Opinion
No. 57686-1-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 03-1-02386-2, Thomas J. Wynne, J., entered May 25, 2004.
Affirmed by unpublished per curiam opinion.
Jeffrey Collins appeals an order of restitution entered more than 180 days after his guilty plea to three counts of identity theft, contending the order was untimely. Because he waived his statutory right to have restitution determined within 180 days of his plea, we affirm the order. Collins also challenges his sentence, claiming that his prior convictions of identity theft in Skagit and Whatcom Counties are invalid under the rule announced in State v. Leyda, 157 Wn.2d 335, 138 P.3d 610 (2006) regarding the proper unit of prosecution in identity theft cases. Because neither prior conviction is constitutionally invalid on its face, we affirm.
FACTS
On May 13, 2004, Jeffrey Collins pleaded guilty to three counts of first degree identity theft in Snohomish County. Collins was sentenced on May 25. Based on an offender score of 14, the court imposed a standard range sentence of 63 months confinement on each count to run concurrently, ordered Collins to pay restitution, and scheduled a restitution hearing for October 12. Collins waived his presence at the restitution hearing.
At the restitution hearing on October 12, Collins appeared with counsel and moved to withdraw his guilty plea based on ineffective assistance of counsel. The court granted the request to continue the restitution hearing until after a determination on Collins' motion to withdraw his plea. On April 11, 2005, the court denied Collins' motion to withdraw his plea.
At the restitution hearing on July 6, Collins appeared with counsel and signed an agreed restitution order for charged and uncharged counts in the amount of $19,447.07. But on October 17, Collins appeared pro se and moved to vacate the restitution order arguing for the first time that the restitution order was untimely. Because the court had found good cause to continue the restitution hearing in October 2004 based on Collins' request, the court denied his motion to vacate the restitution order.
In the plea agreement, Collins agreed to pay restitution for charged and uncharged counts.
DISCUSSION
Collins appeals, arguing that the restitution order was untimely and that the trial court improperly calculated his offender score. When restitution is ordered, the court must determine the amount at sentencing or within 180 days. RCW 9.94A.753(1). The court may continue the restitution hearing for good cause as long as the request for a continuance is made before the 180-day period expires. RCW 9.94A.753(1); State v. Tetreault, 99 Wn. App. 435, 437-38, 998 P.2d 330 (2000); State v. Johnson, 96 Wn. App. 813, 816, 981 P.2d 25 (1999). The statutory time limit "operates as an ordinary statute of limitations" and is "subject to principles of waiver and estoppel, including the doctrine of equitable tolling." State v. Duvall, 86 Wn. App. 871, 874-75, 940 P.2d 671 (1997).
Collins contends that he did not request a continuance of the restitution hearing. He argues that the State moved for a continuance of the hearing in October 2004, but then failed to demonstrate good cause or ask to continue the restitution hearing beyond the mandatory 180-day period to a particular date. But the record indicates that the court continued consideration of restitution based on Collins' request to address restitution after the determination of his motion to withdraw his plea.
Although Collins waived his presence at the restitution hearing scheduled for October 12, 2004, his attorney explained that "the reason he wanted to be here today was to move to withdraw his plea. I have spoken to him, and it doesn't seem that there is really an issue with restitution, but that he would like to move to withdraw his plea." The court appointed counsel to file a motion to withdraw the guilty plea based on ineffective assistance of counsel and continued the hearing. In the ensuing colloquy, Collins' attorney asked the court to continue the restitution hearing until after ruling on Collins' motion to withdraw his plea.
[Prosecutor]: On the issue that is actually properly calendared before the Court today, restitution, it seems there are two ways we can approach this. In one respect, restitution is a product of the Judgment and Sentence that has already been entered. I'm not so sure that entering a restitution order today would work adversely against Mr. Collins' request to withdraw his plea. If [defense counsel] is prepared to enter an agreed order today, we can do that.
On the other hand, I guess there is a school of thought that might dictate that it would be best to just wait until we know for sure what's going to happen with disposition of this case before we enter an order. I will defer to the Court.
THE COURT: [Counsel]?
[Defense Counsel]: It just seems that logistically we might as well wait, given the fact that after a hearing there is a possibility that he would withdraw his plea and proceed with this case in a different manner. Restitution could, you know, be unnecessary or could be changed.
THE COURT: We can wait and take up the restitution order for the next hearing.
[Defense Counsel]: I have got all the information for the new attorney.
THE COURT: Thank you.
THE DEFENDANT: Thank you, sir.
[Prosecutor]: My only concern, if that's the way the Court wants to proceed, is the 180-day deadline. Judgment and Sentence was entered on May 26, so by my calculation, that would put somewhere around November 26 as the deadline. I just want to make a record that in the event we come up against that deadline and go past it, it was by virtue of the fact that the defendant requested we revisit entry of his plea, and I would ask that the time between today's date and that hearing be excluded from that calculation.
THE COURT: It's noted, and if that becomes an issue, we will take that up at that time. It does appear this is being continued at the defendant's request.
At a hearing in the beginning of November, the court granted defense counsel's request to continue Collins' motion to withdraw his plea until January 2005. Although the record on appeal does not include a transcript of the hearing, the parties agree that the trial court also continued consideration of restitution. Following transfer to the judge who had taken the plea, the court considered and denied Collin's motion to withdraw his plea at a hearing on April 11, 2005. On May 18, 2005, Collins filed a pro se motion for reconsideration of his sentence, arguing that the court's decision to impose a sentence consecutive to time he served on a Skagit County case resulted in an exceptional sentence.
On July 6, 2005, Collins appeared with his attorney for the restitution hearing before the sentencing judge. Defense counsel stated,
We have talked about the restitution throughout this case, and he knows what is on the Judgment and Sentence, and he knows that there was an agreement to pay it.
I was provided with the supporting documentation before court today from the prosecutor, and I have briefly gone over that with Mr. Collins. It's my understanding at this point that he is not going to be challenging the order, in part based upon the Judgment and Sentence, but also in part based upon the idea and the concept that, quite frankly, it could get a lot worse, and so I think we are ready to agree and be done with it.
. . .
He is prepared to sign off. I'm looking at the proposed restitution order for $19,447.07. It's Mr. Collins' understanding that this entitles the entire amount due that's on these cases. It's also my understanding that in the Judgment and Sentence, the payments on the restitution are set after he is released and actually able to earn an income and start making payments on this. That was, of course, all taken care of at the Judgment and Sentence. I'm establishing a good firm record to make sure that everybody is on the same page. Is there anything to add? If not, we will go ahead and sign off on the agreed order.
THE COURT: Do you have any questions, Mr. Collins?
THE DEFENDANT: No, Your Honor.
The trial court also denied Collins' motion to reconsider his sentence at the July 6 hearing.
On October 17, 2005, at a hearing on his motion to vacate the restitution order, Collins argued that the State used his motion to withdraw the plea and his motion to reconsider the sentence as an excuse to repeatedly delay the restitution hearing and failed to advise him or advise the court of the expiration of the 180-day time limit. The court reviewed the record and ruled that "there was good cause for the continuance of the restitution hearing from October 12 through the point in July where the Court actually was able to hear the restitution hearing." The court specifically noted that at the November 2004 hearing, "the Court had found good cause to continue the restitution hearing due to the motion to withdraw [the] plea."
Based on this record, we hold that the trial court did not exceed its authority by continuing the restitution hearing until after the determination of Collins' motion to withdraw the plea. Despite Collins' claim that he did not know about the statutory 180-day limit, the record demonstrates that he was present in court on October 12 and represented by counsel when the prosecutor expressly addressed the 180-day time limit. Collins was also represented by counsel in November when the parties agreed that the court should continue the restitution hearing. And on July 6, Collins appeared at the restitution hearing with counsel and signed an agreed restitution order without objecting to the timing of the hearing. Under these circumstances, Collins waived his right to have the restitution order entered within 180-day statutory period.
Collins next contends that the trial court improperly calculated his offender score. At sentencing, Collins argued that four counts of identity theft in Whatcom County and six counts of identity theft in Skagit County should be counted as one point and three points under a same criminal conduct analysis. The sentencing court disagreed and counted the convictions separately for a total of ten points.
Relying on State v. Leyda, Collins argues that the sentencing court erroneously relied on the improper "unit of prosecution" in its same criminal conduct analysis. Essentially, Collins is challenging the constitutional validity of his prior convictions for identity theft in Skagit and Whatcom Counties. Although the State was not required to prove constitutional validity, the trial court must not consider any conviction that is constitutionally invalid on its face. State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796 (1986). "Constitutionally invalid on its face means a conviction which without further elaboration evidences infirmities of a constitutional magnitude." Id. at 188.
At sentencing, Collins asked the court to count his Whatcom and Skagit County convictions for a total of four points based on a same criminal conduct analysis. Although the trial court referred to "unit of prosecution" when rejecting Collins' argument, questions regarding the proper unit of prosecution are relevant to a double jeopardy analysis, not a same criminal conduct analysis. Collins did not contend at sentencing that the convictions violated double jeopardy. Here, Collins does not explain how his same criminal conduct argument should have prompted the sentencing court to sua sponte examine his prior convictions for double jeopardy violations, especially when State v. Leyda had not yet been decided.
In State v. Leyda, our Supreme Court considered the unit of prosecution in the crime of identity theft as a matter of first impression. 157 Wn.2d at 342. The court held that a single crime of identity theft is committed against each person whose identity is stolen. Id. at 346. But the court also noted that "a separate unit of prosecution may be charged where the accused has either possessed, obtained, used, or transferred multiple means of a single individual's financial information or identification with the requisite intent." Id. at 346 n. 9.
Collins argues that the Whatcom County judgment and sentence was facially invalid because the guilty plea form demonstrates that he admitted to the "use of the name of John Spagnolo" and states that he "did with fraudulent intent, assume the identity of John Spagnolo" to obtain four different credit cards. Similarly, the Skagit County plea form states that Collins "possessed and used the means of identification of" each of the three victims to obtain credit from six different sources. Collins argues that under Leyda, only a single count should have been charged in Whatcom County and only three counts would have been properly charged in Skagit County under these facts.
But since Collins was charged and convicted before the Supreme Court decided Leyda, the failure to specify in the plea forms the particular means of financial information or identification involved does not necessarily rule out the possibility that the State had nevertheless alleged facts to support multiple counts under Leyda. Because neither conviction is constitutionally invalid on its face, Collins "has no right to contest a prior conviction at a subsequent sentencing," because he "has available, more appropriate arenas for the determination of the constitutional validity of a prior conviction." Ammons, 105 Wn.2d at 188. In particular, Collins may seek relief by collateral attack on his convictions in both Skagit and Whatcom Counties.
To the extent Collins believes that his prior convictions violated double jeopardy under State v. Leyda, he can file personal restraint petitions challenging each of those convictions. Collins' personal restraint petition challenging the Skagit County convictions is currently pending before this court in Cause No. 59180-1-I. Our decision here does not prevent a collateral attack on the Skagit County convictions or those in Whatcom County.
In his Statement of Additional Grounds for Review, Collins also contends that the trial court improperly included four California convictions in his offender score because the State failed to provide supporting documents to prove the convictions. But when a defendant affirmatively agrees with the State's classification of out-of-state convictions, the sentencing court may include the convictions in the offender score without further proof of classification. State v. Ford, 137 Wn.2d 472, 483 n. 5, 973 P.2d 452 (1999). Here, defense counsel advised the court that Collins disputed a single California misdemeanor listed in his criminal history as prepared by the State but agreed that the others were properly included in his score. Collins fails to demonstrate error.
Affirmed.
FOR THE COURT: