State Of Washington v. Donald W. Morgan

                           DIVISION ONE
                                                 No. 80030-2-I
                                                 UNPUBLISHED OPINION

       PER CURIAM — The State charged Donald Morgan with two counts of first

degree theft and two counts of second degree theft relating to his commission of

insurance fraud. As part of a plea agreement, the State agreed to dismiss all but

one count of first degree theft, and Morgan agreed to pay restitution on the

dismissed charges.

       The State and Morgan agreed to the sum of restitution for the second

degree thefts, but disputed the sum of restitution for the first degree thefts. Both

the State and Morgan presented physical evidence, including bank statements,

at a restitution hearing.

       Morgan first contends he was denied due process because the trial court

did not allow him to confront and cross-examine adverse witnesses. But we

have already rejected the argument that the Sixth Amendment right to confront

witnesses applies to restitution hearings. State v. Fambrough, 

66 Wash. App. 223



831 P.2d 789

(1992). And Morgan’s reliance on Morrissey v. Brewer,

408 U.S. 471

, 481, 

92 S. Ct. 2593


33 L. Ed. 2d 484

(1972), which involved due

process at parole revocation hearings, is misplaced because restitution hearings

do not involve the potential loss of a liberty interest.
No. 80030-2-I/2

       Morgan furthermore argues that both the Sixth Amendment and article I,

section 21 of the Washington State Constitution require a jury determination of

the facts necessary to set a restitution amount. But this claim has been rejected

by the Washington Supreme Court in State v. Kinneman, 

155 Wash. 2d 272

, 285,

119 P.3d 350

(2005). Though Morgan contends that Alleyne v. United States,

570 U.S. 99


133 S. Ct. 2151


186 L. Ed. 2d 314

(2013), has eroded the

reasoning of Kinneman, Alleyne held only that a fact that increases the

mandatory minimum penalty for a crime is an element that must be submitted to

the jury. Restitution does not involve a mandatory maximum or minimum penalty

and Alleyne is not implicated here. Morgan’s citation to Sofie v. Fibreboard


112 Wash. 2d 636

, 648, 

771 P.2d 711


780 P.2d 260

(1989) is similarly

uncompelling because Sofie was a civil case in which the court concluded that a

statute placing a limit on noneconomic damages was unconstitutional, because it

interfered with the jury's traditional function to determine damages. Morgan

provides no analysis of why Sofie applies in a criminal setting to the

determination of restitution.

                                          FOR THE COURT:
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