Opinion
Nos. 21726-4-III, 22078-8-III.
Filed: March 4, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 92-1-01565-1. Judgment or order under review. Date filed: 12/11/2002. Judge signing: Hon. Tari S Eitzen.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Raynaldo Jaime, through counsel, appeals the trial court's ex parte entry of an order extending jurisdiction over him for the purpose of collecting a legal financial obligation (restitution) incurred as a result of his guilty plea for first degree rape of a child. In his statement of additional grounds for review, Mr. Jaime repeats appellate counsel's arguments and also contends: (1) the ex parte motion and order is in violation of legislative intent and authority; (2) the interest and costs should be vacated from the original restitution order because the Department of Corrections (DOC) did not object when he failed to make restitution payments during the period of his suspended sentence; (3) DOC does not have the statutory authority to supervise the collection of his restitution order after the initial 10-year period expires; (4) only the judge that imposed the original restitution order can amend it in the ex parte order; (5) the restitution order has priority over other obligations and therefore the additional interest and costs that have accrued should be vacated; (6) DOC is unfairly withholding the crime victims' compensation money collected from Mr. Jaime and the Spokane County Superior Court clerk, which has resulted in prejudice to Mr. Jaime; and (7) the amended restitution schedule is invalid on its face and must be stricken from the record. Finally, in his consolidated personal restraint petition (PRP), Mr. Jaime repeats some of the arguments raised in his statement of additional grounds for review. He also attempts to argue issues already resolved in his original appeal and PRP from the judgment and sentence for first degree child rape entered in 1993. Finding no reversible error, the trial court decision is affirmed and the PRP is denied.
FACTS
In 1992, Mr. Jaime pleaded guilty to one count of first degree rape of a child. As a result, on February 24, 1993, the court imposed a suspended sentence of 96 months under the special sex offender sentencing alternative (SSOSA), required successful completion of a 36-month outpatient sexual treatment program, and imposed a term of community supervision. Mr. Jaime was also ordered to pay certain fines and restitution to the victim. An amended restitution order was filed in 1997. In December 1998, the court revoked Mr. Jaime's SSOSA because he failed to make satisfactory progress in his treatment program and had committed a law violation of a sexual nature. Although Mr. Jaime appealed the revocation, both on direct appeal and in a PRP, it was affirmed by this court. On December 10, 2002, an ex parte motion and order extending jurisdiction for collection of legal financial obligations was entered in the Spokane County Superior Court. The order extended the court's jurisdiction over Mr. Jaime for an additional 10 years, until February 24, 2013. Once Mr. Jaime received the ex parte order, he filed a timely pro se notice of appeal. Counsel was later appointed to assist Mr. Jaime with his appeal. Mr. Jaime also filed a timely personal restraint petition, which was consolidated with the appeal.
ANALYSIS
The sole issue on appeal is whether the trial court erred when, on December 10, 2002, pursuant to RCW 9.94A.750 and 9.94A.753, it entered an ex parte order extending jurisdiction until February 24, 2013, for the collection of restitution legally owed by Mr. Jaime under the original judgment and sentence. The trial court's decision will not be overturned absent a clear abuse of discretion. Johnson v. Cash Store, 116 Wn. App. 833, 849, 68 P.3d 1099, review denied, 150 Wn.2d 1020 (2003).
The actual motion and order cites the previous statutes: former RCW 9.94A.140 and former RCW 9.94A.142, which were recodified in 2001. The cites set forth above are the ones the State should have used as they were the laws in effect on the date the ex parte motion and order were filed in December 2002.
RCW 9.94A.753 governs restitution for crimes committed after July 1, 1985. The relevant portion of the statute provides:
For the purposes of this section, for an offense committed prior to July 1, 2000, the offender shall remain under the court's jurisdiction for a term of ten years following the offender's release from total confinement or ten years subsequent to the entry of the judgment and sentence, whichever period ends later. Prior to the expiration of the initial ten-year period, the superior court may extend jurisdiction under the criminal judgment an additional ten years for payment of restitution.
RCW 9.94A.753(4). 'The costs for collection services shall be paid by the offender.' RCW 9.94A.760(12). Financial obligations 'shall bear interest from the date of the judgment until payment.' RCW 10.82.090. The restitution statute does not set forth the specific procedure one must follow when requesting a hearing to extend jurisdiction. As an initial matter, the State urges us not to even consider the merits of Mr. Jaime's appeal, claiming it does not affect a substantial right as required by RAP 2.2(a)(13). We disagree. Due process, being fundamental, does affect substantial rights. 'Due process of law guarantees 'no particular form of procedure; it protects substantial rights.'' Mitchell v. W.T. Grant Co., 416 U.S. 600, 610, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) (quoting NLRB v. Mackay Co., 304 U.S. 333, 351, 58 S.Ct. 904, 82 L.Ed. 1381 (1938)). Accordingly, we will consider the merits of Mr. Jaime's appeal.
The crux of this appeal is that Mr. Jaime contends the ex parte order extending jurisdiction is invalid since he was not provided the constitutional right to receive notice and be heard prior to the entry of the order. The State argues the ex parte hearing that took place was sufficient since the court was statutorily authorized to take the action it took and nothing in the statute sets forth any particular procedure that must be followed prior to the entry of an order extending jurisdiction for the collection of restitution.
Mr. Jaime complains the ex parte order modified the terms of his original judgment and sentence, noting the original restitution order had increased due to accruing statutory interest, assessments, additional bills for counseling for the victim, and the costs of collection. He argues these additional financial obligations increased his punishment and that due process requires that he receive a contested hearing prior to the entry of an order extending jurisdiction. He is mistaken. The State correctly argues that the ex parte order did not modify the original judgment or impose further punishment on Mr. Jaime. See State v. Schultz, 138 Wn.2d 638, 980 P.2d 1265 (1999). The Shultz court determined former RCW 9.94A.142 did not violate ex post facto restrictions because it merely increased the total time that a defendant is subject to the restitution obligation and did not increase the quantum of punishment imposed in the restitution order. Id. at 643-44. As a result, Mr. Jaime did not have an automatic right to a full hearing on this basis. The State claims Mr. Jaime's due process rights were accommodated because he was present and had the opportunity to present evidence at the original restitution hearing. Cf. State v. Wiens, 77 Wn. App. 651, 656, 894 P.2d 569 (1995) (due process not violated by ex parte garnishment order).
The Shultz analysis was utilized by this court in State v. Serio, 97 Wn. App. 586, 987 P.2d 133 (1999) and State v. Morgan, 107 Wn. App. 153, 26 P.3d 965 (2001), leading to the result urged by the State in this appeal. These cases are somewhat distinguishable from Mr. Jaime's appeal because Mr. Schultz, Mr. Serio, and Mr. Morgan all received prior notice of the State's intended action and were allowed to fully participate in the State's hearing requesting extension of jurisdiction. Mr. Jaime asserts the laws of this state do not permit our courts to ignore fundamental principles of due process, citing City of Seattle v. Agrellas, 80 Wn. App. 130, 136, 906 P.2d 995 (1995). "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). 'An essential ingredient of due process is notice.' In re Pers. Restraint of Cashaw, 68 Wn. App. 112, 124, 839 P.2d 332 (1992), aff'd, 123 Wn.2d 138, 866 P.2d 8 (1994). Applied in the criminal context, due process requires that a criminal defendant be given notice prior to deprivation of a substantial right. See State v. Fleming, 41 Wn. App. 33, 35-36, 701 P.2d 815 (1985).
The court's role is not to define due process according to its own "'personal and private notions' of fairness." State v. Cantrell, 111 Wn.2d 385, 389, 758 P.2d 1 (1988) (quoting United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) (quoting Rochin v. California, 342 U.S. 165, 170, 72 S.Ct. 205, 96 L.Ed. 183 (1952))). Its role is to determine whether the State's conduct violates "'fundamental conceptions of justice which lie at the base of our civil and political institutions.'" Cantrell, 111 Wn.2d at 389 (quoting Lovasco, 431 U.S at 790 (quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 So. Ct. 340, 79 L.Ed. 791 (1935))). For this reason, we agree with the State that the relevant statute does not require a specific formal, contested hearing prior to extending jurisdiction for the collection of restitution.
Mr. Jaime's statement of additional grounds for review repeats some issues raised by appellate counsel and the issues need no further discussion. The issue he raised regarding whether DOC is unfairly withholding payments he allegedly made to the crime victims' compensation fund cannot be decided on the record supplied on appeal. The remaining issues are without merit. We conclude the trial court did not abuse its discretion when it entered the ex parte order extending jurisdiction over Mr. Jaime's restitution order since no specific procedure is set forth in the statute allowing a formal hearing.
The trial court decision is affirmed.
PERSONAL RESTRAINT PETITION NO. 22078-8-III
This is the second PRP Mr. Jaime has filed with this court. His previous PRP was decided in December 1999 and a certificate of finality was filed in June 2000. RCW 10.73.140 provides that 'the court of appeals will not consider the petition unless the person certifies that he or she has not filed a previous petition on similar grounds, and shows good cause why the petitioner did not raise the new grounds in the previous petition.' Mr. Jaime did not comply with RCW 10.73.140 — his previous PRP discussed one of the same issues (i.e., whether he should receive jail-time credit for the amount of time during which he complied with the terms of the SSOSA program) and he has not satisfied the statutory 'good cause' requirement regarding the other issues. Pursuant to the statute, we are not allowed to reconsider the merits of this issue.
In this PRP, Mr. Jaime raises six other issues that were recently before us in his direct appeal. That appeal was mandated in October 2002. All of the issues raised in the current PRP were specifically addressed in our recent opinion. This, of course, does not automatically preclude review of a PRP. However, we may not reconsider a claim that was rejected on its merits on direct appeal unless the petitioner shows that reconsidera tion will serve the ends of justice. In re Pers. Restraint of Jeffries, 114 Wn.2d 485, 487, 789 P.2d 731 (1990). To do so, Mr. Jaime must show not only error, but also actual and substantial prejudice resulting from alleged constitutional errors, or, for alleged nonconstitutional errors, a fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 810, 812, 792 P.2d 506 (1990). This showing must be made by a preponderance of the evidence. In re Pers. Restraint of Crabtree, 141 Wn.2d 577, 587, 9 P.3d 814 (2000). Failure to meet this burden results in dismissal of the petition.
Mr. Jaime has not set forth any error of constitutional magnitude nor is there any evidence of a fundamental defect resulting in a miscarriage of justice. In both his current PRP and his reply to the State's response to his PRP, Mr. Jaime discusses the trial court's lack of authority to enter the ex parte order extending jurisdiction. We have already stated the reason this contention fails.
Mr. Jaime next contends the trial court erred when it failed to set or hold a treatment termination hearing prior to revoking his SSOSA. This issue has already been raised and rejected in the prior appeal and PRP, although obviously not to Mr. Jaime's satisfaction. Next, he once again argues the SSOSA revocation was improper because he did not receive a treatment termination hearing. As we noted in his last appeal, Mr. Jaime was still in treatment at the time his SSOSA was revoked. Accordingly, there was no known date for the anticipated completion of treatment and no treatment termination hearing could have been set. His claim that the trial court erred in not holding a 36-month treatment hearing or a preliminary hearing prior to revocation of SSOSA and his claim that an unnecessary delay occurred prior to the termination hearing are beyond the scope of the record submitted with this PRP. A successful argument cannot be based on speculation or conjecture. The evidence supporting the arguments in a petition must be based on 'more than speculation, conjecture, or inadmissible hearsay.' In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). We simply have no way of addressing these issues. His claim that he has three prosecutors fighting his PRP is patently false as is his complaint the State's response to the PRP was not timely filed.
Because the issues raised are beyond the scope of the record accompanying this PRP or Mr. Jaime failed to meet the required burden of production, his petition is denied.
A majority of the panel has determined that 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.
BROWN, C.J. and SWEENEY, J., concur.