IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 81298-0-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION MARSHALL ARTHUR TRONSDAL,
Appellant.
SMITH, J. — The State charged Marshall Arthur Tronsdal with first degree
malicious mischief. Tronsdal pleaded guilty but challenged the imposition of
restitution, arguing that extraordinary circumstances existed to lower the amount
of restitution he owed. The sentencing court concluded that it lacked authority to
do so. Tronsdal asserts that this was error. He further contends that the court
erred when it failed to note in his judgment and sentence that payment of his
legal financial obligations (LFOs) could not be satisfied from his Social Security
benefits.
Because the court incorrectly believed it could not order restitution less
than the amount that the State requested, the court abused its discretion. Thus,
we remand for a new restitution hearing consistent with this opinion.
Furthermore, the court must amend the judgment and sentence to reflect the
requirement that Tronsdal’s Social Security benefits cannot be used to satisfy the
payment of his LFOs.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81298-0-I/2
FACTS
On September 9, 2019, Tronsdal shot a BB gun into a window and glass
door at Value Village, into the windows of three vehicles, and into the front door
window of another individual’s home. Tronsdal also activated the fire alarm at an
apartment complex in Marysville, Washington. Damage to Value Village was
estimated to be over $7,500, and damage to the apartment complex was
estimated at $10,000.
The State charged Tronsdal with multiple counts of first degree malicious
mischief. After his arrest, the court ordered a competency evaluation at the
request of Tronsdal’s counsel and the State. The evaluator concluded that
Tronsdal had a mild intellectual disability and suffered from a substance abuse
disorder. They found that Tronsdal suffered from a “neurodevelopmental
disorder which can lead to impulsive behavior.” The evaluator also asserted that
Tronsdal might suffer from panic disorder and an unspecified depressive
disorder. Nonetheless, the evaluator found that Tronsdal was competent to
understand the legal proceedings and to assist in his own defense. Based on the
evaluation, the court found that Tronsdal was competent.
Tronsdal pleaded guilty to one count of malicious mischief in exchange for
the State agreeing not to charge separate counts for each victim. In the plea
agreement, Tronsdal noted that he did not agree to the prosecutor’s sentencing
recommendation with regard to LFOs. Form language on his plea agreement
stated that Tronsdal agreed to pay “restitution in full.” In his statement of
defendant on plea of guilty, Tronsdal indicated that “the judge will order me to
2 No. 81298-0-I/3
make restitution, unless extraordinary circumstances exist which make restitution
inappropriate.”
At sentencing, the court imposed the $500 victim penalty assessment and
waived all other financial obligations, while reserving its restitution determination
pending a restitution hearing.
Prior to the restitution hearing, Tronsdal filed a memorandum objecting to
restitution and arguing that extraordinary circumstances made restitution
inappropriate. Specifically, because of his static developmental disability and his
dependence on Social Security income, Tronsdal requested “that the Court deny
the request for restitution in this matter given extraordinary circumstances.”
At the restitution hearing, the State and the court characterized Tronsdal’s
argument as revolving around his ability to pay. However, Tronsdal’s counsel
argued that, in addition to his reliance on Social Security benefits, his static
mental health condition granted the court discretion to adjust restitution. The
court found that it lacked “authority to consider [Tronsdal’s] ability to pay[ and]
reject[ed] the defense request that the Court find extraordinary circumstances.” It
ordered restitution to the apartment complex for repairing its fire system and to
one of the car owners for her window repair costs. In the judgment and
sentence, the court ordered restitution of $1,964.87, the amount that the State
requested.
ANALYSIS
Restitution
Tronsdal asserts that the trial court abused its discretion when it failed to
3 No. 81298-0-I/4
recognize that it had the authority to find that Tronsdal’s circumstances
amounted to extraordinary circumstances. We agree.
Breach of the Plea Agreement
As an initial matter, the State contends that, because Tronsdal agreed to
pay restitution in his plea agreement, he cannot challenge the court’s order on
appeal without breaching his plea agreement. 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), review denied, 195 Wn.2d 1019 (2020). If either party “breaches the plea
agreement, the nonbreaching party may either rescind or specifically enforce it.”
Wiatt, 11 Wn. App. 2d at 111. “A reviewing court applies an objective standard to
determine whether [a party] breached a plea agreement.” State v. MacDonald,
183 Wn.2d 1, 8, 346 P.3d 748 (2015).
In the plea agreement, Tronsdal checked the box indicating that he did not
agree to pay LFOs. Restitution is considered a specific form of LFO.1
Accordingly, where Tronsdal indicated he did not agree to the payment of LFOs,
his indication included that he did not agree to restitution. Furthermore, in his
statement of defendant on plea of guilty, Tronsdal agreed to pay LFOs unless
extraordinary circumstances existed. And he asserted that they did exist, which
he was entitled to argue before the trial court. See State v. D.L.W., 14 Wn. App.
1 The State admits this when it claims that “‘[l]egal financial obligations’ is a broader concept than ‘restitution.’” And the plea agreement includes restitution in its list of LFOs.
4 No. 81298-0-I/5
2d 649, 654, 472 P.3d 356 (2020) (where the defendant agreed to pay
“restitution in full,” holding that he did not waive his right to counsel and his
counsel “was entitled to argue in his best interest” that he should not pay the
entire amount of restitution). Tronsdal did not agree to pay restitution in full if
extraordinary circumstances existed, and he did not breach his plea agreement.
Thus, we review the merits of Tronsdal’s contention.
Trial Court’s Discretion
Tronsdal asserts that the trial court had authority to impose restitution in
an amount lower than that requested by the State because the court could
conclude that extraordinary circumstances existed. We agree that the court had
discretion and that it erred when it concluded otherwise.
We will not disturb a trial court’s order of restitution “on appeal absent
abuse of discretion.” State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007).
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 81298-0-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION MARSHALL ARTHUR TRONSDAL,
Appellant.
SMITH, J. — The State charged Marshall Arthur Tronsdal with first degree
malicious mischief. Tronsdal pleaded guilty but challenged the imposition of
restitution, arguing that extraordinary circumstances existed to lower the amount
of restitution he owed. The sentencing court concluded that it lacked authority to
do so. Tronsdal asserts that this was error. He further contends that the court
erred when it failed to note in his judgment and sentence that payment of his
legal financial obligations (LFOs) could not be satisfied from his Social Security
benefits.
Because the court incorrectly believed it could not order restitution less
than the amount that the State requested, the court abused its discretion. Thus,
we remand for a new restitution hearing consistent with this opinion.
Furthermore, the court must amend the judgment and sentence to reflect the
requirement that Tronsdal’s Social Security benefits cannot be used to satisfy the
payment of his LFOs.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81298-0-I/2
FACTS
On September 9, 2019, Tronsdal shot a BB gun into a window and glass
door at Value Village, into the windows of three vehicles, and into the front door
window of another individual’s home. Tronsdal also activated the fire alarm at an
apartment complex in Marysville, Washington. Damage to Value Village was
estimated to be over $7,500, and damage to the apartment complex was
estimated at $10,000.
The State charged Tronsdal with multiple counts of first degree malicious
mischief. After his arrest, the court ordered a competency evaluation at the
request of Tronsdal’s counsel and the State. The evaluator concluded that
Tronsdal had a mild intellectual disability and suffered from a substance abuse
disorder. They found that Tronsdal suffered from a “neurodevelopmental
disorder which can lead to impulsive behavior.” The evaluator also asserted that
Tronsdal might suffer from panic disorder and an unspecified depressive
disorder. Nonetheless, the evaluator found that Tronsdal was competent to
understand the legal proceedings and to assist in his own defense. Based on the
evaluation, the court found that Tronsdal was competent.
Tronsdal pleaded guilty to one count of malicious mischief in exchange for
the State agreeing not to charge separate counts for each victim. In the plea
agreement, Tronsdal noted that he did not agree to the prosecutor’s sentencing
recommendation with regard to LFOs. Form language on his plea agreement
stated that Tronsdal agreed to pay “restitution in full.” In his statement of
defendant on plea of guilty, Tronsdal indicated that “the judge will order me to
2 No. 81298-0-I/3
make restitution, unless extraordinary circumstances exist which make restitution
inappropriate.”
At sentencing, the court imposed the $500 victim penalty assessment and
waived all other financial obligations, while reserving its restitution determination
pending a restitution hearing.
Prior to the restitution hearing, Tronsdal filed a memorandum objecting to
restitution and arguing that extraordinary circumstances made restitution
inappropriate. Specifically, because of his static developmental disability and his
dependence on Social Security income, Tronsdal requested “that the Court deny
the request for restitution in this matter given extraordinary circumstances.”
At the restitution hearing, the State and the court characterized Tronsdal’s
argument as revolving around his ability to pay. However, Tronsdal’s counsel
argued that, in addition to his reliance on Social Security benefits, his static
mental health condition granted the court discretion to adjust restitution. The
court found that it lacked “authority to consider [Tronsdal’s] ability to pay[ and]
reject[ed] the defense request that the Court find extraordinary circumstances.” It
ordered restitution to the apartment complex for repairing its fire system and to
one of the car owners for her window repair costs. In the judgment and
sentence, the court ordered restitution of $1,964.87, the amount that the State
requested.
ANALYSIS
Restitution
Tronsdal asserts that the trial court abused its discretion when it failed to
3 No. 81298-0-I/4
recognize that it had the authority to find that Tronsdal’s circumstances
amounted to extraordinary circumstances. We agree.
Breach of the Plea Agreement
As an initial matter, the State contends that, because Tronsdal agreed to
pay restitution in his plea agreement, he cannot challenge the court’s order on
appeal without breaching his plea agreement. 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), review denied, 195 Wn.2d 1019 (2020). If either party “breaches the plea
agreement, the nonbreaching party may either rescind or specifically enforce it.”
Wiatt, 11 Wn. App. 2d at 111. “A reviewing court applies an objective standard to
determine whether [a party] breached a plea agreement.” State v. MacDonald,
183 Wn.2d 1, 8, 346 P.3d 748 (2015).
In the plea agreement, Tronsdal checked the box indicating that he did not
agree to pay LFOs. Restitution is considered a specific form of LFO.1
Accordingly, where Tronsdal indicated he did not agree to the payment of LFOs,
his indication included that he did not agree to restitution. Furthermore, in his
statement of defendant on plea of guilty, Tronsdal agreed to pay LFOs unless
extraordinary circumstances existed. And he asserted that they did exist, which
he was entitled to argue before the trial court. See State v. D.L.W., 14 Wn. App.
1 The State admits this when it claims that “‘[l]egal financial obligations’ is a broader concept than ‘restitution.’” And the plea agreement includes restitution in its list of LFOs.
4 No. 81298-0-I/5
2d 649, 654, 472 P.3d 356 (2020) (where the defendant agreed to pay
“restitution in full,” holding that he did not waive his right to counsel and his
counsel “was entitled to argue in his best interest” that he should not pay the
entire amount of restitution). Tronsdal did not agree to pay restitution in full if
extraordinary circumstances existed, and he did not breach his plea agreement.
Thus, we review the merits of Tronsdal’s contention.
Trial Court’s Discretion
Tronsdal asserts that the trial court had authority to impose restitution in
an amount lower than that requested by the State because the court could
conclude that extraordinary circumstances existed. We agree that the court had
discretion and that it erred when it concluded otherwise.
We will not disturb a trial court’s order of restitution “on appeal absent
abuse of discretion.” State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007).
However, “[t]he extent of the trial court’s discretion under [RCW 9.94A.753] is a
question of statutory interpretation, which we review de novo.” D.L.W., 14 Wn.
App. 2d at 655.
A court must 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). However, the court has discretion to determine whether
“extraordinary circumstances exist which make restitution inappropriate.”
RCW 9.94A.753(5). “[T]he plain language of the restitution statute allows the trial
judge to order restitution ranging from zero in extraordinary circumstances, up to
double the offender’s gain or the victim’s loss.” Tobin, 161 Wn.2d at 524.
5 No. 81298-0-I/6
Here, the apartment complex and one of the vehicle owners requested
restitution. Because 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 and because the restitution statute invested the
trial court with discretion to order restitution from zero to twice the victims’ losses,
the trial court abused its discretion. Specifically, it applied an incorrect legal
analysis when it concluded that it lacked authority to reduce the amount of
restitution owed. See Tobin, 161 Wn.2d at 523 (“[A]pplication of an incorrect
legal analysis or other error of law can constitute abuse of discretion.”). We do
not determine whether Tronsdal’s developmental disabilities and his dependency
on Social Security benefits constitute extraordinary circumstances.2 Rather, we
leave that to the trial court’s discretion to determine on remand.3
The State disagrees and asserts that because a mental disorder cannot
be “by itself a ‘substantial and compelling reason’ justifying a lenient sentence, it
2 The State contends that Tronsdal is essentially arguing that his inability to pay constitutes extraordinary circumstances. But Tronsdal specified below and on appeal that his development disability and his reliance on Social Security income constitute extraordinary circumstances. 3 The State unpersuasively attempts to distinguish State v. Painter, No.
78104-9-I (Wash. Ct. App. June 10, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/781049.pdf. There, we held that the trial court abused its discretion when it incorrectly believed it lacked authority to adjust restitution downwards for restitution not requested by the crime victims’ compensation program. Painter, No. 78104-9-I, slip op. at 5-6. We concluded that the court could consider the defendant’s mental disability and ability to pay on remand, but we made no determination as to whether those issues constituted extraordinary circumstances. Painter, No. 78104-9-I, slip op. at 6. We follow the holding of Painter and conclude it is within the trial court’s discretion to determine whether the circumstances in Tronsdal’s case constitute extraordinary circumstances.
6 No. 81298-0-I/7
should likewise not be an ‘extraordinary circumstance’ that relieves the defendant
of the duty to pay restitution.” The State provides no legal authority indicating
that a cognitive disability cannot constitute an extraordinary circumstance. See
DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)
(“Where no authorities are cited in support of a proposition, the court is not
required to search out authorities, but may assume that counsel, after diligent
search, has found none.”). And we find no persuasive reason to conclude that it
cannot. Furthermore, it was error for the trial court to apply the wrong legal
standard, i.e., that it did not have discretion, and on this fact alone, we can and
do remand for the trial court to determine restitution in light of its discretion.
Social Security Benefits
Tronsdal asserts that the trial court erred when it failed to limit the State’s
ability to collect LFOs from his Social Security disability benefits, his only source
of income. We agree.
As an initial matter, the State contends that Tronsdal cannot raise this
issue for the first time on appeal. At sentencing, Tronsdal did not object to the
court’s failure to indicate the Social Security issue. And “[i]n general, the failure
to raise an issue before a superior court waives the issue on appeal under
RAP 2.5(a).” State v. Glover, 4 Wn. App. 2d 690, 693, 423 P.3d 290 (2018).
However, we may exercise our discretion to hear an issue “‘to promote justice
and facilitate the decision of cases on the merits.’” Glover, 4 Wn. App. 2d at 693
(quoting RAP 1.2(a)). Thus, although Tronsdal failed to object below, we
exercise our discretion here and review the merits of his contention.
7 No. 81298-0-I/8
The Social Security Act’s antiattachment 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.” That is, “no Social Security disability benefits are available to
satisfy a debt,” including Tronsdal’s mandatory LFOs. See State v. Catling, 193
Wn.2d 252, 264, 438 P.3d 1174 (2019) (concluding that the defendant was
required to pay the $500 victim fund assessment but that the debt could not be
satisfied from their Social Security disability benefits). And where the court failed
to note that Social Security disability benefits cannot satisfy a defendant’s LFO
debts, we consistently have remanded to the trial court to amend the judgment
and sentence accordingly. See Catling, 193 Wn.2d at 266 (“remand[ing] to the
trial court to revise the judgment and sentence and repayment order . . . to
indicate that [the] LFO may not be satisfied out of any funds subject to the Social
Security Act’s antiattachment statute”). Thus, we agree that we must remand for
the trial court to amend the judgment and sentence accordingly.4
For the foregoing reasons, we remand to the sentencing court to consider
whether extraordinary circumstances exist to impose restitution less than the
amount that the State requested and to modify the judgment and sentence to
reflect the requirement that Tronsdal’s Social Security benefits cannot be used to
4 The State asserts that “it may make little difference” whether the judgment and sentence reflects the issue because the supervising entity can modify Tronsdal’s payments and the court cannot sanction him for failing to make payments towards LFOs when his sole source of income is his Social Security benefits. The State’s argument is unsupported for a number of reasons and ignores the very real barriers indigent litigants face to access the court system and assert their rights.
8 No. 81298-0-I/9
satisfy his LFO debt.
WE CONCUR: