STATE OF WASHINGTON v. JAMES LARON ELLIS
No. 56984-1-II
COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
June 13, 2023
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At the resentencing hearing, the trial court declined Ellis‘s request to consider the mitigating qualities of his youth at the time of the offense. But the court imposed the sentence Ellis‘s defense counsel recommended. The trial court did not alter the provisions in the original judgment and sentence imposing several legal financial obligations (LFOs), restitution, and interest on the restitution amount.
Ellis argues that the trial court erred in failing to consider the mitigating qualities of youth when imposing his sentence; that imposition of restitution, interest on restitution, and the
We hold that (1) the trial court was not required to consider Ellis‘s youth at resentencing, and any error relating to the trial court‘s suggestion that it did not have discretion to consider Ellis‘s youth was harmless because the court imposed the sentence that Ellis requested; (2) imposition of restitution does not violate the excessive fines clause; (3) a recently enacted statutory provision gives the trial court discretion to waive interest on restitution, so on remand the court must consider whether to waive interest based on the statutory factors; (4) a newly enacted statutory provision precludes imposing the VPA on an indigent offender, so on remand the trial court must determine whether Ellis is indigent and reconsider imposition of the VPA based on that determination; and (5) on remand the trial court must strike the DNA collection fee and community custody supervision fees based on newly enacted statutory provisions and reconsider whether to impose the criminal filing fee and attorney fees.
Accordingly, we affirm in part and reverse in part the trial court‘s sentence, and remand for the trial court to strike the DNA collection fee and community custody supervision fees from the judgment and sentence and to reconsider the imposition of interest on restitution, the VPA, the criminal filing fee, and attorney fees.
FACTS
In March 2008, Ellis shot and killed a person in the course of an attempted robbery. Ellis was 18 years old at the time of his offense. The State charged Ellis with first degree murder, second degree murder, second degree assault, and unlawful possession of a firearm.
Ellis pled guilty to second degree murder. In January 2009, the trial court sentenced him to 240 months in confinement and an additional 60 months for a firearm sentencing
In July 2021, Ellis was resentenced after one point was removed from his offender score based on Blake, which lowered the standard range sentence. At the resentencing hearing, Ellis stated, “I would like to just bring awareness of my youthfulness. . . . And hopefully you can take into consideration that.” Report of Proceedings (RP) at 5. The court noted, “That certainly is an issue that the courts have acknowledged is something that should be taken into account in certain circumstances.” RP at 6. But the court stated that youthfulness is “a different issue than the one we‘re talking about today.” RP at 6.
The State recommended that Ellis‘s sentence remain at 300 months because that sentence was within the standard range with his lower offender score. Ellis did not advocate for an exceptional sentence below the standard range. Instead, he asked the trial court to lower his sentence to 289 months, proportional to the new sentencing range.
Before the trial court imposed a sentence, Ellis again asked the trial court to consider his youth. The court responded that this issue “is something that you have the ability to address in a different format than what we are doing today.” RP at 9.
The trial court entered an order correcting the 2009 judgment and sentence, changing Ellis‘s total confinement from 300 months to 289 months, the adjustment Ellis recommended.
ANALYSIS
A. SCOPE OF RESENTENCING
Ellis argues that he is entitled to be resentenced because the trial court declined to consider his youth when imposing his sentence. We disagree.2
In general, a defendant cannot appeal a standard range sentence.
The trial court was not required to consider Ellis‘s youth when sentencing him. In State v. Houston-Sconiers, 188 Wn.2d 1, 18, 391 P.3d 409 (2017), the Supreme Court held that the Eighth Amendment requires courts to consider the mitigating qualities of youth when sentencing juvenile offenders. But Ellis was 18 at the time of his offense, so Houston-Sconiers is inapplicable. See State v. Nevarez, 24 Wn. App. 2d 56, 61-62, 519 P.3d 252 (2022), rev. denied, 1 Wn.3d 1005 (2023).
Ellis suggests the Supreme Court‘s decision in State v. Monschke, 197 Wn.2d 305, 482 P.3d 276 (2021), extended the holding in Houston-Sconiers to young adult offenders. In Monschke, 197 Wn.2d at 326, 329, the Supreme Court in a split decision held that the mandatory imposition of life without parole sentences was unconstitutional for offenders who were 18 to 20 years old as well as for juvenile offenders. But this court rejected the argument that the
Ellis also argues that the trial court failed to recognize that it had the discretion to consider his youth under State v. O‘Dell, 183 Wn.2d 680, 358 P.3d 359 (2015). In O‘Dell, 183 Wn.2d at 696, the Supreme Court held that trial courts are allowed, but not obligated, to consider youth as a mitigating factor in favor of an exceptional sentence below the standard range when sentencing adult defendants. Here, Ellis does not argue that the sentencing court failed to recognize its discretion to impose an exceptional sentence. At the sentencing hearing, Ellis argued for a sentence within the standard range, which the trial court granted. Therefore, the court was not required to consider the mitigating qualities of youth under O‘Dell. See Nevarez, 24 Wn. App. 2d at 61-62.
The trial court certainly had the discretion to consider Ellis‘s youth when considering his sentence within the standard range. But even if the court erred in failing to recognize that it had such discretion, any error was harmless because Ellis received the sentence his defense counsel requested. And Ellis does not assert an ineffective assistance of counsel claim.
We hold that Ellis is not entitled to be resentenced even though the trial court declined to consider Ellis‘s youth at resentencing.
B. EXCESSIVE FINES CLAUSE CHALLENGES
Ellis argues that imposition of $7,097.32 in restitution, interest on restitution, and the VPA violates the excessive fines clause. We disagree with regard to restitution, but we remand for the trial court to address restitution interest and the VPA based on newly enacted statutory provisions.
The Eighth Amendment to the United States Constitution and article I, section 14 of the Washington Constitution prohibit excessive fines. City of Seattle v. Long, 198 Wn.2d 136, 158, 493 P.3d 94 (2021). The excessive fines clause limits the state‘s ability to impose monetary sanctions as punishment for an offense. Id. at 159. A monetary sanction violates the excessive fines clause if (1) the sanction is punishment, and (2) the sanction is constitutionally excessive. Id. at 163.
A sanction is punishment under the excessive fines clause if it is at least “partially punitive.” Id. A sanction is constitutionally excessive if it is grossly disproportional to the gravity of the defendant‘s offense. Id. at 166. To determine whether a sanction is disproportional, we consider (1) the nature and extent of the crime, (2) whether the violation was related to other illegal activities, (3) the other penalties that may be imposed for the violation, and (4) the extent of the harm caused. Id. at 173. In addition, we also must consider a fifth factor: an offender‘s ability to pay the fine. Id. at 168-73. We review excessive fines challenges de novo. Id. at 163.
2. Failure to Raise Claims in Trial Court
Initially, the State argues that we should decline to consider Ellis‘s excessive fines claims because they were raised for the first time on appeal. We disagree.
RAP 2.5(a)(3) states that a party is allowed to raise a “manifest error affecting a constitutional right” for the first time on appeal. To determine the applicability of RAP 2.5(a)(3), we inquire whether (1) the error is truly of a constitutional magnitude, and (2) the error is manifest. State v. Grott, 195 Wn.2d 256, 267, 458 P.3d 750 (2020).
3. Restitution
Ellis argues that the trial court violated the excessive fines clause when it imposed $7,097.32 in restitution. We disagree.
a. Restitution Statute
Former
In 2022, the legislature added a subsection to
The restitution order here related to amounts incurred by “CVC,” CP at 36, which refers to the crime victim compensation program established in
b. Punishment
The first question is whether the restitution imposed here constitutes “punishment.” Long, 198 Wn.2d at 163. We conclude that because the specific restitution ordered here was solely compensatory, it was not punishment for purposes of the excessive fines clause.
The Supreme Court has stated in a different context that restitution is both compensatory and punitive. State v. Kinneman, 155 Wn.2d 272, 279-80, 119 P.3d 350 (2005). Restitution is compensatory because it is connected to a victim‘s losses. Id. at 280. But the court stated that restitution also is punitive because
However, Kinneman did not address whether restitution was punitive for purposes of the excessive fines clause. That case involved whether the defendant was entitled to a jury determination of the facts essential to restitution. 155 Wn.2d at 277. And Harris involved the definition of “punishment” for purposes of double jeopardy, not for purposes of the excessive fines clause. 151 Wn. App. at 940. Therefore, those cases are not directly controlling. And no case other than Ramos has held that a restitution order that involves only compensation of a crime victim constitutes punishment.
We conclude that, unlike Division One stated in Ramos, the proper inquiry is whether the restitution ordered in a particular case is punitive. Here, the restitution the trial court ordered was solely compensatory, reimbursing the CVC for amounts paid to the victim of Ellis‘s crime. The court in Kinneman stated that restitution could be punitive because the trial court has statutory authority to order restitution in an amount that is double a victim‘s loss. 155 Wn.2d at 280. But the trial court here did not double the amount needed to compensate CVC. Therefore, under the facts of this case, the restitution the court ordered was not punitive.
We hold that because the restitution imposed on Ellis was not punitive, the excessive fines clause does not apply.
Even if the restitution the trial court ordered was punitive, the second question is whether the restitution imposed here was constitutionally excessive. Long, 198 Wn.2d at 163. We conclude that the restitution imposed here was not excessive.
In Ramos, the court concluded that restitution orders based on the victim‘s actual losses necessarily are not excessive, even if the offender is unable to pay. 24 Wn. App. 2d at 230. The court relied on a Ninth Circuit case, United States v. Dubose, 146 F.3d 1141, 1145 (9th Cir. 1998), which held that proportionality is built into the restitution order when the amount of restitution is tied to the victim‘s loss, and the offender‘s ability to pay does not change the outcome. The court in Ramos stated,
We agree with the reasoning of Dubose and hold that a restitution award based on a victim‘s actual losses is inherently proportional to the crime that caused the losses because the amount is linked to the culpability of the defendant and the extent of harm the defendant caused. A defendant‘s inability to compensate the victim for the losses he caused will not render the restitution amount grossly disproportional.
24 Wn. App. 2d at 230.
We agree with Ramos regarding this issue. Here, the amount of restitution was the amount paid by the crime victim compensation fund, which necessarily related to victim losses.
Further, application of the five-factor test articulated in Long supports the conclusion that the restitution imposed was not constitutionally excessive. First, the nature and extent of the crime was second degree murder, a significant crime. Second, the murder was related to other illegal activities - Ellis committed the murder during the course of an attempted burglary with an illegally possessed firearm. Third, second degree murder carries a maximum sentencing term of life and a maximum fine of $50,000. Fourth, the trial court ordered restitution in the amount that
Regarding the fifth factor, Ellis claims that he is indigent and that he is unable to pay the restitution amount. However, that amount is not so high that it would be inconceivable that Ellis would be able to pay that amount at some point after being released from prison. And
We hold based on our de novo review of the specific facts of this case, the restitution imposed on Ellis was not constitutionally excessive. Therefore, the excessive fines clause does not apply.
4. Restitution Interest
Ellis argues that the statutory imposition of interest on the restitution amount violates the excessive fines clause. However, this issue has been resolved by the recent enactment of a new statutory provision regarding restitution interest.
In 2022, the legislature added a subsection to
The court may elect not to impose interest on any restitution the court orders. Before determining not to impose interest on restitution, the court shall inquire into and consider the following factors: (a) Whether the offender is indigent as defined in
RCW 10.101.010(3) or general rule 34; (b) the offender‘s available funds, as defined inRCW 10.101.010(2) , and other liabilities including child support and other legal financial obligations; (c) whether the offender is homeless; and (d) whether the offender is mentally ill, as defined inRCW 71.24.025 . The court shall also consider the victim‘s input, if any, as it relates to any financial hardship caused to the victim if interest is not imposed. The court may also consider any other information that the court believes, in the interest of justice, relates to not imposing
interest on restitution. After consideration of these factors, the court may waive the imposition of restitution interest.
Although this amendment did not take effect until after Ellis‘s resentencing, it applies to Ellis because this case is on direct appeal. See State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d 714 (2018). Therefore, we remand for the trial court to address whether to impose interest on the restitution amount under the factors identified in
5. Imposition of the VPA
Ellis argues that imposition of the VPA violates the excessive fines clause. However, this issue has been resolved by enactment of a new statutory provision regarding the VPA.
In the 2023 session, the legislature passed Engrossed Substitute House Bill 1169. LAWS OF 2023, ch. 449. ESHB 1169 added a subsection to
Although this amendment will take effect after Ellis‘s resentencing, it applies to Ellis because this case is on direct appeal. See Ramirez, 191 Wn.2d at 748-49. However, there has been no finding that Ellis is indigent and the State refuses to concede this issue. Therefore, we
C. IMPOSITION OF LFOS
Ellis argues that the trial court erred at resentencing by not removing the following LFOs: the DNA collection fee, community custody supervision fees, the criminal filing fee, $1,500 in attorney fees.
Effective July 2022,
Accordingly, we remand for the trial court to strike the imposition of the DNA collection fee and community custody supervision fees. We also remand for the court to reconsider imposition of the criminal filing fee and attorney fees.
CONCLUSION
We affirm in part and reverse in part the trial court‘s sentence, and remand for the trial court to strike the DNA collection fee and community custody supervision fees from the judgment and sentence and to reconsider imposition of interest on restitution, the VPA, the criminal filing fee, and attorney fees.
MAXA, J.
We concur:
GLASGOW, C.J.
VELJACIC, J.