State v. Ramos

• Citation: 520 P.3d 65
• Decision Date: 07 November 2022
• Docket Number: 82818-5-I
• Parties: The STATE of Washington, Respondent, v. Jason Michael RAMOS, Appellant.
• Court: Court of Appeals of Washington

520 P.3d 65

The STATE of Washington, Respondent,

v.Jason Michael RAMOS, Appellant.

No. 82818-5-I

Court of Appeals of Washington, Division 1.

Filed November 7, 2022

Beverly Kaiwen Tsai, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Stephanie Finn Guthrie, King County Prosecuting Attorney's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

ANDRUS, C.J.

¶1 After a 2015 conviction for first-degree assault with a deadly weapon and first-degree robbery,¹ Jason Michael Ramos was resentenced in 2021 after a prior drug possession conviction was invalidated by State v. Blake , 197 Wash.2d 170, 481 P.3d 521 (2021). At resentencing, the trial court affirmed a prior restitution order and reimposed a victim penalty assessment (VPA). Ramos appeals, arguing that restitution, interest on restitution, and the VPA violate the excessive fines clause of the Eighth Amendment to the United States Constitution and article I, § 14 of the Washington Constitution because he is indigent and lacks the ability to pay.

¶2 We conclude that article I, § 14 of our state constitution provides no greater protection against excessive fines than the Eighth Amendment. We further conclude that under the Eighth Amendment, restitution is not grossly disproportional when based on actual victim losses. The majority further concludes that the statute imposing interest on restitution is not punitive in nature but is instead intended to compensate victims for the lost value of money. Because interest is not punitive in nature, it is not subject to an excessive fines clause analysis. We therefore affirm.

FACTS

¶3 A jury convicted Ramos in 2015 of assaulting a homeless man, Jarvis Capucion, with a knife, and stealing his backpack, in an unprovoked attack. Ramos , 2016 WL 1627704 at *1. The trial court sentenced Ramos to 169 months in prison based on an offender score of 4. His offender score included points for two prior felony convictions, a 2000 conviction for second degree burglary and a 2005 conviction for possession of cocaine. The trial court waived discretionary legal financial obligations (LFOs), imposed the mandatory $500 VPA² and the $100 DNA collection fee, ordered that Ramos pay restitution, and waived interest on the LFOs, except with respect to restitution. At a subsequent restitution hearing, the trial court ordered Ramos to pay $50,591.70 in restitution, the identified payees being his victim, Capucion ($591.70), the Crime Victims Compensation Fund ($35,000), the Health Care Authority ($4,000), and United Healthcare Community Plan ($11,000).³

¶4 In early 2021, Ramos filed a pro se motion to strike his legal financial obligations.⁴ On February 9, 2021, the trial court held that the LFOs "are not subject to recall," that Ramos may become eligible for a waiver of interest on the restitution award when released from custody under RCW 10.82.090,⁵ and that both the VPA and DNA fee were mandatory at the time Ramos was sentenced. The court further held that restitution is mandatory, "absent extraordinary circumstances," and found that "Mr. Ramos’ sentencing judge considered his lawyer's brief challenging the amount of restitution to be ordered, and in fact did order restitution in an amount less than that requested by the Government." It noted that Ramos did not challenge the restitution in his direct appeal. The court advised that "[i]f Mr. Ramos feels that any LFO was improperly imposed in violation of the law, he may file a petition for Post-Conviction Relief with the Washington State Court of Appeals."

¶5 ¶6 Shortly thereafter, the Supreme Court issued Blake , the legal effect of which was to invalidate Ramos's prior drug possession conviction. Ramos filed a pro se motion to reconsider the February 2021 order and the trial court reserved ruling until the Blake decision became final. The State subsequently conceded that under Blake , Ramos's drug possession conviction could not be included in his offender score and that he needed to be resentenced.

¶7 Ramos and his counsel appeared for resentencing on June 4, 2021. Ramos did not raise the February 2021 ruling on his mandatory LFOs. Nor did Ramos object to the imposition of the mandatory $500 VPA. In fact, his attorney informed the trial court that Ramos did not object to the original restitution order. He stated "we're not contesting the amount. And again, I have looked at the materials. It's all for the injuries and ... those were appropriate."

¶8 Ramos argued instead that the trial court should strike any interest that had accumulated since the original 2015 sentencing. According to counsel, Ramos owed $34,229 in interest, in addition to the $49,810.15 principal balance, and Blake required the court to void the interest and restart it "anew today." The trial court questioned the assumption that Blake affected the validity of the 2015 restitution order. It indicated that while sympathetic to the argument that significant LFOs make it difficult for people to reenter society after leaving prison, it was not aware of any authority stating that the Blake decision impacted a prior restitution order. The trial court denied the request to strike accrued interest but indicated that it would entertain a motion for reconsideration if Ramos found any authority to support his request. The trial court then entered an order "affirming prior restitution amount." The court ordered Ramos to pay the VPA but not the DNA fee as that fee would have been paid when Ramos was convicted for burglary.⁶ Ramos appeals.

ANALYSIS

¶9 Ramos argues that restitution, the accruing interest, and the VPA violate the excessive fines clauses of the Eighth Amendment and article I, § 14 of the Washington state constitution. We reject these arguments.

A. Preservation of Error for Appeal

¶10 The State argues Ramos failed to preserve the issue for appeal by choosing not to challenge the mandatory LFOs on direct appeal or to raise the excessive fines clause argument at resentencing.⁷ Ramos argues he may raise the argument under both RAP 2.5(a) and RAP 2.5(c)(1). We agree with Ramos.

¶11 Generally, this court will decline to consider in a second appeal issues that could have been presented in a prior appeal but were not. State v. Barberio , 121 Wash.2d 48, 51, 846 P.2d 519 (1993). A trial court, however, has the discretion to revisit issues not addressed by a prior appeal, and the appellate court, in turn, may choose to review any issues the trial court revisited. RAP 2.5(c)(1) provides:

If a trial court decision is otherwise properly before the appellate court, the appellate court may at the instance of a party review and determine the propriety of a decision of the trial court even though a similar decision was not disputed in an earlier review of the same case.

¶12 In this case, the trial court conducted a complete resentencing hearing in 2021. It considered the State's request for a high-end sentence, despite the fact that the same request had been rejected by the court in 2015. Ramos similarly asked the trial court to consider imposing a low-end sentence, despite the fact that the same argument was rejected by the trial court in 2015. Any legal ruling the trial court made at the 2021 resentencing hearing is appropriately before this court on direct appeal.

¶13 Moreover, Ramos did file a pro se motion before the resentencing hearing, asking the court to revisit the LFOs. The court denied that motion. Ramos then asked the court to consider striking accrued interest. The court also rejected that request. These decisions are properly before us.

¶14 The State argues Ramos conceded that the restitution amount was reasonable at the resentencing hearing and cannot challenge the amount now. But while a concession as to facts or an exercise of discretion cannot be raised for the first time on appeal, a legal error in a sentence, including restitution, can. State v. Cosgaya-Alvarez , 172 Wash. App. 785, 790, 291 P.3d 939 (2013).

¶15 Finally, RAP 2.5(a) allows a defendant to raise on appeal any "manifest error affecting a constitutional right." To meet RAP 2.5(a), an appellant must demonstrate (1) the error is manifest and (2) the error is truly of constitutional magnitude. State v. O'Hara , 167 Wash.2d 91, 98, 217 P.3d 756 (2009). In this case, Ramos contends the restitution, interest, and the VPA violate the excessive fines clause under the federal and state constitution. This claim certainly implicates a constitutional interest.

¶16 We further conclude that if we were to accept Ramos's constitutional argument, the alleged error would be manifest. A "manifest" error is one that causes "actual prejudice." O'Hara , 167 Wash.2d at 99, 217 P.3d 756. The defendant must show that the error had "practical and identifiable consequences" in the case. Id. If facts necessary to adjudicate the claimed error are not in the record on appeal, then the defendant fails to demonstrate actual prejudice, and the error is not manifest. Id.

¶17 In this case, Ramos contends that he will never have the ability to pay off his LFO debt. The State does not contest that Ramos has no assets, income, or financial resources. At his resentencing hearing, counsel informed the court that Ramos was homeless at the time of his 2015 crime. Ramos has been incarcerated since 2015, and it is reasonable to assume, based on this record, that Ramos has no current ability to pay restitution and accrued interest and, when released in five years, will have a limited ability to do so. Based on this record, we will consider his indigency-based constitutional claims under RAP 2.5(a).

B. Excessive Fines

¶18 The Eighth Amendment to the United States Constitution and article I, § 14 of the Washington constitution both prohibit excessive fines. Ramos argues mandatory LFOs violate both constitutional provisions when an offender lacks the ability to pay them. He also contends that even if the Eighth Amendment does not...