State of Washington v. Gregory F. Everybodytalksabout

• Court: Court of Appeals of Washington
• Decided: February 4, 2014
• Docket: 30414-1
• Status: Unpublished

Opinion

FILED

FEB 4,2014

In the Office of the Clerk of Court

W A State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON, ) ) No.30414-1-III Respondent, ) ) v. ) ) GREGORYF. ) UNPUBLISHED OPINION EVERYB ODYTALKSAB OUT, ) ) Appellant. )

KORSMO, C.J. - Gregory Everybodytalksabout was convicted of 15 felonies,

including six counts of burglary. The hearing to determine restitution was continued at

his request and, ultimately, an order entered at a hearing that he did not attend. We

affirm the convictions and remand for a restitution hearing.

FACTS

Mr. Everybodytalksabout was charged along with several codefendants in a series

of burglaries across five locations in Okanogan County. All of his codefendants reached

plea agreements with the prosecutor, but his case proceeded to jury trial. Some of the

former codefendants testified for the prosecution. No.304l4-l-III State v. Everybodytalksabout

The details of the individual crimes are not significant to this appeal. The

codefendants testified that Mr. Everybodytalksabout was at each crime scene and directed

the other actors in their criminal activities. The codefendants also testified that in one

instance Mr. Everybodytalksabout sold a stolen gun to a "Mexican on a tractor."

The jury was instructed on the principle of accomplice liability. The prosecutor

argued the case on theories of both principal and accomplice liability. The jury convicted

Mr. Everybodytalksabout as charged.

Sentences totaling 191 months were imposed on October 20,2011. Mr.

Everybodytalksabout contested the amount of restitution sought and the matter was set

for hearing on November 21,2011, before a different judge. For reasons unexplained in

the record, that hearing did not take place. The State renoted the matter for hearing on

March 12,2012. Defense counsel and the prosecutor appeared on the calendar, but the

defendant was not present due to incarceration with the Department of Corrections.

Noting that Mr. Everybodytalksabout had not waived his presence at the hearing, the

matter was continued to April 2, 2012.

On that date the defendant did appear by telephone; the prosecutor and defendant's

trial counsel were present. Both attorneys had signed off on the restitution order which

was supported by the victims' trial testimony establishing the amount of loss. The

defendant, however, had not seen the documentation nor talked with trial counsel about

it. Therefore, the trial court proposed setting the matter over to April 17 so that defense

No.30414-1-II1 State v. Everybodytalks about

counsel could communicate with his client and determine if there was need for a hearing.

Defense counsel, however, was unavailable on April 17 and agreed to set the matter to

May 15. The trial judge expressly stated that the time from April 2 to May 15 would be

excluded from the 180 day period for establishing restitution. The court also explained to

the defendant that the extension would give him time to decide if he wanted to be present

for a restitution hearing.

Mr. Everybodytalksabout then addressed his pro se motion for bond pending

appeal and told the court that he had hired an attorney from Portland who would be

contacting both counsel the following Monday or Tuesday. The hearing therefore was

stricken while the court and parties waited to hear from new counsel. The judge returned

the proposed restitution order to the prosecutor.

Defense trial counsel and the prosecutor again appeared before the court on June

11, 2012. No new attorney had appeared for the defense and the defendant was not

present, nor was there any indication whether or not he desired to be present. The record

on this appeal likewise does not indicate whether or not there was a court appearance on

May 15 or how the matter ended up in court on June 11. There also is no indication in

the record that Mr. Everybodytalksabout personally knew of the June 11 hearing.

At that hearing, the prosecutor again handed up the restitution order to the court.

Defense counsel explained to the court that "at the last time we had the restitution

hearing" his client also had his own motion concerning the appeal and indicated new

No.30414-I-III State v. Everybodytalksabout

counsel would be appearing. However, no new attorney had appeared or contacted him

or the prosecutor. Defense counsel also explained that he believed the restitution

amounts were proper and had been established by the trial testimony. However, given

the uncertainty of his relationship with his client, all he could tell the court is "I would

sign but I am sure he doesn't want me to sign anything." Report of Proceedings (June 11,

2012)at3.

In response to the court's question, the prosecutor stated it was uncertain whether

the defendant actually wanted to contest the restitution and that there was no indication

he was doing so. After questioning counsel, the trial judge indicated that he would enter

the proposed order while noting on it that defense counsel lacked authority to sign the

order. In view of the witnesses testifying to the amounts of their losses at trial in the

defendant's presence, the court found that the jury trial "satisfied the requirements for

restitution hearing." Id. at 5. The order was entered.

ANALYSIS

This appeal challenges the sufficiency of the evidence to support all of the counts

as well as the possession of a stolen firearm count. Appellant also challenges the

timeliness of the restitution hearing and his absence from it. We will address those

challenges in the order noted.

No. 30414-1- III State v. Everybodytalksabout

Evidentiary Sufficiency

Well-settled standards govern appellate challenges to the sufficiency of the

evidence to support a conviction. We review such challenges to see if there was evidence

from which the trier of fact could find each element of the offense proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d

560 (1979); State v. Green, 94 Wn.2d 216,221-22,616 P.2d 628 (1980). The reviewing

court will consider the evidence in a light most favorable to the prosecution. Jackson,

443 U.S. at 319; Green, 94 Wn.2d at 221-22. Reviewing courts also must defer to the

trier of fact "on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821,874-75,83 P.3d 970

(2004). "Credibility determinations are for the trier of fact and are not subject to review."

Id. at 874.

Mr. Everybodytalksabout makes a broad based attack on his convictions, arguing

that the codefendants were not credible witnesses and therefore the evidence was

insufficient to find him criminally liable as an accomplice to their actions. 1 Although

Washington treats accomplice testimony with great care, that fact does not aid him here.

1 The defendant also filed a pro se statement of additional grounds raising numerous issues, including several sufficiency of the evidence claims. We have reviewed all of the arguments and specifically note that the sufficiency claims all fail for the reasons discussed above. His two sentencing claims and speedy trial argument are without merit and the remaining claims involve matters beyond the record of this appeal. RAP 10.10(c).

No.30414-1-III State v. Everybodytalksabout

"The rule in Washington is that a conviction can rest upon the uncorroborated testimony

of an accomplice, if the trier of fact, exercising due caution, believes the accomplice."

State v. Hall, 46 Wn. App. 689, 691, 732 P.2d 524 (1987) (citing State v. Mallory, 69

Wn.2d 532,535,419 P.2d 324 (1966)). Such testimony, when used in a jury trial,

requires a cautionary instruction. Id. (citing State v. Denney, 69 Wn.2d 436, 418 P.2d

468 (1966)). In the present case, a cautionary instruction was given to the jury regarding

accomplice testimony.

Thus, the testimony of the codefendants was admissible and more than adequately

supported the elements of the offenses. In particular, it supported the charges on which

the defendant was treated as an accomplice. He was named by his confederates as the

ringleader who directed their activities. He also was active in selling the property taken

during the burglaries. Far from merely being present at the scene of all of the crimes, the

jury was free to conclude that he was a true accomplice to the crimes.

For similar reasons, defendant also challenges the conviction for first degree

unlawful possession of a firearm. He was treated as a principal for that offense.

Codefendant Lawrence Sellars testified that Mr. Everybodyta1ksabout sold the rifle in

question to a "Mexican on a tractor." As the defendant personally sold that rifle, he was

in possession of it. The evidence thus supported the jury verdict.

Because the jury was permitted to rely upon the testimony of the codefendants, the

evidence amply supported the verdicts.

No.30414-1-III State v. Everybodytalks about

Restitution Hearing

Mr. Everybodytalksabout also challenges the restitution order, contending that it

was not timely entered and was wrongfully entered in his absence. We reject his first

argument, but agree that he is entitled to a new hearing at which he can participate.

The authority to impose restitution is statutory. State v. Griffith, 164 Wn.2d 960,

965, 195 P.3d 506 (2008). The court shall order restitution ''whenever the offender is

convicted of an offense which results in injury to any person or damage to or loss of

property." RCW 9.94A.753(5). There is no requirement that a victim's damages be

foreseeable in order to support a restitution order. State v. Enstone, 137 Wn.2d 675,680­

82,974 P.2d 828 (1999). In interpreting the restitution statutes, we must "recognize that

they were intended to require the defendant to face the consequences of his or her

criminal conduct." State v. Tobin, 161 Wn.2d 517,524, 166 P.3d 1167 (2007).

Accordingly, the court should not engage in an overly technical construction that would

permit the defendant to escape from just punishment. Id. The legislature intended "to

grant broad powers of restitution" to the trial court. State v. Davison, 116 W n.2d 917,

920,809 P.2d 1374 (1991).

We review a restitution order for an abuse of discretion. State v. Dedonado, 99

Wn. App. 251, 255-56, 991 P.2d 1216 (2000). A trial court abuses its discretion when its

decision is manifestly unreasonable or exercised on untenable grounds or for untenable

reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).

No. 30414-1-111 State v. Everybodytalksabout

RCW 9.94A.753(1) provides in relevant part:

When restitution is ordered, the court shall detennine the amount of restitution due at the sentencing hearing or within one hundred eighty days except as provided in subsection (7) of this section. The court may continue the hearing ... for good cause. [2]

The 180th day after the October 20,2011, sentencing would have been April 17, 2012. 3

Timeliness. Mr. Everybodytalksabout initially contends that the June 11

restitution order was clearly past the statutory deadline and should be voided. The State,

in tum, distinguishes State v. Moen, 129 Wn.2d 535, 919 P.2d 69 (1996), and argues that

because a timely objection on April 2 would have given him a hearing within the time

limits, Moen's holding that an objection could be raised initially on appeal should not

apply. Although the State's argument has some force, it sounds in terms of waiver or

invited error rather than appealability. Moen clearly stated that the timeliness of a

restitution order can be raised for the first time on appeal. Mr. Everybodytalksabout can

present this argument initially in this appeal.

Nonetheless, his timeliness challenge fails. The statute indicates that the 180 day

period may be extended for "good cause." RCW 9.94A.753(1). Similar language in both

current and fonner CrR 3.3 has long been interpreted to mean that a continuance sought

by or on behalf of a criminal defendant operates to toll the rule's time for trial period.

2Subsection (7), not relevant here, requires courts to order restitution in all cases where crime victim's compensation is paid. 32012 was a leap year.

E.g., State v. Ollivier, 178 Wn.2d 813, 312 P.3d 1 (2013) (current rule) (citing State v.

Campbell, 103 Wn.2d 1, 15,691 P.2d 929 (1984) (former CrR 3.3)). This construction

also has been applied to toll other statutory time periods that may be extended for good

cause. E.g., State v. Johnson, 79 Wn.2d 173, 177,483 P.2d 1261 (1971) (120 day period

ofin-state detainer act, chapter 9.98 RCW: "The continuance having been granted on the

basis of the defendant's own request, he cannot now assert it was not granted for good

cause, or that it was not necessary or reasonable."); In re Det. olC.M, 148 Wn. App.

Ill, 197 P.3d 1233 (2009) (MRP 1.2 and RCW 71.05.310 time period for involuntary

detention hearings).

Applying these cases to this situation, we conclude that the continuance granted on

April 2 tolled the remaining 15 days in which to hold the hearing. The trial court

expressly called that fact to the defendant's attention. Rather than object or request an

earlier hearing, he preferred to press his request to have his bail motion argued by the

new counsel he was hoping to hire. The continuance of the restitution hearing was not

discussed at alL

The unexplained change of the hearing date to June II is potentially problematic,

but on this record we can only attribute it to the April 2 continuance to await an

appearance by counsel who never appeared. As the State had its proof in hand and was

ready to proceed in April (as it had been in March), and defense counsel and the

defendant were also present but preferred not to resolve the matter that day, there is no

reason for believing some other cause was at work. Defense counsel had not been

replaced, nor was there any motion pending to substitute new counsel, so the trial court

could have permitted the matter to proceed on April 2 with the counsel of record. The

strained relationship between the defendant and his existing counsel appears to be the

reason the court did not resolve the matter at that time, but, instead, continued the matter

to facilitate an agreed resolution. Although the court could have required that restitution

be resolved on April 2 when the parties were present and the State ready to proceed, we

cannot fault the trial court and counsel for attempting to reach an informed agreement.

The trial court extended the period for the restitution hearing in order to

accommodate the defendant and, particularly, his effort to obtain new counsel. Good

cause was shown for the extension and, accordingly, the 180 day period was tolled. The

restitution order was timely entered.

Presence at Hearing. Mr. Everybodytalksabout also argues that the court erred in

conducting the restitution hearing in his absence. In this instance the failure of the record

to explain why he was not present works in his favor.

A defendant has a right to be present at a restitution hearing and be represented by

counsel at that hearing. State v. Milton, 160 Wn. App. 656, 659, 252 P.3d 380 (2011);

State v. Kisor, 68 Wn. App. 610,844 P.2d 1038 (1993). Mr. Everybodytalksabout

previously asserted at sentencing the right to be present and was in fact present for the

No. 30414-1- III

State v. Everybodytalksabout

April 2 hearing. However, he was not present on June 11 when the order finally entered,

although we do not know why that was the case.

A waiver is the voluntary relinquishment of a known right. Johnson v. Zerbst, 304

U.S. 458, 464, 58 S. Ct. 1019, 821. Ed. 1461 (1938). Mr. Everybodytalksabout may

have been satisfied with the State's proof and abandoned his desire to contest the amount

of restitution. The trial court may have concluded that he waived his right by not

. attending the June 11 hearing and/or not retaining new counsel to appear for him.

However, this record does not allow us to draw those conclusions. The record does not

reflect that Mr. Everybodytalksabout even knew about the June 11 hearing. There also is

no indication that he had changed his mind and abandoned the contest.

In this circumstance we cannot conclude that the defendant expressly waived his

right to be present or implicitly did so by not appearing. Since the defendant's absence is

unexplained in the record, we conclude that the court erred in entering the restitution

order. The restitution order is reversed and the matter remanded for a new hearing.

No.30414-l-III State v. Everybodytalksabout

Affirmed in part, reversed in part, and remanded.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

I Korsmo, C.J.

WE CONCUR:

Kulik, J.P.T.