Opinion
No. 25937-4-III.
June 26, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-00764-1, Vic L. VanderSchoor, J., entered January 30, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Kulik, J.
Appellant Andrea Slocum pleaded guilty to the crime of residential burglary in the Benton County Superior Court. After a series of continuances, the trial court conducted a hearing and ultimately ordered Ms. Slocum to pay $2,380 in restitution. On appeal, she contends that the restitution hearing was not timely heard and the evidence was not sufficient to justify the amount of restitution. Concluding no error, we affirm.
The trial court sentenced Ms. Slocum to 22 months in prison on May 18, 2006. The matter next appeared before the court on September 28, 2006, pursuant to the prosecution's request for an order to transport Ms. Slocum back from prison for a restitution hearing. Based on his belief that the victims did not want to pursue the case, defense counsel asked that the matter be continued one week so that the prosecutor could talk to the victims. The next week, October 5, both counsel jointly requested a two week extension in order to talk to the victims who lived out of the area. On October 19 both counsel again asked for an additional two weeks to accomplish the interviews.
Defense counsel on November 2 asked for an additional two week extension since the prosecutor was out of town. On November 16 defense counsel again advised the court that the victims had not been contacted and requested a continuance to December 7. The trial court continued the matter. When the prosecutor asked about the timeliness of the hearing, defense counsel noted that "[w]e've probably waived that defense previously."
On December 7 substitute defense counsel asked for "as many weeks as the prosecutor would agree" on behalf of assigned counsel who was not present. The prosecutor told the trial court that defense counsel still needed to talk to the victim. She asked for a special setting on January 11, 2007. The trial court agreed to the request. On January 11 the prosecutor advised the criminal docket judge that the matter was now specially set for January 30. The court continued the matter to that date.
The hearing was held January 30. After hearing testimony from the victim and the defendant, the court found that restitution in the amount of $2,380 was appropriate. An order to that effect was entered. Ms. Slocum then appealed to this court.
The restitution order shows a Bellingham address for the victim.
The primary thrust of appellant's argument is that the restitution hearing was not held within the statutory time limits and that defense counsel was ineffective by contributing to the delay. The extensions of time were for Ms. Slocum's benefit. She cannot now complain about those actions.
A trial court's authority to order restitution is purely statutory. RCW 9.94A.753(5) states that "Restitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property." RCW 9.94A.753(1) 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 except as provided in subsection (7) of this section. The court may continue the hearing . . . for good cause.
Subsection (7), not relevant here, requires courts to order restitution in all cases where crime victim's compensation is paid.
The 180th day after the May 18 sentencing proceeding was November 14, 2006.
Appellant does not challenge the continuances through the November hearings, agreeing that the bases for those continuances were proper. However, she argues there was no showing of "good cause" for the December 7 and January 11 continuances. Her argument is curious because the basis for the December 7 continuance was the fact that her attorney still needed to talk to the victim — a reason that she agreed justified the previous continuance on November 16. The need for defense counsel to prepare has long been recognized as "good cause" to extend the time for trial under CrR 3.3. State v. Bebb, 44 Wn. App. 803, 812, 723 P.2d 512 (1986), aff'd, 108 Wn.2d 515, 740 P.2d 829 (1987); State v. Williams, 104 Wn. App. 516, 523, 17 P.3d 648 (2001). It is no less good cause in this context.
The final extension was to a special setting calendar, apparently to accommodate the need to transport Ms. Slocum from prison and the victim from Bellingham. The hearing was also expected to take one-half day of court time and could not be heard on the motion calendar. It was not an abuse of discretion to consider these factors and find good cause to specially calendar the matter. See State v. Johnson, 132 Wn. App. 400, 412-413, 132 P.3d 737 (2006) (good cause in CrR 3.3 context to continue matter to specially hear motion), review denied, 159 Wn.2d 1006 (2007). In addition, the absence of counsel from the January 11 hearing would have independently justified an extension of time. State v. Williams, supra at 522. Considering all of these factors, we cannot say that the trial court erred in the management of its calendar. Good cause was shown to hear the matter beyond the statutory 180 day period.
Implicitly recognizing this fact, appellant contends that her counsel provided ineffective assistance by contributing to the delay. Counsel fails to provide constitutionally adequate service when his performance falls below professional norms and his client is prejudiced by the deficient representation. State v. Townsend, 142 Wn.2d 838, 843-844, 15 P.3d 145 (2001).
Appellant contends that the delay in the case constituted deficient performance by counsel. The irony of this argument is that it was only by delaying the case past the 180 day period that appellant even obtained an argument that her statutory right had been violated. The mere fact of the delay did not amount to a failure by counsel — it provided an argument that would not have existed. There also was no prejudice. If there had been no delay, the hearing would simply have occurred sooner and Ms. Slocum would have been in the same position she ended up in — the recipient of a hearing over the amount of loss suffered in the case.
Far from being deficient performance, this case reflects appropriate professional relationships between counsel and the court. Believing from his information that the victim did not want to pursue the matter, defense counsel acted in his client's best interests in delaying the matter to give the prosecutor the chance to confirm that information and save the court a wasted hearing. When that hope ultimately failed, counsel took time to prepare and ensure his client a fair hearing. Counsel was not ineffective; he was professional.
Appellant also contends that the evidence did not support a finding that the victim's losses resulted from her behavior. The trial court found otherwise and the record supports that determination. Ms. Slocum admitted that she was in the house on the day the items went missing and her guilty plea confirmed that testimony. The victim testified that the missing items disappeared that day. The evidence was sufficient to support the trial court's determination that Ms. Slocum was jointly responsible for the thefts with her co-defendant. The trial court correctly found a connection between the appellant's crime and the victim's losses. No more is required. State v. Miszak, 69 Wn. App. 426, 428, 848 P.2d 1329 (1993). The evidence supports the ruling.
The restitution order is affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, C.J. and KULIK, J., concur.