IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Respondent, No. 83835-1-I (consol. v. with No. 84600-1-I)
TROY MICHAEL O’BRIAN, UNPUBLISHED OPINION
Appellant.
DWYER, J. — Troy O’Brian appeals from the judgment entered on a jury’s
verdicts finding him guilty of felony violation of a no-contact order and five
misdemeanor violations of a no-contact order. O’Brian contends that the trial
court violated the constitutional excessive fines clause by ordering him to pay
restitution, interest on restitution, and a victim penalty assessment. We conclude
that there was no error on this ground but nevertheless remand for the
sentencing court to reconsider the imposition of interest and to waive the penalty
assessment in light of recent statutory amendments.
I
Troy O’Brian and Melissa O’Brian were married in the summer of 2019. In
May 2020, the two had begun arguing and the relationship became violent. No. 83835-1-I/2
Melissa1 reported that on May 7, O’Brian threw her down and choked her. On
May 29, Melissa obtained a temporary protection order against O’Brian, and on
June 12, the trial court issued a protection order preventing O’Brian from
contacting Melissa for five years.
Melissa reported that O’Brian subsequently violated the protection order
by contacting her through text messages, e-mails, and phone calls. Then, on
September 30, 2020, Melissa reported that O’Brian began following her in their
work van while she was driving her sedan. O’Brian weaved in and out of traffic to
follow her, and then collided with her car twice, pushing her car into the side of
the road and causing it to spin out.
The State charged O’Brian with second degree assault for the choking
incident, felony violation of a no-contact order for the automotive collision, and six
misdemeanor counts of violation of a no-contact order. Every charge carried a
domestic violence designation.
The case proceeded to a jury trial. Before argument began, the State filed
a motion in limine to admit five of O’Brian’s prior convictions under ER 609 if
O’Brian testified: a 2016 unlawful possession of a stolen vehicle conviction, a
2016 auto theft conviction, a 2008 theft conviction, a 2002 receiving stolen
property conviction, and a 2002 burglary conviction. O’Brian did not object, and
the trial court ruled that evidence of the five convictions would be admissible on
cross-examination if O’Brian testified. O’Brian did not testify.
The jury found O’Brian guilty of felony violation of a no-contact order and
1 Because Melissa O’Brian and Troy O’Brian share a last name, we refer to the former by
her first name. No disrespect is intended.
2 No. 83835-1-I/3
five counts of misdemeanor violation of a no-contact order. The jury acquitted
O’Brian on the assault charge and the remaining misdemeanor. The trial court
imposed a sentence of 55 months of confinement for the felony, concurrent with
lesser sentences on the misdemeanors. The court found O’Brian to be indigent
and waived court costs, but ordered restitution of $5,341 for the value of
Melissa’s car, plus interest. It also imposed a $500 victim penalty assessment.
O’Brian appeals.
II
O’Brian asserts that the trial court violated the constitutional excessive
fines clause by imposing restitution, interest on restitution, and a $500 victim
penalty assessment. Although O’Brian did not object on this basis at sentencing,
we choose to reach this issue under RAP 2.5(a) and address the claim of error
involving each financial obligation in turn.
Pursuant to RAP 2.5(a)(3), a party may raise a “manifest error affecting a
constitutional right” for the first time on appeal. “To meet RAP 2.5(a), an
appellant must demonstrate (1) the error is manifest and (2) the error is truly of
constitutional magnitude.” State v. Ramos, 24 Wn. App. 2d 204, 214, 520 P.3d
65 (2022), review denied, 200 Wn.2d 1033 (2023). Here, O’Brian’s excessive
fines claims are of constitutional magnitude, and if we were to accept his
arguments, the error would be manifest. Therefore, we address this issue. See
State v. Ellis, No. 56984-1-II, slip op. at 6-7 (Wash. Ct. App. June 13, 2023),
https://www.courts.wa.gov/opinions/pdf/D2%2056984-1-
II%20Published%20Opinion.pdf.
3 No. 83835-1-I/4
The Eighth Amendment to the United States Constitution and article I,
section 14 of the Washington Constitution prohibit excessive fines. We “interpret
the federal and state excessive fines clauses coextensively.” Ramos, 24 Wn.
App. 2d at 223. To constitute an excessive fine, “a sanction must be a ‘fine’ and
it must be ‘excessive.’” City of Seattle v. Long, 198 Wn.2d 136, 162, 493 P.3d 94
(2021). A sanction is a fine if it is “at least ‘partially punitive,’” and it is excessive
if it is “grossly disproportional to the gravity of a defendant’s offense.” Long, 198
Wn.2d at 163, 166 (quoting Timbs v. Indiana, 139 S. Ct. 682, 689, 203 L. Ed. 2d
11 (2019)). To determine whether a fine is grossly disproportional, we consider
“(1) the nature and extent of the crime, (2) whether the violation was related to
other illegal activities, (3) the other penalties that may be imposed for the
violation, (4) the extent of the harm caused, and (5) ‘a person’s ability to pay the
fine.’” Ramos, 24 Wn. App. 2d at 216 (quoting Long, 198 Wn.2d at 173). We
review the excessive fines issue de novo. Ramos, 24 Wn. App. 2d at 216.
A
O’Brian first contends that the trial court’s restitution order was both
punitive and grossly disproportional because of his inability to pay. However, the
restitution order for $5,341 reflected only the damage inflicted by O’Brian, as the
amount equaled the value of Melissa’s car that O’Brian had totaled. Such a
restitution order is not excessive. Rather, “a restitution award based on a victim’s
actual losses is inherently proportional to the crime that caused the losses
because the amount is linked to the culpability of the defendant and the extent of
harm the defendant caused.” Ramos, 24 Wn. App. 2d at 230; see also Ellis, slip
4 No. 83835-1-I/5
op. at 10.2 Thus, we hold that the excessive fines clause does not apply to the
restitution order.
B
O’Brian next contends that the interest on the restitution amount is an
excessive fine. We disagree. “Because the legislature did not intend for interest
to be a penalty and because interest accruing on restitution is paid to crime
victims rather than to the government, interest on restitution awards is not
punishment and not subject to an excessive fines clause analysis under the
Eighth Amendment or art. I, § 14.” Ramos, 24 Wn. App. 2d at 228.
However, as was recently explained in Ellis, this issue has recently been
addressed by a new statutory amendment, effective January 1, 2023, that
permits the court to elect not to impose interest on a restitution order if the
defendant is indigent, among other factors. LAWS OF 2022, ch. 260, § 12; Ellis,
slip op. at 11-12. Although this amendment did not take effect until after
O’Brian’s sentencing, it applies to O’Brian’s case because this matter is on direct
appeal. Ellis, slip op. at 12. We therefore remand for the trial court to address
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Respondent, No. 83835-1-I (consol. v. with No. 84600-1-I)
TROY MICHAEL O’BRIAN, UNPUBLISHED OPINION
Appellant.
DWYER, J. — Troy O’Brian appeals from the judgment entered on a jury’s
verdicts finding him guilty of felony violation of a no-contact order and five
misdemeanor violations of a no-contact order. O’Brian contends that the trial
court violated the constitutional excessive fines clause by ordering him to pay
restitution, interest on restitution, and a victim penalty assessment. We conclude
that there was no error on this ground but nevertheless remand for the
sentencing court to reconsider the imposition of interest and to waive the penalty
assessment in light of recent statutory amendments.
I
Troy O’Brian and Melissa O’Brian were married in the summer of 2019. In
May 2020, the two had begun arguing and the relationship became violent. No. 83835-1-I/2
Melissa1 reported that on May 7, O’Brian threw her down and choked her. On
May 29, Melissa obtained a temporary protection order against O’Brian, and on
June 12, the trial court issued a protection order preventing O’Brian from
contacting Melissa for five years.
Melissa reported that O’Brian subsequently violated the protection order
by contacting her through text messages, e-mails, and phone calls. Then, on
September 30, 2020, Melissa reported that O’Brian began following her in their
work van while she was driving her sedan. O’Brian weaved in and out of traffic to
follow her, and then collided with her car twice, pushing her car into the side of
the road and causing it to spin out.
The State charged O’Brian with second degree assault for the choking
incident, felony violation of a no-contact order for the automotive collision, and six
misdemeanor counts of violation of a no-contact order. Every charge carried a
domestic violence designation.
The case proceeded to a jury trial. Before argument began, the State filed
a motion in limine to admit five of O’Brian’s prior convictions under ER 609 if
O’Brian testified: a 2016 unlawful possession of a stolen vehicle conviction, a
2016 auto theft conviction, a 2008 theft conviction, a 2002 receiving stolen
property conviction, and a 2002 burglary conviction. O’Brian did not object, and
the trial court ruled that evidence of the five convictions would be admissible on
cross-examination if O’Brian testified. O’Brian did not testify.
The jury found O’Brian guilty of felony violation of a no-contact order and
1 Because Melissa O’Brian and Troy O’Brian share a last name, we refer to the former by
her first name. No disrespect is intended.
2 No. 83835-1-I/3
five counts of misdemeanor violation of a no-contact order. The jury acquitted
O’Brian on the assault charge and the remaining misdemeanor. The trial court
imposed a sentence of 55 months of confinement for the felony, concurrent with
lesser sentences on the misdemeanors. The court found O’Brian to be indigent
and waived court costs, but ordered restitution of $5,341 for the value of
Melissa’s car, plus interest. It also imposed a $500 victim penalty assessment.
O’Brian appeals.
II
O’Brian asserts that the trial court violated the constitutional excessive
fines clause by imposing restitution, interest on restitution, and a $500 victim
penalty assessment. Although O’Brian did not object on this basis at sentencing,
we choose to reach this issue under RAP 2.5(a) and address the claim of error
involving each financial obligation in turn.
Pursuant to RAP 2.5(a)(3), a party may raise a “manifest error affecting a
constitutional right” for the first time on appeal. “To meet RAP 2.5(a), an
appellant must demonstrate (1) the error is manifest and (2) the error is truly of
constitutional magnitude.” State v. Ramos, 24 Wn. App. 2d 204, 214, 520 P.3d
65 (2022), review denied, 200 Wn.2d 1033 (2023). Here, O’Brian’s excessive
fines claims are of constitutional magnitude, and if we were to accept his
arguments, the error would be manifest. Therefore, we address this issue. See
State v. Ellis, No. 56984-1-II, slip op. at 6-7 (Wash. Ct. App. June 13, 2023),
https://www.courts.wa.gov/opinions/pdf/D2%2056984-1-
II%20Published%20Opinion.pdf.
3 No. 83835-1-I/4
The Eighth Amendment to the United States Constitution and article I,
section 14 of the Washington Constitution prohibit excessive fines. We “interpret
the federal and state excessive fines clauses coextensively.” Ramos, 24 Wn.
App. 2d at 223. To constitute an excessive fine, “a sanction must be a ‘fine’ and
it must be ‘excessive.’” City of Seattle v. Long, 198 Wn.2d 136, 162, 493 P.3d 94
(2021). A sanction is a fine if it is “at least ‘partially punitive,’” and it is excessive
if it is “grossly disproportional to the gravity of a defendant’s offense.” Long, 198
Wn.2d at 163, 166 (quoting Timbs v. Indiana, 139 S. Ct. 682, 689, 203 L. Ed. 2d
11 (2019)). To determine whether a fine is grossly disproportional, we consider
“(1) the nature and extent of the crime, (2) whether the violation was related to
other illegal activities, (3) the other penalties that may be imposed for the
violation, (4) the extent of the harm caused, and (5) ‘a person’s ability to pay the
fine.’” Ramos, 24 Wn. App. 2d at 216 (quoting Long, 198 Wn.2d at 173). We
review the excessive fines issue de novo. Ramos, 24 Wn. App. 2d at 216.
A
O’Brian first contends that the trial court’s restitution order was both
punitive and grossly disproportional because of his inability to pay. However, the
restitution order for $5,341 reflected only the damage inflicted by O’Brian, as the
amount equaled the value of Melissa’s car that O’Brian had totaled. Such a
restitution order is not excessive. Rather, “a restitution award based on a victim’s
actual losses is inherently proportional to the crime that caused the losses
because the amount is linked to the culpability of the defendant and the extent of
harm the defendant caused.” Ramos, 24 Wn. App. 2d at 230; see also Ellis, slip
4 No. 83835-1-I/5
op. at 10.2 Thus, we hold that the excessive fines clause does not apply to the
restitution order.
B
O’Brian next contends that the interest on the restitution amount is an
excessive fine. We disagree. “Because the legislature did not intend for interest
to be a penalty and because interest accruing on restitution is paid to crime
victims rather than to the government, interest on restitution awards is not
punishment and not subject to an excessive fines clause analysis under the
Eighth Amendment or art. I, § 14.” Ramos, 24 Wn. App. 2d at 228.
However, as was recently explained in Ellis, this issue has recently been
addressed by a new statutory amendment, effective January 1, 2023, that
permits the court to elect not to impose interest on a restitution order if the
defendant is indigent, among other factors. LAWS OF 2022, ch. 260, § 12; Ellis,
slip op. at 11-12. Although this amendment did not take effect until after
O’Brian’s sentencing, it applies to O’Brian’s case because this matter is on direct
appeal. Ellis, slip op. at 12. We therefore remand for the trial court to address
whether to impose interest on the restitution amount based on the factors set
forth in RCW 10.82.090(2).
C
O’Brian further contends that the $500 victim penalty assessment (VPA)
was an excessive fine. As noted in Ellis, this issue has also been resolved by a
2 Ellis and Ramos disagreed regarding whether such an order was punitive. Ellis, slip op. at 9; Ramos, 24 Wn. App. 2d at 226. However, because the case law is clear that such orders are not excessive, we need not reach this issue.
5 No. 83835-1-I/6
new statutory amendment:
In the 2023 session, the legislature passed Engrossed Substitute House Bill 1169. LAWS OF 2023, ch. 449. ESHB 1169 added a subsection to RCW 7.68.035 that prohibits courts from imposing the VPA on indigent defendants as defined in RCW 10.01.160(3). LAWS OF 2023, ch. 449, § 1; RCW 7.68.035(4). The amended statute also requires trial courts to waive any VPA imposed prior to the effective date of the amendment if the offender is indigent, on the offender’s motion. LAWS OF 2023, ch. 449, § 1; RCW 7.68.035(5)(b). This amendment will take effect on July 1, 2023. LAWS OF 2023, ch. 449.
Ellis, slip op. at 12. Because the trial court found that O’Brian is indigent, the
court must strike the victim penalty assessment on remand pursuant to
RCW 7.68.035(4).
We affirm O’Brian’s convictions.3 We remand for the trial court to strike
the victim penalty assessment and to consider whether to impose interest on the
restitution order in light of the factors set forth in RCW 10.82.090(2).
Affirmed in part, reversed in part, and remanded.
3 Prior to the date set for the panel to take up this case, O’Brian moved to withdraw review
of his first assignment of error (which challenge his convictions). We grant that motion and, thus, do not discuss that matter further.
6 No. 83835-1-I/7
WE CONCUR: