State Of Washington, Respondent V Terry Simmons, Joanne Simmons, Appellants

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47962-1-II
Respondent,
v.
Consolidated with:
TERRY SIMMONS,
Appellant.
STATE OF WASHINGTON, No. 47969-9-II
Respondent,
v.
JOANNE SIMMONS, UNPUBLISHED OPINION
Appellant.
LEE, J. — In this consolidated appeal, Terry Simmons and his wife, Joanne Simmons,
appeal the restitution amount the sentencing court imposed following their individual convictions
for two counts of misdemeanor second degree animal cruelty. In their first appeal, the Simmonses
argued the sentencing court erred by imposing restitution for costs associated with animal cruelty
charges that were previously dismissed. In an unpublished opinion, this court agreed and
remanded for modification of the restitution order. See State v. Simmons, 186 Wn. App. 1035,
2015 WL 1331688 at *2 (2015) (Simmons I). On remand, the sentencing court doubled the amount
of restitution recommended by the State. The Simmonses again appeal, this time arguing the
Filed
Washington State
Court of Appeals
Division Two
July 19, 2016

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sentencing court lacked the authority to double the restitution amount. We agree, and again reverse
the restitution orders and remand to correct the restitution orders.
FACTS
The Simmonses each pleaded guilty to two counts of misdemeanor second degree animal
cruelty. Simmons I, 2015 WL 1331688 at *2. The sentencing court imposed restitution in the
amount of $20,589.42. Id. This court reversed the amount and remanded for modification of the
restitution amount, holding restitution could not be imposed for dismissed charges. Id. at *4. This
court noted in Simmons I that the parties relied upon the wrong statute (former RCW 9.94A.753(5)
(2003)) to grant the sentencing court authority to impose restitution. Id. This court directed the
parties to former RCW 16.52.200(6) (2011) as the governing statute.1 Id.
On remand, only the restitution amount was before the sentencing court. Other aspects of
the Simmonses’ sentence, including a court-imposed $500.00 fine, were not remanded. The State
recommended restitution in the amount of $4,533.54. The sentencing court doubled that amount
to $9,067.08, stating the amount was “doubled, according to law.” Clerk’s Papers (CP) (Oct. 15,
2015) at 22. In its oral ruling, the sentencing court stated, “[P]ursuant to statute, I’m doubling it.
This is exactly the kind of case where double restitution is appropriate.” Report of Proceedings
(RP) at 6. The Simmonses appeal.2
1 Our legislature amended both RCW 9.94A.753 and RCW 16.52.200, effective June 9, 2016.
The amendments do not affect the subsections relevant to this appeal.
2 The Simmonses have separate appellate counsel and filed separate opening briefs. Counsel for
Joanne Simmons, however, incorporates Terry Simmons’ counsel’s argument and does not add
additional assignments of error.

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ANALYSIS
The Simmonses contend the sentencing court did not have the authority to double the
restitution amount on their animal cruelty convictions. Specifically, the Simmonses argue that
since former RCW 16.52.200(6) does not authorize restitution doubling, the sentencing court
lacked authority to double the amount of restitution in its order. We agree.
In general, we review a sentencing court’s order of restitution for abuse of discretion. State
v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008). The court abuses its discretion if its decision
is manifestly unreasonable or exercised on untenable grounds or untenable reasons. State v.
Harris, 181 Wn. App. 969, 973, 327 P.3d 1276 (2014), review denied, 181 Wn.2d 1031 (2015).
A sentencing court derives its authority to impose restitution from statutory law and may
not exceed that statutory authority. Griffith, 164 Wn.2d at 965. Therefore, we review a sentencing
court’s authority to order restitution under a statute de novo. State v. Oakley, 158 Wn. App. 544,
552, 242 P.3d 886 (2010).
Former RCW 16.52.200(6) provides, “In addition to fines and court costs, the defendant
. . . shall be liable for reasonable costs incurred pursuant to this chapter by law enforcement
agencies, animal care and control agencies, or authorized private or public entities involved with
the care of the animals.” Reasonable costs include expenses of the investigation, and the animal’s
care, euthanization, or adoption.
The State argues that because second degree animal cruelty is a gross misdemeanor under
RCW 16.52.207(3), RCW 9A.20.030(1) governs the imposition of restitution in this case and not
former RCW 16.52.200(6). RCW 9A.20.030(1) states that “in lieu of imposing the fine authorized
for the offense . . . [the sentencing court] may order the defendant to pay an amount, fixed by the

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court, not to exceed double the amount of the defendant’s gain or victim’s loss from the
commission of a crime.”
Here, the sentencing court did not set forth its basis for doubling the restitution amount.3
While the State directs us to RCW 9A.20.030(1), that statute applies to restitution amounts
imposed “in lieu” of a fine. Here, the sentencing court imposed a fine at the original sentencing
hearing, and this court did not reverse that portion of the sentence in Simmons I. RCW
9A.20.030(1) differentiates between a fine and doubling restitution as separate sentencing options.
Here, the court imposed a $500 fine. This court affirmed that portion of the Simmonses’ sentence
in Simmons I and did not remand the fine. Thus, because RCW 9A.20.030(1) clearly states that
doubling restitution is an option when there is no fine, and because the sentencing court imposed
a fine, RCW 9A.20.030(1) does not provide a legal basis for doubling restitution here.
The other statute that provides a basis for doubling restitution in Washington is former
RCW 9.94A.753(5). But, this statute only applies to felonies. State v. Deskins, 180 Wn.2d 68,
78, 322 P.3d 780 (2014). And that is what we held in Simmons I. Accordingly, we find no basis
for doubling the restitution amount based on former RCW 9.94A.753(5).
While “[r]estitution is an integral part of the Washington system of criminal justice,” and
there is “a strong public policy to provide restitution whenever possible,” we still require statutory
authority for the restitution ordered. State v. Shannahan, 69 Wn. App. 512, 517-18, 849 P.2d 1239
(1993). In this case, RCW 9A.20.030(1) does not grant the court authority to double restitution
because the sentencing court imposed a fine and doubling restitution is authorized only in lieu of
3 Washington requires statutory authority to impose restitution, but there is no legal authority
requiring sentencing court to include the statutory authority in the order.

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imposing a fine. And former RCW 9.94A.753(5) does not grant the court authority to double
restitution because the offense in this case is not a felony. The only applicable statute, as noted by
this court in Simmons I, is former RCW 16.52.200(6), which provides for the imposition of
reasonable costs as restitution, which “include expenses of the investigation, and the animal’s care,
euthanization, or adoption.” The plain language of this statute does not provide a legal basis for
doubling.
A restitution order is void if the trial court exceeds its statutory authority under the
restitution statute or fails to follow the statutory provisions. State v. Johnson, 96 Wn. App. 813,
815, 981 P.2d 25 (1999). Because former RCW 16.52.200(6) does not provide authority for
doubling the restitution amount, the sentencing court’s order is void. Thus, we reverse the
sentencing court’s restitution orders and remand for correction of restitution to the amount
calculated before doubling.
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 in accordance with RCW 2.06.040,
it is so ordered.
Lee, P.J.
We concur:
Melnick, J.
Sutton, J.