STATE v. WARREN, 20195-3-III (Wash.App. 12-3-2002)

No. 20195-3-III, 20828-1-IIIThe Court of Appeals of Washington, Division Three. Panel Eight.
Filed: December 3, 2002 UNPUBLISHED OPINION

Appeal from Superior Court of Grant County, No. 98-1-00582-6, Hon. John M. Antosz, 00 0, 0000, Judgment or order under review.

Counsel for Appellant(s), Robert E. Schiffner, P.O. Box 776, Moses Lake, WA 98837.

Counsel for Respondent(s), Carolyn J. Fair, Deputy Prosecutor, Grant Co Pros Office, P.O. Box 37, Ephrata, WA 98823.

SWEENEY, J.

This is a pro se collateral attack on that portion of a judgment and sentence imposing restitution. It is apparent from the face of the judgment that the restitution order is the product of neither a hearing nor an agreement. We therefore reverse that portion of the judgment and sentence.

FACTS
The State charged John F. Warren with one count of arson in the second degree. A warrant was issued for his arrest the same day. Mr. Warren was arrested in Beatty, Nevada, and returned to Grant County on November 18, 1998. At Mr. Warren’s preliminary hearing, the court appointed counsel. Mr. Warren was arraigned and attorney Thomas Earl was appointed to represent him.

A victim impact statement by Bill Stevens reported:

The property that was destroyed was insured for most of the value lost, but a lot of hard work by myself and my employees went into raising and protection for this crop. To have somebody come by and visciously [sic] destroy our year[‘s] work is unforgivable. This person should be punished to the Fullest Extent of the law if found guilty. If I had not had this hay insured it would have destroyed my operation.

Clerk’s Papers (CP) at 16.

Mr. Warren pleaded guilty to one count of arson in the second degree.

A restitution report is attached to the judgment and sentence, setting out restitution of $35,799: $33,699 to American Agrisurance, Inc., and $2,100 to Bill Stevens.

Mr. Warren moved to dismiss/waive restitution pursuant to former RCW 9.94A.140(1) (1997).[1] The court treated the motion as one to modify the judgment and sentence by striking the provision for restitution. The State argued that the police report noted a loss of $35,000. Report of Proceedings (RP) (Apr. 30, 2001) at 47. The police report is not a part of this record. And the State claims that it sent a loss statement to defense counsel, one week prior to the sentencing. RP (Apr. 30, 2001) at 47.[2]

The trial judge denied Mr. Warren’s motion without considering the merits, concluding that the motion was untimely because it was beyond the one-year time limit for collateral attack. Mr. Warren appealed and filed a personal restraint petition.

DISCUSSION
Timeliness of Challenge to Restitution

Mr. Warren argues that because the judgment and sentence is invalid on its face, it is not subject to a one-year time limitation. See RCW 10.73.090 (petitions or motions for collateral attack are subject to a one-year time limit). The restitution was ordered without authority in law.

The State first asserts that Mr. Warren’s pleadings failed to challenge the basis of the trial court’s ruling — that the motion to modify the judgment and sentence was denied in the first instance because it was filed more than one year after the final judgment was entered. Mr. Warren’s appeal was also filed more than one year after the judgment became final, contrary to RCW 10.73.090. And none of the exceptions to the one-year time limit apply. RCW 10.73.100. Neither the State nor Mr. Warren addresses the varying standards of review between a personal restraint petition and a direct appeal. See In re Pers. Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994) (to obtain relief in a personal restraint petition, defendant must show he was actually and substantially prejudiced either by a violation of his constitutional rights or by a fundamental error of law); State v. Gomez-Florencio, 88 Wn. App. 254, 258, 945 P.2d 228 (1997) (standard of review on a CrR 7.8(b) motion is abuse of discretion). And that may well be because here it does not make any difference. Regardless of the procedural vehicle used to get to the Court of Appeals, the question is the same — is the collateral attack of this judgment, the CrR 7.8(b) motion, timely or is it barred by the one-year limit on collateral attacks?

Assignment of Error. Under RAP 10.3(a)(3), the principal brief of an appellant must set out “[a] separate concise statement of each error a party contends was made by the trial court.” The State claims that Mr. Warren does not assign error or present argument to challenge the court’s basis for denying the motion, i.e., that the one-year time limit for collateral attack has expired.

A failure to assign error as required by RAP 10.3(a)(3) does not prohibit us from reaching the merits of a case “where the nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied so that the court is not greatly inconvenienced and the respondent is not prejudiced.” State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995). Here, the issue is clear. And it is supported by argument and authority. The State was not prejudiced; it argues the applicability of the one-year time limit. Id.

Standard of Review.

We review the trial court’s decision here to deny Mr. Warren’s motion for relief of the judgment or order (CrR 7.8(b)) for abuse of discretion. State v. Robinson, 104 Wn. App. 657, 662, 17 P.3d 653
(citing State v. Olivera-Avila, 89 Wn. App. 313, 317, 949 P.2d 824
(1997)), review denied, 145 Wn.2d 1002 (2001). A court abuses its discretion when its decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

Timeliness. A party must file a CrR 7.8(b)(4) motion within a “reasonable time” of the order being challenged. CrR 7.8(b) Olivera-Avila, 89 Wn. App. at 317. A motion under CrR 7.8 is “further subject” to the time limits for collateral attack set forth in RCW 10.73.090. CrR 7.8(b); Olivera-Avila, 89 Wn. App. at 317-18. In 1989, the Legislature established a one-year time limit for any collateral attack upon a judgment and sentence in a criminal case, whether by writ of habeas corpus or personal restraint petition, applicable whenever “the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.” RCW 10.73.090(1). Invalid on its Face. But the one-year time limit does not apply if the judgment and sentence is invalid on its face. RCW 10.73.090(1). “[I]nvalid on its face” for purposes of RCW 10.73.090(1) means that the judgment’s infirmities are evident without further elaboration. In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240 (2000). The portion of the judgment and sentence we review here is the imposition of restitution. And we can segregate that out. See State ex rel. Clark v. Hogan, 49 Wn.2d 457, 463, 303 P.2d 290 (1956); In re Clark, 24 Wn.2d 105, 113, 163 P.2d 577
(1945).

The power to impose restitution derives entirely from the statute State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). “The order imposing restitution is void if statutory provisions are not followed.”State v. Duback, 77 Wn. App. 330, 332, 891 P.2d 40 (1995) (citin State v. Lewis, 57 Wn. App. 921, 924, 791 P.2d 250 (1990)). When restitution is ordered, the court must determine the amount due at the sentencing hearing or within 180 days thereafter. RCW 9.94A.753(1). The State must prove the amount of restitution by a preponderance of the evidence. State v. Burmaster, 96 Wn. App. 36, 51, 979 P.2d 442
(1999), review dismissed, 139 Wn.2d 1014 (2000). Upon sentencing, the trial court “may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.” RCW 9.94A.530(2).[3] This restriction also applies to restitution. State v. Dedonado, 99 Wn. App. 251, 256, 991 P.2d 1216
(2000) (per curiam) (citing State v. Woods, 90 Wn. App. 904, 907, 953 P.2d 834 (1998)). Here, the trial court ordered restitution at sentencing. But it did so without proof by the State or an admission by Mr. Warren. The court entered a boilerplate fill-in-the-blanks judgment and sentence. The form provides options to check a box for the basis of restitution to reflect whether the order is the result of a hearing or an agreement. But neither box is checked here. Instead, a `restitution schedule’ is simply attached. Thus, the statutory requirement for proof or agreement has not been met. And more to the point here, the order is then void on its face. The one-year time limit of RCW 10.73.090 does not then apply.

“When a sentence has been imposed for which there is no authority in law, the trial court has the power and duty to correct the erroneous sentence, when the error is discovered.” Stoudmire, 141 Wn.2d at 356
(quoting In re Pers. Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293
(1980)).

The one-year time limit for collateral attack did not apply. And the court erred in ruling that it did.

We grant the personal restraint petition and reverse that portion of the judgment and sentence that orders restitution. And we remand for a hearing on Mr. Warren’s motion to strike the restitution portion of the judgment and sentence.

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

BROWN and KURTZ, JJ., concur.