Opinion
No. 59906-2-I.
April 7, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-03221-3, Richard D. Eadie, J., entered March 27, 2007.
Affirmed in part and remanded by unpublished per curiam opinion.
Havilah Wiggins broke through the front door of her ex-husband's apartment in Kirkland and assaulted his girlfriend, Rachael Winichenko. Wiggins grabbed Winichenko by the hair and punched her in the head, neck, back, and ribs. Wiggins then pushed her way past Winichenko to where Wiggins' two children were sleeping. She dragged the children down three flights of stairs to a waiting car and drove away with them. Wiggins was taken into custody in Bothell shortly thereafter. Her ex-husband, Elliott Wiggins, was not home at the time.
Wiggins entered an Alford plea to three misdemeanors: criminal trespass in the first degree — domestic violence; assault in the fourth degree; and malicious mischief in the third degree. In the plea agreement Wiggins stipulated to the material facts set forth in the certification of probable cause and the prosecutor's summary.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Wiggins received a 12-month suspended sentence on each count, to be served concurrently, on condition she serve 30 days of confinement. The court imposed 24 months of probation under the supervision of the Washington State Department of Corrections (DOC). The court also ordered restitution, leaving the amount of restitution to be determined at a later hearing.
Winichenko sustained injuries when Wiggins assaulted her. At the restitution hearing, the State presented a restitution packet in which Winichenko requested $196.88 in lost wages as a result of missing work after the assault. The packet also contained a repair estimate for the damage to the front door of Elliott Wiggins' apartment in the amount of $125. The court ordered restitution in the amount of $196.88 to Winichenko for lost wages, and $125.00 for damage to the door.
Six months later, the State mailed Wiggins notice of a September 12, 2007 hearing to review a report from the DOC. Neither Wiggins nor her attorney appeared. The court modified the judgment and sentence to include regular random home visits by the DOC.
Wiggins now appeals. We affirm in part and remand in part.
DISCUSSION Standard of Review
We review questions of statutory interpretation de novo. We will not disturb a trial court's order of restitution on appeal absent abuse of discretion. We review a trial court's ruling on the appropriate sanction for violation of a sentence under the abuse of discretion standard.
City of Seattle v. Burlington N. R.R., 145 Wn.2d 661, 665, 41 P.3d 1169 (2002).
State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999).
State v. Dalseg, 132 Wn. App. 854, 862, 134 P.3d 261(2006).
Statutory Authority
Wiggins relies on State v. Murray to argue that the DOC lacks statutory jurisdiction. Her reliance is misplaced.
118 Wn. App. 518, 77 P.3d 1188 (2003).
At issue in Murray was the trial court's authority to modify a felony sentence. This court's inquiry hinged on the applicability of two statutes establishing the parameters of a court's authority to modify a felony sentence: RCW 70.48.400 (governing sentences served in state institutions), and former RCW 9.94A.150 (2000) (providing that exceptions to the rule preventing early release apply only to defendants committed to the DOC). These are jurisdictional statutes distinct from those governing DOC supervision of misdemeanants on probation or given suspended sentences. They have no bearing on the case at hand.
Murray, 118 Wn. App. at 522.
Murray, 118 Wn. App. at 523.
While Wiggins argues that the trial court lacked statutory authority to order the DOC to supervise her, the plain language of RCW 9.92.060(1) says otherwise.
Whenever any person is convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, rape of a child, or rape, the superior court may, in its discretion, at the time of imposing sentence upon such person, direct that such sentence be . . . suspended . . ., and that the sentenced person be placed under the charge of a community corrections officer employed by the department of corrections.
The statutes further provide that, in granting probation or suspending a sentence, the superior court may order the probationer to report to the secretary of corrections or such officer as the secretary may designate.
RCW 9.95.204, which specifically governs misdemeanant probation services, provides that "[w]hen a superior court places a defendant convicted of a misdemeanor or gross misdemeanor on probation and orders supervision under RCW 9.92.060 or 9.95.210, the department of corrections has initial responsibility for supervision of that defendant," although a county may contractually assume that responsibility.
"A reviewing court's primary goal is to determine and give effect to the legislature's intent and purpose in creating a statute." If a statute's meaning is plain on its face, then we must give effect to that plain meaning as an expression of legislative intent. The statutes cited unambiguously provide the DOC with the statutory authority to supervise misdemeanants.
Woods v. Kittitas County, 162 Wn.2d 597, 607, 174 P.3d 25 (2007) (citing Am. Cont'l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004)).
Woods, 162 Wn.2d at 607.
Restitution
Wiggins argues that the trial court erred in awarding restitution in the absence of sufficient proof in the record.
The authority to impose restitution is statutory. RCW 9.94A.753 authorizes restitution whenever an offender is convicted of an offense that results in injury to any person, or damage to or loss of property. Restitution shall be based on easily ascertainable damages for injury to or loss of property. "`Evidence of damage is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.'"
State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991).
State v. Pollard, 66 Wn. App. 779, 785, 834 P.2d 51 (1992) (quoting State v. Mark, 36 Wn. App. 428, 434, 675 P.2d 1250 (1984)).
"[W]hile restitution must be based on `easily ascertainable damages,' the `amount of harm or loss need not be established with specific accuracy.'" The statute directs that restitution shall be ordered, but does not require that the restitution ordered be equivalent to the injury, damage, or loss. Instead, RCW 9.94A.753 allows the court considerable discretion in determining restitution, which may range from none up to double the victim's loss. If substantial credible evidence establishes the damage amount at a restitution hearing, no abuse of discretion will be found.
State v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d 350 (2005) (internal quotation marks omitted) (quoting State v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005), overruled on other grounds by State v. Womac, 160 Wn.2d 643, 161, 160 P.3d 40 (2007)).
Kinneman, 155 Wn.2d at 282.
Pollard, 66 Wn. App. at 785.
Wiggins stipulated to the material facts set forth in the certification of probable cause and the prosecutor's summary for sentencing purposes. The certification stated that the lock and door jam to Elliott Wiggins' apartment were damaged when Wiggins forced her way in. It also stated that Winichenko sustained numerous bruises to her arm, ribs, and head, causing her pain and extreme fear. The restitution packet submitted to the court contained Winichenko's payroll statements and a restitution estimate for $196.88 for lost wages. It also contained an estimate for repairs to the door in the amount of $125.00.
The certificate of probable cause and the materials contained in the restitution packet provided the trial court with a reasonable basis for awarding restitution.
Sentence Modification
A defendant has a right to be present and represented by counsel at all critical stages of proceedings, including sentencing and revocation of probation hearings.
In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994); State v. Robinson, 153 Wn.2d 689, 694, 107 P.3d 90 (2005).
Wiggins argues that the trial court erred by modifying her sentence without her or her attorney being present at the hearing. The State concedes the error. We strike the modification from the judgment and sentence and remand the matter to the trial court so that Wiggins may be present at the modification hearing.
Affirmed in part and remanded in part.
FOR THE COURT: