State Of Washington, V. Bernardino Sandoval

• Court: Court of Appeals of Washington
• Decided: June 6, 2022
• Docket: 82447-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 82447-3-I THE STATE OF WASHINGTON, DIVISION ONE Respondent, UNPUBLISHED OPINION v.

BERNARDINO LARRY SANDOVAL,

Appellant.

BIRK, J. — Bernardino Sandoval appeals an order of restitution following his

guilty plea to assault in the third degree and unlawful possession of a weapon. We

affirm the restitution order, but remand for the trial court to amend the order to

reflect that Social Security benefits cannot satisfy restitution.

FACTS

In 2018, Sandoval stabbed his romantic partner. He pleaded guilty to

domestic violence assault in the third degree and unlawful display of a weapon. 1

In conjunction with his plea, Sandoval agreed to join the State’s recommendation

for an above-range exceptional sentence of 72 months and agreed to pay

restitution in an amount to be determined at a future hearing.

1 The State initially charged Sandoval with assault in the first degree. He pleaded guilty to a reduced charge to avoid a potential life sentence under the Persistent Offender Accountability Act, RCW 9.94A.030(37), .570. Sandoval entered a plea under North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (allowing defendant to maintain his innocence while acknowledging a likelihood of conviction at trial). No. 82447-3-I/2

The trial court imposed a sentence in accordance with the plea agreement.

The court found that Sandoval was indigent and waived all nonmandatory fees,

fines, and costs. The court imposed only the mandatory victim penalty

assessment. See RCW 7.68.035(1)(a) (mandatory $500 victim penalty

assessment upon conviction of felony or gross misdemeanor).

Before the restitution hearing, the State submitted a request for restitution

of $3,339.68 and supplied documentation showing that, pursuant to the crime

victims’ compensation act, chapter 7.68 RCW, the Crime Victims Compensation

Program administered by the state Department of Labor and Industries

(Department) had paid benefits in that amount for the victim’s medical bills and

counseling costs. RCW 7.68.015.

At the hearing, Sandoval objected to restitution. Sandoval argued that the

court should not impose restitution for medical expenses because the victim left

the hospital after the incident allegedly against medical advice. And Sandoval

claimed the supporting documentation did not establish that the counseling was

related to the crime.

More generally, Sandoval argued that because of certain disabilities, he had

no current or future ability to pay restitution. Sandoval asserted he suffered from

two types of arthritis, was “almost legally hearing-impaired,” and would face an

“almost impossible” burden in making payment because, upon release, he would

be reliant on governmental assistance and Social Security benefits. Sandoval

generally described other ailments that, he contended, showed an inability to

become gainfully employed and make restitution in the amount the State

2 No. 82447-3-I/3

requested. The superior court indicated on the record that it did not believe the

restitution statute authorized waiver of the obligation solely based on indigent

status.

The trial court ordered Sandoval to pay restitution of $2,438.56 for benefits

paid to reimburse the victim for medical expenses. The court declined to order

$901.12 in restitution for the victim’s counseling costs, finding no evidence of a

“link” between the crime and the counseling. The court also concluded that

Sandoval’s indigence did not provide a basis to waive restitution. Sandoval

appeals.

DISCUSSION

Sandoval’s sole argument against the amount of the restitution order is that

the sentencing court erred by failing to recognize the discretion to waive restitution

upon a finding that his disability and indigence amounted to “extraordinary

circumstances” within the meaning of RCW 9.94A.753(5). Because we conclude

subsection (5) of RCW 9.94A.753 does not apply when payment has been made

pursuant to the crime victims’ compensation act, its provision for waiver in

“extraordinary circumstances” did not apply in Sandoval’s case.

A trial court’s restitution order will not be disturbed on appeal absent an

abuse of discretion. State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999).

Application of an incorrect legal analysis or other error of law can constitute abuse

of discretion. State v. Kinneman, 155 Wn.2d 272, 289, 119 P.3d 350 (2005).

3 No. 82447-3-I/4

The relevant portions of the restitution statute provide:

(5) Restitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property or as provided in subsection (6) of this section unless extraordinary circumstances exist which make restitution inappropriate in the court’s judgment and the court sets forth such circumstances in the record. In 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.

....

(7) 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], 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], the court shall hold a restitution hearing and shall enter a restitution order.

RCW 9.94A.753 (emphasis added).2

As the above provisions make clear, the restitution statute does not

authorize the trial court to waive restitution based on “extraordinary circumstances”

under subsection (5) when the State seeks restitution for benefits paid under the

crime victims’ compensation act. When the program has compensated the victim

2 The legislature amended the restitution statute in March 2022, to allow the

trial court, at sentencing or at any later time, to waive full or partial restitution or accrued interest on restitution based on the lack of current or future likely ability to pay in certain circumstances. See LAWS OF 2022, ch. 260, § 3. The amendment, effective January 1, 2023, expressly does not apply to restitution owed to the Department for compensation paid under the crime victims’ compensation program. Id. §§ 3, 26.

4 No. 82447-3-I/5

for losses, the statute mandates restitution upon request “[r]egardless” of

subsection (5). RCW 9.94A.753(7). In such cases, the court “shall” order

restitution, and if it fails to do so, the Department, which administers the program,

may petition for entry of an order so providing. Id. RCW 9.94A.753(7) does not

allow the trial court discretion to waive restitution of benefits paid under the crime

victims’ compensation act, even when “extraordinary circumstances” within the

meaning of RCW 9.94A.753(5) may be present.

Our decisions in Painter and Tronsdal do not suggest otherwise. State v.

Painter, No. 78104-9-I (Wash. Ct. App. June 10, 2019) (unpublished),

http://www.courts.wa.gov/opinions/pdf/781049.pdf; State v. Tronsdal, No. 81298-

0-I, (Wash. Ct. App. Aug.2, 2021) (unpublished), https://www.courts.wa.gov/

opinions/pdf/812980.pdf. Painter, who pleaded guilty to charges stemming from a

hit and run, asked the court to impose less than the full amount of restitution

requested, claiming that his mental illness and indigency were extraordinary

circumstances. Painter, No. 78104-9, slip op. at 1-2. The trial court denied

Painter’s request, indicating that its discretion was limited to determining whether

there was a factual basis for restitution. Id. at 3.

We held that when a restitution request is premised on payments by the

crime victims’ compensation program, the trial court is “obligated to order

restitution to the crime victims’ compensation program in the amount that the

program paid to the victim.” Id. at 5. To reach this conclusion, we relied on the

mandatory language of RCW 9.94A.753(7), which, unlike subsection (5), does not

allow waiver based on a finding of “extraordinary circumstances.” Id. at 4. We

5 No. 82447-3-I/6

also looked to the crime victims’ compensation act itself, which provides that the

payment of benefits to or on behalf of a victim “‘creates a debt due and owing to

the [D]epartment by any person found to have committed the criminal act.’” Id. at

5 (quoting RCW 7.68.120(1)). And we observed that the crime victims’

compensation act authorizes the Department, not the court, to waive, modify

downward, or otherwise adjust restitution, “‘in the interest of justice, the well-being

of the victim, and the rehabilitation of the individual.” Id. (quoting RCW

7.68.120(5)).

In Painter’s case, only a portion of the restitution sought (approximately

$18,000 of the more than $430,000 total restitution) was based on compensation

for benefits under the crime victims’ compensation act. Id. at 2. As to the bulk of

the requested restitution, we held that the trial court erred by failing to appreciate

its discretion to determine there were “extraordinary circumstances” under RCW

9.94A.753(5) warranting a reduction of restitution. Id. at 6.

In Tronsdal, the defendant pleaded guilty to malicious mischief after causing

damage to a store, multiple vehicles, a home, and an apartment complex.

Tronsdal, No. 81298-0, slip op. at 2. The State did not request restitution for any

benefits paid by the victims’ compensation fund. Id. at 6. Tronsdal characterized

his developmental disability and dependence on Social Security income as

“extraordinary circumstances” under RCW 9.94A.753(5) and requested a finding

on that issue. Id. at 3. The trial court concluded it had no discretion to consider

ability to pay. Id. As in Painter, we held that the trial court erred when it concluded

it lacked authority under RCW 9.94A.753(5) to order less than the amount of

6 No. 82447-3-I/7

restitution requested and remanded for the trial court to consider whether Tronsdal

established extraordinary circumstances. Id. at 6. Significantly, we noted the

“statute’s plain language provides the trial court with discretion to determine the

amount of restitution when not requested by the crime victim’s compensation

program.” Id. (emphasis added).

Finally, Sandoval cites State v. Carroll to argue that even if RCW

9.94A.753(7) bars the trial court from waiving restitution entirely, the trial court

failed to appreciate its discretion to order a lesser amount of restitution. No. 81816-

3-I, (Wash. Ct. App. Nov. 8, 2021) (unpublished), http://www.courts.wa.gov/

opinions/pdf/818163.pdf. His reliance on Carroll is misplaced because there, we

affirmed the restitution order for the full amount of benefits paid to the victim and

did not decide whether the trial court could have ordered a lesser amount of

restitution. Carroll, No. 81816-3, slip op. at 2, 7. And more importantly, the trial

court ordered partial restitution here, declining to impose restitution for benefits the

program paid for counseling fees.3

In Sandoval’s case, the State requested restitution solely to reimburse the

crime victims’ compensation fund for benefits paid. Under RCW 9.94A.753(7), the

court had no discretion to deny the request based on “extraordinary

circumstances” within the meaning of RCW 9.94A.753(5).

Sandoval next claims the trial court erred when it failed to expressly limit the

State’s ability to collect restitution from his Social Security income. Sandoval

3 Because the only issue before us is the trial court’s discretion to reduce

restitution based on “extraordinary circumstances” under RCW 9.94A.753(5), we do not address the amount of restitution awarded.

7 No. 82447-3-I/8

maintained that he relied on “[w]elfare” and Social Security income and would

continue to do so after release.

The Social Security Act’s anti-attachment statute, 42 U.S.C. § 407(a), states

that “none of the moneys paid or payable or rights existing under this subchapter

shall be subject to execution, levy, attachment, garnishment, or other legal

process.” As a result, “no Social Security disability benefits are available to satisfy

a debt,” including Sandoval’s restitution obligation. See State v. Catling, 193

Wn.2d 252, 264, 438 P.3d 1174 (2019) (defendant was required to pay $500 victim

penalty assessment, but debt could not be satisfied from Social Security disability

benefits). Receipt of Social Security income does not “‘immunize’” an individual

against the imposition of a restitution order; “‘rather, it merely prohibits the trial

court from using legal process to compel satisfaction of the restitution order from

those benefits.’” Id. at 263 (quoting In re Lampart, 306 Mich. App. 226, 246, 858

N.W.2d 192 (2014)).

Where, as here, there is evidence that a defendant receives Social Security

income, it is appropriate to include a notation on the order or judgment indicating

that the legal financial obligations imposed “may not be satisfied out of any funds

subject to the Social Security Act’s antiattachment statute.” Id. at 266. The State

concedes, and we agree, that remand is appropriate so that the trial court may

amend the order to include a notation that Sandoval’s restitution obligation may

not be satisfied out of Social Security income.

Finally, in a statement of additional grounds for relief, Sandoval challenges

an individual reentry plan developed by the Department of Corrections in

8 No. 82447-3-I/9

anticipation of release. We understand him to claim he should be released to King

County, rather than Chelan County. See RCW 72.09.270(8)(a) (criteria for

determination of county of discharge). The record contains no information

regarding this issue, and on direct appeal, the reviewing court will not consider

matters not included in the trial record. State v. McFarland, 127 Wn.2d 322, 335,

899 P.2d 1251 (1995). If a defendant wishes to raise a claim that relies on facts

outside the existing record, the appropriate means to do so is through a personal

restraint petition. Id.

We affirm the restitution order, but remand for the trial court to amend the

order to specify that the restitution obligation may not be satisfied out of funds

subject to the Social Security Act’s anti-attachment statute.

WE CONCUR: