Appeal from Superior Court of King County. Docket No: 95-1-02646-6. Date filed: 08/07/95. Judge signing: Hon. Linda Lau.
PER CURIAM. Rodney Hall appeals from the order of restitution entered following his conviction of one count of rendering criminal assistance in the first degree. He contends that the sentencing court erred in failing to conduct an evidentiary hearing prior to entering the order of restitution and in concluding that there was a causal link between the victim's loss and Hall's offense. We find no error. Hall never requested an evidentiary hearing and he has failed to cite any authority for the proposition that the court had a duty to set a hearing sua sponte before imposing restitution pursuant to RCW 9.92.060(2). Because Hall's actions facilitated his brother's escape and thwarted the victim's efforts to recover her property, the sentencing court was warranted in finding that the victim suffered a loss as a result of Hall's crime. The order of restitution is affirmed.
On April 10, 1995, Hall and his brother, Lewis Hagler, were charged with one count of robbery in the first degree. The certificate of probable cause alleged that on March 3, 1995, Nancy Weigart went to Lewis Hagler's house. The day before, Weigart had sold some jewelry to Hagler and Hagler paid with a check. After the check bounced, Hagler asked Weigart to return to his house so that he could pay her in cash.
While at Hagler's house, Weigart met Hall who expressed interest in buying jewelry. Weigart went to her car and returned with a bag of jewelry. As she was showing some of the jewelry to Hall, Hagler placed a large knife in front of her face and grabbed the bag. Hagler and Weigart struggled over the bag until Hagler pushed Weigart causing her to lose her grip. Hagler ran toward the back of the house and Weigart followed. Hagler jumped off the back porch and ran toward the front of the house. Weigart turned and ran back through the house. When she got to the front door, Hall blocked her and pushed her away preventing her from pursuing Hagler.
Although Hall was originally charged with robbery in the first degree, he ultimately pled guilty to the amended charge of rendering criminal assistance in the first degree, a gross misdemeanor. On the plea form, Hall stated that "in King County on 3-3-95, my brother Lewis Hagler committed Robbery 1, and I helped him by providing means of avoiding discovery and apprehension".
The court imposed a 12 month suspended sentence on several conditions including the payment of $13,547 in restitution. Hall has appealed the restitution order.
Hall contends that his right to due process was violated "when, over defense objection, [the court] entered a restitution order without conducting an evidentiary hearing". Appellant's Brief at 9. We disagree.
Hall was sentenced on June 23, 1995. A restitution hearing was subsequently held on August 3, 1995. Hall waived his presence at the hearing. Hall's counsel argued that restitution could not be imposed because the robbery was completed prior to the commission of Hall's offense. Therefore, the loss of property that resulted from the robbery could not be causally linked to Hall's subsequent offense. The State responded that a causal connection existed because Hall blocked the victim's exit preventing her from pursuing Hall's brother and potentially recovering her property.
At that point, Hall's counsel stated that Hall denied pushing the victim or preventing her from pursuing his brother. Counsel maintained that Hall pled guilty because he had helped his brother "get new clothes and avoid police detection". Counsel added that "that's what we tried to express in his plea form, but we weren't articulate enough to avoid the very issue you're now asking me about".
The court concluded that it was clear that Hall "helped his brother by preventing the victim from apprehending the -- or possibly apprehending the Defendant, thus contributing to the victim's loss." The court held that Hall's actions were, therefore, causally connected to the loss.
Contrary to Hall's assertion on appeal, his counsel never objected to the trial court's failure to hold a formal evidentiary hearing. Counsel's stated objection to the imposition of restitution was that by definition the crime of rendering criminal assistance occurred after completion of the robbery and, therefore, the loss resulting from the robbery could not be causally connected to Hall. When the focus changed to the underlying facts of the offense, counsel never requested that an evidentiary hearing be held. Nonetheless, Hall cites State v. Pollard, 66 Wash. App. 779, 834 P.2d 51, review denied, 120 Wash. 2d 1015, 844 P.2d 436 (1992), apparently for the proposition that the court was required to sua sponte order an evidentiary hearing because the facts were in dispute. Pollard is distinguishable.
Pollard was charged with six counts of unlawful issuance of checks or drafts. In exchange for a reducing the charges to one count, Pollard agreed to pay restitution on all the counts originally charged. Pollard, 66 Wash. App. at 780-81. At sentencing, Pollard challenged the sufficiency of the evidence regarding the amount of loss experienced by the banks involved. The court ordered restitution based upon the amounts set forth in the police report. Pollard, 66 Wash. App. at 782.
On appeal, Pollard argued that pursuant to RCW 9.94A.370(2) he was entitled to an evidentiary hearing on the restitution amount. RCW 9.94A.370(2) provides in pertinent part that "where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point." The statute is known as the "real facts" statute of the Sentencing Reform Act (SRA). Pollard, 66 Wash. App. ...