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State v. McCarthy

Court of Appeals of Washington, Division 2

December 10, 2013

The State of Washington, Respondent,
v.
Ryan Joseph McCarthy, Appellant

Appeal from Lewis County Superior Court. Docket No: 10-1-00491-7. Date filed: 03/23/2012. Judge signing: Honorable Richard Lynn Brosey.

Lise Ellner, for appellant.

Jonathan L. Meyer, Prosecuting Attorney, and Sara I. Beigh, Deputy, for respondent.

AUTHOR: George Fearing, J., Joel Penoyar, J. Jill M Johanson, A.C.J. (dissenting).

OPINION

Page 1248

Fearing, J.

[178 Wn.App. 292] ¶ 1 Ryan Joseph McCarthy appeals the trial court's sentence imposing, as part of restitution, the burial and funeral costs of victims shot by his accomplice in crime. He argues that the State was required but failed to show a causal relationship between these costs and the crimes for which he was convicted. Because RCW 9.94A.753(7) requires that the trial court order a convicted defendant to pay, as restitution, costs paid by the crime victims' compensation fund under the name of the defendant, and the trial court need not, under such circumstances, independently find a causal relationship between these costs and the convictions, we affirm.

FACTS

¶ 2 During the early morning of August 21, 2010, John Booth and McCarthy entered a home then occupied by David West Sr., David West Jr., Tony Williams, and John Lindberg. McCarthy and Booth sought to extort money from West Sr. because of West Sr.'s agreeing to testify in an unrelated case. West Sr. and Booth spoke outside the house, while McCarthy sat at the kitchen table. West Sr. and Booth returned inside, after which West Sr. walked to his bedroom and grabbed his shotgun. West Sr. then told Booth and McCarthy to leave the residence. Booth instead shot West Sr., West Jr., and Williams. Denise Salts entered the residence after hearing gunshots. Booth greeted Salts by asking, " How you doing?" Clerk's Papers (CP) at 10. He then shot Salts in the head. Salts survived her wounds, but the remaining three shooting victims perished. Lindberg, who hid in a bathroom, escaped physically unharmed.

¶ 3 McCarthy argued below that he passed polygraph tests indicating he was not present in the house when Booth killed the Wests and shot Williams. Eyewitness Salts disagrees. She reported that McCarthy sat at the table when Salts was shot. As she lay wounded on the floor, she heard McCarthy say, " I don't think he's dead. Let's get out of here." CP at 10.

[178 Wn.App. 293] ¶ 4 The State initially charged McCarthy with three counts of first degree felony murder and one count of first degree extortion. The State later amended the information to include two counts of first degree felony murder, one count of first degree murder, and one count of first degree attempted extortion. McCarthy pleaded guilty to first degree robbery, residential burglary, and attempted first degree extortion. In turn, the State dismissed the murder charges. The extortion charge included language that McCarthy or an accomplice threatened West Sr. in order to gain his property. The robbery charge included language that McCarthy or an accomplice, with intent to commit theft, did unlawfully take personal property

Page 1249

from West Sr. against his will and that McCarthy or an accomplice was armed with a deadly weapon and did inflict injury on West Sr. For the residential burglary charge, the State alleged that McCarthy or an accomplice entered or remained unlawfully in West Sr.'s dwelling with the intent to commit a crime.

¶ 5 As part of the plea, McCarthy acknowledged the State would seek restitution. The agreement did not identify the specific costs McCarthy was to pay. The trial court ordered McCarthy to pay, in restitution, $5,750.00 for the funeral and burial expenses of West Jr., and $819.25 for the funeral expenses of Williams paid by the crime victims' compensation fund.[1] The invoices from the crime victims' compensation fund listed both McCarthy and Booth as " offenders" responsible for the costs. Suppl. CP at 94, 102. The trial court did not address whether the death expenses were related to McCarthy's convictions, and thus did not determine whether restitution was appropriate under RCW 9.94A.753(5). The trial court ruled that restitution was appropriate under RCW 9.94A.753(7) because of the crime victims' fund payment.

[178 Wn.App. 294] ¶ 6 The issue before us is whether a convicted defendant is obligated to pay restitution, regardless of whether the trial court finds a direct causal relationship between the costs and the defendant's convictions, when costs were paid by the Department of Labor and Industries (Department) crime victims' compensation fund with the defendant's name as offender. We answer in the affirmative.

ANALYSIS

¶ 7 The authority to impose restitution is not an inherent power of the court, but is derived from statutes. State v. Gray, 174 Wn.2d 920, 924, 280 P.3d 1110 (2012); State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). A number of statutes address restitution under varying circumstances. The controlling statute here is RCW 9.94A.753. The statute reads, in relevant part:

(3) Except as provided in subsection (6) of this section, restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury. ...
... .
(5) Restitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property or as provided in subsection (6) of this section unless extraordinary circumstances exist which make restitution inappropriate in the court's judgment and the court sets forth such circumstances in the record. In addition, restitution shall be ordered to pay for an injury, loss, or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement.
... .
(7) Regardless of the provisions of subsections (1) through (6) of this section, the court shall order restitution in all cases [178 Wn.App. 295] where the victim is entitled to benefits under the crime victims' compensation act, chapter 7.68 RCW. If the court does not order restitution and the victim of the crime has been determined to be entitled to benefits under the crime victims' compensation act, the department of labor and industries, as administrator of the crime victims' compensation program, may petition the court within one year of entry of the judgment and sentence for entry of a restitution order. Upon receipt of a petition from the department of labor and industries, the court shall hold a restitution hearing and shall enter a restitution order.
... .

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