Petition for Writ of Certiorari — Shultz v. Washington

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B91183 JAN 1 200

OF FICS

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

KARL ALAN SHULTZ, Petitioner,

STATE OF WASHINGTON, Respondent.

On Petition for a Writ of Certiorari to the

Washington State Supreme Court

PETITION FOR WRIT OF CERTIORARI

CLAIRMONT E. HORMEL

P.O. Box 370

Ephrata, WA 98823

Tel: (509) 754-2476

Counsel of Record

for Petitioner

JOHN D. KNODELL

Grant County Prosecutor

P.O. Box 37

Ephrata, WA 98823

Counsel of Record

for Respondent

QUESTIONS PRESENTED

1. Does the ex post facto clause of the United States Constitution,

U.S. Const. art. I § 10, prohibit the retroactive application of a 1997

Amendment to a crime punished in 1987, where the 1997 Amendment

would: (1) double the trial court’s length of criminal jurisdiction over the

defendant whose maximum sentence had been served and allow the court

to modify the amount, terms and conditions of restitution, (2) effectively

increase the amount of restitution payable, (3) double the time period

allowed to initiate collection proceedings on restitution, and (4) make each

violation for failure to meet payment obligations imposed by the trial court

punishable by sixty (60) days of incarceration?

2. Does the due process clause of the Fourteenth Amendment to

the United States Constitution prohibit the retroactive application of a 1997

statutory amendment to a correct judgment and sentence entered in 1987

under the facts and with the results described in Question | of this petition?

3. Does the double jeopardy clause of the United States

Constitution, Amendment V, prohibit the retroactive application of a 1997

statutory amendment extending criminal jurisdiction over a criminal

defendant sentenced in 1987 under a 1985 statute under the facts and with

the results described in Question | of this petition?

4. Does the bill of attainder clause of the United States

Constitution, art. I, § 10, prohibit the retroactive application of a 1997

statutory amendment which affects individuals previously and correctly

sentenced to a maximum term certain in a 1985 sentencing statute under the

facts and with the results described in Question | of this petition?

5. Wasn’t the Supreme Court of Washington in error where that

court determined the issues presented by this petition in a manner not in

conformity with or consistent with federal court decisions interpreting

provisions of the United States Constitution?

TABLE OF CONTENTS

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APPENDIX

Judgment and Sentence (Felony) - April 7, 1987 .........cccccccccccecseeees la

Order Re: Application for Additional Ten Years

to Execute Judgment - October 14, 1997 o0.......ccccccccccceseeceeesceeeeeeees 1Sa

Order Certifying Appeal - March 5, 1999 oooooooocccccccccccecceceeeeeeeees 17a

Ruling Accepting Certification - March 11, 1999 oo... 18a

Washington State Supreme Court Decision - July 29, 1999.......... 19a

Order Denying Motion for Reconsideration - October 14, 1999 .... 27a

Constitutional Provisions and Statutes Involved ...............cccc00000000- 28a

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Public Hearing Before House Law & Justice Committee

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TABLE OF AUTHORITIES

Cases: Page

Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274,

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Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30,

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Ex Parte Lange, 85 U. S. (18 Wall.) 872 (1873).............cccccscssscsescsscscossvens 10

Henderson v. Morgan, 426 U.S. 637, 49 L. Ed. 2d 108,

AS Ber Bs | * RGR re se We Roe ae See ee 9

Hudson, et al v. United States, 522 U.S. 93, 139 L. Ed. 2d 450,

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Johnson v. United States, U.S. ’

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Kansas v. Hendricks, 521 U.S. 456, 138 L. Ed. 2d 501,

BT Se. Rs PA CTD siithiincnthbeibialiah dulacdiabtianbteldlsncslapeiiotacins 8

Landgraf v. USI Film Prods., 511 U.S. 244, 128 L. Ed. 2d 229,

BED Th. Sh, Be CD want shless<stnnaidiibiapilncmnndiopinlensioncucramituasesipenthe 6, 11

Lynce v. Mathis, 519 U.S. 433, 137 L. Ed. 2d 63,

DE Fas Mat SP A ETD peeiccnsnsttninheskantivcnstanallowstaineliontuipsnisspiakolanepaliptonian 8

Miller v. Florida, 482 U.S. 423, 96 L. Ed. 2d 351,

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Nixon v. Administrator of Gen. Servs., 433 U.S. 425,

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Selective Serv. Sys. v. Minnesota Pub. Interest Research Group,

468 U.S. 841, 82 L. Ed. 2d 632, 104 S. Ct. 3348 (1984) oo. 1]

United States v. Brown, 381 U.S. 437,

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United States v. Collins, 118 F.3d 1394, (9th Cir. 1997) ooo. eeeeeeeeeeees 7

United State v. DiFrancesco, 449 U.S. 117, 66 L. Ed. 2d 328,

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United States v. Dozier, 119 F.3d SO OCR: MP) ioe 7

United States v. Johnson, 181 F.3d 105

(Unpublished Opinion, se cea ge pa, Ot ET RO 7

Weaver v. Graham, 450 U.S. 24, 67 L. Ed. 2d 17,

sah rit ra dat foe ee EE ENE Sd 8

Washington State Cases:

State v. Anderson, 94 Wn.2d 176, 616 P.2d 612 (1980)... eeeeecceeceeece 8

State v. Hennings, 129 Wn.2d 512, 919 P.2d 580 (1996)... 5, 6

State v. Manussier, 129 Wn.2d 652, 921 P.2d 473 (1996). eeoecccccceccc..., 6

Washington State Statutes:

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|

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

KARL ALAN SHULTZ, Petitioner,

v.

STATE OF WASHINGTON, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

WASHINGTON STATE SUPREME COURT

The petitioner, Karl Alan Shultz, respectfully prays that a writ of

certiorari issue to review the decision of the Supreme Court of the State of

Washington, entered in the above-entitled proceedings on July 29, 1999. A

motion for reconsideration was denied on October 14, 1999.

OPINIONS BELOW

The opinion of the Washington State Supreme Court is reported at

138 Wn.2d 638, ___ Ss P.2d __, (1999) and is reprinted in the appendix

hereto, p. 19a-27a, infra. The October 14, 1999, order denying motion for

reconsideration entered by the Washington State Supreme Court is

reprinted in the appendix hereto, p. 28a, infra.

The Order Re: Application for Additional Ten Years to Execute

Judgment of the Superior Court of Grant County, Washington has not been

reported. It is reprinted in the appendix hereto, p. 15a-16a, infra.

JURISDICTION

The Superior Court of Grant County, Washington, Honorable Evan

E. Sperline, entered Order Re: Application for Additional Ten Years to

Execute Judgment on October 13, 1997 (App., infra, 1Sa-16a). The State

of Washington through the Grant County Prosecutor filed Notice of Appeal

on October 19, 1997, and on November 4, 1997, the petitioner filed Notice

of Cross Appeal.

The Acting Chief Judge of Division III of the Washington State

Court of Appeals requested review by the Washington State Supreme Court

which was granted on March 11, 1999 (App., infra, 17a-18a).

The Washington State Supreme Court filed its opinion disfavorable

to petitioner on July 29, 1999, and petitioner’s motion for reconsideration

was denied by the Washington State Supreme Court on October 14, 1999

(App., infra, 19a-28a).

On December 21, 1999, Justice O’ Connor ordered that the time for

filing this petition for writ of certiorari be extended to and including

February 11, 2000 (Application No. 99A518).

The jurisdiction of this Court to entertain the petition for certiorari

is based upon 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The United States Constitutional provisions involved in this

petition are listed below, and the text of each is contained in the Appendix:

U.S. Const. art. 1, § 9 (App., infra, 29a).

U.S. Const. art. 1, § 10 (App., infra, 29a).

U.S. Const. amend. V (App., infra, 30a).

U.S. Const. amend. XIV, § 1 (App., infra, 30a).

The Washington State statutory provisions and amendments are

listed below, and the pertinent text of each is contained in the Appendix:

RCW 6.17.020 (App., infra, 30a)

RCW 9.94A.142, as stated in 1985 (App., infra, 31a).

RCW 9.94A.142, as stated in 1994 (App., infra, 32a).

RCW 9.94A.142, as stated in 1997 (also cited as 1997 Wn. Laws,

ch. 121, § 4) (App., infra, 33a).

RCW 9.94A.195 (App., infra, 36a).

RCW 9.944.200 (App., infra, 36a).

STATEMENT OF THE CASE

Petitioner, Karl Alan Shultz, was an 18 year old single person

living at his parents’ home in Quincy, Grant County, Washington, on

October 9, 1985, when he was charged by Information filed in the Grant

County Superior Court with 16 counts of arson — three (3) counts in the

first degree, twelve (12) counts in the second degree, and one (1) count of

reckless burning in the second degree.

Petitioner was suffering from cocaine addiction and pyromania and

both conditions were treatable. By way of plea bargain petitioner entered a

plea of guilty to each of fifteen (15) counts of arson in the second degree

and one (1) count of reckless burning in the second degree and was

sentenced to a maximum sentence of ten ( 10) years for each count to run

concurrently. Petitioner was also required to serve twenty-four (24 )

months of incarceration. Among other financial obligations, he was

required to make monthly restitution payments applying toward the total

restitution of $507,131.62 during the ten (10) year length of his sentence.

Payments were to be made at the rate of $100.00 per month and to be

monitored by the Washington State Department of Corrections during the

ten (10) year maximum period (App., infra, la-12a).

The sentence entered on April 7, 1987, was consistent with the

1985 version of the state sentencing statute in effect at that time — RCW

9.94A.142. The sentence conforming to then RCW 9.94A. 142 was to

commence on the date of Judgment and Sentence, April 7, 1987.

Petitioner was released from custody on October 7, 1987. Asa

result of his conviction, employment was initially difficult to obtain. On

June 16, 1989, he was brought before the Grant County Superior Court

regarding his court sentence required financial obligations. The Court

accepted petitioner’s reasons for difficulty and no penalty for violation of

the conditions resulted.

Petitioner found employment, and thereafter diligently and timely

made restitution payments as required. He married and the couple had two

children. In every respect he carried out the terms and conditions of his

sentence.

In 1994, the Washington State Legislature amended RCW

9.94A.142 which extended the ten (10) year criminal jurisdiction of the

sentencing court from the former commencement date which began on the

date of entry of judgment and sentence. The 1994 amendment provided

that the commencement date would begin on the date of release from

confinement, or the date of entry of judgment and sentence, whichever was

later. Based upon the 1994 amendment, the petitioner was brought before

the Grant County Superior Court concerning the extension of criminal

jurisdiction of that court from April 7, 1997, to October 7, 1997, ten (10)

years from the date of his release. At this hearing, the court, petitioner and

petitioner’s counsel were advised that the Washington State Legislature

was, at that time, considering legislation to amend RCW 9.94A.142 to

permit the extension of criminal jurisdiction over previously convicted

persons for restitution purposes for an additional ten (10) year period

following termination of the original maximum sentence period. In

petitioner’s situation such intended legislation would extend his maximum

ten (10) year sentence period under the criminal jurisdiction of the

sentencing court for a further term of ten (10) years.

The matter was set for review on September 23, 1997, which was

past the maximum ten (10) year term for continuing criminal jurisdiction

under the original judgment and sentence and the 1985 version of RCW

9.94A.142 under which the sentence was imposed, which sentence term

would have expired on April 7, 1997.

The Washington State Legislature enacted the proposed

amendment in April, 1997, and it became effective on July 27, 1997.

On September 30, 1997, the Grant County Pro. ecutor’s Office, on

behalf of the Grant County Clerk, moved to extend the criminal jurisdiction

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by the Grant County Superior Court for an additional ten (10) years to

enforce the restitution provisions of the petitioner’s judgment and sentence.

The petitioner contested the State’s motion and filed a

memorandum of legal authorities contending that the amendatory

legislation extending the maximum length of petitioner’s sentence violated

his constitutional rights in the following respects:

1) The legislation violated the ex post facto provisions of

the United States Constitution art. I, § 10; and

2) Imposition of the ten (10) year extension of the

petitioner’s maximum sentence through amendment of the

sentencing statute deprived him of due process under the United

States Constitution, Amendment XIV, § 1; and

3) The ten (10) year extension of petitioner’s maximum

sentence through statutory amendment of RCW 9.94A. 142 served

to place petitioner twice in jeopardy under the United States

Constitution, Amendment V, for the offenses with which he had

been charged, had entered pleas of guilty, and had been sentenced.

Thus, the extension amounted to a later, second punishment for the

same Criminal act.

4) That the amendatory legislation and its application to

petitioner constituted a bill of attainder prohibited by the United

States Constitution, art. I, § 10, in that it is a legislative enactment

which applies to named individuals or to easily ascertainable

members of a group in such a way as to inflict punishment on them

without judicial trial.

The petitioner raised the same contentions based upon the relevant

provisions of the Washington State Constitution.

On October 13, 1998, the Superior Court issued its decision in

Order Re: Application for Additional Ten Years to Execute Judgment

which held, in essence, that though the civil recovery provisions of the

amendatory legislation was procedural, and this could be imposed, that the

amendment as applied to petitioner by continuing criminal jurisdiction and

penalty incarceration provisions violated the prohibition against ex post

facto legislation by states, declared petitioner’s sentence terminated as of

October 7, 1997, and that he was no longer subject to the criminal

jurisdiction of the Superior Court (App., infra, 15a).

The Superior Court based this decision in large measure upon the

penal characteristics of the legislation which was enforceable by imposition

of a sixty (60) day term of incarceration for each violation of the

sentencing court’s restitution orders. RCW 9.94A.200.

Following the decision by the Grant County Superior Court, the

State initiated an appeal therefrom by filing a Notice of Appeal to the

Washington State Court of Appeals, Division III, on October 29, 1997.

The petitioner filed Notice of Cross Appeal on November 4, 1997,

contesting that portion of the Superior Court’s order which extended civil

liability collection procedures.

On March 5, 1999, the Acting Chief Judge requested certification

of the questions presented by the appeal by the Washington State Supreme

Court which granted review on March 11, 1999 (App., infra, 17a-18a).

On July 29, 1999, the Court filed and issued its en banc Opinion

reversing the Superior Court’s decision (App., infra, 19a-27a).

In determining the issues before it, the Washington State Supreme

Court decided both federal and state constitutional questions based upon

Washington case law citing cases of that state. Though purporting to

decide the United States Constitutional issues raised in the appeal, only two

federal cases were cited as authority in its opinion relative to the bills of

attainder issue (App., infra, 25a).

In reversing the Grant County Superior Court, the Washington

State Supreme Court held that neither the 1994 nor the 1997 amendments to

RCW 9.94A.142 altered the standard of punishment (Hennings, 129 Wn.2d

at 527), and that neither did the amendments have any effect on the quantum

of punishment, since the original amount of restitution was not increased, but

merely extended the length of the sentencing court’s jurisdiction to enforce

the restitution required by the petitioner’s sentence. For that reason the

Washington State Supreme Court held that the 1994 and 1997 sentencing

amendments did not violate the ex post facto provisions of either the United

States or Washington State constitutions (App., infra, 22a-23a).

Concerning the extension of the criminal jurisdiction of the

sentencing court and its power to jail a defendant for each failure to comply

with the restitution portion of the sentence, the Washington State Supreme

Court held that the 1997 amendment merely “. . . maintains the status quo. .

.. If the sentencing court “. . .chooses to extend its jurisdiction. . .” (App.,

infra, 23a).

Concerning the question of whether petitioner's due process rights

had been violated, the Washington State Supreme Court held that at the

time of his sentencing “. . .Shultz had only a mere expectation that the

court’s jurisdiction over his restitution order would expire on a particular

date...” And, that petitioner *. . . fails to establish he had a vested right in

the expiration date of the restitution order. . .”" The Court went on to state

that the language of the 1997 amendment is discretionary, and that the trial

court (sentencing court) had held additional proceedings to consider the

State's request for an extension of jurisdiction, and that petitioner was

given notice of the request, appeared through his attorney, and filed a

memorandum opposing the extension, and that had the sentencing court

extended jurisdiction, such an action would have constituted “. . . an

indirect and tangential consequence of Shultz’ guilty plea, so as to

withstand his due process challenge to the 1997 amendment.” The court

thus concluded by ruling that lengthening of the court’s jurisdiction over

his restitution order did not interfere with a vested right, and extension of

the court’s jurisdiction was not a direct consequence of his plea. (App.,

infra, 24a-25a).

Regarding the issue of whether the amendments constituted a bill

of attainder under U. S. Const. art. I, § 10 (and the state equivalent), the

Washington State court held that the 1994 and 1997 amendments did not

add to a defendant's punishment as originally imposed by the sentencing

court, and therefore do not inflict punishment. (App., Infra, 25a).

The Washington State court disposed of the double jeopardy issue

raised under the Fifth Amendment and its Washington State equivalent, by

merely stating that “. . Shultz has never suffered more than one restitution

punishment for his string of arsons, and that the 1994 and 1997

amendments did not impose further punishment for those crimes.” (App.,

Infra, 25a).

On October 14, 1999, the Washington State Supreme Court denied

reconsideration. (App., Infra, 28a).

REASONS FOR GRANTING THE PETITION

The Washington State Supreme Court decided the several issues

involving the United States Constitution almost solely on the basis of

Washington State case law and cited no federal case law on any of the

issues other than the bill of attainder question which actually cited two

Washington State cases, which, in turn cited federal cases (State v.

Hennings, 129 Wn.2d 512, 527, 919 P2d 580 (1996) citing Landgraf v.

USI Film Prods., 511 U.S. 244, 114 S. Ct. 1483, 1497, 128 L. Ed. 2d 229

(1994) and State v. Manussier, 129 Wn.2d 652, 666, 921 P.2d 473 (1996)

citing Nixon v. inistrator of Gen. Servs., 433 U.S. 425, 470, 97 S. Ct.

2777, 53 L. Ed. 2d 867 (1977) (App., infra, 25a).

Ex Post Facto

Under Article I, § 10, of the United States Constitution, states are

prohibited from passing ex post facto legislation. Collins v. Youngblood,

497 U.S. 37, 43, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990) (citing Calder v.

Bull, 30 S. (3 Call.) 386, 390-92 (1798).

Petitioner was sentenced on April 7, 1987, under the then current

and existing version of RCW 9.944.142 passed by the Washington State

Legislature in 1985 (App., infra, 3 la-32a). He was sentenced correctly and

validly by the sentencing court — the Superior court of Grant County,

Washington (App., infra, la-14a). He was sentenced for the crimes of

arson that he committed between August 24 and October 7 in 1985 while

the 1985 version of RCW 9.94A. 142 was in effect (App., infra, la-14a).

ee

The judgment and sentence entered on April 7, 1987, provided for

concurrent maximum sentences of ten (10) years from the date of the

Judgment and Sentence (App., infra, 12a). This was entirely consistent

with the 1985 statute, RCW 9.94A.142 (App., infra, 31a).

Petitioner’s maximum sentence under the 1985 version of RCW

9.94A.142 was due to expire on April 7, 1997. Under that statute, as well

as his Judgment and Sentence, he would not have been required to make

any further restitution payments. Persons claiming injury by his actions

had private civil remedies under Washington law which permitted

extension of any civil law judgments by judgment creditors. RCW

6.17.020(3) (App., infra, 30a).

The extension of the sentencing court’s criminal jurisdiction did

not result from any violation of the petitioner's conditions of sentence or

for failure to meet his court ordered restitution payments under his

judgment and sentence. It resulted only by virtue of the later passage of the

1994 and 1997 amendments to RCW 9.94A.142 (App., infra, 32a-36a).

A recent decision of the United States Court of Appeals for the

Sixth Circuit, United States v. Johnson, 181 F.3d 105 (Unpublished

Opinion, April 29, 1999) is presently before the United States Supreme

Court where certiorari has been granted. Johnson v. United States,

U.S. , 120 S. Ct. 370 (October 18, 1999). That case concerns the ex

post facto clause prohibition found in Article 1, § 9, of the Constitution.

The decision refers to the division between the decisions of the Sixth

Circuit and several others, and cites cases emanating from those circuits

relative to ex post facto clause decisions contrary to those of the Sixth

Circuit: United States v. Lominac, 144 F.3d 308, 312-16 (4th Cir. 1998);

United States v. Dozier, 119 F.3d 239, 242-44 (3d Cir. 1997); United States

v. Collins, 118 F.3d 1394, 1397-99 (9th Cir. 1997), and United States v.

eka: 25 F.3d 1117, 1119 (2d Cir. 1994).

Regardless of the division between the circuits, petitioner submits

that under case law of any and all of the circuit courts, the Washington

State 1994 and 1997 amendments would “. . . run afoul of the ex post facto

clause...” since “1) the statute must apply retroactively to past conduct;

and 2) the statute must work to the prejudice or disadvantage of the

defendant. . .” United States v. Johnson, supra, citing Miller v. Florida, 482

U.S. 423, 430, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987); Johnson v. United

Petitioner submits that the 1994 and 1997 amendments violate the

ex post facto clause by the effects thereof meeting the two basic criteria for

violation of art. I, § 10.

ltering the Stand: f Puni

The Sentencing Reform Act (SRA) of Washington State is found in

Chapter RCW 9.94A. The SRA ties restitution to criminal proceedings.

See RCW 9.94A.142 (1995): 1997 Wn. Laws. ch. 121, § 4. Failure to pay

restitution is punishable by incarceration. See RCW 9.94A.195 (1984)

(App., infra, 36a) and RCW 9.94A.200 (1984) (App., infra, 36a-38a).

Further, civil remedies are not limited when restitution is imposed. RCW

9.944.142; 1997 Wn. Laws, ch. 121, § 4. These characteristics of

Judgment and Sentence restitution orders require the conclusion that

restitution under the SRA is punishment.

And, the test for whether ex post facto punishment exists in this

case supports a finding of punishment. The test requires the court to

inquire first whether the legislature intended to inflict punishment.

Hudson, et al v. United States, 522 U.S. 93, 139 L. Ed. 2d 450, 118 S. Ct.

488 (1997); see also Kansas v. Hendricks, 521 U.S. 456, 138 L. Ed. 2d 501,

117 S. Ct. 2072 (1997). The Washington Legislature’s intent to punish is

evident by making restitution part of the Sentencing Reform Act of 1981.

Chapter RCW 9.94A. Further, the legislative history behind the 1997

amendment reveals that the 1997 amendment’s purpose is to punish. While

furnishing testimony in support of Engrossed House Bill 1096 (the 1997

amendment to RCW 9.94A.142), one Debbie Wilki, a spokesperson for the

Washington Association of County Officials, after noting that the 1997

amendment was the result of “extensive collaboration with the Prosecuting

Attorney’s Association, Department of Corrections and court personnel,”

testified that the bill’s primary purpose is “not to make money” but to hold

criminals responsible for the punishment imposed by the Court and to

reimburse victims (App., infra, 41a-43a). Further, Ms. Wilki testified that

even if the program cost more than it collected, it would be successful if it

held criminals responsible (App., infra, 43a).

The Washington courts consider legislative committee hearing

testimony as a source to determine legislative intent. State v. Anderson, 94

Wn.2d 176, 187, 616 P.2d 612 (1980).

Further, the statutory scheme is also so punitive in purpose and

effect “to create punishment.” Kansas v. Hendricks. supra.

The purposes behind the prohibition of ex post facto laws support a

finding of punishment. There are two essential purposes for the ex post

facto clause: 1) providing fair notice of the extent of the penalty attaching

to criminal conduct; and 2) prevention of arbitrary and vindictive

legislation. See, e.g. Weaver v. Graham, 450 U.S. 24, 67 L. Ed. 2d 17, 101

S. Ct. 960 (1981). Retroactively increasing criminal jurisdiction to modify

the amount, terms and conditions of restitution, and to enforce by further

incarceration denies an offender fair notice of the extent of the penalty for

committing arson and leaves governmental power unrestrained. Lynce v.

Mathis, 519 U.S. 433, 137 L. Ed. 2d 63, 117 S. Ct. 891. 896 (1997) quoting

Weaver v. Graham, supra.

The 1994 amendment along with the 1997 amendment had the

express effect of extending the criminal sentence by an additional ten (10)

years during which the petitioner was faced with the possibility or potential

of imposition of incarceration for any failure to make payments. RCW

9.94A.195 and RCW 9.94A.200.

The ex post facto prohibition extends to the federal government

and the states, and is construed as having similar effect:

Article I of the United States Constitution provides that neither

Congress nor any State shall pass any “ex post facto Law.” See

Art. I, § 9, cl. 3; Art. I, § 10, cl. 1...

Miller v. Florida, supra [482 U.S. 429].

On the ex post facto question alone, this case presents a serious

departure from interpretations by federal courts of Art. 1, § 10, cl. 1, of the

United States Constitution. Obviously, the question created by the 1994

and/or 1997 amendments to RCW 9.94A.142 have or will affect defendants

other than the petitioner. Certainty that the Washington Supreme Court,

and other appellate courts of Washington State, will abide by the United

States Constitutional provisions is necessary to preserve the rights of those

residing in Washington State. The petitioner submits that this one question

by itself is worthy of the attention of the Supreme Court which should

grant the petition.

Due Process Question

The petitioner’s due process rights are violated by the 1997

amendment because the amendment retroactively divests Mr. Shultz of his

reasonable expectation that restitution would last for only ten (10) years,

and the summary change of the court’s authority to impose restitution

prevents Mr. Shultz’s plea from being knowing, voluntary and intelligently

made.

The Constitution of the United States prohibits states from

depriving individuals of life, liberty or property without due process of law.

U. S. Const. Amend. XIV, § 1.

The due process guarantee under the Fourteenth Amendment

requires that a plea bargain by a defendant be knowing, intelligent and

voluntary. Henderson v. Morgan, 426 U.S. 637, 644-45, 49 L. Ed. 2d 108,

96 S. Ct. 2253 (1976); Boykin v. Aiabama, 395 U. S. 238, 242-43, 23 L.

Ed. 2d 274, 89 S. Ct. 1709 (1969).

Petitioner knew that he would be required to pay restitution when

he entered into his plea agreement in this case, but was informed that

criminal jurisdiction over him would terminate in ten (10) years at the end

of his maximum sentence. The 1997 amendment had the effect of

extending criminal jurisdiction for an additional ten (10) years with the

same penal provisions to enforce the extended period of criminal

9

jurisdiction relating to restitution. Petitioner could not possibly give a

knowing, intelligent and voluntary plea if the state could summarily,

through later legislation, double the duration of criminal jurisdiction to

modify the amount, terms and conditions of restitution, and to enforce such

modification through incarceration.

The petitioner was thereby deprived of due process under the

Fourteenth Amendment and his petition should be considered and a writ of

certiorari granted based upon this question.

Double Jeopar stion

The double jeopardy clause of the United States Constitution

prohibits the application of the 1997 amendment of RCW 9.94A.142 to

petitioner’s 1987 sentence because the amendment would increase the

punishment of a sentence that was correct when entered.

The United States Constitution prohibits placing any person twice

in jeopardy for the same crime. U. S. Const. amend. V.

The petitioner’s sentence was correct when entered on April 7,

1987, in accordance with the 1985 version of RCW 9.94A.142. The double

jeopardy clause of the United States Constitution prohibits increasing a

correct sentence. United State v. DiFrancesco, 449 U.S. 117, 138-39, 66 L.

Ed. 2d 328, 101 S. Ct. 426 (1980). See also Ex Pa rte Lange, 85 U. S. (18

Wall.) 872 (1873).

The 1997 amendment allows the court to modify not only the

amount, but the terms and conditions of restitution. The 1997 amendment

allows these changes to be made under the same cause number under which

the original sentence was issued. The predicate facts and offense have not

changed, and the 1987 judgment and sentence was correct.

Increasing the jurisdiction to modify the amount, terms and

conditions of restitution under the 1997 amendment would place petitioner

twice in jeopardy for his previously adjudicated offense, and the United

States Supreme Court should examine this question and grant certiorari.

Bill of Attainder Question

The 1997 amendment violates prohibitions concerning bills of

attainder because the amendment identified Mr. Shultz based upon a prior

offense and summarily allows an increase in the authority of the court to

impose restitution.

The Constitution of the United States prohibits states from passing

bills of attainder. U.S. Const. art. I, § 10. A bill of attainder is a legislative

act which applies to named individuals or to easily ascertained members of

a group in such a way as to inflict punishment on them without judicial

trial. See United States v. Brown, 381 U.S. 437, 442, 445, 14 L. Ed. 2d

484, 85 S. Ct. 1707, (1965). The prohibitions on bills of attainder prevent

10

legislatures from singling out disfavored persons and meting out summary

punishment for past conduct. Landgraf v. USI Film Prods., supra. In order

for a legislative enactment to be deemed a bill of attainder, it must (1)

specify the affected persons, (2) inflict punishment, and (3) lack judicial |

trial. Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468 |

U.S. 841, 847, 82 L. Ed. 2d 632, 104 S. Ct. 3348 (1984).

The 1997 amendment singles out Mr. Shultz because it applies to

him based upon a previously committed offense. Here, Mr. Shultz and

other individuals previously convicted of felonies are an identifiable class.

The predicate offense has already been committed and thus there is no way

to avoid the harsh effects of the 1997 amendment.

The 1997 amendment inflicts punishment upon Mr. Shultz. As

discussed under the analysis of the ex post facto issue and the double

jeopardy issue, and is incorporated in argument of this question.

Finally, the 1997 amendment does not allow for a judicial hearing

regarding additional punishment. The 1997 amendment simply

superimposes the additional jurisdiction upon Mr. Shultz, if an application

to extend criminal jurisdiction is made. See 1997 Wn. Laws, ch. 121, § 4

(RCW 9.94A.142) (App., infra, 33a-36a).

Based upon Mr. Shultz’s prior offense, the 1997 amendment

summarily increased the trial court’s authority to modify the amount, terms

and conditions of restitution and to enforce such orders by incarceration.

Such legislation constitutes a bill of attainder.

2 —Pueree Fae Oeewn o.

‘onflicti “isi

The federal court decisions cited in the foregoing four (4) |

Questions posed by this petition demonstrate the lack of conformity, q

inconsistency, and actual conflict between the decision of the Washington :

State Supreme Court in regard to those issues. The petitioner adopts and

incorporates by reference, those cases cited in argument concerning each

and all of the Questions in support of this final Question and argument.

CONCLUSION }

For these several and various reasons, based upon the Questions

presented by the petitioner, the petition for certiorari should be granted.

Respectfully submitted,

CLAIRMONT E. HORMEL

P. O. Box 370

Ephrata, WA 98823

Tel: (509) 754-2476

Counsel of Record for

Petitioner

1]

SUPERIOR COURT OF WASHINGTON FOR GRANT COUNTY

STATE OF WASHINGTON, )

) NO. 85-1-00156-0

Plaintiff, )

) JUDGMENT AND

) SENTENCE

) (FELONY)

KARL ALAN SHULTZ, )

SID# WA 13046106 )

LIN# QPD 85-09570 )

)

)

Defendant.

I. HEARING

1.1 A sentencing hearing in this case was held August 15, 1986.

1.2 Present at the sentencing hearing were:

Defendant: Karl Alan Shultz

Defendant's attorney: J. Luke McKean, C. E. Hormel.

and Michael D. Aiken

Prosecuting Attorney: Paul Klasen Other:

1.3 That state has moved for dismissal of Count(s) N/A.

1.4 Defendant was asked if there was any legal cause why judgment

should not be pronounced, and none was shown.

II. FINDINGS

Based on the testimony heard, statements by defendant and/or victims,

argument of counsel, the presentence report, and case record to date. the

court finds:

2.1 CURRENT OFFENSES(S): The defendant was found guilty on April

21, 1986, by plea of guilty to:

COUNT |: ARSON IN THE SECOND DEGREE, RCW

9A.48.03(1); Crime Code: 02016; Date of Crime: August 27,

1985; Incident # QPD 85-09570:

-1- JUDGMENT AND SENTENCE - KARL ALAN SHULTZ

la

COUNT 2: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: August 28,

1985; Incident # QPD 85-09570;

COUNT 3: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: August 30,

1985; Incident # QPD 85-09570;

COUNT 4: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September 3,

1985; Incident # QPD 85-09570;

COUNT 5: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September 3,

1985; Incident # QPD 85-09570;

COUNT 6: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September

11, 1985; Incident # QPD 85-09570;

COUNT 7: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September

12, 1985; Incident # QPD 85-09570;

COUNT 8: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September

15, 1985; Incident # QPD $5-09570;

COUNT 9: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September

16, 1985; Incident # QPD 85-09570;

COUNT 10: RECKLESS BURNING IN THE SECOND DEGREE,

RCW 9A.48.050(1); Crime Code: 02114; Date of Crime:

September 19, 1985; Incident # QPD 85-09570;

COUNT 11: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(i); Crime Code: 02016; Date of Crime: September

16, 1985; Incident # QPD 85-09570;

COUNT 12: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016, Date of Crime: September

22, 1985; Incident # QPD 85-09570;

PETE a

-2- JUDGMENT AND SENTENCE - KARL ALAN SHULTZ z

2a

~

COUNT 13: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September

22, 1985; Incident # QPD 85-09570:

COUNT 14: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September

23, 1985; Incident # QPD 85-09570:

COUNT 15: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date cf Crime: October 2.

1985; Incident # QPD 85-09570:

COUNT 16: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: October 7,

1985; Incident # QPD 85-09570;

( ) With special verdict/finding for use of deadly weapon on

Count(s) : N/A

() Current offenses encompassed the same criminal conduct and

should be counted as one crime in determining the offender

score (RCW 9.94A.400(1)): NONE

N

N

CRIMINAL HISTORY: The court finds that the defendant has the

following criminal history used in calculating the offender score

pursuant to RCW 9.944.360: No prior felony convictions.

2.3. SENTENCING DATA:

COUNT |: OFFENDER SCORE: 9+: SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: [0 years;

COUNT 2: OFFENDER SCORE: 9+: SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 3: OFFENDER SCORE: 9+: SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 4: OFFENDER SCORE: 9+: SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 5: OFFENDER SCORE: 9+: SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months, MAXIMUM: 10 years;

-3- JUDGMENT AND SENTENCE - KARL ALAN SHULTZ

3a

Lae eames nmr

nT ee Re te ie

COUNT 6: OFFENDER SCORE: 9+; SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 7: OFFENDER SCORE: 9+; SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 8: OFFENDER SCORE: 9+; SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 9: OFFENDER SCORE: 9+; SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 10: OFFENDER SCORE: UNRANKED

COUNT 1|1: OFFENDER SCORE: 9+; SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 12: OFFENDER SCORE: 9+; SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 13: OFFENDER SCORE: 9+; SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 14: OFFENDER SCORE: 9+; SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 15: OFFENDER SCORE: 9+; SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

COUNT 16: OFFENDER SCORE: 9+; SERIOUSNESS LEVEL:

IV; RANGE: 63 - 84 months; MAXIMUM: 10 years;

2.4 EXCEPTIONAL SENTENCE:

(X) Substantial and compelling reasons exist which justify a

sentence above/below the standard range for Count(s). Findings

of Fact and Conclusions of Law are attached in Appendix D.

2.5 CATEGORY OF OFFENDER: The defendant is:

A. (X) Anoffender who shall be sentenced to confinement over

one year.

-4- JUDGMENT AND SENTENCE - KARL ALAN SHULTZ

4a

B. ( ) Anoffender who shall be sentenced to confinement one

year or less.

C. () A first time offender who shall be sentenced under the

waiver of the presumptive sentence range, (RCW

9.94A.030(12),.120 (5)).

2.6 RESTITUTION:

Based on information concerning restitution attached, the defendant is

responsible for payment of restitution:

(X) For offenses adjudicated herein pursuant to RCW 9.94A. 140 (1).

() For offenses which were not prosecuted and for which the

defendant agreed to make restitution in

a plea agreement, which is attached.

Ill. JUDGMENT

IT IS ADJUDGED that the defendant is guilty of the crime(s) of:

COUNT |: ARSON IN THE. SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: August 27,

1985; Incident # QPD 85-09570;

COUNT 2: ARSON IN THE. SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: August 28,

1985; Incident # QPD 85-09570;

COUNT 3: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: August 30,

1985; Incident # QPD 85-09570:

COUNT 4: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September 3,

1985; Incident # QPD 85-09570;

COUNT 5: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September 3,

1985; Incident # QPD 85-09570;

-5- JUDGMENT AND SENTENCE - KARL ALAN SHULTZ

Sa

COUNT 6: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September

11, 1985; Incident # QPD 85-09570;

COUNT 7: ARSON IN THE SECOND DEGREE, RC'W

9A.48.030(1); Crime Code: 02016; Date of Crime: September

12, 1985; Incident # QPD 85-09570;

COUNT 8: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September

15, 1985; Incident # QPD 85-09570:

COUNT 9: ARSON IN THE SECOND DEGREE, RCW

9A.48.030( 1); Crime Code: 02016; Date of Crime: September

16, 1985; incident # QPD 85-09570,

COUNT 10: RECKLESS BURNING IN THE SECOND DEGREE,

RCW 9A.48.050 (1), Crime Code: 02114; Date of Crime:

September 19, 1985; Incident # QPD 85-09570;

COUNT Il: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September

16, 1985; Incident # QPD 85-09570;

COUNT 12: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September

22, 1985; Incident # QPD 85-09570;

COUNT 13: ARSON IN THE SECOND DEGREE, RCW

9A.48.030(1); Crime Code: 02016; Date of Crime: September

22, 1985; Incident # QPD 85-09570;

COUNT 14: ARSON IN THE SECOND DEGREE, RCW

9A.48.030( 1); Crime Code: 02016; Date of Crime: September

23, 1985; Incident # QPD 85-09570,

COUNT 15: ARSON IN THE’ SECOND DEGREE, RCW

9A.48.030( 1); Crime Code: 02016; Date of Crime: October 2,

1985; Incident # QPD 85-09570;

COUNT 16: ARSON IN THE SECOND DEGREE, RCW

9A.48.030( 1); Crime Code: 02016; Date of Crime: October 7,

1985; Incident # QPD 85-09570;

-6- JUDGMENT AND SENTENCE — KARL ALAN SHULTZ

6a

() With special verdict/finding for use of deadly weapon on

Count(s) : N/A

( ) Current offenses encompassed the same criminal conduct and

should be counted as one crime in determining the offender

score (RCW 9.944.400 (1) ): NONE

IV. ORDER

IT 1S ORDERED that the defendant serve the determinate sentence and

abide by the conditions set forth below:

4.1 MONETARY ASSESSMENTS:

Defendant shall pay to the Clerk of this Court:

(XX) A. COSTS: Court costs, to be taxed by the Clerk of the Court.

(XX) B. VICTIM ASSESSMENT: Penalty assessment pursuant to

RCW 7.68.035: $ 70.00

(X) C. RESTITUTION: Restitution payments (with credit for

amounts paid by co-defendants, if any) to:

Dick Poldervart $ 27,754.10

P. O. Box 335

Quincy, WA 98848

Mills Mutual $ 14,048.90

1025 Security Building

Seattle, WA 98101

Policy No. A-852167

Warren Huston $ 250.00

Route |, 1082 Road R NW

Quincy, WA 98848

Unigard Insurance $ 34,748.81

P.O. Box 11

Wenatchee, WA 98801

Policy No. FOOS-863 |

-7- JUDGMENT AND SENTENCE - KARL ALAN SHULTZ

7a

Trinidad Grainery

Cenex - Full Circle

201 A. Street SE

Quincy, WA 98848

Industrial Risk Insurance

P. O. Box 64089

St. Paul, MN 55165-0089

Policy No. 31-327145

Flanagan & Jones

989 Road S NW

Quincy, WA 98848

Martin-Morris

P. O. Box 726

Quincy, WA 98848

Columbia Basin Nursery

Carl Perleberg

625 H Street SE

Quincy, WA 98848

Firemen’s Fund

Libke, Jones & Mitchell

P.O. Box 360

Wenatchee, WA 98801

Policy No. FRM 4965465

Mindi Robertson

425 J Street SW

Quincy, WA 98848

Travelers

Policy No. 914499278-663- 1

Frances Miller

202 M Street SW

Quincy, WA 98848

-8- JUDGMENT AND SENTENCE - KARL ALAN SHULTZ

8a

$ 10,000.00

$ 44,500.00

$ 16,012.26

$ 118,987.74

$ 1,100.00

$ 19,703.27

fF

100.00

$ 32,603.65

$ 148.00

National Farmer Union Ins. $ 4,135.12

321 S. Beech Street

Moses Lake, WA 98837

Policy No. 45-03503-4101

Cleo Thaemert $ 1,000.00

1599 Frenchman Hills Road

Quincy, WA 98848

Grain Dealers Mutual $ 149,000.00

1025 Security Bldg.

Seattle, WA

Policy No. A-854-046

Ted Neilson Construction $ 100.00

20 N Street SW

Quincy, WA 98848

Western Insurance Co. $ 1,000.00

Suite 215 Ist West

200 Ist Avenue W. C1900]

Seattle, WA 98119

Policy No. DW6439772

American States $ 14,000.00

Route 2 596 Road U NW

Quincy, WA 98848

Policy No. FF 042 469

Juan Rico $ 5,451.00

Route |, Box 18J-13

San Juan, TX 78589

TOTAL RESTITUTION $ 507,131.62

( ) D. RECOUPMENT FOR ATTORNEY FEES $

() E. FINE $

() F DRUG ENFORCEMENT FUND $

() G. OTHER

-9- JUDGMENT AND SENTENCE ~- KARL ALAN SHULTZ

9a

The above payments shall be made to the Grant County Superior Court

Clerk, P. O. Box 37, Ephrata, WA 98823, by certified check or money

order, and according to the following terms:

( ) Under the direction as provided by his Community

Corrections Supervisor.

(X) Atthe rate of $100.00, per month commencing November |,

1987.

(XX) The defendant shall provide a copy of receipts of such

payments to his Community Corrections Supervisor.

The Clerk of the Court shall credit monetary payments to the above

obligations in the above listed order. The Clerk shall disburse restitution

payments every six months on a pro-rata basis.

4.2 The court DISMISSES Count(s) M/A.

4.3. DETERMINATE JUDGMENT AND SENTENCE (FIRST TIME

OFFENDER WAIVER OF PRESUMPTIVE SENTENCE):

The Court having found that the defendant is a first time offender

under RCW 9.94A.030 (12) and RCW 9.94A. 120 (5), the court

waives the imposition of a sentence within the presumptive sentence

range, and further the court having determined that no legal cause

exists to show why a further judgment should not be pronounced, it is

therefore ORDERED, ADJUDGED and DECREED the defendant

serve the determinate sentence and abide by the conditions set forth

below:

(X) A. CONFINEMENT: The defendant is sentenced to a term of

total confinement in the Grant County Jail for 12 months each

on Counts | through 9, and I! through 16, to run concurrently,

and 12 months on Count 10 to run consecutively; with credit for

time served, to commence August 15, 1986. Defendant has

served 310 days in confinement before sentencing, as of August

15, 1986, and the confinement was solely in regard to the

offense(s) for which the offender is being sentenced. Defendant

shall not be credited with any good time. His release date is

scheduled at October 7, 1987.

-10- JUDGMENT AND SENTENCE - KARL ALAN SHULTZ

10a |

( ) B.ALTERNATIVE CONVERSION:

Ce & ____ days/months of total confinement are hereby

converted to days/months of partial confinement to be

served subject to the rules and regulations of the Grant

County Jail.

() & days of total confinement are hereby

converted to hours of community service to be

completed as follows:

(X) c. The defendant is eligible for an alternative sentence to

total confinement pursuant to RCW 9.94A.380, but

alternatives were not utilized because: This is a sentence

below the guidelines.

4.4 (X) COMMUNITY SUPERVISION:

Defendant shall serve 24 months of community supervision to

commence immediately upon release from jail . The defendant

shall report immediately upon release from jail to the

Community Corrections Office, 229 First Avenue Northwest.

Ephrata, Washington, 98823. The defendant shall comply with

all rules, regulations and requirements of the Community

Corrections Officer.

4.5. (X) OTHER CONDITIONS:

(X) a. The offender is restrained from committing new

offenses.

(X) b. The defendant shall totally abstain from the use of

alcohol during the term of his community supervision.

(X) c. The defendant shall totally abstain from the use of drugs,

except those prescribed by a physician.

(X) d. The defendant shall follow such course of treatment for

pyromania as directed by his community corrections

officer.

-11- JUDGMENT AND SENTENCE — KARL ALAN SHULTZ

lla

Se eee

The court shall retain jurisdiction over the defendant for a period of ten years.

Violations of the conditions or requirements of this sentence are punishable

by up to 60 days of confinement for each violation (RCW 9.94A.200 (2) ).

IT IS FURTHER ORDERED that the representation of the defendant by his

court appointed counsel is terminated 30 days from the date hereof.

SIGNED IN CHAMBERS this 7th day of April, 1987.

EVAN E. SPERLINE —- JUDGE

Presented by: Paul Klasen, Prosecuting Attorney

Approved as to form and notice of presentment waived

DATED: April 1, 1987

C. E. Hormel, Attorney for Defendant

Karl Alan Shultz

DATED: April 1, 1987

FINGERPRINTS

LEFT FOUR FINGERS Taken Simultaneously:

RIGHT FOUR FINGERS Taken Simultaneously:

Fingerprints of: KARL ALAN SHULTZ

Attested to this 7th day of April, 1987.

DEDRA J. OSBORN, Clerk

By: Dorothy J. McKay, Deputy Clerk

OFFENDER IDENTIFICATION

State 1.D. Number: WA 13046106

Date of Birth: 06-08-66

Sex: Male

Race: White

12- JUDGMENT AND SENTENCE - KARL ALAN SHULTZ

i2a

SUPERIOR COURT OF WASHINGTON FOR GRANT COUNTY

STATE OF WASHINGTON, )

) NO. 85-1-00156-0

Plaintiff, )

) JUDGMENT AND

V. ) SENTENCE (FELONY) —

) APPENDIX D, FINDINGS OF

) FACT AND CONCLUSIONS

KARL ALAN SHULTZ, ) OF LAW FOR EXCEPTION

) SENTENCE

Defendant. )

2.4 Anexceptional sentence below the standard range should be imposed

based upon the following Findings of Fact and Conclusions of Law:

I. FINDINGS OF FACT

1.1 That this Court, pursuant to RCW 9.94A.120 (2) has the

authority to impose a sentence outside of the standard range for these

offenses.

1.2 That in considering the purposes of the Sentencing Reform Act,

there are substantial and compelling reasons justifying an exceptional

sentence herein.

1.3 The defendant was motivated by Pyromania and acted under

compulsion. There are no therapy programs available for Pyromania

in prison.

1.4 The defendant had no intention of harming anyone.

1.5 Arson is defined as a violent crime and the defendant’s conduct

was void of violence. His behavior was not directed at any individual.

1.6 If incarcerated, the defendant would be subject to bodily harm

to the extent that his life may be endangered.

|.7 The defendant's remorse is sincere. During his incarceration in

the Grant County Jail, his conduct has been exemplary.

-13- JUDGMENT AND SENTENCE - KARL ALAN SHULTZ

13a

Il. CONCLUSIONS OF LAW

2.1 In considering the purpose of the Sentencing Reform Act, there

are substantial and compelling reasons justifying an exceptional sentence

herein.

2.2 Due to the defendant's mental, emotional and psychological

condition, the need of society and the public, the Court construes these as

factors which will allow the Court to depart from the standard range for the

offenses charged.

2.3 That the interests of justice and fairness, and the Sentencing

Reform Act are served by imposing an exceptional sentence in this case.

EVAN E. SPERLINE - JUDGE

Presented by: Paul Klasen, Prosecuting Attorney

Approved and notice of presentment waived:

DATED: April 1, 1987

C. E. Hormel, Attorney for Defendant

Karl Alan Shultz

DATED: April 1, 1987

-14- JUDGMENT AND SENTENCE — KARL ALAN SHULTZ

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF GRANT

STATE OF WASHINGTON, )

) NO. 85-1-00156-0

Plaintiff, )

) ORDER RE: APPLICATION

) FOR ADDITIONAL TEN

) YEARS TO EXECUTE

KARL ALAN SHULTZ, )

SID# WA 13046106 )

LIN# QPD 85-09570 )

)

)

JUDGMENT

Defendant.

This matter having come before the Court upon the application of the

State for an additional ten years to execute judgment and for order to show

cause, and the defendant, Karl Alan Shultz, having appeared in person and

by his attorney, C. E. Hormel, and having objected to and opposed said

motion, and the State having appeared by and through Jerald R. Hamley,

Grant County Deputy Prosecuting Attorney, and the Court having read the

State's application and letter of September 22, 1997, from the Grant

County Clerk, Gordon E. Harris, and having read the Memorandum

Opposing Extension of Jurisdiction for Payment of Restitution, and being

duly satisfied in the premises, hereby finds as follows:

I. That 1997 Laws of Washington, ch. 121, § 4, is violative of the

constitutional provisions of the United States Constitution, Article 1, § 10,

and the Constitution of the State of Washington, Article 1, § 23, in that said

legislative act is beyond a reasonable doubt ex post facto to the extent that

it purports to extend the criminal jurisdiction of the Superior Court and

would subject the defendant to any further criminal supervision and

punishment for violation of requirements of restitution more than ten years

following entry of Judgment and Sentence on April 7, 1987, or release

from incarceration on October 7, 1987; and

Il. That ch. 121, § 4, does permit extension of the collection of the

total restitution remaining at the date hereof with a present balance of

$496,987.04 for a period of ten more years to and from ten years following

Order re: Application for Additional

Ten Years to Execute Judgment — |

15a

the date of defendant's release from incarceration on October 7, 1987, as a

civil judgment, said civil enforcement of said judgment being limited to the

usual civil methods of enforcement of a judgment such as post judgment

garnishment, execution and attachment limited by and as permitted by civil

statutes and/or rules of-court.

NOW, THEREFORE

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the

criminal jurisdiction of the Superior Court shall cease and terminate on

midnight October 7, 1997, and the defendant Karl Alan Shultz, shall no

longer be subject to or burdened by the criminal jurisdiction arising from

the judgment and sentence of the Superior Court in Grant County cause

No. 85-1-00156-0, State of Washington, Plaintiff, v. Karl Alan Shultz,

Defendant, entered on April 7, 1987, and

FURTHER, that any enforcement of the restitution judgment in cause

No. 85-1-00156-0, State of Washington, Plaintiff, v. Karl Alan Shultz,

Defendant, from and after October 7, 1997, be accomplished solely by civil

enforcement measures as permitted by the civil judgment statutes and court

rules of the State of Washington.

DATED this 13th day of October, 1997.

EVAN E. SPERLINE — JUDGE

Entry of the above order does not constitute any approval or acceptance or

waiver of any rights, and all objections and rights of appeal from the above

order are hereby reserved by defendant, Karl Alan Shultz:

C. E. HORMEL, WSBA #3187

Attorney for Defendant

JERALD R. HAMLEY, WSBA #10593

Deputy Prosecuting Attorney

Order re: Application for Additional

Ten Years to Execute Judgment — 2

16a

THE COURT OF APPEALS OF THE

STATE OF WASHINGTON

DIVISION III

STATE OF WASHINGTON,

No. 17073-0-111

Appellant,

ORDER CERTIFYING

APPEAL

KARL ALAN SHULTZ,

Respondent and

Cross-Appellant.

Karl Shultz was ordered to pay $500,000 in restitution after pleading

guilty in 1987 to 15 counts of arson. The governing statute, RCW

9.944.142, was amended in 1994 and 1997 to expand the court's

jurisdiction. In 1995, RCW 6.17.020 was amended. giving victims an

additional 10 years to collect. In 1997, the State moved for extended

jurisdiction, The court granted the victims 10 years extended civil

execution on the judgment, but declined to extend criminal jurisdiction on

ex post facto grounds. The State appeals the court's declining of

jurisdiction under the 1997 amendment. Respondent cross-appeals an

earlier extension of jurisdiction under the 1994 amendment.

At issue in this appeal is whether RCW 9.94A.142 as amended is an

ex post facto law with respect to appellant.

This appeal is hereby certified to the Supreme Court.

DATED: March 5, 1999

FOR THE COURT:

FRANK L. KURTZ, Acting Chief Judge

17a

THE SUPREME COURT OF WASHINGTON

STATE OF WASHINGTON,

No. 67776-0

Appellant,

RULING ACCEPTING

CERTIFICATION

KARL ALAN SHULTZ,

Respondent and

Cross-Appellant.

By order dated March 5, 1999, this matter was certified to this court

by Division Three of the Court of Appeals pursuant to RCW 2.06.030.

Having reviewed the Court of Appeals file, I agree that the case warrants

direct review under the cited statute. Certification is therefore accepted.

Court of Appeals Cause No. 17073-0-111, in its entirety, is hereby

transferred to this court for determination on the merits.

At the direction of the Chief Justice, the oral argument set for March

23, 1999 in Personal Restraint Petition of Sappenfield, No. 67380-2, is

stricken. This case and Sappenfield will now be set for oral argument as

companion cases on May 11, 1999.

Geoffrey Crooks, COMMISSIONER

March I1, 1999

18a

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, |)

) No. 67776-0

Appellant, )

) En Bane

V )

) Filed July 29, 1999

KARL ALAN SHULTZ, )

)

Respondent )

IRELAND, J. - This certified appeal involves 1994 and 1997

amendments to RCW 9.94A. 142, a statute authorizing restitution orders

pursuant to a criminal conviction. We hold the 1994 and 1997 amendments

apply to Shultz’s 1987 restitution order, and they do not violate the ex post

facto clauses or due process. We reverse the trial court and remand.

FACTS

On April 21, 1986, Karl Alan Shultz pleaded guilty to 16 counts of

arson.

Shultz was sentenced on April 7, 1987, and his sentence included a

restitution order in the amount of $507,131.62, to be paid out to 20 victims

of the arsons. Shultz was released from custody on October 7, 1987. The

restitution order contained a specific payment plan, which required Shultz

to pay $100 a month, commencing November 1, 1987, to the superior court

clerk. The clerk was ordered to disburse the payments on a pro rata basis to

the listed victims.

RCW 9.94A.142 authorizes restitution orders for crimes committed

after July 1, 1985. The version of RCW 9.94A.142 in effect in 1987 stated

the sentencing court’s jurisdiction over a restitution order expired ten years

after imposition of the sentence. Laws of 1985, ch. 443, § 10. Under this

former version of the statute, the court’s jurisdiction over Shultz’s

restitution order would have expired April 7th, 1997. In 1994, however, the

Legislature amended RCW 9.94A.142 so as to calculate the 10-year

window from the date of sentencing or the date of release from total

confinement. Laws of 1994, ch. 271, § 601. Assuming this amendment

retroactively applies, the court’s jurisdiction over Shultz’s restitution order

was extended from April 7th, 1997, to October 7, 1997.

19a

In the course of this six-month period, the Legislature revisited RCW

9 94A.142 and added a further amendment. Laws of 1997, ch. 121, § 4.'

This amendment added the following sentence: “Prior to the expiration of

the initial ten year period, the superior court may extend jurisdiction under

the criminal judgment an additional 10 years for payment of restitution.”

Id. Pursuant to this 1997 amendment, on September 30, 1997, the State

filed an application requesting the trial court to extend the court's

jurisdiction over Shultz’s restitution order for an additional ten years. The

trial court considered the request, accepted briefing from Shultz’s counsel,

heard argument from the parties, and denied the request on constitutional

grounds. The court found the 1997 statute did authorize courts to extend

jurisdiction, but the court held such extension violated the ex post facto

clauses of the state and federal constitutions. On the other hand, the court

held that victims entitled to restitution could utilize existing civil law to

continue to collect on Shultz’s obligation.’ The State appealed the trial

court's ruling, and the Court of Appeals certified the appeal to the Supreme

Court.

ANALYSIS

Shultz raises four separate constitutional challenges to the 1994 and

1997 amendments of RCW 9.94A.142. Each challenge will be addressed in

turn,

The trial judge in this case refused to extend Shultz’s restitution order,

finding a ten-year extension under the 1997 amendment would violate the

ex post facto clause. While the trial court’s ruling focused solely on the

1997 amendment, Shultz argues in his cross-appeal that both the 1994 and

1997 amendments should be held unconstitutional. The only difference

between the two amendments as applied in this case is the length of time

each amendment extended the court's jurisdiction. The 1994 amendment

extended jurisdiction six months, while the 1997 amendment would have

extended the court's jurisdiction an additional ten years.

; This 1997 amendment became effective July 27, 1997

This case involves both the 1994 and 1997 amendments: The 1994 amendment

extended Shultz’s restitution order for six months in 1997, pushing it past the effective date

of the 1997 amendment. Absent the effect of the 1994 amendment, the restitution order

would have expired before the effective date of the 1997 amendment.

RCW 9.94A.142(6) allows a victim to enforce a restitution order in the same manner

as a civil pudgment. RCW 6.17.020(3) allows a party holding a civil judgment to petition a

court to extend the life of the judgment by an additional 10 years

20a

A statute is presumed to be constitutional, and the party attacking a

statute “has the heavy burden of proving its unconstitutionality beyond a

reasonable doubt.” State v. Blank, 131 Wn.2d 230, 235, 930 P.2d 1213

(1997) (citing State v. Hennings, 129 Wn.2d 512, 524, 919 P.2d 580

(1996); State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994)). The

constitutionality of a statute is a question of law which is reviewed de

novo. See State ex ref. Pub. Disclosure Comm'n v. 119 Vote No! Comm.,

135 Wn.2d 618, 623, 957 P.2d 691 (1998).

Legislation violates the ex post facto clauses of the state and federal

constitutions when it imposes punishment on an act which was not

punishable at the time the act was committed, or when it increases the

quantum of punishment for the crime after the crime was committed.

Hennings, 129 Wn.2d at 524-25 (citing U.S. CONST. art. I, § 10; Const §

23; Ward, 123 Wn.2d at 496). While prior case law had previously

suggested a “disadvantageous” law would violate the ex post facto ; clause,

this perspective has been narrowly limited: “*|T}he sole determination of

whether a law is “disadvantageous” is whether the law alters the standard

of punishment which existed under prior law.” Hennings, 129 Wn.2d at

525 (quoting Ward, 123 Wn.2d at 498).

Shultz claims the 1994 and 1997 amendments increase his

punishment, thereby violating the ex post facto prohibition. This

constitutional challenge relies on the assertion that restitution constitutes

punishment. Some cases do suggest in dicta that restitution is at least partly

punitive. See State v. Moen, 129 Wn.2d 535, 539 n.1, 919 P.2d 69 (1996);

In re Personal Restraint of Metcalf, 92 Wn. App. 165, 179, 963 P.2d 911

(1998), cert. denied, 119 S.Ct. 2405 (1999)). Notwithstanding these

suggestions, restitution is statutorily connected to victims’ losses:

[R]estitution . . . shall be based on easily ascertainable damages for injury to

or loss of property, actual expenses incurred for treatment for injury to

persons, and lost wages resulting from injury.

RCW 9.94A.142(1). See also State v. McClendon, 131 Wn.2d 853, 879.

935 P.2d 1334 (1997) (Sanders, J., dissenting) (“Nonpunitive sanctions

might include, for example, compensatory damages, restitution, and

forfeiture of stolen property for return to its rightful owner.”) (emphasis

added). In fact, restitution payments are paid to the superior court clerk and

disbursed directly to the victims, not to the State. Given this direct

connection to victims’ losses, restitution also contains a strong remedial

component.

A resolution of whether restitution is considered penal or remedial is

unnecessary in this case. Even if restitution is considered punitive, the 1994

and 1997 amendments have no effect on the quantum of punishment. The

amendments, as the State attempted to apply them in this case, did not

increase the original amount of restitution which the sentencing court

imposed in 1987. The 1994 amendment extended the court's jurisdiction

over Shultz’s restitution order for six months, and the 1997 amendment, if

the court had not found its application unconstitutional, would have

extended the jurisdiction another ten years. These amendments merely

extend the length of the sentencing court's jurisdiction to enforce the

restitution order, but Shultz’s legal obligation under the 1987 restitution

order was not impacted by the amendments. The amendments, therefore, do

not violate the ex post facto clause.

Shultz claims his punishment increases by virtue of the amendments

enabling the Department of Corrections (DOC) to collect money owed

under his restitution orders for a longer period of time-ultimately resulting

in the State, collecting more money than if the amendments did not apply.

The DOC’s being able to collect more of what Shultz legally owes,

however, does nothing to increase punishment, because collecting more of

the money which is already legally owed is not an increase of punishment.

See Hennings, 129 Wn.2d at 526 (finding no ex post facto violation with a

different amendment to RCW 9.94A.142 because “|t]here is no increase in

the amount of restitution authorized.”) (emphasis added). Shultz has no

legal right to pay /ess than he was ordered to pay by the original sentencing

court, so his punishment is not increased by extending the length of time

the DOC can collect on the restitution order.

Extending the life of a restitution order is analogous to extending the

statute of limitation on a criminal act. A person who commits a criminal act

is legally answerable to criminal prosecution for a certain period of time.

The person has no right to rely upon a fixed limitation period, and the

period can be extended without violating the ex post facto clause, so long

as the extension occurs before expiration of the original period. State v.

Hodgson, 108 Wn.2d 662, 669, 740 P.2d 848 (1987). Similarly, Shultz has

no right to rely upon a fixed limitation period for the life of a restitution

order.

Shultz claims the 1997 amendment authorizes the court to “modify

the amount, terms and conditions of restitution,” and he claims this

unconstitutionally increases his punishment. Br. of Resp./Cross Appellant

(hereinafter Br. of Resp’t) at 11. Shultz fails to acknowledge that a

sentencing court’s power to modify the amount, terms and conditions of

restitution existed before the 1997 amendment, and neither the 1994 or

1997 amendments affected these specific powers. The mere extension of

time during which a court has the power to act does not constitute an

increase in punishment. Shultz’s restitution order has never been increased

beyond its original sum of $507,131.62, nor did the State request to

increase that amount when it petitioned the court in 1997. The 1994 and

1997 amendments do not impact the total amount of restitution Shultz was

ordered to pay, so his punishment remains the same.

In a different context, when finding that a term of community

placement constituted punishment, this court relied heavily upon the fact

that it “imposes significant restrictions on a defendant's constitutional

freedoms.” State v. Ross, 129 Wn.2d 279, 286, 916 P.2d 405 (1996). The

effect of the 1997 amendment on Shultz’s restitution order does not

increase the severity of any restrictions on his constitutional freedoms-the

amendment merely allows him a longer period of time to pay off a legal

obligation. The mere extension of time for the enforcement of an existing

restitution order does not increase punishment. Extending a legal obligation

an additional 10 years may disadvantage a defendant, but it does not

increase the quantum of the punishment as imposed at the original

sentencing. Disadvantageous changes in the law that do not increase the

quantum of punishment do not violate the ex post facto clause. Hennings,

129 Wn.2d at 525-26

Shultz claims a court’s power to jail a defendant for up to 60 days for

failing to comply with a restitution order constitutes punishment. He claims

the 1997 amendment doubles the amount of time he could be jailed for

“any violation of the new conditions.” Br. of Resp’t at 18 (emphasis added).

Shultz is mistaken. No new conditions arise because of the 1997

amendment. The 1997 amendment simply maintains the status quo: Shultz

was originally ordered to pay $507,131.62 *o the victims of his criminal

acts, and his legal obligation simply continues under the 1997 amendment,

if a court chooses to extend its jurisdiction.

Finding no increase in his punishment when the sentencing court’s

jurisdiction over Shultz’s restitution order is extended, we reverse the trial

court, and hold that application of the 1994 and 1997 amendments to

Shultz does not violate the ex post facto clause. :

B. Due Process

Shultz’s due process challenge is equally meritless. A retroactive law

violates due process when it deprives an individual of a vested right.

Hennings, 129 Wn.2d at 528 (citing Caritas Servs. Inc. v. Department of

Soc. & Health Servs., 123 Wn.2d 391, 413, 869 P.2d 28 (1994)). A vested

right is a right that has “become ‘a title, legal or equitable, to the present or

future enjoyment of property.’” /n re F.D. Processing, Inc., 119 Wn.2d 452,

463, 832 P.2d 1303 (1992) (quoting Miebach v. Colasurdo, 102 Wn.2d 170,

181, 685 P.2d 1074 (1984)). **[A] mere expectation based upon an :

anticipated continuance of the existing law’”’ is insufficient to vest a legal

right. Hennings, 129 Wn.2d at 528 (quoting Caritas, 123 Wn.2d at 414);

see also F-D. Processing, 119 Wn.2d at 463. Shultz had only a mere

expectation that the court’s jurisdiction over his restitution order would

expire on a particular date. The restitution order is a legally imposed

financial obligation, and Shultz has proven no vested right in that legal

obligation expiring at any particular time. Shultz fails to establish he had a

vested right in the expiration date of the restitution order.

ne

Shultz presents an additional due process argument regarding the

1997 amendment. He claims due process is violated because his original

guilty plea in 1986 was not fully knowing and voluntary in light of the

1997 amendment allowing a trial court to double the length of its

jurisdiction. In other words, Shultz argues the trial court’s new

discretionary power to double its jurisdiction over restitution orders is a

“direct consequence” of his guilty plea. Since he was not aware of this

alleged direct consequence when he entered his plea (because the court’s

discretionary power to extend jurisdiction did not exist when his plea was

entered), Shultz claims his guilty plea is invalid.

A guilty plea is knowing and voluntary if the defendant was informed

of the; “direct consequences” of the plea. State v. Ross at 284. A direct

consequence is one that “represents a definite, immediate and largely

automatic effect on the range of the defendant’s punishment.” Id. (internal

quotation marks omitted). Sentencing conditions which result from

additional proceedings do not qualify as “immediate.” Id. at 285. An

extension of a trial court’s jurisdiction over restitution orders is neither

immediate nor automatic. The language of the 1997 amendment is

discretionary: “[T]he superior court may extend jurisdiction ....” Laws of

1997, ch. 121, § 4 (emphasis added). Furthermore, the trial court in this

case held additional proceedings to consider the State’s request for an

extension of jurisdiction. According to the trial court’s order, Shultz was

given notice of the extension request, appeared through his attorney, and

filed a memorandum opposing the extension. The trial court decided it

would not extend its jurisdiction on constitutional grounds. Had the court

agreed to extend its jurisdiction under the 1997 amendment, such an action

would have constituted an indirect and tangential consequence of Shultz’s

guilty plea, so as to withstand his due process challenge to the 1997

amendment.

The 1994 and 1997 amendments, as applied to Shultz, do not violate

due process. Lengthening the court’s jurisdiction over his restitution order

did not interfere with a vested right, and the extension of the court’s

jurisdiction is not a direct consequence of his guilty plea.

C. Bills of Attainder

The same constitutional sections prohibiting ex post facto legislation

also prohibit bills of attainder. See U.S. CONST. art. I, § 10; Const. art. I, §

23. This constitutional protection “prohibit[s] legislatures from singling out

disfavored persons and meting out summary punishment for past conduct.”

State v. Hennings, 129 Wn.2d 512, 527, 919 P.2d 580 (1996) (citing

Landgraf v. USI Film Prods., 51 1 U.S. 244, 114S. Ct. 1483, 1497, 128 L.

Ed. 2d 229 (1994)). A statute violates this constitutional protection if it

singles out named individuals or an easily ascertainable group and inflicts

punishment without a judicial trial. Id. Legislation does not rise to the level

of a bill of attainder if it merely requires a defined group to “‘bear burdens

which the individual or group dislikes ...."” State v. Manussier, 129 Wn.2d

652, 666, 921 P.2d 473 (1996) (quoting Nixon v. Administrator of Gen.

Servs., 433 U.S. 425, 470, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977)).

The 1994 and 1997 amendments to RCW 9.94A. 142 are not bills of

attainder because, as discussed above, they do not inflict punishment. The

amendments may be burdensome, but do not add to a defendant's

punishment as originally imposed by the sentencing court. Restitution was

imposed in 1987, and the amendments do not alter the original obligation.

See Hennings, 129 Wn.2d at 527 (finding an amendment to the restitution

statute “does not inflict punishment” because “[rJestitution was already

required under the SRA, RCW 9.94A.142.”).

D. Double Jeopardy

Because the 1994 and 1997 amendments do not inflict punishment,

they also fail to implicate the double jeopardy clauses of the Fifth

Amendment and article I, section 9 of our state constitution. Double

jeopardy protects a defendant from multiple punishments for the same

offense. Hennings, 129 Wn.2d at 528. Shultz has never suffered more than

one restitution punishment for his string of arsons. The 1994 and 1997

amendments do not impose further punishment for those crimes, so double

jeopardy is not implicated.

CONCLUSION

Finding no constitutional infirmity with either the 1994 or 1997

amendments to RCW 9.94A.142 as applied to Shultz, we reverse the trial

court’s finding of an ex post facto violation, and we remand for further

proceedings consistent with this opinion.

Ireland, J.

Guy, C.J. Madsen, J.

Alexander, J.

Smith, J. Talmadge, J.

Johnson, J.

SANDERS, J. (concurring)}—I agree in result but reject the self-

contradicting claim that a statute may be at once presumed constitutional,

unless proved otherwise “beyond a reasonable doubt” while, at the same

time, its “constitutionality . . . is a question of law which is reviewed de

novo.” Majority at 4-5. For the reasons expressed in /sland County v. State,

135 Wn.2d 141, 155-68, 955 P.2d 377 (1998) (Sanders, J., concurring), I

venture the majority got it right the second time.

Sanders, J.

26a

THE SUPREME COURT OF WASHINGTON

STATE OF WASHINGTON, )

) No. 67776-0

Appellant, )

) ORDER DENYING MOTION

v. ) FOR RECONSIDERATION

)

KARL ALAN SHULTZ, )

)

Respondent. )

The Court having considered the Respondent’s Motion for

Reconsideration:

Now, therefore, it is hereby

ORDERED:

That the Respondent’s Motion for Reconsideration is denied.

DATED at Olympia, Washington this 14th day of October, 1999.

Richard P. Guy

CHIEF JUSTICE

U. S. CONSTITUTIONAL PROVISIONS:

Art. 1, § 9.

Limitations upon powers of Congress

Section 9. The Migration or Importation of such Persons as any of

the States now existing shall think proper to admit, shall not be prohibited

by the Congress prior to the Year one thousand eight hundred and eight, but

a Tax or duty may be imposed on such Importation, not exceeding ten

dollars for each Person.

The Privilege of the Writ of Habeas Corpus shali aot be suspended,

unless when in Cases of Rebellion or Invasion the public Safety may

require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion

to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulations of Commerce or

Revenue to the Ports of one State over those of another; nor shall Vessels

bound to, or from, one State, be obliged to enter, clear, or pay Duties in

another.

No Money shall be drawn from the Treasury, but in Consequence of

Appropriations made by Law; and a regular Statement and Account of the

Receipts and Expenditures of all public Money shall be published from

time to time.

No Title of Nobility shall be granted by the United States: And no

Person holding any Office of Profit or Trust under them, shall, without the

Consent of the Congress, accept of any present, Emolument, Office, or

Title, of any kind whatever, from any King, Prince, or foreign State.

Art. 1, § 10.

Restrictions upon powers of states

Section 10. No State shall enter into any Treaty, Alliance, or

confederation; grant Letters of Marque and Reprisal; coin Money; emit

Bills of Credit; make any Thing but gold and silver Coin a Tender in

Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law

impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Impost

or Duties on Imports or Exports, except what may be absolutely necessary

for executing its inspection Laws; and the net Produce of all Duties and

Imposts, laid by any State on Imports or Exports, shall be for the Use of the

Treasury of the United States; and all such Laws shall be subject to the

Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of

Tonnage, keep Troops, or Ships of War in time of Peace, enter into any

Agreement or Compact with another State, or with a foreign Power, or

engage in War, unless actually invaded, or in such imminent Danger as will

not admit of delay.

U.S. Const. amend. V.

Capital crimes; double jeopardy; self-incrimination; due process;

just compensation for property

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law; nor shall

private property be taken for public use, without just compensation.

U.S. Const. amend. XIV, § 1.

Citizenship rights not to be abridged by states

Section |. All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United States and of

the State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

WASHINGTON STATUTORY PROVISIONS AND AMENDMENTS:

RCW 6.17.020.

Execution authorized within ten years — Exceptions — Fee —

Recoverable cost

(1) Except as provided in subsections (2) and (3) of this section, the

party in whose favor a judgment of a court of record of this state or a

district court of this state has been or may be rendered, or the assignee, may

have an execution issued for the collection or enforcement of the judgment

at any time within ten years from entry of the judgment.

(2) After July 23, 1989, a party who obtains a judgment or order of a

court of record of any state, or an administrative order entered as defined in

RCW 74.20A.020(6) for accrued child support, may have an execution

issued upon that judgment or order at any time within ten years of the

eighteenth birthday of the youngest child named in the order for whom

support is ordered.

(3) After June 9, 1994, a party in whose favor a judgment has been

29a

rendered pursuant to subsection (1) of this section may, within ninety days

before the expiration of the original ten-year period, apply to the court that

rendered the judgment for an order granting an additional ten years during

which an execution may be issued. The petitioner shall pay to the court a

filing fee equal to the filing fee for filing the first or initial paper in a civil

action in the court. When application is made to the court to grant an

additional ten years, the application shall be accompanied by a current and

updated judgment summary as outlined in RCW 4.64.030. The filing fee

required under this subsection shall be included in the judgment summary

and shall be a recoverable cost.

RCW 9.94A.142 (as stated in 1985):

Restitution — Applicable to offenses after July 1, 1985

(1) When restitution is ordered, the court shall determine the amount

of restitution due at the sentencing hearing or within sixty days and shall

set the terms and conditions under which the defendant shall make

restitution. Restitution ordered by a court pursuant to a criminal conviction

shall be based on easily ascertainable damages for injury to or loss of

property, actual expenses incurred for treatment for injury to persons, and

lost wages resulting from injury. Restitution shall not include

reimbursement for damages for mental anguish, pain and suffering, or other

intangible losses. The amount of restitution shall not exceed double the

amount of the offender’s gain or the victim’s loss from the commission of

the crime. For the purposes of this section, the offender shall remain under

the court’s jurisdiction for a maximum term of ten years subsequent to the

imposition of sentence. The portion of the sentence concerning restitution

may be modified as to amount, terms and conditions during the ten-year

period, regardless of the expiration of the offender’s term of community

supervision and regardless of the statutory maximum for the crime. The

offender’s compliance with the restitution shall be supervised by the

department.

(2) 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. 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.

(3) In addition to any sentence that may be imposed, a defendant who

has been found guilty of an offense involving fraud or other deceptive

practice or an organization which has been found guilty of any such offense

30a

a etre eae tert tomer nnn we

alist coma ed

may be ordered by the sentencing court to give notice of the conviction to

the class of persons or to the sector of the public affected by the conviction

or financially interested in the subject matter of the offense by mail, by

advertising in designated areas or through designated media, or by other

appropriate means.

(4) This section does not limit civil remedies or defenses available to

the victim, survivors of the victim, or defendant.

(5) This section shall apply to offenses committed after July 1, 1985.

RCW 9.94A.142 (as stated in 1994):

Restitution — Offenses committed after July 1, 1985

(1) When restitution is ordered, the court shall determine the amount

of restitution due at the sentencing hearing or within one hundred eighty

days except as provided in subsection (3) of this section. The court may

continue the hearing beyond the one hundred eighty days for good cause.

The court shall then set a minimum monthly payment that the offender is

required to make towards the restitution that is ordered. The court should

take into consideration the total amount of the restitution owed, the

offender's present past, and future ability to pay, as well as any assets that

the offender may have. During the period of supervision, the community

corrections officer may examine the offender to determine if there has been

a change in circumstances that warrants an amendment of the monthly

payment schedule. The community corrections officer may recommend a

change to the schedule of payment and shali inform the court of the

recommended change and the reasons for the change. The sentencing court

may then reset the monthly minimum payments based on the report from

the community corrections officer of the change in circumstances.

Restitution ordered by a court pursuant to a criminal conviction shall be

based on easily ascertainable damages for injury to or loss of property,

actual expenses incurred for treatment for injury to persons, and lost wages

resulting from injury. Restitution shall not include reimbursement for

damages for mental anguish, pain and suffering, or other intangible losses,

but may include the costs of counseling reasonably related to the offense.

The amount of restitution shall not exceed double the amount of the

offender’s gain or the victim’s loss from the commission of the crime. For

the purposes of this section, the offender shall remain under the court’s

jurisdiction for a maximum term of ten years following the offender's

release from total confinement or ten years subsequent to the entry of the

judgment and sentence, whichever period is longer. The portion of the

sentence concerning restitution may be modified as to amount, terms and

conditions during the ten-year period, regardless of the expiration of the

offender's term of community supervision and regardless of the statutory

maximum for the crime. The court may not reduce the total amount of

31a

restitution ordered because the offender may lack the ability to pay the total

amount. The offender’s compliance with the restitution shall be supervised

by the department.

(2) 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. 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.

(3) Regardless of the provisions of subsections (1) and (2) 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 of labor and industries, 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 of labor and

industries, the court shall hold a restitution hearing and shall enter a

restitution order.

(4) In addition to any sentence that may be imposed, a defendant who

has been found guilty of an offense involving fraud or other deceptive

practice or an organization which has been found guilty of any such offense

may be ordered by the sentencing court to give notice of the conviction to

the class of persons or to the sector of the public affected by the conviction

or financially interested in the subject matter of the offense by mail, by

advertising in designated areas or through designated media, or by other

appropriate means.

(5) This section does not limit civil remedies or defenses available to

the victim, survivors of the victim, or defendant. The court shall identify in

the judgment and sentence the victim or victims entitled to restitution and

what amount is due each victim. The state or victim may enforce the court-

ordered restitution in the same manner as a judgment in a civil action.

Restitution collected through civil enforcement must be paid through the

registry of the court and must be distributed proportionately according to

each victim’s loss when there is more than one victim.

(6) This section shall apply to offenses committed after July 1, 1985.

32a

RCW 9.94A.142 (as stated in 1997) (also cited as 1997 Wn. Laws, ch. 121,

§ 4):

Restitution — Offenses committed after July 1, 1985

(1) When restitution is ordered, the court shall determine the amount

of restitution due at the sentencing hearing or within one hundred eighty

days except as provided in subsection (4) of this section. The court may

continue the hearing beyond the one hundred eighty days for good cause.

The court shall then set a minimum monthly payment that the offender is

required to make towards the restitution that is ordered. The court should

take into consideration the total amount of the restitution owed, the

offender’s present, past, and future ability to pay, as well as any assets that

the offender may have. During the period of supervision, the community

corrections officer may examine the offender to determine if there has been

a change in circumstances that warrants an amendment of the monthly

payment schedule. The community corrections officer may recommend a

change to the schedule of payment and shall inform the court of the

recommended change and the reasons for the change. The sentencing court

may then reset the monthly minimum payments based on the report from

the community corrections officer of the change in circumstances. Except

as provided in subsection (3) of this section, restitution ordered by a court

pursuant to a criminal conviction shall be based on easily ascertainable

damages for injury to or loss of property, actual expenses incurred for

treatment for injury to persons, and lost wages resulting from injury.

Restitution shall not include reimbursement for damages for mental

anguish, pain and suffering, or other intangible losses, but may include the

costs of counseling reasonably related to the offense. The amount of

restitution snall not exceed double the amount of the offender’s gain or the

victim’s loss from the commission of the crime. For the purposes of this

section, the offender shall remain under the court’s jurisdiction for a term

of ten years following the offender's release from total confinement or ten

years subsequent to the entry of the judgment and sentence, whichever

period is longer. Prior to the expiration of the initial ten-year period, the

superior court may extend jurisdiction under the criminal judgment an

additional ten years for payment of restitution. The portion of the sentence

concerning restitution may be modified as to amount, terms and conditions

during either the initial ten-year period or subsequent ten-year period if the

criminal judgment is extended, regardless of the expiration of the ’

offender's term of community supervision and regardless of the statutory

maximum for the crime. The court may not reduce the total amount of

restitution ordered because the offender may lack the ability to pay the total

amount. The offender's compliance with the restitution shall be supervised

by the department of corrections for ten years following the entry of the

judgment and sentence or ten years following the offender's release from

total confinement. If jurisdiction under the criminal judgment is extended,

the department is not responsible for supervision of the offender during the

subsequent period.

(2) Restitution shal! 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 (3) 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.

(3) Restitution for the crime of rage of a child in the first, second or

third degree, in which the victim becomes pregnant, shall include: (a) All

of the victim’s medical expenses that are associated with the rape and

resulting pregnancy; and (b) child support for any child born as a result of

the rape if child support is ordered pursuant to a civil superior court or

administrative order for support for that child. The clerk must forward any

restitution payments made on behalf of the victim’s child to the Washington

state child support registry under chapter 26.23 RCW. Identifying

information about the victim and child shall not be included in the order.

The defendant shall receive a credit against any obligation owing under the

administrative or superior court order for support of the victim’s child. For

the purposes of this subsection, the offender shall remain under the court’s

jurisdiction until the defendant has satisfied support obligations under the

superior court or administrative order but not longer than a maximum term

of twenty-five years following the offender’s release from total

confinement or twenty-five years subsequent to the entry of the judgment

and sentence, whichever period is longer. The court may not reduce the

total amount of restitution ordered because the offender may lack the

ability to pay the total amount. The department shall supervise the

offender’s compliance with the restitution ordered under this subsection.

(4) Regardless of the provisions of subsections (1), (2), and (3) 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 of labor and industries, as administrator of

the crime victims’ compensation program, may petition the court within one

year of the entry of the judgment and sentence for entry of a restitution order.

Upon receipt of a petition from the department of labor and industries, the

court shall hold a restitution hearing and shall enter a restitution order.

34a

ie ie er ee cr tm

itil A tle t any ecir dees ee Mavala newet hax ies

(5) In addition to any sentence that may be imposed, a defendant who

has been found guilty of an offense involving fraud or other deceptive

practice or an organization which has been found guilty of any such offense

may be ordered by the sentencing court to give notice of the conviction to

the class of persons or to the sector of the public affected by the conviction

or financially interested in the subject matter of the offense by mail, by

advertising in designated areas or through designated media, or by other

appropriate means.

(6) This section does not limit civil remedies or defenses available to

the victim, survivors of the victim, or defendant including support

enforcement remedies for support ordered under Subsection (3) of this

section for a child born as a result of a rape of a child victim. The court

shall identify in the judgment and sentence the victim or victims entitled to

restitution and what amount is due each victim. The state or victim may

enforce the court ordered restitution in the same manner as a judgment in a

civil action. Restitution collected through civil enforcement must be paid

through the registry of the court and must be distributed proportionately

according to each victim’s loss when there is more than one victim.

(7) This section shall apply to offenses committed after July 1, 1985.

RCW 9.94A.195.

Violation of condition or requirement of sentence—Arrest by

community corrections officer —- Confinement in county jail

If an offender violates any condition or requirement of a sentence, a

community corrections officer may arrest or cause the arrest of the offender

without a warrant, pending a determination by the court. If there is

reasonable cause to believe that an offender has violated a condition or

requirement of the sentence, an offender may be required to submit to a

search and seizure of the offender’s person, residence, automobile, or other

personal property. A community corrections officer may also arrest an

offender for any crime committed in his or her presence. The facts and

circumstances of the conduct of the offender shall be reported by the

community corrections officer, with recommendations, to the court.

If a community corrections officer arrests or causes the arrest of an

offender under this section, the offender shall be confined and detained in

the county jail of the county in which the offender was taken into custody,

and the sheriff of that county shall receive and keep in the county jail,

where room is available, all prisoners delivered to the jail by the

community corrections officer, and such offenders shall not be released

from custody on bail or personal recognizance, except upon approval of the

court, pursuant to a written order.

35a

|

,

RCW 9.94A.200.

Noncompliance with condition or requirement of sentence —

Procedure — Penalty

(1) If an offender violates any condition or requirement of a

sentence, the court may modify its order of judgment and sentence and

impose further punishment in accordance with this section.

(2) In cases where conditions from a second or later sentence of |

community supervision begin prior to the term of the second or later

sentence, the court shall treat a violation of such conditions as a violation

of the sentence of community supervision currently being served.

(3) If an offender fails to comply with any of the requirements or

conditions of a sentence the following provisions apply:

(a) (i) Following the violation, if the offender and the department

make a stipulated agreement, the department may impose sanctions such as

work release, home detention with electronic monitoring, work crew,

community service, inpatient treatment, daily reporting, curfew,

educational or counseling sessions, supervision enhanced through

electronic monitoring, jail time, or other sanctions available in the

community.

(ii) Within seventy-two hours of signing the stipulated agreement, the

department shall submit a report to the court and the prosecuting attorney

outlining the violation or violations, and sanctions imposed. Within fifteen

days of receipt of the report, if the court is not satisfied with the sanctions,

the court may schedule a hearing and may modify the department's

sanctions. If this occurs, the offender may withdraw from the stipulated

agreement.

(iii) If the offender fails to comply with the sanction administratively

imposed by the department, the court may take action regarding the

original noncompliance. Offender failure to comply with the sanction

administratively imposed by the department may be considered an

additional violation.

(b) In the absence of a stipulated agreement, or where the court is not

satisfied with the department’s sanctions as provided in (a) of this

subsection, the court, upon the motion of the state, or upon its own motion,

shal! require the offender to show cause why the offender should not be

punished for the noncompliance. The court may issue a summons or a

warrant of arrest for the offender’s appearance;

(c) The state has the burden of showing noncompliance by a

preponderance of the evidence. If the court finds that the violation has

occurred, it may order the offender to be confined for a period not to

exceed sixty days for each violation, and may (i) convert a term of partial

confinement to total confinement, (ii) convert community service

obligation to total or partial confinement, (iii) convert monetary

obligations, except restitution and the crime victim penalty assessment, to

community service hours at the rate of the state minimum wage as

established in RCW 49.46.020 for each hour of community service, or (iv)

order one or more of the penalties authorized in (a)(i) of this subsection.

Any time served in confinement awaiting a hearing on noncompliance shall

be credited against any confinement order by the court; and

(d) If the court finds that the violation was not willful, the court may

modify its previous order regarding payment of legal financial obligations

and regarding community service obligations.

(4) Nothing in this section prohibits the filing of escape charges if

appropriate.

37a

PUBLIC HEARING BEFORE HOUSE LAW & JUSTICE

Chairman

Sheahan:

Eide:

Chairman

Sheahan:

Siri

Woods:

COMMITTEE REGARDING HOUSE BILL 1096

OF JANUARY 29, 1997

Okay, lets go to, uhh, House Bill 1096. Number one on the

agenda. Eide would you like to explain that one?

When an adult or a juvenile offender is found to have

committed an offense the court may impose legal financial

obligations such as restitution, crime victim compensation

fees, or court cost. In 1995, the Legislature amended the

statute of limitations for the enforcement of judgements to

allow for the collection of a legal financial obligation for up

to 10 years after the date of entry of that judgement, or 10

years after the date when the offender is released from total

confinement. In addition, the amendments provided that a

party who obtains a judgement may seek an additional 10 3

year extension on the judgement. There is some question as to :

whether or not the clerk of the Superior Court is a party ;

within that provision. House Bill 1096 provides that a

judgment imposing legal financial obligations including

crime victims assessments may be extended by the county

clerk for an additional 10 years, solely for the purpose of

collecting unpaid court obligations, through a collection

agency or a collection services department. The extension of

the period to collect these obligations from a felony offender

does not extend the Department of Correction responsibility

for supervising the offender. In addition, the bill provides that

when a juvenile offender turns 18 or when juvenile court

jurisdiction concludes, whichever it is later, the Superior

Court must docket the balance of the juvenile financial

obligations and those obligations remain enforceable for 10

years.

4

§

Representative...Okay, any questions for Eiddi? Okay, Siri

Woods and Debbie Wilki would you come forward?

I want to thank you for allowing me to testify on this bill.

This is kind of near and dear to my heart. The handout that

your staff will be giving you is a report on my collection

38a

project. We started a collection project three years ago in

Chelan County and we’ ve seen, uhm, a real benefit to not

only the county, but the state, and to victims. From the

process, this is another tool that we are asking for and as your

, staff report said a couple years ago we tried to add this

extension to it. We have always been able to collect for 10

years, well not always, the periods changed over the last 20

years from 6 to 8 to 10 years as the life of any judgement and

when we extended the judgement for 10 year on civil cases,

uhm, we thought that it was all judgments and, uhm, we had

opinions from the attorney general and prosecutors that it

didn’t cover criminal judgments. So what we’re seeking to do

now is clarify that it does, uhm, apply to criminal judgments

and that, uhh, the clerk may do the extending for the purposes

of collecting. Uhm, on that chart that you were handed, uhm,

the first column is the difference in the annual return from °93

to ’96 and the first column is county revenue and as you can

see, we’ ve increased, we increased the annual, uhm, revenue

to the county in a collection project by 550,000 dollars a year.

The next one is the state. Uhh, the difference in the state, we

are bringing 510,000 dollars more to the state every year,

uhh, just the collection project. And the last one is the victims

and we’re bringing over $60,000 dollars a year more to, uhm,

victims from our project in Chelan County then we were

when just the Department of Corrections was collecting. So

having clerks collect and having the ability to use these tools

is important for victims as well as the courts themselves and,

uhm. I would really encourage you to pass this. And, and I

would remind you that this bill, uhh, was, uhh, sponsored last

year by the chairman of this committee and it died, uhh, on

the Senate Calender last year it finally died. So it had the

support, it still does, and I really encourage you to vote for it.

Chairman

Sheahan: Okay, can you give your name for the record?

Siri

Woods: Yes, oh, I’m sorry. Siri Woods, Chelan County Clerk. And

I’m here on behalf of the Washington Association of County

Clerks.

Chairman

Sheahan: Representative Carol had a question.

39a

Rep. Carol:

Siri

Woods:

Chairman

Sheahan:

Debbie

Wilki:

I, I just, uhh, am kind of curious of, of, uhh, what other

things, I mean this impressive of increase of collection. I am

just wondering often times there may be some other factors

that, uhm, might not be present, other counties that might be

using this, that could explain this fairly phenomenal increase

in collection. Are there other things that maybe because its

project or that maybe other counties or in general our

expectation of how, how, uhh, dramatic this is gonna be will

not be realized?

et at Wh ate aes we

I don’t think so. Uhh, it, it, depends on the amount of :

resources that are dedicated to it. In Chelan County there's

one person that I had to beg to get on a, on a, pilot project.

Uhm, I asked the commissioners if they'd fund it for six

months if I could produce enough revenue to pay for the

position and we’ ve continued, as you can see, the increase the 3

revenue to everyone. And I think that the, uhm, the way that 3

collections have been handled in Superior Courts has |

traditionally been to let the Department of Corrections do it,

uhm because our return was not that good and, uhh, because

there enforcing all of the terms of a judgment and sentence.

Uhh, I think the emphasis from the court itself and from the

clerks office is what makes a difference and I think any kind

of activity will generate this kind of results.

Any other questions? Okay, Debbie did you want, uhh,

comment?

My name is Debbie Wilki. I am with the Washington

Association of County Of finials. Uhh, along with my duties,

I support the Legislation, the County Clerks Association and,

uhh, this bill was voted unanimously out of this committee

last year as Siri said. In the meanwhile, we did a little

additional cleanup that based on recent court cases, uhh, but

basically this bill is the product of extensive collaboration

with the Prosecuting Attorneys Association, uhh, Department

of Corrections, uhh, court personnel, and all involved. And

we feel that it’s really a good idea to go forward with it now.

Probably the most striking example I could give you of, of,

why, uhh, the clerk or the Superior Court should have the

40a

Chairman

Sheahan:

Rep. Carol:

Chairman

Sheahan:

Rep. Carol:

Chairman

Sheahan:

Rep. Carol:

Debbie

Wilki:

ability to extend the collection of criminal legal financial

obligations is, uhh, one I gave to someone who questioned me

over the telephone, but I can’t remember who it was. But,

recently there was a juvenile in Lincoln County Superior

Court who was sentenced to 34 months incarceration. He was

17 years old. Uhh, the damage that he did when he, uhh,

started an arson fire on the courthouse finally the builder tally

that came to the tune of 7.5 million dollars. Uhh, I would

estimate in his lifetime he would probably never be able to

reimburse the various insurance companies that came into

play and had to replace that courthouse. But I think that the

fact that both juvenile and adult crimes are having, uhh,

results of such much more magnitude then we ever conceived

of before is a good enough reason to allow that there should

be should be some ability to try to compensate not only the

victims of those crimes but also the taxpayers in every county

who are supporting the courts and the services that are

required when crimes are committed. Uhh, thank you.

Representative Carol?

I’m kind of a graph guy, and in looking further at this data,

uhm...

Did you say gra...(inaudible) or graph?

Ph on the end (inaudible).

Go ahead.

I see that for return to victims we are talking $60,000 dollars,

return to the state $10,000 dollars, and return to the county

perhaps $50,000, sort of round numbers. So we are talking

$120,000. Sort of knowing what an employee costs we're

talking half is eaten up by employee costs, perhaps.

That’s right. It’s not a money making proposition. The idea of

the collections project is not to make money, it’s, it should

pay for itself at the county level, but it's holding criminals

Chairman

Sheahan:

Rep.

Radcliffe:

Debbie

Wilki:

accountable for what they, uhh, punishment that’s imposed by

the court and it’s to reimburse victims that’s the primary

purpose of doing it. It’s not like it’s a great big money maker, F

but it’s the idea that this kind of activity improves the system

by holding those people accountable. Uhh, even if it’s, uhh,

$300.00 dollars and takes us 10 years to collect it. If we get

$3.00 dollars a month for that long time, it may cost us more

to collect then it is worth, but the impact it has on the victims

to show that we are out there trying to make this person pay

to the hest of there ability, and also the fact that they are held

to the order of the court is good for the system.

ee

Representative Radcliffe had a question?

Uhh, thank you Mr. Chairman. Uhh, I support this measure.

However, in the Corrections Committee, I think it was in

1995, we’ve looked at a situation where a minor was

incarcerated because of a crime that was perpetrated against

his family. So in case of a minor, and, and I don’t remember if

we passed this bill or not, but the outcome was or the bill

proposed that when the parents are the victims that they are

not required, they would not be required to, uhh, to pay. Uhh,

and I’m wondering if this is going to affect that at all when

we are talking about minors here or...?

No. If, if, if it is a legitimate order that’s entered by the court

the clerk will enforce it. Uhh, but, it’s just like the sheriff. If

the, if the court orders a bench warrant the sheriff is obligated

to enforce it, but, uhm, its like one of the things in our project

that we do that was never done before that was to collect,

uhm, incarceration fees and attorneys fees from, uhm,

juveniles that are incarcerated. And if the parent is, is, the

victim in that we don’t collect from, make the parents pay to

incarcerate the kid when they were the victims of crime. We

are trying to make the system work better, and we're trying to

encourage courts not to use collections agencies because we

don’t think that’s justice we think that’s just collecting money.

42a

Chairman

Sheahan:

Debbie

Wilki:

Chairman

Sheahan:

Debbie

Wilki::

Any other questions? Okay, thank you. Uhh, stay, stay where

you are.

Okay.

We are going to go to 1097.

Okay.

43a

CERTIFICATION

I, Precilla M. Garcia, Notary Public in and for the County of Grant, State of

Washington, residing in Moses Lake, do hereby certify under penalty of

perjury of the laws of the State of Washington that:

1. The foregoing Public Hearing Before House Law & Justice

Committee Regarding House Bill 1096 of January 29, 1997,

was transcribed under my direction, from a certified audio

tape from Sharon Hayward, the State of Washington House of

Representatives Deputy Chief Clerk, and that such

transcription is a true, complete and correct record of said

proceedings, to the best of my ability; and

2. lam above the age of 18, a United States citizen, and not a

party to this action.

Dated this 31st day of August 1998.

Signed and subscribed before me

Precilla M. Garcia, Notary Public

My Commission Expires: April 20, 2002

44a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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