Opinion
No. 36932-0-II.
March 10, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-02117-7, John P. Wulle, J., entered October 22, 2007.
Affirmed by unpublished opinion per QuinnBrintnall, J., concurred in by Penoyar, A.C.J., and Bridgewater, J.
On November 3, 2006, Michael Traylor pleaded guilty to first degree negligent driving in violation of RCW 46.61.5249(1)(a) in connection with a vehicle-pedestrian collision that killed Alfred Eugene Kenning, age 20. In section 6(e) of Traylor's statement of defendant on plea of guilty, he agreed to make restitution:
In addition to sentencing me to confinement, the judge will order me to pay $250.00 as a victim's compensation fund assessment. If this crime resulted in injury to any person or damage to or loss of property, the judge will order me to make restitution, unless extraordinary circumstances exist which make restitution inappropriate. The amount of restitution may be up to double my gain or double the victim's loss. The judge may also order that I pay a fine, court costs, attorney fees and the costs of incarceration.
Clerk's Papers (CP) at 3-4.
On November 29, 2006, the trial court sentenced Traylor to 90 days, 30 suspended for 24 months. It also imposed additional legal financial obligations and restitution in an amount to be set by later order of the court.
On October 22, 2007, the trial court declined to hear Traylor's argument that the amount of restitution should be offset by Kenning's alleged contributory negligence and set restitution at $110,634.81 as follows:
Although the document is titled "Second Amended Supplemental Order Setting Restitution," our record does not contain any other restitution order. Also, although it does not affect our ruling in this matter, we note that the total amount of restitution stated in the record varies by approximately $40 in different locations.
We affirm.
Discussion
Under RCW 9.94A.753(1), when restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within 180 days. The court may continue the hearing beyond the 180 days for good cause. RCW 9.94A.753(1). Here, although more than 180 days elapsed from the sentencing hearing to entry of the final restitution order, the State initially set a review of the restitution amount for February 16, 2007, less than 90 days after sentencing. The record reflects that the hearing was stricken by court order. No reason is stated on the order; Traylor does not argue that he objected to the continuance or that the court erred in striking the hearing. Nor has Traylor, as the appellant, provided a transcript of any court proceedings that occurred that day. See RAP 9.2 (appellant responsible to perfect the record on appeal). On April 17, 2007, the State again noted what the record refers to as a restitution review hearing for May 15, 2007. The minute entry reflects that the court also struck this hearing. No objection to the striking is noted. Although not entirely clear, according to the minute entries of June 7, 2007, the court called the restitution review hearing at 10:21 am and noted that the defendant had not appeared. On July 2, 2007, the court again struck a restitution review hearing. The minute entry of that date is silent as to Traylor's appearance but notes that Traylor is not in custody. On July 19, 2007, a restitution review hearing commenced, Traylor did not object to the timeliness of this hearing, and his defense counsel requested that the hearing be continued to allow her an opportunity to research whether Traylor had the right to contest liability for the full restitution amount.
[Prosecutor]: My understanding is that the dollar amounts are not in dispute. That 110,634.81 is not an issue in dispute. That an additional legal issue, however, is being potentially raised by the defense relative to comparative fault and whether or not the matter can be reduced based on comparative negligence on the part of the parties.
Our position is, as we indicated in chambers are [sic] that there's a plea agreement that required him to pay restitution regardless of anything else that should trump that issue. And [defense counsel] had indicated a desire to continue a little bit of research, provide me some additional information so I could research the same issue and then we return in a couple of weeks to meet with the court and discuss whether or not this is a viable issue. Or at that time, if it's not viable, simply enter the judgment for 110,634.81.
Is that right, [defense counsel]?
[Defense Counsel]: Yes, Your Honor, that's an accurate rendition.
The Court: All right. Have you gotten a new date from [the clerk]?
[Defense Counsel]: We have not.
[Prosecutor]: We have not.
Report of Proceedings (July 19, 2007) at 4.
In this appeal, we address two issues. First, whether the court was required to conduct an evidentiary hearing to determine whether the victim was negligent and, if so, whether his negligence contributed to his injuries and mitigated Traylor's restitution obligation. And second, whether the order setting the amount of restitution is void because it was entered more than 180 days following Traylor's sentencing. Contributory Negligence
Traylor claims that Kenning's contributory negligence, standing on or near the fog line while putting gasoline into his car, offsets his restitution liability. We disagree.
A trial court has broad statutory authority to order restitution. RCW 9.94A.753; State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999) (citing State v. Smith, 119 Wn.2d 385, 389, 831 P.2d 1082 (1992)). We will not disturb a trial court's order of restitution absent an abuse of discretion. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007). A trial court abuses its discretion when its decision or order is "'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" Enstone, 137 Wn.2d at 679-80 (quoting State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 866 (1981)). A trial court may also abuse its discretion by applying an incorrect legal analysis or other error of law. Tobin, 161 Wn.2d at 523.
Unless a defendant enters into an express agreement to pay restitution for an uncharged crime, a trial court may only order restitution for losses that are causally connected to the crime. State v. Kinneman, 155 Wn.2d 272, 286, 119 P.3d 350 (2005). We determine whether restitution is causally connected to the crime by employing a "but for" inquiry. Tobin, 161 Wn.2d at 524. If the defendant disputes facts relevant to determining restitution, the State must prove the damages at an evidentiary hearing by a preponderance of the evidence. Kinneman, 155 Wn.2d at 285.
In paragraph 6(e) of his statement of defendant on plea of guilty, Traylor agreed that "[i]f this crime resulted in injury to any person or damage to or loss of property, the judge will order me to make restitution, unless extraordinary circumstances exist which make restitution inappropriate." CP at 3-4. Traylor does not dispute that the amount of restitution ordered accurately reflected the victim's damages but claims that his restitution obligation should be offset by the victim's alleged contributory negligence and, thus, the trial court was required to hold an evidentiary hearing on this disputed fact. But here, the victim's alleged contributory negligence is not a disputed fact relevant to determining restitution.
In State v. Lohr, 130 Wn. App. 904, 907, 125 P.3d 977 (2005), review denied, 158 Wn.2d 1013 (2006), Division Three of this court addressed whether the trial court in sentencing Lohr properly ruled that "as a matter of law, [] it must consider [Lohr's] claims that the hotel victims bear some responsibility for their losses." It ruled that contributory negligence for inadequate sprinkler systems did not apply to reduce the amount of restitution a defendant should pay for starting a fire in a hotel by leaving a burning candle in her room. In reaching its decision, Division Three of this court recognized that the proper inquiry for determining whether restitution is causally connected to the crime is whether but for the defendant's crime would the damages to the victim have occurred. Lohr, 130 Wn. App. at 909-10. And the Lohr court concluded that "reasonable minds could reach but one conclusion; [the defendant] caused the fire that damaged the victims." 130 Wn. App. at 910. Traylor asks this court to turn the "but for" inquiry on its head by asking whether but for the victim's negligence would the victim's damages have occurred. While a victim's contributory negligence may be relevant in a situation where the contributory negligence breaks the causal chain, those facts are not present here.
Here, Traylor admitted drinking alcohol and acknowledged that he was weaving in and out of his lane of traffic when he hit Kenning, causing him to fly into the road where he was run over by a following motorist. Traylor knowingly and voluntarily pleaded guilty to negligent driving in violation of RCW 46.61.5249(1)(a) (alcohol-or drug-related) and agreed to pay restitution in an amount to be set at a later date. As in Lohr, once liability is established by Traylor's plea, evidence of contributory negligence is not relevant to determine the amount of Traylor's restitution obligation and the trial court did not err in declining to hold a hearing on that issue. And like Lohr, on these undisputed facts reasonable minds could reach but one conclusion — Traylor's crime caused Kenning's damage. Authority of Court To Impose Restitution
We turn now to Traylor's argument that the trial court lost authority to order restitution 180 days after sentencing. Traylor was sentenced on November 29, 2006. Nearly 11 months later, the court entered the second amended supplemental order setting restitution at issue here. But Trayor's first restitution review hearing was scheduled on February 16, 2007. The second hearing was scheduled on May 15, 2007. According to the court's minute entries, these hearings were stricken by the court. The reasons for these strikings are not specified. Traylor did not appear at the third hearing on June 7, 2007, and his counsel requested a continuance at the fourth. From our review of the record provided, it appears that the trial court struck the first restitution review hearing to allow for completion of the county's restitution estimate, including time loss calculations. No clear reason appears for the second continuance and, other than the minute entry, the appellant has not provided us with a record of that proceeding. RAP 9.2(b) (appellant responsible for providing a record sufficient for our review). The hearing was apparently rescheduled for June 7, 2007, but Traylor failed to appear. Likewise, the minute entry indicates that Traylor was not in custody (and apparently did not appear) on July 2. Traylor did not object to any of these continuances and, in fact, at the July 19 hearing, his counsel requested that the matter be continued again to allow for further briefing on the contributory negligence issue. Like the court rule governing the setting of a timely trial, the 180-day limit on the setting of the amount of restitution is a statutory procedural right that may be waived. See State v. Valdobinos, 122 Wn.2d 270, 274, 858 P.2d 199 (1993) ("Waiver[of right to timely trial] may be implied from a defendant's request for a continuance.").
September 12, 2006: Kenning dies as a result of injuries sustained in a pedestrian auto accident five hours earlier. He was 20 years old.
November 7, 2006: CVCP files a restitution report for $5,698.36 in burial expenses dated November 3, 2006.
February 16, 2007: Court strikes first restitution review hearing.
March 28, 2006 [sic]: Clark County Restitution Estimate Form detailing Michael Kenning's ($1,440) and Theresa Kenning's time loss (bereavement leave, $840.24; sick leave, $978.91); emergency care, Legacy Emmanuel Hospital, $96,224.50; ambulance service, $865.95; pathology, $174.75. Included was a Notice of Hospital Lien dated October 26, 2006, and other supporting documentation.
April 4, 2007: A second restitution report dated March 30, 2007, is filed with copies to Traylor, defense counsel, and deputy prosecuting attorney requesting payment to the following victims: CVCP, $5,698.36, and Michael and Theresa Kenning, $100,488.35.
May 15, 2007: Court strikes second restitution review hearing. June 7, 2007: Case called 10:21 am; Traylor has not appeared. July 2, 2007: Case struck; minute entry notes Traylor not in custody.
July 24, 2007: Second Amended Restitution Report dated July 19, 2007, totaling $110,674.80. Damage amount not challenged, but defense counsel requests continuance to brief legal challenge whether Traylor is responsible for full amount or whether Kenning was also negligent and responsible for a portion of his own medical bills.
In State v. Mollichi, 132 Wn.2d 80, 936 P.2d 408 (1997), our Supreme Court suggested that under circumstances not there present, a juvenile defendant might waive the applicable statutory time limit requiring the court setting restitution at the disposition hearing. Likewise, under the circumstances here, Traylor waived his right to object to the timeliness of the order setting the amount of his restitution on the grounds that it was signed more than 180 days after entry of his judgment and sentence. The State argues in its brief that
the defendant cannot object to the extension because he invited or waived any error when he agreed to the extensions. And as the record clearly demonstrates he was agreeing, through his attorney, to these extensions and set overs specifically for the purpose of assisting him (the defendant) in reducing an amount of restitution that he would pay.
Br. of Resp't at 7.
The appellant has not provided a transcript of the initial court proceedings for our review and nothing in the record before us rebuts the State's claim. In State v. Brown, 132 Wn.2d 529, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998), the defendant did not challenge timely service of notice of death penalty in the trial court and did not claim untimely service. As here, Brown argued only that the record did not affirmatively prove timely service. Our Supreme Court reviewed the record and concluded that the lack of objections and timing of events suggested notice was timely. Likewise, here, the review of the record suggests the defense agreed and acquiesced in the setting of the restitution review hearings. The minute entries provided indicate that the court struck the first two initial hearing dates but do not indicate that Traylor objected to the striking. The minute entries also indicate that Traylor failed to appear for at least one other hearing, requested at least one continuance of the restitution setting hearing, and expressly agreed to another. According to the record before us, Traylor never objected to the timeliness of these hearings below.
Under the circumstances as they appear on this incomplete record, Traylor waived his right to object that his restitution review hearing was held more than 180 days after his sentencing hearing.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and PENOYAR, A.C.J., concur.