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-rUAA f\AAyt/vt                                                    SusanT.Carlson
                                                              Supreme Court Clerk
        GHtEF JUSTICE




       IN THE SUPREME COURT OF THE STATE OF WASHINGTON



 STATE OF WASHINGTON,
                                              No. 96490-4
                        Respondent,
        V.

                                              En Banc
    SHACON FONTANB BARBEB,

                        Petitioner.           Filed:    JUL 0 3 2019


        YU,J.— ROW 9.94A.753(1) provides that restitution must be determined

 within 180 days of"the sentencing hearing." In this case, petitioner Shacon

 Barbee had two sentencing hearings—an initial sentencing hearing in 2013 and a

 resentencing on remand in 2017. We must determine which one is "the sentencing,,

 hearing" for restitution purposes. The Court of Appeals correctly held that in this

 case,"the sentencing hearing" is the resentencing on remand, so the trial court did

 not exceed its statutory authority by entering a second restitution award following

 resentencing. We affirm.
State V. Barbee, No. 96490-4


                FACTUAL AND PROCEDURAL BACKGROUND


      "Barbee was a pimp who made money from prostitutes working under his

supervision." State v. Barbee, 187 Wn.2d 375, 378, 386 P.3d 729(2017). In 2013,

Barbee was convicted ofthe following offenses:

   • Count 1: Promoting commercial sexual abuse of a minor
   • Count 2: Promoting commercial sexual abuse of a minor
   • Count 4: Promoting prostitution in the second degree
   • Count 5: Promoting prostitution in the second degree
   • Count 6: Leading organized crime
   • Count 7: Theft in the first degree from the United States Social Security
     Administration(SSA)
   • Count 8: Theft in the first degree from the SSA
   • Count 9; Theft in the second degree from the Department of Social and
     Health Services, now known as the Washington Health Care Authority
     (HCA)

Barbee was given exceptional sentences on Counts 1, 2, and 6, and standard-range

sentences on the other counts. After a restitution hearing, the court entered a

timely restitution award in favor ofthe SSA for $15,078.

       Barbee appealed, contending in relevant part that the "two counts of second

degree promoting prostitution [Counts 4 and 5] constitute a single unit of

prosecution." Id. at 381. This court affirmed Barbee's convictions for Counts 4

and 5 but held that Barbee's "exceptional sentence on [Count 1] exceeded the

statutory maximum and that he is entitled to a resentencing hearing." Id. at 392.

       The trial court held a resentencing hearing on March 22, 2017, at which

point the State's attorney noted that "we're doing a resentencing as opposed to an
State V. Barbee, No. 96490-4


order simply correcting the Judgment and Sentence because the Court is still using

its discretion to determine where in that standard range for Count I between 108

and 120 the Court wants to sentence the defendant." Suppl. Verbatim Report of

Proceedings(VRP)(Mar. 22, 2017) at 10-11. At the hearing, the court entered "a

brand-new Judgment and Sentence," which imposed a 120-month term of

confinement for Count 1 "to run concurrent with all the other sentences on the


respective counts." Id. at 12, 15. The new judgment and sentence also imposed

the same terms of confinement previously ordered for Barbee's other convictions

and further included two checked boxes stating, "Restitution to be determined at

future restitution hearing," on a "Date to be set." Clerk's Papers at 215.

       A restitution investigator in the King County Prosecutor's Office Victim

Assistance Unit sent Barbee's attorney a letter, an unsigned proposed order.setting

restitution, and supporting documentation. This restitution order included both the

$15,078.00 previously awarded to the SSA and an additional $4,150.09 in favor of

the HCA. Barbee's attorney signed the restitution order, returned it to the

restitution investigator, and waived notice of presentation. On June 14, 2017, the

court entered the order setting restitution as agreed.

       Barbee appealed this second restitution award, and the Court of Appeals

affirmed in an unpublished opinion. State v. Barbee, No. 76618-0-1(Wash. Ct.

App. Oct. 8, 2018)(unpublished), http://www.courts.wa.gov/opinions/pdf/
State V. Barbee, No. 96490-4


766180.PDF. We granted Barbee's petition for review "only on the issue of

whether the trial court had authority to enter the second restitution award."' Order

Granting Review, State v. Barbee, No. 96490-4(Wash. Feb. 6, 2019).

                                            ISSUE


       Did the trial court have authority to enter the second restitution award?

                                          ANALYSIS


       "'Restitution' means a specific sum of money ordered by the sentencing

court to be paid by the offender to the court over a specified period of time as

payment of damages. The sum may include both public and private costs." ROW

9.94A.030(43). "The authority to impose restitution is not an inherent power of

the court, but is derived from statutes." State v. Davison, 116 Wn.2d 917, 919, 809

P.2d 1374(1991). The statute at issue here is RCW 9.94A.753(1), which provides

in relevant part,"When restitution is ordered, the court shall determine the amount

of restitution due at the sentencing hearing or within one hundred eighty days."

"The time limit is mandatory unless extended for good cause." State v. Gray, 174

Wn.2d 920, 925, 280 P.3d 1110 (2012).




      'To the extent that this case potentially implicates other issues including but not limited
to the scope of this court's remand, the law ofthe case doctrine, finality of a judgment and
sentence, and prosecutorial or judicial vindictiveness, such issues are beyond the scope of our
order granting review, and we decline to address them.
State V. Barbee, No. 96490-4


       To determine whether the second restitution award in this case complied

with the statutory time limit, we must decide whether the statute directs us to

measure timeliness from Barbee's initial sentencing hearing in 2013, as Barbee

contends, or his resentencing hearing in 2017, as the State contends.^ This is a

question of statutory interpretation, reviewed de novo. State v. Gonzalez, 168

Wn.2d 256, 263, 226 P.3d 131 (2010), Because there is no statutory definition of

"the sentencing hearing," we must examine the statutory context to determine the

legislature's intent. See id.

       As Barbee correctly notes, the statutoiy context and our own precedent show

that "a restitution award is linked to a particular victim and a particular offense."

Suppl. Br. of Pet'r at 8. RCW 9.94A.753(3) makes it clear that restitution is

imposed "pursuant to a criminal conviction" and is determined by reference to "the

offender's gain or the victim's loss from the commission of the crime."

Accordingly, we have held that restitution generally may be awarded only for "the

crime or crimes on which a conviction is specifically based," State v. Eilts, 94

Wn.2d 489, 492-93, 617 P.2d 993 (1980), and "is statutorily connected to the

victims' losses," State v. Kinneman, 155 Wn.2d 111, 280, 119 P.3d 350 (2005).

Barbee is therefore correct that "the sentencing hearing" does not refer broadly to



       ^ The parties agree that the second restitution award is not a "modification" of the first
award because restitution awards cannot be modified to add new victims. See RCW
9.94A.753(4); State v. Chipman, 176 Wn. App. 615, 622, 309 P.3d 669 (2013).
State V. Barbee, No. 96490-4


any sentencing hearing for any offense against any victim. Rather,"the sentencing

hearing" generally refers to "the hearing at which the offender is sentenced for the

particular offense for which restitution is to be imposed."^ Suppl. Br. of Pet'r at 9.

       However,the record unequivocally shows that Barbee was sentenced for his

theft from the HCA (Count 9)at his 2017 resentencing hearing. At that hearing,

the trial court stated that it was entering "a brand-new Judgment and Sentence" and

Barbee's counsel confirmed that "the Court's correct in characterizing the position

of the case and what's going to happen today." Suppl. VRP (Mar. 22, 2017) at 12.

Barbee's new judgment and sentence, filed on March 22, 2017, unambiguously

ordered a term of confinement for Count 9(and all ofthe other counts of

conviction) and clearly noted that restitution was to be determined at a later date.

       Nevertheless, Barbee argues that "the sentencing hearing" for Count 9 refers

only to the hearing at which the court initially imposed a term of confinement for

Count 9—that is, the 2013 sentencing hearing. This narrow reading, unsupported

by any statutory language, is contrary to the purpose ofthe restitution statute in

general and its mandatory timeline in particular.




       ^ This general definition does not apply where "the defendant enters into an express
agreement to pay restitution in the case of uncharged crimes." Kinneman, 155 Wn.2d at 286.
Clearly an offender cannot be sentenced for uncharged crimes, but restitution can nevertheless be
imposed for those offenses pursuant to RCW 9.94A.753(5).
State V. Barbee, No. 96490-4


       Restitution serves both to rehabilitate the defendant and to compensate the

victim. Gray, 174 Wn.2d at 929-30. We have repeatedly recognized that the plain

language of RCW 9.94A.753 indicates a "legislative intent that the applicable

restitution statute be interpreted broadly to allow restitution." Davison, 116 Wn.2d

at 920; see also Gray, 174 Wn.2d at 925; Gonzalez, 168 Wn.2d at 265-66.

Barbee's narrow reading would directly undermine the legislature's intent and the

purposes of restitution by allowing him to avoid the financial consequences of his

undisputed theft from the HCA.

       In addition, Barbee's proposed interpretation does nothing to advance the

specific purpose ofthe statutory time limit. "The legislature certainly values

finality in sentencing, and we have recognized that victims' 'rights will be cut off

when the State fails to comply with the 180 day time limit." Gray, 174 Wn.2d at

929 (quoting State v. Moen, 129 Wn.2d 535, 542,919 P.2d 69(1996)). Therefore,

"[ujndoubtedly, the purpose for the mandatory 60-day(now 180-day) limit is to

avoid delay in the resolution of a criminal charge." State v. Duvall, 86 Wn. App.

871, 875, 940 P.2d 671 (1997). However,this legislative purpose was not

undermined by the second restitution award here because all the restitution in favor

of both the SSA and the HCA was awarded in a single, timely, agreed order.
State V. Barbee, No. 96490-4


                                  CONCLUSION


       Barbee was unambiguously sentenced for his theft from the HCA at the

2017 resentencing hearing. Therefore, that resentencing hearing is "the sentencing

hearing" for purposes of ROW 9.94A.753(1). The second restitution award was

entered within 180 days of that hearing and thus was within the trial court's

statutory authority. We affirm.
State V. Barbee, No. 96490-4




WE CONCUR:




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