IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 77627-4-I Respondent, DIVISION ONE V. UNPUBLISHED OPINION DAVID P. OLSON,
Petitioner. FILED: December 30, 2019
DWYER, J. — A jury convicted David Olson of vehicular assault after he
struck and injured a motorcyclist. As a part of his sentence, the court ordered
Olson to pay restitution of $40,744.57 to the victim. A jury in a civil case later
awarded $415,034 in damages to the victim. When Olson’s insurance carrier
paid its $50,000 policy limit to the victim’s attorney in trust for the victim, those
funds were applied to reduce the civil judgment, but not applied to restitution. In
postsentencing motions, Olson urged the sentencing court to reallocate the
insurance proceeds to satisfy the restitution portion of his judgment and
sentence. The court declined to do so. And based on the agreement of Olson
and the State, the court allowed the victim, through his attorney, to participate in
the proceedings involving restitution.
No authority prohibited the court from allowing the victim to participate in
the postsentencing proceedings involving restitution. Because the parties’
agreement to allow such participation was not unlawful, the court did not abuse No. 77627-4-1/2
its discretion by enforcing it. And whether or not to credit funds paid to the victim
by the insurer against the defendant’s restitution obligation is a matter reserved
to the discretion of the sentencing court. We discern no abuse of discretion here.
We affirm.
Driving while intoxicated in Skagit County, David Olson struck and injured
an oncoming motorcyclist, David Zinkand. In 2010, two years after the collision,
a jury convicted Olson of vehicular assault. The court sentenced Olson to a 6-
month term of confinement and imposed several nonrestitution legal financial
obligations, including a $500 victim penalty assessment, a $200 criminal filing
fee, and a $100 deoxyribonucleic acid (DNA) collection fee.1 Several months
later, the court entered an agreed order on restitution, ordering Olson to pay
restitution of $40,744.57, based on the victim’s medical expenses and lost
wages.2 The restitution order provided for payment to the Skagit County
Superior Court Clerk and for the clerk to disburse the payments to the victim, but
did not set forth a payment schedule.
In 2013, Zinkand filed a personal injury action against Olson and,
ultimately, a jury awarded him damages of $415,034.04. The jury’s verdict
designated $165,034.04 for economic (special) damages and $250,000 for
noneconomic (general) damages. Zinkand obtained a judgment on the jury’s
Olson paid the nonrestitution legal financial obligations to the Skagit County Clerk’s Office in 2014. 2 The restitution order and attached appendix lists only the total amount of restitution. By
statute, restitution must be based on “easily ascertainable damages,” such as property loss, expenses incurred for medical treatment, and lost wages, and may not be based on “intangible losses” such as “mental anguish, pain and suffering.” RCW 9.94A.753(3). It is undisputed that the restitution order herein was based on Zinkand’s medical expenses and lost wages.
2 No. 77627-4-1/3
verdict, plus costs. In connection with the civil suit, Olson and Zinkand stipulated
that any funds paid toward restitution in the criminal matter would also be
credited toward the civil judgment.
Olson appealed his criminal conviction and the trial court stayed his
sentence pending appeal. In March 2013, while his sentence was stayed,
Olson’s insurer paid the $50,000 policy limit of his insurance policy. The check
was made payable to Zinkand’s attorney, in trust for Zinkand. After we affirmed
Olson’s conviction, the trial court lifted the order staying his sentence. ~ State
v. Olson, noted at 170 Wn. App. 1032 (2012).
Several months after his release from jail, having served the confinement
portion of his sentence, Olson reestablished his credentials and resumed working
as a commercial airline pilot. Beginning in June 2014, Zinkand’s attorney
obtained writs of garnishment at regular intervals. These required Olson’s
employer to withhold 25 percent of his wages. The garnished wages were
applied to reduce the amount of the civil judgment.
In October 2014, Olson filed a motion in the criminal cause to make
restitution concurrent with civil judgment and to strike accrued interest. Olson
asked the sentencing court to discharge his restitution obligation to account for
the payment made by his insurer to the victim. Based on Zinkand’s agreement
that the civil judgment represented the total recovery to which he was entitled
and his agreement to credit restitution payments toward the civil judgment, Olson
argued that, reciprocally, all payments toward the civil judgment should apply to
the restitution obligation. He also asked the criminal court to strike the interest
3 • No. 77627-4-1/4
accrued on the restitution obligation. In connection with this motion, the
sentencing court entered an order, enforcing the agreement between Olson and
the State, and allowing Zinkand, through his attorney, to appear in the criminal
matter and “provide briefing and oral argument regarding restitution matters in
this case.”
At the hearing, Zinkand agreed that he could not recover twice for the
same losses, recognizing overlap between a portion of the special damages
awarded by the jury and the restitution imposed by the court. Zinkand took the
position that all payments should be credited toward the civil judgment until the
“last [$J40,000” in order to provide “leverage” to enforce the civil judgment. The
State was present at the hearing but did not participate.
The sentencing court denied the motion and declined to credit the
payments, made via the insurance payment and garnishment, to restitution. The
sentencing court’s order did not prevent Olson from making voluntary payments
toward the restitution obligation directly to the court.
More than two years later, in March 2017, Olson, through new counsel,
filed a “Motion to Reduce or Strike Restitution and Accrued Interest.” Although
Olson relied on statutes governing restitution and restitution interest that had not
been cited in his 2014 motion, he sought the same relief. Namely, he requested
that the court deem the restitution obligation satisfied and discharge the debt.
Olson claimed that there were “extraordinary circumstances,” as
contemplated by the applicable statute, because his insurer paid, and the victim
received, an amount that exceeded the amount of the restitution obligation, and
4 No. 77627-4-1/5
yet he remained subject to a “lifelong” order to pay the restitution. Olson
asserted that it was improper to allow the use of the criminal case as a means to
secure the collection of a civil judgment. He also asked the sentencing court to
strike any interest accrued on the restitution debt, arguing that if the insurance
proceeds had been allocated to restitution, no interest would have subsequently
accrued.
The State responded that Olson was merely attempting to relitigate the
unchallenged 2014 order. Pointing to Olson’s substantial reported earnings
since entry of the 2011 order, the State urged the court to deny the motion.
Following a hearing in October 2017, the sentencing court denied the
motion. In accordance with its 2014 ruling, the court determined that there were
no “extraordinary circumstances” to warrant modifying the restitution obligation
and no basis to strike the accrued interest.3 Olson appealed from that order.
In the meantime, approximately two months later, under the criminal
cause number, the Skagit County Superior Court authorized collection of
restitution by sending a notice of involuntary wage assignment to Olson’s
employer.
Zinkand then filed a motion in the criminal case, seeking to “coordinate”
the collection of restitution with the collection of the civil judgment. Zinkand’s
attorney informed the court that he had been regularly garnishing Olson’s wages
for more than four years and that the unpaid portion of the civil judgment
amounted to almost $300,000. He argued that collection processes should not
~ ROW 1 O.82.090(2)(b) allows the sentencing court to reduce restitution interest only if the principal balance has been paid in full.
5 No. 77627-4-1/6
be simultaneous because duplicative efforts resulted in unnecessary costs and
complications. Zinkand’s counsel argued that the civil judgment collection should
precede collection for restitution, in part, based on Olson’s alleged prior
statement that he intended to retire when he turned 6O.~ Therefore, he wanted to
“keep restitution in the background” because it has “teeth.”
The day before the hearing on Zinkand’s motion, Olson filed a motion for a
continuance, but did not otherwise respond. Defense counsel expressed “great
concerns” about Zinkand’s appearance in the criminal matter and questioned the
court’s authority to authorize that participation.5 As to the merits, Olson did not
object to garnished wages being applied to restitution, based on his position that
all funds received by the victim should apply to both the civil judgment and
restitution.
Both Zinkand and the State opposed a continuance. The State took no
position on Zinkand’s motion, stating that its only interest was in full
compensation to the victim.
The court denied Olson’s motion to continue and granted Zinkand’s
motion. The court noted that the garnishment issue arose because Olson was
not voluntarily paying either obligation and that the simultaneous collection of
both debts prejudiced Zinkand.6 The court entered an order “Directing
~ This apparently did not occur because, according to the date of birth listed on Olson’s judgment and sentence, he turned 60 in 2017. ~ Defense counsel also requested a continuance to brief the issue of the victim’s participation in the criminal matter and also to allow Olson to personally attend the hearing. 6 Zinkand’s counsel explained that, unlike wage assignment for collection of restitution,
civil garnishment requires renewal each time, and splitting the 25 percent deduction between restitution and the civil judgment prolonged the victim’s need to retain counsel to facilitate collection of the civil judgment.
6 No. 77627-4-1/7
Restitution Collection Delay,” stating that “collection of restitution is stopped and
will not be continued without the written agreement” of Zinkand, through his
attorney. The order directed the superior court clerk’s office to disburse the
funds that had been collected for restitution to Zinkand’s trust account held by his
attorney.7 The court orally clarified that the language of the order was not
intended to prevent Olson from making voluntary payments toward restitution.
Both parties moved for reconsideration. On June 19, 2018, the
sentencing court entered a memorandum decision denying both motions.
We granted discretionary review of the October 2017 order denying the
motion to strike or reduce restitution and accrued interest.8
Despite stipulating to the victim’s participation in the proceedings involving
restitution, Olson challenges that participation on appeal. He claims that the
parties’ agreement is a “nullilty” because it allowed the State to delegate its
prosecutorial function to a private party and the sentencing court lacked authority
to authorize it.
Our state constitution specifically provides that all prosecutions shall be
conducted by and in the name of the State of Washington. CONST. art. IV, § 27. Olson’s prosecution was conducted by the elected prosecutor of Skagit County.
The court did not allow a private party to control the prosecution by enforcing the
~ The order further directs that amounts collected for restitution in the future must be applied first to principal, then to interest. 8 Discretionary review was also granted as to the April 2018 order “Directing Restitution
Collection Delay” and the June 2018 order denying reconsideration. However, Olson makes no specific arguments on appeal with respect to the later orders. In addition, Zinkand filed briefing in this appeal. Although he did not seek prior authorization under RAP 10.1(h) to do so, we have exercised our discretion under the rule and considered the briefing in resolving this matter.
7 No. 77627-4-1/8
agreement between the State and Olson. The trial court permitted the victim to
participate only as a nonparty, in postconviction, postsentencing, proceedings
limited to the issue of restitution. For the reasons that follow, we conclude it was
within the court’s discretion to do so.
Our statutes reflect the significant interest of victims in the matter of
restitution. In the absence of “extraordinary circumstances,” victims are entitled
to entry of an order of restitution in felony cases. RCW 9.94A.753(5) (restitution
“shall be ordered”); see ~ RCW 9.94A.505(8) (a sentencing court “shall order
restitution”). And although restitution is also punitive, the remedial component of
restitution is “strong” because restitution is directly connected to the victim’s
losses. RCW 9.94A.753(3); State v. Kinneman, 155 Wn.2d 272, 279-81, 119
P.3d 350 (2005); State v. Shultz, 138 Wn.2d 638, 643-44, 980 P.2d 1265 (1999).
The decision as to whether to impose restitution is a part of the sentencing
process and during that process, RCW 9.94A.500(1) provides for the victim, the
victim’s survivor, or the victim’s representative to be heard. And finally, RCW
9.94A.753(9) specifically provides that victims may enforce court-ordered
restitution in the same manner as a civil judgment.
Consistent with these statutory provisions, the people of Washington
adopted the victims’ rights amendment to our state constitution. See CONST. art.
I, § 35. The mandate of the amendment is a guaranty to victims of a “meaningful
role in the criminal justice system.” CONST. art. I, § 35. The amendment provides
crime victims with specific “basic and fundamental rights” in criminal proceedings,
including the right to notice, the right to attend proceedings “subject to the
8 No. 77627-4-119
discretion of the individual presiding over the trial or court proceedings,’ and the
right to make a statement at sentencing.9 CONST. art. I, § 35. Our Supreme Court has recognized that this amendment speaks powerfully to the fundamental
principle of restoring what is taken from a victim of crime. State v. Gentry, 125
Wn.2d 570, 628-29, 888 P.2d 1105 (1995).
It is against this statutory and constitutional background that the
sentencing court allowed the victim to participate in restitution matters, in
accordance with the parties’ agreement. Olson provides no authority suggesting
that the court was prohibited from doing so in these circumstances. Victims’
interest in restitution, as codified by provisions of the Sentencing Reform Act of
1981 (SRA), chapter 9.94A RCW, and embodied in the victims’ rights
amendment, does not undermine the State’s authority to conduct criminal
prosecutions. Indeed, in State v. Wiens, 77 Wn. App. 651, 654, 894 P.2d 569
(1995), we addressed a defendant’s challenge to former RCW 9.94A.145(4)
(1989), which authorized crime victims to enforce a criminal restitution order in
the same manner as a civil judgment.1° Similar to Olson’s argument, Wiens
claimed that the statute infringed on the State’s exclusive authority and obligation
to prosecute criminal matters. Wiens, 77 Wn. App. at 654. Rejecting his
argument, we reasoned that because the statute authorized the victim to act only
~ CONST. art. I, § 35 (amend. 84), provides in part: Upon notifying the prosecuting attorney, a victim of a crime charged as a felony shall have the right to be informed of and, subject to the discretion of the individual presiding over the trial or court proceedings, attend trial and all other court proceedings the defendant has the right to attend, and to make a statement at sentencing and at any proceeding where the defendant’s release is considered, subject to the same rules of procedure which govern the defendant’s rights. 10 Now codified at RCW 9.94A.760(5) (legal financial obligations) and ROW 9.94A.753(9)
(restitution).
9 No. 77627-4-1110
after conviction, the “intervention” in question did not interfere with the State’s
constitutional authority to prosecute criminal actions.11 Wiens, 77 Wn. App. at
655.
The court’s discretion to allow a victim to be heard on restitution matters
does not mean that victims have an absolute right to such participation, or a right
to participate in a particular manner. While not required, the sentencing court
here determined that it was appropriate not only to allow the victim to respond to
Olson’s motion, but also to allow the victim to file a motion seeking the court’s
intervention in the garnishment process. We see no reason why the sentencing
court should not have the discretion to permit such participation and determine
the appropriate manner and scope of the participation, as the court did here. To
be clear, nothing in the SRA or the constitution makes victims parties to criminal
proceedings or affords victims a right to appeal a criminal judgment or restitution
order. ~ United States v. Kovall, 857 F.3d 1060, 1066, 1073 (9th Cir.
2017) (while victims have a “discrete and quantifiable” interest in restitution, they
have no statutory or constitutional right to appeal a federal criminal judgment);
United States v. Aquirre-Gonzalez, 597 F.3d 46, 53 (1st Cir. 2010) (“[Cjrime
victims are not parties to a criminal sentencing proceeding. Thus, the baseline
rule is that crime victims, as non-parties, may not appeal a defendant’s criminal
sentence.” (citation omitted)); State v. Gault, 39 A.3d 1105, 1113-14 (Conn.
~ Our courts have also allowed limited intervention by nonparties in criminal matters to challenge trial court orders sealing records. ~ Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775, 801, 246 P.3d 768 (2011), overruling State v. Bianchi, 92 Wn.2d 91, 593 P.2d 1330 (1979). In Herald-Republic, the court determined that such intervention by a nonparty under GR 15(e) for the purpose of moving to unseal court records may occur only “after the criminal trial is completed or the defendant has pleaded guilty.” 170 Wn.2d at 801 n.1 1.
10 No. 77627-4-Ill 1
2012) (dismissing victim’s appeal to enforce rights afforded under state’s
constitutional crime victims’ rights amendment because only the State and the
accused are parties to a criminal action).
We conclude that the sentencing court did not impermissibly allow the
State to delegate the prosecutorial role. Nor did it abuse its discretion in
affording the victim an opportunity to be heard.
III
Olson also challenges the trial court’s denial of his 2017 motion to strike or
reduce restitution and restitution interest.
The authority to impose restitution is derived from statute. State v.
Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). As previously noted, when
imposing a sentence under the SRA, restitution for injury is mandatory absent
extraordinary circumstances. ROW 9.94A.753(5) provides, in relevant part:
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 . unless extraordinary circumstances exist which . .
make restitution inappropriate in the court’s judgment and the court sets forth such circumstances in the record.
Restitution must be paid to the superior court clerk and then disbursed directly to
the victims. Shultz, 138 Wn.2d at 644.
The trial court also has authority to modify restitution. ROW 9.94A.753(4)
specifically provides that the “portion of the sentence concerning restitution may
be modified as to amount, terms, and conditions during any period of time the
offender remains under the court’s jurisdiction.” A court’s decision to modify the
amount or terms of a restitution order under RCW 9.94A.753(4) is reviewed for
11 No. 77627-4-1/12
abuse of discretion. State v. Gray, 174 Wn.2d 920, 931, 280 P.3d 1110 (2012)
(allowing modification of restitution to include expenses incurred before the court
issued the original restitution order). The only limitation on the court’s discretion
is that it “may not reduce the total amount of restitution ordered because the
offender may lack the ability to pay the total amount.” ROW 9.94A.753(4).
Olson claims that the court’s ruling denying his motion was manifestly
unreasonable because, by refusing to extinguish his restitution obligation based
on his insurer’s payment to the victim, the sentencing court permitted “the
criminal case to be used as leverage over the civil collections.” He relies on
language from the decision in State v. Pike, 118 Wn.2d 585, 595, 826 P.2d 152
(1 992), cautioning against allowing the criminal justice system to be used as a
“mechanism for the collection of private debt.” But Pike involved a conviction of
theft by taking allegedly committed when the defendant reclaimed his own
vehicle from a mechanic without authorization and without paying for repairs
performed. Pike, 118 Wn.2d at 587. The court observed that the contractual
debt owed to the mechanic created a right to recover damages in a civil lawsuit,
but could not form the basis for criminal liability absent a specific statute or
evidence of contractual fraud. Pike, 118 Wn.2d at 595. In contrast, Olson’s
private debt was not the basis for his criminal conviction. Pike is wholly
inapposite.
To the extent that Olson suggests that the sentencing court’s order
requires restitution to be paid last, after he fully satisfies the civil judgment (minus $40,000) and interest upon that judgment, he is mistaken. Although the victim’s
12 No. 77627-4-1/13
attorney suggested that it might be possible to prevent Olson from making
payments to the court clerk’s office toward restitution, the sentencing court
correctly confirmed at several points that none of its orders prevented Olson
“from making voluntary payments toward this restitution.” 12 Legal financial
obligations, including restitution, are conditions of a sentence, and a willful failure
to comply with these conditions can result in further confinement. See ROW
9.94A.760(11). This statutory scheme does not allow the sentencing court to
prevent a defendant from voluntarily complying with the criminal judgment, which
could then provide the basis for incarceration.
In addition, to the extent the State suggests that Olson was underinsured
and that his “low” policy limit of $50,000 supports the denial of his motion, we
disagree. Although Olson’s insurance policy is not in the record, there is nothing
to indicate that it did not satisfy the requirements of law set forth in RCW
46.29.090(1). The mandatory coverage amounts encompassed in the statute
reflect policy choices that the legislature has the power to make, and also, to
amend. See El Centro De La Raza v. State, 192 Wn.2d 103, 428 P.3d 1143
(2018).
Olson contends that the sentencing court abused its discretion by denying
his motion because the fact that all payments made to the victim on his behalf
were not credited against his restitution obligation constitutes an “extraordinary”
circumstance. Olson cites to no authority that supports his position. And, in fact,
12 With respect to the allocation of payments made to the court to satisfy the terms of the
judgment, the court must, of course, be mindful of the distribution order set forth in RCW 9.94A.760(2).
13 No. 77627-4-1/14
it is well-settled that “[t]he decision whether or not to credit payments to the victim
by [the defendant’s] insurance carrier against the restitution order [is] a matter
within the trial court’s discretion.” State v. Shannahan, 69 Wn. App. 512, 519,
849 P.2d 1239 (1993) (citing State v. Young, 63 Wn. App. 324, 333-34, 818 P.2d
1375 (1991)).
Even though neither case involves a separate civil judgment, the decisions
in State v. Young and State v. Shannahan are instructive. Young was convicted
of two counts of vehicular homicide and, as restitution, was ordered to pay the
monthly child support obligation of one of the deceased victims. Young, 63 Wn.
App. at 326. Because Young’s insurance carrier had tendered payment to the
victim’s family, he argued on appeal that, as a matter of law, the insurance funds
had to be allocated first to “easily ascertainable damages,” such as lost child
support, and then to other items of damage. Young, 63 Wn. App. at 335. The
appellate court rejected the argument, noting that the manner of allocating
insurance payments against a victim’s loss was a matter for the court’s
discretion. Young, 63 Wn. App. at 335.
Similarly, a jury convicted Shannahan of negligent driving and the court
ordered restitution of approximately $1 1,000 for the victim’s injuries. Shannahan,
69 Wn. App. at 514. Thereafter, the defendant’s insurer paid $25,000, the policy
limit, to the victim. Shannahan, 69 Wn. App. at 514. Shannahan argued that as
a result of funds his insurer tendered to the victim, his restitution obligation
should be discharged because the amount received by the victim from his insurer
exceeded the amount of court-ordered restitution. Shannahan, 69 Wn. App. at
14 No. 77627-4-1/15
518-19. We rejected this argument, holding that the manner of allocating
insurance payments was within the court’s discretion. Shannahan, 69 Wn. App.
at 519. Under Shannahan and Young, the sentencing court does not abuse its
discretion when it applies insurance payments “first against items of loss that are
not recoverable by restitution, ‘thereby maximizing that portion of the loss that the
victim or next of kin will recover.” Shannahan, 69 Wn. App. at 519 (quoting
Young, 63 Wn. App. at 336).
Likewise here, the sentencing court did not abuse its discretion when it
declined to allocate the insurance payments in the manner advocated by Olson.
And in these circumstances, when the restitution amount overlapped with the
special damages awarded by the jury, but not with the general damages awarded
by the jury, the court’s ruling was consistent with doctrines that promote full
compensation of the victim in the context of insurance reimbursement and
subrogation. ~Thiringerv. Am. Motors Ins. Co., 91 Wn.2d 215, 219, 588 P.2d
191 (1978) (insurer not entitled to reimbursement until the insured had been
made whole; therefore, insurance proceeds are allocated to general damages
before special damages); Sherry v. Fin. lndem. Co., 160 Wn.2d 611, 622, 160
P.3d 31(2007) (recognizing Washington’s “broad view of full compensation”).
In a different case, the facts may be such that it would be appropriate for a
judge to order that insurance payments be first allocated to a restitution
obligation. This merely illustrates the wisdom of leaving such a determination to
the sound discretion of the sentencing judge.
15 No. 77627-4-1/16
We affirm the sentencing court’s order denying Olson’s motion to reduce
or strike restitution and accrued interest and the subsequent restitution orders.
WE CONCUR: /
~4aaL~A I ____________