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STATE WASHINGTON v. VALDEZ KEITH HENNINGS AND ERIC FULTON (07/18/96)

filed: July 18, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
VALDEZ KEITH HENNINGS AND ERIC FULTON, APPELLANTS.



Appeal from Superior Court, King (94-1-04027-4, 94-1-02886-0 & 94-1-00711-1), County; Honorable Carmen Otero, Judge. Judgment Date: September 12, 1994.

Guy, J., Durham, C.j., Dolliver, Smith, Johnson, Madsen, Alexander, Talmadge, Sanders, JJ., concurring.

Author: Guy

EN BANC

GUY, J. -- The Defendants in these consolidated appeals challenge the validity of restitution orders which were entered more than 60 days after sentencing. Defendants argue that a statutory amendment retroactively expanding the time within which restitution orders may be entered either (a) does not apply to their cases, or (b) violates the ex post facto, bill of attainder, double jeopardy and due process provisions of the state and federal constitutions. We affirm the restitution orders entered by the trial courts.

Facts

Background Information. In July 1984, the Court of Appeals held that the following language contained in the restitution statute, RCW 9.94A.140, created a permissive rather than a mandatory time limit: "If restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within sixty days." State v. Hartwell, 38 Wash. App. 135, 137, 684 P.2d 778 (1984).*fn1

In each of the cases now before the court, the Defendant pleaded guilty to a crime for which restitution was appropriate. Judgment and sentence in Defendant Hennings' case was signed September 9, 1994. The judgment and sentence in Defendant Fulton's case was signed September 16, 1994. Each of the judgments ordered restitution but provided the amount of that restitution would be determined at a future hearing.

Approximately one month after sentencing in these cases, on October 20, 1994, this court overruled Hartwell and held that the 60-day time limit contained in the restitution statute was mandatory, not permissive, and that restitution orders entered beyond the time limit established in the statute were void. State v. Krall, 125 Wash. 2d 146, 881 P.2d 1040 (1994).

The orders of restitution in these cases were entered more than 60 days after sentencing. Each of the Defendants appealed the restitution order in his case as being untimely under Krall.

After Defendants filed their opening briefs in the Court of Appeals, the Legislature amended the restitution statute, extending the time for determining the amount of restitution from 60 to 180 days after sentencing. The statute, which went into effect July 23, 1995, is, by its own terms, retroactive.

The facts of the individual Defendants' cases are as follows:

State v. Hennings. On July 1, 1994, Valdez Hennings was charged with theft in the second degree. Defendant Hennings, with two others, was allegedly involved in a credit card "scam" in which credit card numbers and names of others were used to order gift certificates from restaurants in King County more than 30 times, in varying amounts ranging from $100 to $200. The gift certificates were then allegedly redeemed by Defendant Hennings and two other persons. Defendant Hennings entered an Alford*fn2 plea on August 16, 1994. Defendant's statement on a plea of guilty states, "if this crime resulted in . . . loss of property, the judge will order me to make restitution, unless extraordinary circumstances exist which make restitution inappropriate." Clerk's Papers at 21. As part of his plea agreement, Defendant agreed to pay restitution "in full to the victim(s) on charged counts and uncharged counts." Clerk's Papers at 14. He was sentenced on September 9, 1994. The sentencing order provided that the amount of restitution would be determined at a hearing on October 19, 1994, and that Defendant waived his right to be present at that hearing. The hearing was not held until November 16, 1994 (68 days after sentencing), when an agreed order of restitution was entered. At that time Defendant was ordered to pay $4,410 in restitution.

State v. Fulton. On January 31, 1994, Eric Fulton was charged with forgery and with two counts of second-degree burglary. Defendant Fulton allegedly burglarized several small businesses in Seattle and stole cash and a check, which he wrote to himself, forging the payer's signature. Defendant Fulton entered into a plea agreement in which he agreed to pay restitution in full to the victims on charged and uncharged counts. He was sentenced September 16, 1994. The sentencing order provided that the amount of restitution would be determined at a hearing on November 16, 1994, and that Defendant Fulton waived his presence at the restitution hearing. By November 16, 1994, State v. Krall had been decided, and Defendant Fulton argued at the restitution hearing that the court had no authority to set restitution in his case because November 16 was 61 days after sentencing. The court continued the restitution hearing to December 7, 1994, and on that day ordered restitution in the amount of $7,559.01.

On appeal each Defendant challenges the validity of the order setting restitution in his case. Defendants claim the recent amendment of the statute should not be applied in their cases, arguing the amendment violates state and federal constitutional provisions against ex post facto laws, bills of attainder and double jeopardy and that its application in their cases violates due process. They also claim that the Legislature's apparently inadvertent failure to include RCW 9.94A.142, as well as RCW 9.94A.140, within the language of the amendment's section on retroactivity bars application of the amendment in their cases.

These appeals were consolidated by the Court of Appeals and were certified to this court for review, along with other cases raising additional issues relating to the effects of Krall. We agreed to review all of the certified appeals and scheduled them for argument as companion cases.*fn3

Issues

1. Does the Legislature's 1995 amendment to RCW 9.94A.142, extending the time within which restitution orders may be entered, apply retroactively?

2. If the Legislature's 1995 amendment to the restitution statute applies in these cases, does the amendment, by retroactively extending the time within which restitution may be ordered, violate the state or federal constitutional provisions relating to ex post facto laws, bills of attainder, double jeopardy, or due process?

Analysis

The State initially argues that Defendant Hennings waived any error by failing to object to the restitution order and by entering into an agreed order in the case. The question of waiver is the pivotal issue in the companion case, State v. Moen (No. 63420-3), and under our holding in Moen Defendant Hennings may raise the issue of timeliness on appeal.

We now turn to the substantive issues involved in this case.

Retroactive Application of the 1995 Amendment to RCW 9.94A.142. The authority to order restitution is purely statutory. State v. Smith, 119 Wash. 2d 385, 389, 831 P.2d 1082 (1992). This court has held that the language of this state's restitution statutes indicates a legislative intent to grant broad powers of restitution. State v. Davison, 116 Wash. 2d 917, 920, 809 P.2d 1374 (1991). Statutes authorizing restitution must be interpreted broadly to allow restitution, thus carrying out the intent of the Legislature. Davison, 116 Wash. 2d at 920.

Washington's restitution statute is part of the Sentencing Reform Act of 1981 (SRA), RCW 9.94A. As originally enacted, it required the trial court to determine the amount of restitution at the time of sentencing. Laws of 1981, ch. 137, § 14. In 1982, the statute was changed to extend the time for determining restitution to "within 60 days" of sentencing. Laws of 1982, ch. 192, § 5. See Krall, 125 Wash. 2d at 149.

As noted above, this time period was interpreted in 1984 as being a guideline, not as a mandatory time limit. State v. Hartwell, 38 Wash. App. 135, 684 P.2d 778. Ten years later, when the question was before this court in Krall, we held the time period was mandatory and Hartwell was overruled. See also State v. Duback, 77 Wash. App. 330, 332-33, 891 P.2d 40 (1995) (following Krall, held an order of restitution entered more than 60 days after sentencing is void); State v. Ryan, 78 Wash. App. 758, 762-63, 899 P.2d 825 (order setting restitution more than 60 days after sentencing is void), review denied, 128 Wash. 2d 1006, 907 P.2d 296 (1995).

[EDIT ] IS OVERSTRUCK IN THE SOURCE.]

The restitution statutes which are applicable in this case are RCW 9.94A.140, which applies to offenses committed on or before July 1, 1985, and RCW 9.94A.142, which applies to offenses committed after July 1, 1985. For purposes of the discussion herein, the statutes are substantially identical. Both statutory sections were amended during the 1995 legislative ...


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