IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 84536-5-I
Respondent,
DIVISION ONE
v.
PUBLISHED OPINION
MONTREAL LEANTHONY MORGAN,
SR.,
Appellant.
MANN, J. — The sentencing court generally has broad discretion when imposing
restitution. But when restitution is based on benefits paid under the “Crime Victims’
Compensation Act” (CVCA), chapter 7.68 RCW, to compensate victims for losses
resulting from an offense, the applicable statutes do not allow the court to waive
restitution or to impose less restitution than the amount of benefits paid. Montreal
Morgan appeals a restitution order and argues that the sentencing court should have
exercised discretion to reduce the amount owed under the crime victims’ compensation
(CVC) program. We disagree and affirm.
I
Morgan pleaded guilty to conspiracy to commit murder in the second degree and
unlawful possession of a firearm in the second degree, based on his participation in a No. 84536-5-I/2
2020 home invasion robbery that resulted in the shooting death of one of the occupants
of the home. In conjunction with his plea, Morgan agreed to join the State’s
recommendation for a sentence of 163 months and to pay restitution in an amount to be
determined at a future hearing. The sentencing court imposed a sentence in
accordance with the plea agreement.
The State requested restitution based on the Department of Labor and Industries
(Department) payment of $10,480 as CVC benefits to reimburse the victim’s family for
out-of-pocket medical expenses and funeral costs under the CVCA. 1 Citing his
youthfulness at the time of the crime, mental health issues, and limited future earning
potential, Morgan urged the trial to exercise discretion and order less than the full
amount of restitution requested by the Department. The sentencing court responded
that it believed RCW 9.94A.753(7) limited its discretion to impose less restitution under
the CVC program. The court ordered Morgan and his codefendants to pay, jointly and
severally, restitution of $10,480 for benefits paid under the CVC program. Morgan
appeals.
II
Morgan challenges the restitution order and argues that the sentencing court
erred by failing to recognize its discretion to determine the appropriate amount of
restitution. We disagree.
A sentencing court’s restitution order will not be disturbed on appeal absent an
abuse of discretion. State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999).
1 The Department administers the CVC program. See RCW 7.68.015.
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Application of an incorrect legal analysis or other error of law can constitute abuse of
discretion. State v. Kinneman, 155 Wn.2d 272, 289, 119 P.3d 350 (2005).
The sentencing court’s authority to order restitution derives from statutory
provisions. State v. Gray, 174 Wn.2d 920, 924, 280 P.3d 1110 (2012). The restitution
statute provides:
(5) Restitution shall be ordered whenever the offender is convicted of an
offense which results in injury to any person or damage to or loss of
property or as provided in subsection (6) of this section unless
extraordinary circumstances exist which make restitution inappropriate in
the court’s judgment and the court sets forth such circumstances in the
record. In addition, restitution shall be ordered to pay for an injury, loss, or
damage if the offender pleads guilty to a lesser offense or fewer offenses
and agrees with the prosecutor’s recommendation that the offender be
required to pay restitution to a victim of an offense or offenses which are
not prosecuted pursuant to a plea agreement.
(7) Regardless of the provisions of subsections (1) through (6) of this
section, the court shall order restitution in all cases where the victim is
entitled to benefits under the crime victims’ compensation act, chapter
7.68 RCW. If the court does not order restitution and the victim of the
crime has been determined to be entitled to benefits under the crime
victims’ compensation act, the [Department], as administrator of the crime
victims’ compensation program, may petition the court within one year of
entry of the judgment and sentence for entry of a restitution order. Upon
receipt of a petition from the [Department], the court shall hold a restitution
hearing and shall enter a restitution order.
RCW 9.94A.753. 2
2 The legislature amended RCW 9.94A.753 in 2022 and added a new subsection to RCW
9.94A.753(3), which went into effect on January 1, 2023. LAWS OF 2022, ch. 260, § 3(3)(b). The new provision provides that the trial court “may determine that the offender is not required to pay, or may relieve the offender of the requirement to pay, full or partial restitution and accrued interest on restitution where the entity to whom restitution is owed is an insurer or state agency, except for restitution owed to the department of labor and industries under chapter 7.68 RCW, if the court finds that the offender does not have the current or likely future ability to pay.” RCW 9.94A.753(3)(b) (emphasis added).
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While Morgan argues that the court has “inherent” discretion over restitution, he
concedes that RCW 9.94A.753(7) does not authorize the trial court to waive restitution
when the State seeks restitution for benefits paid under the CVCA. In that case, the
statute mandates that the court “shall” order restitution upon request “[r]egardless” of
subsection (5), and if it fails to do so, the Department may petition for entry of an order
so providing. RCW 9.94A.753(7). In other words, even when “extraordinary
circumstances” are present, RCW 9.94A.753(7) does not authorize the sentencing court
to waive restitution for costs incurred under the CVC program.
Still, Morgan argues that RCW 9.94A.753(7) does not require the trial court to
impose a particular amount of restitution or require the court to impose the full amount
of restitution paid under the CVC program. He contends that because RCW
9.94A.753(5) and RCW 9.94A.753(7) are both “silent as [to] the amount” of restitution,
the provisions should be interpreted in the same manner.
But to support his claim that the court’s discretion extends to restitution under
subsection (7), Morgan relies on authority involving restitution requested by an insurer
under subsection (5). See, e.g., State v. D.L.W., 14 Wn. App. 2d 649, 659, 472 P.3d
356 (2020) (adult court sentencing a juvenile has discretion under RCW 9.94A.753(5) to
consider youthfulness in determining the amount of restitution owed to an insurer). And,
Morgan’s argument fails to appreciate the interplay between the restitution statute, the
CVCA, and the language of subsection (7), which “specifically directs the court to
disregard the terms of subsection (5).” State v. McCarthy, 178 Wn. App. 290, 301, 313
P.3d 1247 (2013) (rejecting claim of error based on failure to address causal connection
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between expenses imposed as restitution under RCW 9.94A.753(7) and criminal
conduct).
The CVCA provides that “[a]ny payment of benefits to or on behalf of a victim
under this chapter creates a debt due and owing to the department by any person found
to have committed the criminal act.” RCW 7.68.120. This same section reiterates that
the Department must petition for entry of a restitution order if the court fails to enter one.
RCW 7.68.120. Repayment of the debt owed to the Department may be “waived,
modified downward[,] or otherwise adjusted by the department in the interest of justice,
the well-being of the victim, and the rehabilitation of the individual.” RCW 7.68.120(5).
The statute does not provide for modification of restitution by the sentencing court.
Morgan argues in reply that the CVCA contemplates the court’s discretion to set
the appropriate amount of restitution for CVC program benefits. Morgan points to the
language of RCW 7.68.120(1) which provides that “[i]f there has been a superior or
district court order . . . the debt shall be limited to the amount provided for in the order.
A court order shall prevail over any other order.” But in the absence of a prior court
order setting restitution, this language does not suggest that the sentencing court has
discretion to impose restitution in a different amount than the Department paid in
benefits to a victim.
Morgan also claims that the court must have discretion to reduce restitution
because the statute allows a convicted individual to request a court hearing when the
Department petitions the court for an order of restitution and notifies the individual of the
debt owing as a result of the CVC program benefits paid. See RCW 7.68.120(2)(a).
We disagree. The ability to request a hearing when the Department directly petitions
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the court does not mean that when a sentencing court considers the Department’s
restitution request based on properly documented CVC benefits under RCW
9.94A.753(7), the court may order restitution in an amount less than the benefits paid.
RCW 9.94A.753(7) is consistent with the statutory scheme of the CVCA, which
reserves the ability to adjust restitution in appropriate circumstances, to the Department.
The plain language of RCW 9.94A.753(7) directs the sentencing court to apply that
provision “[r]egardless” of “subsections (1) through (6).” RCW 9.94A.753(7) thus
explicitly limits the court’s discretion as to restitution premised on CVC benefits. And
reading the CVCA with RCW 9.94A.753(7), the court correctly determined that it needed
to order restitution to the CVC program in the amount that the Department paid to the
victim.
Caselaw addressing restitution reflects our interpretation of the relevant statutes.
For instance, in State v. Ramos, 24 Wn. App. 2d 204, 221, 520 P.3d 65 (2022), we
considered an Eighth Amendment challenge to restitution and other amounts imposed
in connection with the defendant’s convictions. We noted that while the sentencing
court generally has discretion when imposing restitution, “that discretion does not
extend to cases where ‘the victim is entitled to benefits under the Crime Victims’
Compensation Act, chapter 7.68 RCW.’” Ramos, 24 Wn. App. 2d at 221 (quoting RCW
9.94A.753(7)). We observed that the propriety of restitution based on the CVC program
benefits is properly addressed, not by the sentencing court, but by the defendant, who
may seek “modification of a restitution order through a petition to the Department of
Labor and Industries.” Ramos, 24 Wn. App. 2d at 221 (citing RCW 7.68.120(5)). And
likewise, in State v. Ellis, 27 Wn. App. 2d 1, 11-12, 530 P.3d 1048 (2023), in the context
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of a constitutional excessive fines claim, Division Two of this court recently observed
that the restitution statute does not allow the sentencing court to modify or waive full
restitution to reimburse the CVC program for benefits paid.
Since the State requested restitution solely based on the CVC program benefits
paid, the sentencing court did not err in concluding that it lacked discretion under RCW
9.94A.753(7) to reduce the amount of restitution.
Affirmed.
WE CONCUR:
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