State v. Shultz, 67776-0

• Decision Date: 29 July 1999
• Docket Number: No. 67776-0,67776-0
• Citation: 980 P.2d 1265,138 Wn.2d 638
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Appellant, v. Karl Alan SHULTZ, Respondent.

Page 1265

138 Wn.2d 638

980 P.2d 1265

The STATE of Washington, Appellant, v. Karl Alan SHULTZ, Respondent.

No. 67776-0.

Supreme Court of Washington,

En Banc.

Argued May 11, 1999.

Decided July 29, 1999.

John Knodell, Grant County Prosecutor, Ephrata, for Appellant.

C.E. Hormel, Ephrata, for Respondent.

IRELAND, J.

This certified appeal involves 1994 and 1997 amendments to RCW 9.94A.142, a statute authorizing restitution orders pursuant to a criminal conviction. We hold the 1994 and 1997 amendments apply to Shultz's 1987 restitution order, and they do not violate the ex post facto clauses or due process. We reverse the trial court and remand.

FACTS

On April 21, 1986, Karl Alan Shultz pleaded guilty to 16 counts of arson. Shultz was sentenced on April 7, 1987, and his sentence included a restitution order in the amount of $507,131.62, to be paid out to 20 victims of the arsons. Shultz was released from custody on October 7, 1987. The restitution order contained a specific payment plan, which required Shultz to pay $100 a month, commencing November 1, 1987, to the superior court clerk. The clerk was ordered to disburse the payments on a pro rata basis to the listed victims.

RCW 9.94A.142 authorizes restitution orders for crimes committed after July 1, 1985. The version of RCW 9.94A.142 in effect in 1987 stated the sentencing court's jurisdiction over a restitution order expired ten years after imposition of the sentence. Laws of 1985, ch. 443, § 10. Under this former version of the statute, the court's jurisdiction over Shultz's restitution order would have expired April 7th, 1997. In 1994, however, the Legislature amended RCW 9.94A.142 so as to calculate the 10-year window from the date of sentencing or the date of release from total confinement. Laws of 1994, ch. 271, § 601. Assuming this amendment retroactively applies, the court's jurisdiction over Shultz's restitution order was extended from April 7th, 1997, to October 7, 1997.

In the course of this six-month period, the Legislature revisited RCW 9.94A.142 and added a further amendment. Laws of 1997, ch. 121, § 4. ¹ This amendment added the following sentence: "Prior to the expiration of the initial ten-year period, the superior court may extend jurisdiction under the criminal judgment an additional 10 years for payment of restitution." Id. Pursuant to this 1997 amendment, on September 30, 1997, the State filed an application requesting the trial court to extend the court's jurisdiction over Shultz's restitution order for an additional ten years. The trial court considered the request, accepted briefing from Shultz's counsel, heard argument from the parties, and denied the request on constitutional grounds. The court found the 1997

                statute did authorize courts to extend jurisdiction, but the court held such extension violated the ex post facto clauses of the state and federal constitutions.  On the other hand, the court held that victims entitled to restitution could utilize existing civil law to continue to collect on Shultz's obligation. 2  The State appealed the trial court's ruling, and the Court of Appeals certified the appeal to the Supreme Court
                

ANALYSIS

Shultz raises four separate constitutional challenges to the 1994 and 1997 amendments of RCW 9.94A.142. Each challenge will be addressed in turn.

A. Ex Post Facto

The trial judge in this case refused to extend Shultz's restitution order, finding a ten-year extension under the 1997 amendment would violate the ex post facto clause. While the trial court's ruling focused solely on the 1997 amendment, Shultz argues in his cross-appeal that both the 1994 and 1997 amendments should be held unconstitutional. The only difference between the two amendments as applied in this case is the length of time each amendment extended the court's jurisdiction. The 1994 amendment extended jurisdiction six months, while the 1997 amendment would have extended the court's jurisdiction an additional ten years.

A statute is presumed to be constitutional, and the party attacking a statute "has the heavy burden of proving its unconstitutionality beyond a reasonable doubt." State v. Blank, 131 Wash.2d 230, 235, 930 P.2d 1213 (1997) (citing State v. Hennings, 129 Wash.2d 512, 524, 919 P.2d 580 (1996); State v. Ward, 123 Wash.2d 488, 496, 869 P.2d 1062 (1994)). The constitutionality of a statute is a question of law which is reviewed de novo. See State ex rel. Pub. Disclosure Comm'n v. 119 Vote No! Comm., 135 Wash.2d 618, 623, 957 P.2d 691 (1998).

Legislation violates the ex post facto clauses of the state and federal constitutions when it imposes punishment on an act which was not punishable at the time the act was committed, or when it increases the quantum of punishment for the crime after the crime was committed. Hennings, 129 Wash.2d at 524-25, 919 P.2d 580 (citing U.S. CONST. art. I, § 10; Const. § 23; Ward, 123 Wash.2d at 496, 869 P.2d 1062). While prior case law had previously suggested a "disadvantageous" law would violate the ex post facto clause, this perspective has been narrowly limited: " '[T]he sole determination of whether a law is "disadvantageous" is whether the law alters the standard of punishment which existed under prior law.' " Hennings, 129 Wash.2d at 525, 919 P.2d 580 (quoting Ward, 123 Wash.2d at 498, 869 P.2d 1062).

Shultz claims the 1994 and 1997 amendments increase his punishment, thereby violating the ex post facto prohibition. This constitutional challenge relies on the assertion that restitution constitutes punishment. Some cases do suggest in dicta that restitution is at least partly punitive. See State v. Moen, 129 Wash.2d 535, 539 n. 1, 919 P.2d 69 (1996); In re Personal Restraint of Metcalf, 92 Wash.App. 165, 179, 963 P.2d 911 (1998), cert. denied, --- U.S. ----, 119 S.Ct. 2405, --- L.Ed.2d ---- (1999). Notwithstanding these suggestions, restitution is statutorily connected to victims' losses:

[R]estitution ... 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.

RCW 9.94A.142(1). See also State v. McClendon, 131 Wash.2d 853, 879, 935 P.2d 1334 (1997) (Sanders, J., dissenting) ("Nonpunitive sanctions might include, for example, compensatory damages, restitution, and forfeiture of stolen property for return to its rightful owner.") (emphasis added). In fact, restitution payments are paid to the superior court clerk and disbursed directly to the victims, not to the State. Given this direct connection to victims' losses, restitution also contains a strong remedial component.

A resolution of whether restitution is considered penal or remedial is unnecessary in this case. Even if restitution is considered punitive, the 1994 and 1997 amendments have no effect on the quantum of punishment. The amendments, as the State attempted to apply them in this case, did not increase the original amount of restitution which the sentencing court imposed in 1987. The 1994 amendment extended the court's jurisdiction over Shultz's restitution order for six months, and the 1997 amendment, if the court had not found its application unconstitutional, would have extended the jurisdiction another ten years. These amendments merely extend the length of the sentencing court's jurisdiction to enforce the restitution order, but Shultz's legal obligation under the 1987 restitution order was not impacted by the amendments. The amendments, therefore, do not violate the ex post facto clause.

Shultz claims his punishment increases by virtue of the amendments enabling the Department of Corrections (DOC) to collect money owed under his restitution orders for a longer period of time-ultimately resulting in the State, collecting more money than if the amendments did not apply. The DOC's being able to collect more of what Shultz legally owes, however, does nothing to increase punishment, because collecting more of the money which is already legally owed is not an increase of punishment. See Hennings, 129 Wash.2d at 526, 919 P.2d 580 (finding no ex post facto violation with a different amendment to RCW 9.94A.142 because "[t]here is no increase in the amount of restitution authorized.") (emphasis added). Shultz has no legal right to pay less than he was ordered to pay by the original sentencing court, so his punishment is not increased by extending the length of time the DOC can collect on the restitution order.

Extending the life of a restitution order is analogous to extending the statute of limitation on a criminal act. A person who commits a criminal act is legally answerable to criminal prosecution for a certain period of time. The person has no right to rely upon a fixed limitation period, and the period can be extended without violating the ex post facto clause, so long as the extension occurs before expiration of the original period. State v. Hodgson, 108 Wash.2d 662, 669, 740 P.2d 848 (1987). Similarly, Shultz has no right to rely upon a fixed limitation period for the life of a restitution order.

Shultz claims the 1997 amendment authorizes the court to "modify the amount, terms and conditions of restitution," and he claims this unconstitutionally increases his punishment. Br. of Resp./Cross Appellant (hereinafter Br. of Resp't) at 11. Shultz fails to acknowledge that a sentencing court's power to modify the amount, terms and conditions of restitution existed before the 1997 amendment, and neither the 1994 or 1997 amendments affected these specific powers. The mere extension of time during which a court has the power to act does not constitute an increase in punishment. Shultz's restitution order has never been increased beyond its original sum of $507,131.62, nor did the State request to increase that amount when it petitioned the court in 1997. The 1994 and 1997 amendments do not impact the total amount of restitution Shultz was ordered to pay, so his punishment remains the...