IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 87902-2-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
ANGELICA JANEL ZACKERY,
Respondent.
BUI, J. — Angelica Janel Zackery pled guilty to nine domestic violence offenses involving her intimate partner. As a term of the sentence, the trial court ordered restitution. The State submitted a 2-page “CVCP Cost Ledger,” requesting $1,503.20 in restitution for benefits that the Department of Labor and Industries (L&I) paid under the Crime Victims’ Compensation Act (CVCA) 1 program. The court denied the State’s restitution request, finding the cost ledger was not sufficient proof of medical bills. The State appealed, contending the State is not required to independently prove causal connection for restitution ordered pursuant to the CVCA program, RCW 9.94A.753(7). We disagree and affirm.
FACTS
Since 2019, Zackery and S.P. had been in an intimate relationship. S.P.
had previously called the police on Zackery for domestic-violence incidents.
1 Chapter 7.68 RCW.
Following a domestic violence incident in July 2022, Kirkland Municipal Court issued a no-contact order (NCO) protecting S.P. On March 4, 2023, while the NCO was in effect, S.P. agreed to let Zackery come into S.P’s home, and once inside, Zackery grabbed a knife from the kitchen. They “struggle[d] over the knife,” but Zackery obtained control, and Zackery stabbed S.P.’s upper body approximately 12 times. 2 S.P. was “very fearful that Zackery would kill her” and her 13-year-old son who was asleep in the home.
Zackery threatened to kill S.P and her family if S.P. reported the assault.
Zachery stated she would commit “suicide-by-cop” and kill herself after S.P. was dead. S.P. spent “hours” trying to convince Zackery to let her go get medical aid. S.P told Zackery she would make up a story and say she was attacked by a “white male.” Zackery allowed S.P. to call 911, during the call, Zackery hovered over S.P. while still holding the knife. Zackery told S.P. she would follow the ambulance and wait for S.P in the hospital lobby.
S.P. was transported by ambulance to Harborview Medical Center. She received treatment for her injuries, which included a “deep” penetrating wound beneath her left breast. S.P. stated that “if/when Zackery was arrested, she feared that Zackery would kill her and her family if she is ever released.”
On March 8, 2023, the State charged Zackery with domestic violence assault in the second degree, with a deadly weapon enhancement, and domestic violence felony harassment, with a deadly weapon enhancement. As part of plea negotiations, the State amended the charges on August 07, 2024, and Zackery
2 In S.P.’s victim statement, she stated 17 stab wounds.
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pled guilty to domestic violence assault in the second degree with a deadly weapon, domestic violence felony harassment, with a deadly weapon enhancement, and seven counts of misdemeanor domestic violence violation of protection order. The State dismissed the charge of attempted murder in the second degree. Zackery signed the plea agreement and agreed to pay restitution “TBD for consequences of the acts in the probable cause certification (including associated medical bills).”
On September 3, 2024, the trial court entered its judgment and sentence and ordered restitution as a term of sentence. On February 10, 2025, the trial court held a restitution hearing and Zackery waived her appearance. The trial court considered the parties’ briefing and documentary evidence, including the State’s restitution memorandum filed on January 10, 3 various plea-related documentation that included the affidavit of probable cause, and a 2-page cost ledger for $1,503.20 owing to the CVCA program. 4 Zackery objected to the State’s restitution request, contending that the 2-page cost ledger was not sufficient proof of medical bills. Zackery argued the State did not present reliable evidence upon which the court could reasonably infer from, suggesting “that would usually come from a declaration, which I have seen before in most of the State’s request.” In response, the State pointed to “the letter of the memorandum,”5 where “our investigator has been in contact with the victim and
3 The record on appeal did not include the State’s restitution memorandum.
4 Washington’s CVCA provides benefits to crime victims and their families for expenses
resulting from criminal acts. Payments are administered by L&I, which is authorized to seek a court order of restitution for benefits paid.
5 The appellate record does not include the “letter” nor the “memorandum” referenced by
the State.
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that she is only submitting expenses to CVC[P] to keep her identity . . . she has legally changed her name to protect herself.”
The court denied the State’s request for restitution, finding the State did not meet their burden of proving restitution with reliable evidence which the trial court can rely upon. Two days later, the State filed a motion for reconsideration, asserting the trial court need not independently find a direct causal relationship between the crime and restitution ordered to reimburse the CVCP, 6 under RCW 9.94A.753(7). The trial court considered the factors under CR 59, even though the State did not reference the court rule, and denied reconsideration.
The State timely appealed.
ANALYSIS
Preliminarily, we address Zackery’s contention that the State waived its challenge to the restitution order. “The general rule is that appellate courts will not consider issues raised for the first time on appeal.” State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007); RAP 2.5(a). Because the State timely filed its motion for reconsideration, the State has preserved the restitution issue for appellate review. Statutory interpretation “A court’s authority to order restitution is derived solely from statute.” State v. Gonzalez, 168 Wn.2d 256, 261, 226 P.3d 131 (2010). RCW 9.94A.753 governs the restitution order in this case. There are two statutory subsections relevant to the issues presented in this case. Subsection (5), in relevant part,
6 Crime Victims Compensation Program see RCW 7.68.105.
5
provides:
[r]estitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person . . . . [i]n addition, restitution shall be ordered to pay for an injury, loss, or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement.
And subsection (7) provides:
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, chapter 7.68 RCW. If the court does not order restitution and the victim of the crime has been determined to be entitled to benefits under the crime victims’ compensation act, the department of labor and industries, as administrator of the crime victims’ compensation program, may petition the court within one year of entry of the judgment and sentence for entry of a restitution order. Upon receipt of a petition from the department of labor and industries, the court shall hold a restitution hearing and shall enter a restitution order.
Here, the parties agree that under subsection (5), a trial court may only allow restitution for losses that are “causally connected” to the crimes charged. State v. Kinneman, 155 Wn.2d 272, 286, 119 P.3d 350 (2005). However, the parties disagree on the meaning of “regardless of” language in subsection (7).
The State contends that restitution ordered under subsection (7) does not require the State to prove a causal connection between the crime and victim’s injury because a victim’s injury has already been determined by L&I as part of their determination of the victims’ eligibility under the CVCA program. Accordingly, the State need not show the causal connection as it would if restitution were ordered under subsections (1) through (6). This court declines to adopt the State’s interpretation that “regardless of” means to disregard the other subsections.
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The interpretation of the restitution statute presents a pure question of law, which we review de novo. State v. Gray, 174 Wn.2d 920, 926, 280 P.3d 1110 (2012). An appellate court will not disturb a restitution order absent an abuse of discretion. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007) (noting abuse of discretion occurs when a trial court applies “incorrect legal analysis or other error of law”).
Statutory interpretation begins with a statute’s plain meaning. Gray, 174 Wn.2d at 926. Plain meaning “is to be discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.” State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009).
The dictionary definition of “regardless of” is “without taking into account”
or “in spite of.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1911 (2025). Using the ordinary meaning of the term “regardless of,” as used in subsection (7), “regardless of the provisions of subsections (1) through (6)” means “without taking into account” the other subsections. In other words, when other subsections conflict with subsection (7), subsection (7) controls.
This interpretation is consistent with the discretion afforded to trial courts in determining restitution, especially when the offender challenges causation, such as in this case. For example, subsections (1), (3), and (5) of RCW 9.94A.753 provide the trial court with discretion. Under subsection (1), a trial court may continue the hearing to determine restitution beyond the standard 180 days from sentencing, if the court finds there is good cause for the extension.
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Under subsection (3)(a), while restitution must be “based on easily ascertainable damages for injury,” the trial court may also impose a range of the amount of restitution, so long as it does not exceed “double the amount of the offender’s gain or the victim’s loss from the commission of the crime.” And in subsection (5), a trial court must order restitution “whenever the offender is convicted of an offense which results in injury to any person . . . unless extraordinary circumstances exist which make restitution inappropriate in the court’s judgment.”
Given that discretion in those subsections, the meaning of “regardless of”
in subsection (7) should not be interpreted to limit or remove the trial court’s discretion in determining restitution when causation is challenged. In a circumstance where an offender challenges causation, a trial court should exercise its discretion and require the State to prove the connection between the offender’s crime and the injury, rather than relying on the preliminary, administrative determination by L&I, as the State invites this court to adopt. Additionally, to not require the trial court to independently determine the causal connection would render a restitution hearing meaningless. 7 Requiring the trial court to find an independent causal connection under subsection (7) is consistent with State v. Morgan, 4 Wn.3d 261, 562 P.3d 360 (2025). In Morgan, our Supreme Court stated “restitution may be ordered only for damages causally connected to the defendant’s crime, and a defendant may
7 We are mindful that this reasoning conflicts with the holding in State v. McCarthy, 178
Wn. App. 290, 301, 313 P.3d 1247 (2013), where the court concluded RCW 9.94A.357(7) does not require a trial court to “independently find a direct causal relationship between the conviction and the restitution ordered.” However, since Division II decided McCarthy, the Supreme Court decided Morgan, which is controlling precedent.
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dispute causation.” Morgan, 4 Wn.3d at 277 (citing Kinneman, 155 Wn.2d at 286). The State argues this is only dicta, because Morgan did not dispute causation at his restitution hearing or on appeal. While the State’s contention is not entirely inaccurate, the Court’s statement in Morgan is important because the causal connection requirement is in the context of an offender who disputes causation, which Zackery does. As stated, supra, the ability to challenge causation at a restitution hearing is critical for the defendant’s right to due process. See State v. Kisor, 68 Wn. App. 610, 620, 844 P.2d 1038 (1993) (“Evidence presented at restitution hearings . . . must meet due process requirements, such as providing the defendant with an opportunity to refute the evidence presented, and being reasonably reliable.”); see also State v. Milton, 160 Wn. App. 656, 659, 252 P.3d 380 (2011) (defendant is entitled to counsel at restitution hearing). Opportunity To Present Evidence To Support Restitution The State contends the trial court erred denying it an opportunity to present causal connection evidence at an evidentiary hearing. We disagree.
Preliminarily, we address the nature of the request made to the trial court, and that is, the State moved to continue, during a restitution hearing, after the trial court had denied restitution. The record shows that at the February 10 hearing, the State cited RCW 9.94A.753(3)(b) as the “statute that controls [restitution for CVCP]”, pointing out that “it explicitly states that [restitution ordered under CVCP] can’t be reduced or denied.” When asked by the trial court to confirm the applicable statute, because section (3)(b) had nothing to do with
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restitution for CVCP, or to provide any case law that the court should consider, the State responded it was only relying on the statute.
After receiving an unfavorable ruling, the State asked the court to “consider a continuance,” stating “I [State] will follow up with my investigator if there’s some type of, as [defense] counsel mentioned, a declaration.” The trial court stated “I think asking for continuation—waiting until after I make my ruling, for either party to do that, is ill-advised.” Two days later, the State filed a motion for reconsideration, attaching a memorandum that included case law.
Thus, the State’s contention that the trial court erred in denying an evidentiary hearing, when it had not requested one, is not supported by the record.
Accordingly, we proceed to determine whether the trial court erred in denying the State an opportunity to present evidence of restitution, when the State moved to continue the restitution hearing. 8 The decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court. State v. Miles, 77 Wn.2d 593, 597, 464 P.2d 723 (1970). We review trial court decisions or denials of motions for continuances under an abuse of discretion standard. State v. Hurd, 127 Wn.2d 592, 594, 902 P.2d 651 (1995).
Normally, a court “shall determine” the amount of restitution either at the sentencing hearing or within 180 days. RCW 9.94A.753(1). The court may
8 The State correctly stated in its briefing that 173 days had lapsed, counting from the
date of sentencing on August 21, 2024, to the date of the restitution hearing, on February 10, 2025.
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continue the hearing beyond the 180 days for good cause. Good cause to continue a restitution hearing past 180 days exists upon a “showing of some external impediment that did not result from a self-created hardship that would prevent a party from complying with statutory requirements.” State v. Reed, 103 Wn. App. 261, 265 n.4, 12 P.3d 151 (2000). An attorney’s inadvertence is not good cause. Reed, 103 Wn. App at 265 n.4. In determining whether to extend the 180-day period, factors to consider include the State’s diligence in procuring the necessary evidence, the length of delay, the reason for delay, the defendant’s assertion of their right to speedy sentencing, and the extent of prejudice to the defendant. State v. Tetreault, 99 Wn. App. 435, 438, 998 P.2d 330 (2000).
Here, “good cause” is not shown. The State’s basis for the continuance was to “follow up with [their] investigator” to get additional information. The trial court was not given reasons why the State could not procure the necessary evidence prior to the restitution hearing.
Given the State’s representation that they did not know “if [the Department] is going to provide any more than what they’ve provided in this ledger,” the additional time would not likely produce different information, as evidenced by the fact that the State submitted the same evidence for reconsideration as it submitted at the initial restitution hearing.
Additionally, the State did not do its due diligence in getting the necessary evidence. According to the State, the reason that only the cost ledger was submitted was because the “victim had changed her name to protect herself.” Knowing so, the State did not explore alternative ways to get the evidence they
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needed. For example, the State could have explored declarations from health care professionals who may have provided services to the victim, or from individuals within the Department to explain the contents of the cost ledger, or call witnesses rather than rely on documentary evidence. Most telling of the lack of due diligence was the State telling the trial court that if defense counsel insists on a declaration from the victim, “I’m kind of at a loss how to proceed” if the victim must “identify herself and sign under penalty of perjury” on a declaration.
State v. Kinneman, cited by the State, does not support the State’s position because it is factually distinguishable. In Kinneman, both parties asked for an evidentiary hearing on Kinneman’s appeal and the State’s cross-appeal, which was denied, to challenge factual issues related to the victims’ loss and to determine if restitution was causally related to the 67 counts of theft committed by Kinneman. 155 Wn.2d at 276-77. The court concluded the Court of Appeals did not err in remanding for an evidentiary hearing. Kinneman, 155 Wn.2d at 286. Importantly, the Court of Appeals’ basis for the remand was that the record did not support the trial court’s determination that Brown, one of the victims, suffered a loss in the amount ordered by the trial court. State v. Kinneman, 122 Wn. App. 850, 860-61, 95 P.3d 1277 (2004).
Here, unlike Kinneman, the trial court had a sufficient record presented by the State at the initial restitution hearing, and it had the same record the State presented on reconsideration. Even if granted more time, given the State’s representations that it was unsure how to proceed and whether they could obtain any additional evidence, this case is unlike the circumstances present in
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Kinneman. The State submitted the cost ledger approximately 30 days before the hearing. Zackery filed her objection to restitution on February 3, 2025, so the State should not have been surprised.
Based on this record, the trial court had tenable reasons to deny the State’s request to continue, and to not hold an evidentiary hearing, even if one had been requested, to flesh out any remaining factual assertions that were presented to the trial court. Plea bargain agreement The State contends that Zackery breached a term in the plea agreement by refusing to pay restitution, and accordingly, the trial court erred in denying the State the remedy of “specific performance.” We disagree.
“[A] plea agreement is a contract between the State and defendant, where the State agrees to recommend a specific sentence in exchange for the defendant’s guilty plea.” State v. Wiatt, 11 Wn. App. 2d 107, 111, 455 P.3d 1176 (2019). “Whether a plea agreement is breached is an objective inquiry.” State v. Harris, 4 Wn.3d 108, 117, 559 P.3d 499 (2024).
“A breach can occur when a party offers unsolicited information through a ‘report, testimony, or argument’ that undercuts the party’s obligation under the agreement.” Harris, 4 Wn.3d at 117 (quoting State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343 (2006)). “A defendant breaches their plea agreement by refusing to abide by promises in that agreement.” Harris, 4 Wn.3d at 118; see State v. Thomas, 79 Wn. App. 32, 34, 899 P.2d 1312 (1995) (As part of a plea agreement Thomas agreed to testify in another proceeding; however,
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when called as a witness, he refused to answer questions, claiming his Fifth Amendment rights. Thomas breached the plea agreement.).
Here, there was no breach of the plea agreement. Zackery agreed to pay restitution in an amount “TBD for consequences of the acts in the probable cause certification (including associated medical bills).” Zackery did not agree to pay a certain amount. Additionally, the “to be determined” amount she agreed to was “for consequences of the acts,” which meant any restitution must be connected to the crime. Zackery’s objection to the restitution does not go to her obligation to pay restitution; rather, she challenges the amount owing resulting from the crime.
We affirm.
WE CONCUR: