be punished if he does not pay his obligations. First, there is no obligation that he be so warned. See RCW 9.94A.634. Next, he was warned about the potential consequences when he first failed to pay. And a Washington statute provides notice that an offender is subject to penalties for noncompliance, which include jail time. RCW 9.94A.634(3)(c).
¶23 He also complains that he was not read his Miranda 2 rights. We will not consider that argument. See RAP 5.2(a). The same is true for his argument that he did not waive his right to a jury trial. See id.
FOOTNOTES
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
¶24 Mr. Young next contends that the trial court improperly shifted the burden of proof to him at his probation violation hearing. Again, the State had to prove violation at the hearing. His attorney briefed and argued this assignment of error, and we have addressed it.
¶25 Finally, Mr. Young contends that the court's authority to make him pay his obligations expired on September 1, 2007. He relies on the prosecutor's statement to the court that ?our [*9] two years to collect this money is up 9/1 ? of ?07? to support his argument. RP (Apr. 27, 2007) at 7. Mr. Young is mistaken.
¶26 The court can enforce an offender's financial obligations for an offense committed after July 1, 2000, as long as the offender remains under the court's jurisdiction. RCW 9.94A.760(4). And the court retains jurisdiction ?over the offender, for purposes of the offender's compliance with payment of the legal financial obligations, until the obligation is completely satisfied, regardless of the statutory maximum for the crime.? RCW 9.94A.760(4). Moreover, the county clerk may ?collect unpaid legal financial obligations at any time the offender remains under the jurisdiction of the court for purposes of his ? legal financial obligations.? Id.
¶27 Mr. Young committed his offense on March 18, 2004, which is post-2000. The court then has jurisdiction until he pays in full. The court's authority to collect money from Mr. Young has not expired.
¶28 We affirm the court's imposition of jail time for this probation violation. And we remand to the trial court to correct finding of fact 12.
¶29 A majority of the panel has determined that this opinion will not be printed in the Washington [*10] Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Kulik, A.C.J., and Brown, J., concur.