STATE v. MARASCO, 25669-0-II (Wash.App. 10-26-2001)

No. 25669-0-II.The Court of Appeals of Washington, Division Two.
Filed: October 26, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Lewis County, No. 96-1-00389-6, Hon. H. J. Hall, February 15, 2000, Judgment or order under review.

Counsel for Appellant(s), Joseph O. Enbody, Enbody Dugaw, 107 S Tower Ave, Centralia, WA 98531-4221.

Counsel for Respondent(s), J.A. Toynbee, Lewis Co. Deputy Pros. Atty., M/S Pr001, 360 N.W. North St, Chehalis, WA 98532-1900.

BRIDGEWATER, J.

Ronald A. Marasco appeals from a restitution order entered following his conviction of second degree rape. He claims the trial court erred in not allowing him to present his objections at the hearing. Finding no abuse of discretion, we affirm.

Facts
On February 15, 2000, Marasco was present with counsel at a hearing to set the amount of restitution he owed following his conviction of second degree rape. The State’s $909.73 request was based on a statement from the Department of Labor and Industries Crime Victims Compensation Program. Marasco’s attorney objected to the request because the record did not show that payments to a provider named `Eye and Ear’ were related to Marasco’s offense. The State agreed to strike these payments and lowered its request to $706.41. Defense counsel agreed that $706.41 was appropriate and informed the court that Marasco wanted to make a statement:

MR. ENBODY: And I believe Mr. Marasco has some statement he wants to make with regard to that amount.
THE COURT: Well, is Mr. Marasco objecting to the amount?
MR. ENBODY: Yes.
THE DEFENDANT: Sir, what is your name? Sir, what is your name?
THE COURT: Mr. Enbody just told you I’m Judge Hall.
THE DEFENDANT: Thank you, sir, do you have a claim against me R-O — capital R-O, little o, little n, little a, little l, little d, capital A, little l, little l, little e, little n, capital M, little a, little r, little a, little s, little c, little o, Ronald Allen Marasco?
THE COURT: Mr. Marasco, I do not have to answer your questions. You have the right to make a statement if you have objections to the amount of restitution claimed by the state as part of your legal financial obligations, you can address that issue.
THE DEFENDANT: I object to the price and the issue at hand and at the time of the incident.
THE COURT: And the basis for the objection?
MR. ENBODY: It’s my understanding he doesn’t have any statutory authority to propose at this time, but he would like — with the understanding that you’re not going to answer these questions — he wants to read his questions into the record and then the Court make its ruling, if that’s okay with your Honor.
THE COURT: Well, what’s the purpose of the inquiry?
MR. ENBODY: I’m not aware. I believe he is looking — he believes that to preserve his record on his theory of the objections he was told that he has to read these questions into the record and would like to do so and have you make your rulings.
THE COURT: Well, I haven’t heard any bases for the objections. If these questions are addressed to the Court, they’re inappropriate. The judgment is in favor of the State of Washington.
THE DEFENDANT: Sir, are you saying that I can’t read my — THE COURT: Do you have a written set of questions, Mr. Marasco? You can file them with the Court if you wish for the court file.

Report of Proceedings (RP) at 3-5. Marasco had four questions for the court:

1. Sir, what is your name{?}
2. Sir, do you have a claim against me{?} (SPILL {sic} NAME) Ronald Allen Marasco! Repeat to D.A. if so directed!
3. Does anyone in this room have a claim against me? (SPILL {sic} NAME)
4. If not, I request the order (of the court) to be released to me. There being no further business I’m leaving.

Clerk’s Papers (CP) at 6. The court then entered an award of $706.41.

Analysis
Marasco argues that the court erred in denying his request to present his arguments and statements to the court before it entered its restitution decision. He claims that because he objected to the restitution amount, the court had to hold an evidentiary hearing. State v. Pockert, 53 Wn. App. 491, 498-99, 768 P.2d 504 (1989) (remand necessary when defendant would not stipulate to restitution amount). He asks that we remand for a new hearing.

Citing State v. Hegge, 53 Wn. App. 345, 349, 766 P.2d 1127 (1989) (right to proceed pro se and right to assistance of counsel are mutually exclusive), the State argues that because Marasco was represented by counsel, he had no right to proceed pro se. It claims that because Marasco agreed, through counsel, to the restitution amount and agreed that it was factually-based,[1] the court had no obligation to hold an evidentiary hearing or even to listen to Marasco’s arguments. And, although the court had no obligation to listen to Marasco, it did so until it realized that Marasco had no bases for his objections.

We agree that Marasco had no right to proceed pro se while represented by counsel. But we address his claims because the trial court gave him the opportunity to personally object.

A sentencing court’s authority to order restitution is purely statutory and, when it is authorized to do so, the sentencing court has discretion to determine the amount of restitution. State v. Hennings, 129 Wn.2d 512, 519, 919 P.2d 580 (1996). Here, that authority is RCW 9.94A.142.[2] We review a restitution order for an abuse of discretion. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991); State v. Woods, 90 Wn. App. 904, 906, 953 P.2d 834, review denied, 136 Wn.2d 1021
(1998).

A trial court abuses its discretion when its order is manifestly unreasonable or relies on untenable grounds. State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981).

{The amount of restitution} must be accurate and may be accomplished by either (1) the defendant’s admission or acknowledgment or (2) a preponderance of the evidence. The second method ensures that the trial court has a reasonable basis for estimating the amount of the victim’s loss; when the record does not contain appropriate evidence, the trial court must hold an evidentiary hearing {citations omitted}. State v. Ryan, 78 Wn. App. 758, 761-62, 899 P.2d 825, review denied, 128 Wn.2d 1006 (1995); State v. Hunsicker, 129 Wn.2d 554, 558-59, 919 P.2d 79 (1996) (trial court may either rely on defendant’s admission or acknowledgement or court may determine amount by a preponderance of the evidence); State v. Awawdeh, 72 Wn. App. 373, 379, 864 P.2d 965, review denied, 124 Wn.2d 104, cert. denied, 513 U.S. 970 (1994) (failure to hold an evidentiary hearing at a contested restitution hearing requires reversal).

Here, counsel acknowledged that the restitution amount was correct, Marasco presented no factual or legal basis to undermine that concession, and, as is apparent from Marasco’s questions to the court, he had no objections that would require an evidentiary hearing to resolve.

The trial court did not abuse its discretion. Its restitution award has both evidentiary support and defense counsel’s acknowledgement that it is correct. Marasco fails to present any evidence to create disputed questions of fact that would entitle him to an evidentiary hearing.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

We concur: ARMSTRONG, C.J., HUNT, J.