State v. Ryan, s. 33607-0-1

• Decision Date: 31 July 1995
• Docket Number: Nos. 33607-0-1,35017-0-1 and 34293-2-1,s. 33607-0-1
• Citation: 899 P.2d 825,78 Wn.App. 758
• Parties: The STATE of Washington, Respondent, v. Ronald Shawn RYAN, Appellant. The STATE of Washington, Respondent, v. Michael W. TATON, Appellant.
• Court: Washington Court of Appeals

Page 758

78 Wn.App. 758

899 P.2d 825

The STATE of Washington, Respondent, v. Ronald Shawn RYAN, Appellant.

The STATE of Washington, Respondent, v. Michael W. TATON, Appellant.

Nos. 33607-0-1, 35017-0-1 and 34293-2-1.

Court of Appeals of Washington,

Division 1.

July 31, 1995.

Dmitri L. Iglitzin, Seattle, for appellant Ryan.

Nielson & Acosta, Seattle, for appellant Taton.

Edward E. Stemler, Everett, for respondent.

COLEMAN, Judge.

In this consolidated appeal, Michael Taton and Ronald Ryan ask us to decide whether constitutional and statutory requirements are met when the trial court enters, as part of a criminal sentence, an ex parte order of restitution with the proviso that the defendant may have a restitution hearing if he or she objects to the amount that has been set. We find that restitution was not determined within mandatory time limits in the present cases and vacate the order of restitution entered with respect to Taton. Because Ryan acknowledged part of the restitution set in connection with his crimes, we vacate only the portion of restitution to which he objected. In addition, we are asked to review the exceptional sentence Ryan received for two counts of second degree burglary based on break-ins at a funeral home in which he made sexual contact with several corpses. We find no error and affirm his sentence.

In December 1993, Taton pleaded guilty to one count of vehicular homicide and one count of vehicular assault after an incident in which the truck he was driving struck a tree, killing one passenger and seriously injuring another. In his guilty plea, Taton agreed to pay restitution for property damage and medical, funeral, and burial costs. At sentencing in February 1994, the trial court ordered restitution in an amount to be established by separate order. Approximately 6 weeks later, the trial court entered an ex parte order setting restitution at $99,454. The order advised Taton that "[a] defendant objecting to the total amount shown must file a motion for a restitution hearing with the Court Clerk, and serve a copy on the Prosecuting Attorney. Defendant must contact the Judge or the Judge's bailiff to schedule a hearing on the motion."

Taton filed an objection 2 weeks after the order was entered but did not seek to schedule a hearing.

In January 1993, Ryan broke into the same funeral home twice within 6 days and damaged property, stole Three weeks after the order was entered, Ryan filed an "Objection to Order Establishing Restitution" but did not file a motion for, or otherwise request, a restitution hearing. After another 4 months had passed, Ryan requested a restitution hearing. He objected to the amount of attorney fees, $10,130, but did not challenge the other expenses for which restitution had been ordered. At two subsequent hearings, the parties divided the funeral home's legal expenses into three categories, relating to

items, and made sexual contact with corpses. He was convicted of two counts of second degree burglary and one count of first degree malicious mischief. At sentencing, the trial court ordered Ryan to pay restitution in an amount to be established by separate order. One month later, the court entered an ex parte order setting restitution at $20,323. The order instructed Ryan to move for and schedule a restitution hearing if he objected to the amount.

(1) Ryan's criminal prosecution, (2) civil actions brought against the funeral home after his arrest, and (3) media coverage of his crimes. Ryan's counsel argued that fees in the second and third categories were not directly related to Ryan's acts and therefore should not be considered in setting the amount of restitution. The court found the legal fees a reasonable consequence of Ryan's crimes and set restitution at $19,072.

ORDER OF RESTITUTION

Under RCW 9.94A.142(1), "[w]hen restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within sixty days." This determination must be accurate and may be accomplished by either (1) the defendant's admission or acknowledgment or (2) a preponderance of the evidence. State v. Pockert, 53 Wash.App. 491, 498, 768 P.2d 504 (1989) (citing State v. Tindal, 50 Wash.App. 401, 748 P.2d 695 (1988)). The second method ensures that the trial court has a reasonable basis for estimating the amount of the victim's loss; when the record does not contain appropriate evidence, the trial court must hold an evidentiary hearing. Tindal, at 405, 748 P.2d 695; State v. Raleigh, 50 Wash.App. 248, 254, 748 P.2d 267, review denied, 110 Wash.2d 1017 (1988). We are asked to consider whether the restitution-setting procedure employed in these cases satisfies both statutory time limits and due process requirements. Because we find that restitution was not ordered within the mandatory time frame, we need not decide the constitutional issue. State v. Zakel, 119 Wash.2d 563, 567, 834 P.2d 1046 (1992).

In the restitution-setting approach at issue here, the amount of restitution is not "determined" within the meaning of the statute until an objecting defendant receives a restitution hearing. The State acknowledges that an ex parte restitution order is final and enforceable only if the defendant does not object to the amount. If the defendant fails to object, the amount of restitution is deemed acknowledged. Pockert, 53 Wash.App. at 498, 768 P.2d 504; Tindal, 50...