          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                          )        No. 78104-9-I

                         Respondent,              )        DIVISION ONE
                                                  )
                 v.                               )        UNPUBLISHED OPINION

JOSHUA WILLIAM PAINTER,                          )
                                                 )
                         Appellant.
                                                 )         FILED: June 10, 2019

          HAZELRIGG-HERNANDEZ, J.      —   In most instances, the trial court wields broad

discretion in both finding a factual basis for and imposing restitution. The crime

victims’ compensation act1 limits this discretion, requiring that restitution be

imposed when the crime victims’ compensation program has compensated a crime

victim for losses resulting from an offense.          Because the trial court failed to

recognize that it had discretion to order partial restitution in this case, we reverse.

                                           FACTS

         Joshua W. Painter struck James Dulaney with his truck and fled the scene.

After a series of strange events including two reported burglaries, a car fire, and a

police chase, Painter was apprehended by law enforcement. He was charged with

first degree assault, hit and run injury accident, and attempting to elude a pursuing

police vehicle.       Painter entered a plea of guilty pursuant to North Carolina v.

1   Chapter 7.68.170, ROW
    No. 78104-9-112

Alford.2 The court found that an exceptional sentence was justified because

    Painter had “documented [m]ental [h]ealth diagnoses that Dr. Mark McClung found

made it likely that the defendant was experiencing an episode of mania with

psychotic features at the time of this incident.” He was sentenced to a total of 73.5

months of confinement.

          At a subsequent restitution hearing, the State requested restitution in the

amount of $432,046.13.             Of that total, Dulaney requested $83,139.45 for lost

wages and other expenses; the crime victims’ compensation program requested

$18,381.31; and Zenith American Solutions, Dulaney’s insurer, requested

$330,525.37.          Dulaney had qualified for benefits under the crime victims’

compensation program and had received compensation for some of his out-of-

pocket medical expenses from the program. Painter requested that the court limit

restitution to the amount requested by Dulaney. He argued that the court had

discretion to impose less than the full requested amount of restitution because

Painter’s mental illness and indigency constituted extraordinary circumstances. In

its briefing, the State argued that these were not qualifying extraordinary

circumstances and asked the court to impose the full requested restitution.

          Because the factual basis for the restitution request was not disputed, the

court framed the issue as whether the order should limit restitution to Dulaney’s

request because Painter did not have the means to pay the full amount requested.

The court felt it was important that Dulaney received restitution before the crime

victims’ compensation program or the insurance company, especially considering



2   North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

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No. 78104-9-1/3

Painter’s likely inability to pay full restitution. The court ordered the full amount of

requested restitution, reasoning that the restitution statute did not contain the same

explicit exception for restitution to large financial institutions as the comparable

provision of the juvenile code.

       After the court’s oral ruling, defense counsel specifically asked whether the

court believed that it did not have any discretion to limit the restitution order to

Dulaney’s losses. The State acknowledged that the case law would allow the court

discretion to impose no restitution, but it was not clear whether the court had the

discretion to order partial restitution. The court disagreed and thought that its

discretion extended only to the factual determination of whether there was a factual

basis for the restitution and no further:

                I think the logic is that assuming you have the factual basis,
       which I concluded here, I think the Court is obligated to order full
       restitution. So I am ordering it because I think that really the statute
       does not give me discretion to go less just because I think it’s maybe
       the right thing to do or appropriate given the circumstances.

The restitution order specified that the clerk shall apply all restitution monies

received to Dulaney until totally paid, and then apply payments to the remaining

recipients in equal payments.

                                    DISCUSSION

       Painter contends that the trial court erred in failing to recognize that it had

discretion to limit the amount of restitution awarded. He also argues that the court

erred in imposing a criminal filing fee on an indigent defendant. We agree and

reverse the order of restitution.




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No. 78104-9-1/4

I.     Restitution Award

       We will not disturb the trial court’s entry of a restitution order on appeal

absent an abuse of discretion. Statev. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167

(2007). The trial court abuses its discretion when it applies an incorrect legal

standard or erroneous view of the law, even if the court’s decision is reasonable.

ki.; State v. Cawyer, 182 Wn. App. 610, 616, 330 P.3d 219 (2014).

       The court’s authority to order restitution derives entirely from statute. Tobin,

161 Wn.2d at 523. When a person is convicted of an offense that “results in injury

to any person or damage to or loss of property,” the court shall order restitution

“unless extraordinary circumstances exist which make restitution inappropriate ~

the court’s iudqment and the court sets forth such circumstances in the record.”

RCW 9.9A.753(5) (emphasis added). The plain language of the statute allowing

the court to employ its judgment indicates that the court has discretion to decide

whether imposition of restitution is appropriate.

       However, this discretion is limited in certain instances. “Regardless of the

provisions of subsections (1) through (6) of this section, the court shall order

restitution in all cases where the victim is entitled to benefits under the crime

victims’ compensation act.” RCW 9.94A.753(7) (emphasis added). If the court fails

to order restitution in this situation, the department that administers the crime

victims’ compensation program may petition the court for entry of the order. RCW

9.94A.753(7). It is clear from the language of this provision that the court does not

have discretion to order no restitution in this instance, but it is not clear whether

the court may order partial restitution or to whom the court must order restitution.


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No. 78104-9-115

       For clarification on these points, we look to the provision of the crime

victims’ compensation act concerning restitution. This statute states that “[amy

payment of benefits to or on behalf of a victim under this chapter creates a debt

due and owing to the department by any person found to have committed the

criminal act.” ROW 7.68.120. This same section reiterates that the department

shall petition for entry of a restitution order if the court fails to enter one. ROW

7.68.120.   The requirement for payment to the department may be “waived,

modified downward, or otherwise adjusted by the department in the interest of

justice, the well-being of the victim, and the rehabilitation of the individual.” ROW

7.68.120(5) (emphasis added). The statute does not provide for any modification

of the restitution order by the court. Reading this statute in conjunction with ROW

9.94A.753(7), it appears that the court is obligated to order restitution to the crime

victims compensation program in the amount that the program paid to the victim.

The court did not err in finding that it had no discretion to limit restitution to the

crime victims’ compensation program.

       When parties other than the crime victims’ compensation program request

restitution, however, the court has discretion to decide whether and how much

restitution is appropriate. Washington courts have consistently acknowledged the

trial court’s discretion in determining appropriate restitution. The Supreme Oourt

concluded that “[t]he very language of the restitution statutes indicates legislative

intent to grant broad powers of restitution.” State v. Davison, 116 Wn.2d 917, 920,

809 P.2d 1374 (1991).      When trial courts are statutorily authorized to order

restitution, they have discretion to determine the amount of restitution. State v.


                                        -5-
No. 78104-9-116

Dedonado, 99 Wn. App. 251, 256, 991 P.2d 1216 (2000). The court noted that

RCW 9.9A.753(5) “accords discretion to the trial court to refuse to order restitution”

with a finding of extraordinary circumstances. State v. Enstone, 137 Wn.2d 675,

682, 974 P.2d 828 (1999). Division Three of this court interpreted this provision to

allow trial courts “to not order restitution or reduce the restitution amount” in

extraordinary circumstances. State v. Lohr, 130 Wn. App. 904, 909, 125 P.3d 977

(2005).

       The plain language of the statute and its interpretation by Washington

courts do not indicate that the court’s discretion ends once it finds a factual basis

for a restitution order. Even when the court finds that there is a factual basis to

support a restitution order, the court may still make the discretionary determination

that extraordinary circumstances exist which make restitution inappropriate and

choose to reduce the restitution order accordingly.

          In this case, it is clear from defense counsel’s diligent preservation of the

record that the trial court did not believe it had any discretion to impose less

restitution than was supported by the facts. Because the court failed to recognize

its own discretion, it applied an erroneous view of the law when imposing the

restitution order. The order is vacated and the case remanded for a new restitution

hearing.     We do not decide whether Painter’s mental illness and indigency

constitute     extraordinary   circumstances    that would     make    full   restitution

inappropriate.




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No. 781 04-9-1/7

II.    Filing Fee

       Painter was ordered to pay a $200 criminal filing fee at sentencing. After

entry of the judgment and sentence, the trial court found Painter to be indigent and

lacking sufficient funds to prosecute an appeal. Painter contends that the filing fee

should be stricken in accordance with the Supreme Court’s opinion in State v.

Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018). Although the State argues that

the fee was properly imposed at the time of sentencing, the State concedes that

the fee should be stricken in light of Ramirez. Because the parties do not dispute

this issue, the $200 criminal filing fee should be stricken on remand.

       We reverse.




WE CONCUR:                                       ~
  ~                                              ____




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