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
Page
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CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ....... 2
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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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EE TAs Pe hee See) URL C8 FIED sei eieitenssncenccinsnninespiecihisieneunaressintons 6
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,
SADF Gs Shs AON MED ccsetatins snicevcnstnestbasauserssncmninsiidis eneiliviadeiescosendsin 7,9
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,
a oii tise aici ON aR 10
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
l4a
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.