State v. Young

• Decision Date: 04 November 1991
• Docket Number: No. 13465-9-II,13465-9-II
• Citation: 63 Wn.App. 324,818 P.2d 1375
• Parties: The STATE of Washington, Respondent, v. Bradley A. YOUNG, Appellant.
• Court: Washington Court of Appeals

Page 324

63 Wn.App. 324

818 P.2d 1375

The STATE of Washington, Respondent, v. Bradley A. YOUNG, Appellant.

No. 13465-9-II.

Court of Appeals of Washington Division 2.

Nov. 4, 1991.

Charles K. Wiggins, Edwards, Sieh, Wiggins & Hathaway, P.S., Seattle, for appellant.

C. Danny Clem, Prosecuting Atty., Pamela B. Loginsky, M. Peter Philley, Deputy Pros. Attys., Port Orchard, for respondent.

MORGAN, Judge.

Bradley A. Young appeals from a restitution order entered pursuant to his conviction of two counts of vehicular homicide. We affirm.

On April 17, 1985, Young drove his truck while intoxicated. It went out of control and the ensuing crash killed his two passengers, Curtis Pelham and Vince Setzer. Pelham was divorced but left two children, approximately seven and four.

On October 21, 1985, Young was convicted of two counts of vehicular homicide. Judge Roper sentenced him on January 8, 1986. The standard range called for prison, but for reasons not questioned here, Judge Roper granted an exceptional sentence downward. Young was ordered to serve 12 months per count in a work release program, to run consecutively. He was also ordered to pay as restitution Pelham's child support obligations of $250 per month.

On February 27, 1986, Judge Roper held a restitution hearing. Young asked that the previous order assessing child support be reversed. Judge Roper declined, explaining that "a primary rationale" for not sending Young to prison had been the utilization of his earning capabilities to replace the child support lost by Pelham's children due to Pelham's death.

At the same hearing, Young asked that insurance proceeds paid by his liability insurer to the Pelham and Setzer families be credited against the child support and funeral expenses that he was being ordered to pay as restitution. Judge Roper declined credit against child support, saying that child support "is a closed issue." He allowed credit against funeral expenses, to the extent that the insurance proceeds had been intended to cover such expenses.

In 1987, Young's conviction was reversed by this court. State v. Young, 48 Wash.App. 406, 739 P.2d 1170 (1987). Judge Hanley presided at the re-trial, and Young was again convicted of the same two counts.

On February 10, 1988, Judge Hanley re-sentenced Young to 12 months in work release on each count. As clarified by a later order, the sentences were to run concurrently. Judge Hanley reimposed Judge Roper's restitution order, "subject to any credits."

The matter of credits did not come up again until May 23, 1989. On that day, Judge Hanley heard argument from both counsel about whether proceeds paid by Young's insurer should be credited against the child support obligation. The judge took the issue under advisement and, on September 13, 1989, issued a written decision saying that Judge Roper's previous refusal to credit such proceeds against child support "was adopted by this department and constitutes the law of the case." A formal restitution order was entered in November, 1989, and this appeal followed.

On appeal, Young argues (1) that restitution for loss of future child support payments is an unconstitutional forfeiture of estate proscribed by Article I, § 15 of the Washington Constitution; (2) that RCW 9.94A.140 does not authorize restitution for future child support payments; (3) that Judge Hanley was required to exercise discretion when ordering restitution, but failed to do so; and (4) that the trial court was required to reduce whatever restitution obligation he owed by the amount of the insurance payments received by the victims' families. We consider each argument separately.

Article I, § 15

In English common law, forfeiture resulted from conviction for felonies and treason, as well as from other causes. Astol Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 681-82, 94 S.Ct. 2080, 2090-91, 40 L.Ed.2d 452, 466-67 (1974). As the United States Supreme Court explained in Calero at 682, 94 S.Ct. at 2091:

The convicted felon forfeited his chattels to the Crown and his lands escheated to his lord; the convicted traitor forfeited all of his property, real and personal, to the Crown. [Citations omitted.] The basis for these forfeitures was that a breach of the criminal law was an offense to the King's peace, which was felt to justify denial of the right to own property. [Citation omitted.]

See also, In re Sego, 7 Wash.App. 457, 463-64, 499 P.2d 881 (1972), quoting Avery v. Everett, 110 N.Y. 317, 324, 18 N.E. 148 (1888), rev'd on other grounds, 82 Wash.2d 736, 513 P.2d 831 (1973). In essence, the convicted felon was considered to be "civilly dead." In re Walgren, 104 Wash.2d 557, 569, 708 P.2d 380 (1985).

In the case of treason, forfeiture was perpetual. As the Court said in Wallach v. Van Riswick, 92 U.S. (2 Otto) 202, 213, 23 L.Ed. 473, 476 (1875):

In England, attainders of treason worked corruption of blood and perpetual forfeiture of the estate of the person attainted, to the disinherison of his heirs, or of those who would otherwise be his heirs. Thus innocent children were made to suffer because of the offense of their ancestor.

When the United States Constitution was being drafted, its framers wanted to limit the perpetual aspect of forfeitures for treason. As the United States Supreme Court said in Wallach, at 213, 23 L.Ed. 473:

When the Federal Constitution was being framed, this was felt to be a great hardship, and even rank injustice. For this reason, it was ordained that no attainder of treason should work corruption of blood or forfeiture, except during the life of the person attainted.

The framers' intent was manifested in Article III, § 3, cl. 2. It provides:

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

By its terms, Article III does not prohibit forfeiture during the lifetime of a traitor. Wallach, supra; Calero-Toledo, at 416 U.S. 683, 94 S.Ct. at 2091.

Article I, § 15, of the Washington Constitution is related to Article III, § 3, in that both deal with forfeitures. See Leonard v. Seattle, 81 Wash.2d 479, 485, 503 P.2d 741 (1972). Article I, § 15, however, prohibits more than just the perpetual aspect of forfeitures. It provides:

No conviction shall work corruption of blood, nor forfeiture of estate.

ISee also RCW 9.92.110. Still, when construed in light of its common law history, Article I, § 15 only prohibits forfeiture of a convict's estate on the ground that he or she is incapacitated from owning property due to conviction. See Leonard v. Seattle, supra. ¹ It does not prohibit forfeiture for a variety of other rational and legitimate purposes, such as punishing the defendant to a degree commensurate with the crime (fines); rehabilitating the defendant by requiring restitution or other monetary payments, cf. State v. Barr, 99 Wash.2d 75, 77, 658 P.2d 1247 (1983) (Article I, § 15 not raised); or depriving the defendant of the fruits or instrumentalities of the crime. Cf. Crape v. Mount, 32 Wash.App. 567, 648 P.2d 481 (1982) (permitting forfeiture of instrumentalities as against due process argument; Article I, § 15 not raised); Astol Calero-Toledo v. Pearson Yacht Leasing Co., supra (same); United States of America v. Premises known as 2639 Meetinghouse Road, 633 F.Supp. 979, 993 (E.D.Pa.1986) (Article III, § 3, inapplicable to civil forfeiture proceeding).

The restitution order in this case was not premised on the defendant's being incapacitated from owning property due to conviction. Rather, it was imposed to achieve various legitimate and reasonable goals of sentencing, including compensating the families of the victims and punishing the defendant. As a result, it did not violate Article I, § 15.

RCW 9.94A.140

Restitution not constitutionally prohibited must still be authorized by statute before it can be imposed. State v. Davison, 116 Wash.2d 917, 919, 809 P.2d 1374 (1991). Thus, Young argues that RCW 9.94A.140 did not authorize the court to impose Pelham's future child support payments as restitution.

Young is not entitled to raise the argument. The doctrine of invited error prohibits a party from setting up error in the trial court and then complaining of it on appeal. State v. Henderson, 114 Wash.2d 867, 870, 792 P.2d 514 (1990); State v. Young, 48 Wash.App. 406, 414-15, 739 P.2d 1170 (1987). At the May 23, 1989 restitution hearing before Judge Hanley, Young's counsel said:

"... we accept the fact that the child support obligation are a legitimate aim of restitution ... I'm not saying that there shouldn't be an award of child support. And Judge Roper, I think, was sound in his position that restitution should encompass child support...."

By these remarks, Young agreed to pay child support, and he invited any error embodied in the resultant order requiring him to do that.

Furthermore, Young's argument is not well taken. RCW 9.94A.140 governs restitution ordered for crimes committed prior to July 1, 1985. It provides in pertinent part:

(1) ... 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. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses....

(2) Restitution may be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property....

This statute vests trial courts with the authority to order that the defendant in a vehicular homicide case pay as restitution the victim's future child support payments that were reduced to judgment before the victim's death. ² In reaching this conclusion, we reject Young's arguments concerning the wording of the statute, and we explicitly...