No. 59147-9-I.The Court of Appeals of Washington, Division One.
November 13, 2007.
PER CURIAM.
Joshua Everybodytalksabout pleaded guilty to first degree manslaughter. At sentencing hearing, the court imposed a standard range sentence and a mandatory $500 victim penalty assessment (VPA). The court also signed the agreed restitution order. Everybodytalksabout now argues that the court erred in requiring him to pay the VPA and restitution because the victim was killed while attempting to commit a felony. We conclude that the sentencing court properly exercised its authority to order Everybodytalksabout to pay the VPA and restitution and that he waived any claim of error in the restitution order by agreeing to pay restitution in his plea agreement. Accordingly, we affirm.
FACTS
Everybodytalksabout admitted in his statement on plea of guilty that he recklessly caused the death of Zhonyak Payne. Everybodytalksabout also stipulated to the facts contained in the certification of probable cause, which states that Payne told friends that he was going to buy cocaine for $35,000 on the night he was killed and that a backpack containing $35,000 was found near where Payne collapsed after being shot.
The court ordered Everybodytalksabout to pay both the $500 VPA and $7,742.96 in restitution to the Crime Victims’ Compensation (CVC) fund in February 2003. Everybodytalksabout filed a motion in August 2006 to vacate the order, arguing that Payne’s survivors were not entitled to benefit from the CVC fund under RCW 7.68.070(b) because Payne was not an innocent victim. Though his motion to vacate was filed more than three years after the court entered the order, Everybodytalksabout contended his motion was not time barred by RCW 10.73.090 because the sentence imposed exceeded the court’s jurisdiction, which is an exception to the one-year time limit under RCW 10.73.100(5). The court denied Everybodytalksabout’s motion. Everybodytalksabout now appeals.
ANALYSIS Victim Penalty Assessment
Everybodytalksabout claims that the trial court exceeded its authority to require him to pay the $500 VPA because Payne was killed while attempting to commit a crime.
RCW 7.68.035 states that whenever a person is found guilty of committing a crime, excepting only certain motor vehicle crimes, the court shall impose a $500 assessment for each cause of action that includes one or more convictions of a felony or gross misdemeanor. VPAs support a fund “maintained exclusively for the support of comprehensive programs to encourage and facilitate testimony by the victims of crimes and witnesses to crimes.” RCW 7.68.035(4).
RCW 7.68.070 addresses limitations on the rights of victims and their survivors to benefits under chapter 7.68 RCW, stating
[N]o person or spouse, child, or dependent of such person is entitled to benefits under this chapter when the injury for which benefits are sought, was:
. . .
(b) Sustained while the crime victim was engaged in the attempt to commit, or the commission of, a felony. . . .
RCW 7.68.070(3).
Even assuming Payne’s survivors may not have qualified for benefits under RCW 7.68.070 because Payne was killed while attempting to commit a crime, this does not eliminate the court’s authority under RCW 7.68.035
to require Everybodytalksabout to pay the VPA. The VPA is not paid directly to Payne’s survivors; it is paid into a fund. Just because Payne’s survivors may not be entitled to collect from the fund does not mean that Everybodytalksabout is exempted from RCW 7.68.035‘s broad requirement that all people convicted of a felony must pay the VPA. We therefore affirm the trial court’s imposition of the VPA.
Restitution
The trial court ordered Everybodytalksabout to pay $7,742.96 in restitution to the CVC fund to reimburse expenses that had been paid on Payne’s behalf due to the injuries caused by Everybodytalksabout. In a pro se statement of additional grounds, Everybodytalksabout contends that this order was improper because it benefited the survivors of a victim who was not entitled to benefits under RCW 7.68.070.
A sentencing court shall order restitution whenever an offender is convicted of an offense which results in injury to a person, unless extraordinary circumstances make restitution inappropriate in the court’s judgment. RCW 9.94A.753(5). Once imposed, a restitution order becomes part of a defendant’s judgment and sentence. State v. Dorenbos, 113 Wn. App. 494, 497, 60 P.3d 1213 (2002). Petitions or motions for collateral attack, including motions to vacate judgment, must be filed within a year of the date when the judgment becomes final. RCW 10.73.090. The one-year time limit does not apply only if the petition or motion alleges: (1) newly discovered evidence; (2) a statute that is unconstitutional on its face or as applied to the defendant’s conduct; (3) a double jeopardy violation; (4) insufficiency of the evidence; (5) a sentence in excess of the court’s jurisdiction; or (6) a significant change in the law that is material to the conviction, sentence, or other order. RCW 10.73.100.
Everybodytalksabout claims his motion to vacate was not time barred because the restitution order imposed exceeded the court’s jurisdiction. But under RCW 9.94A.753(5), the court did have the authority to order restitution because Everybodytalksabout pleaded guilty to fatally injuring Payne. RCW 9.94A.735(5) does not require that the victim be “innocent.” Furthermore, Everybodytalksabout agreed to pay restitution “in full to the victim(s) on charged counts” in his plea agreement. It is irrelevant that Everybodytalksabout was ordered to pay restitution to the CVC fund rather than directly to the victim’s survivors. The trial court had the authority to order restitution, and Everybodytalksabout agreed to pay restitution. Therefore, Everybodytalksabout waived any claim of error as to the restitution order.
For the foregoing reasons, we affirm.
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