IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Appellant,

v.
WILLIAM FREDERICK JENSEN, Respondent. DIVISION ONE No. 74319-8-1 UNPUBLISHED OPINION

FILED: November 14, 2016 J-...3 CS3

c3



### Dwyer, J. - After ajury convicted William Jensen offour counts of solicitation to commitfirst degree murder, the courtentered ajudgment and 

### sentencerequiring restitution in an amountto bedetermined. Thecourt later 

### entered a separateagreed orderofrestitution thatincluded future counseling 

### costs. Jensen appealed thejudgmentand sentence but nottherestitution order. TheWashington Supreme Court reversed two ofJensen's convictions and remanded for vacation ofthose convictions and resentencing. 

### Onremand, the court ordered restitution but, unaware of the prior order 

### setting restitution, set afuture hearing todetermine the amount. Jensenlater moved to strike thathearing on the ground that it was set more than 180days 

### aftertheresentencing hearing and wastherefore untimely underRCW 

### 9.94A.753(1). In September2009, the superiorcourt orally granted Jensen's motion, butentered no written ruling. The court ruled thattheagreed orderofNo. 74319-8-1/2
restitution entered in 2005 had expired when itwas not reimposed on remand. The court concluded that the current restitution hearing was therefore a hearing to set restitution for the first time, not a hearing to modify the 2005 restitution order, and that the hearing was untimely because itwas set more than 180 days after the resentencing hearing. The State subsequently moved to supplement restitution, and the court entered two orders

- one memorializing the 2009 oral ruling and another striking the State's motion. The State appeals these orders, arguing that the 2005 restitution order never expired and that the superior court erred by striking the restitution hearings. We reverse. I 

### Based on allegations that Jensen tried to hire hit men to kill hiswife, children, and sister-in-law, the State charged him with four counts of firstdegree 

### solicitation to commit murder. A jury convicted him and the court entered a 

### judgmentand sentence ordering restitution in an amount to be determined at a later hearing. On June 7, 2005, the court entered an agreed order ofrestitution inthe 

### amount of$2,304.50. The order also authorized restitution "forfuture additional costs as counseling may be required in the future for allvictims."

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Jensen appealed thejudgment and sentence but did not appeal the order ofrestitution.1 The Washington Supreme Court reversed two ofJensen's convictions and remanded "for vacation of two convictions and for resentencing." State v. Jensen, 164 Wn.2d 943, 959, 195 P.3d 512 (2008). In February of2009, the court held a resentencing hearing. In its oral ruling, the court noted that the original "sentence was reversed by the supreme court with respect to the fourunit ofprosecutions [sic]." (Emphasis added.) The 

### court proceeded to impose a sentence at the top of the standard range. Itthen stated:The Court will reimpose allthe other conditions ofthe [original] 

### sentence, including no contact with the victims. Restitution, I believe Judge Jones waived certain costs and financial circumstances. The Court is not going to make other changes to [that] sentence. 

### Following the oral ruling, the prosecutor erroneously told the court that 

### while the originaljudgment and sentence ordered restitution in an amount to be determined, no restitution order had ever been entered. Based on that 

### misinformation, the court agreed to set a future restitution hearing. It then signed a new judgment and sentence that simultaneously requiredJensen to pay restitution "as set forth
... in the previously filed Appendix E," but ordered restitution "to be determined at future restitution hearing." It is undisputed that no appendix E had ever been filed withthe court.

1Jensen filed his amended notice of appeal from the originaljudgment and sentence on January 26, 2005, long beforethe June 2005 order settingrestitution.
-3-No. 74319-8-1/4 In September of 2009, the court held a restitution hearing. Defense counsel moved to strike the hearing, arguing that the court lacked authority to award restitution because the hearing had not occurred within 180 days of 

### sentencing as required by RCW9.94A.753(1). Anticipating the State's argument, defense counsel further argued that the hearing was not a modification of the 

### 2005 agreed order ofrestitution because the resentencing court had not 

### reimposed that order. The prosecutor disagreed, arguing that the reference to 

### the "previously filed Appendix E" in the resentencing court's judgmentand sentence "was intended to adopt anything that had been previouslyfiled" 

### regarding restitution. Therefore, theprosecutor argued, thecurrent hearing involved a proposed modification to the 2005 restitution order and was not subjectto the 180-day time limit. The court then asked the prosecutor the following question: 

### [l]f, upon resentencing, the court never reissued thepriorrestitution order and never made reference to it, you would agree that then there would be no restitution order? 

### [It] [d]oesn'tautomatically continue, in other words. 

### The prosecutor agreed, adding "I thinkthatwould probably beaccurate" and reiterating her contention thattheresentencing court intended toadopttheprior
order. 

### The court then granted the motion to strike, ruling in pertinent part as
follows:

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The court agrees with [defense counsel], much reluctantly, because this is certainly not equitable to the victims of Mr. Jensen.

. . . [I]t appears clear that Iwas not aware, or made aware, that there was a previous restitution order. The prosecutor certainly represented that there had not been one. Mistakenly, of course. And so Idid not enter a restitution order... in February of 2009
.... It's true we checked the box "Defendant shall pay restitution as set forth inthe previous filed appendix E," but there was no appendix E and the court was not aware that there had been a previous restitution order. So unfortunately, the State waited too late to get this hearing set, and the courtbelieves itdoes not have any authority under the case law and the statute to set a restitution order, .. . the [original] order having expired when it was not made a condition ofthe new sentence. So the court grants the defendant's motion to dismiss the motion for restitution. 

### (Emphasis added.) Although defense counsel told the court he would prepare a written order, no order was ever filed. 

### Sixyears later, in August of2015, the State filed a motion to supplement the original 2005 restitution order with counseling costs incurred since 2009. Jensen moved to strike the hearing. The court granted the motion, stating in part: Because no written order was ever entered following [the] 9/30/15 

### rulingf], a separate order shall be entered at this timereflecting that ruling so that the State has an opportunity to appeal. The Court notes that, as a result of the sequence of events 

### following remand, including an inadvertent reference in an Order on Judgment and Sentence to an Exhibit E that did not exist, a mistaken representation by the prosecutorthat restitution had not 

### previously been set, and a failure by the prosecutor to set a hearing for restitution within 180 days, the victims in this case have been 

### deprived of restitution.
... In light of [the court's] ruling in the 9/30/09 hearing, this Court does not have authority to conduct a 

### restitution hearing or order furtherrestitution. However, the Court 

### urges both parties to consider the equities ofthe situation and to

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consider addressing the situation voluntarily or by entry of an agreed order. The court also entered an order reflecting the earlier September 30, 2009 oral ruling. That order states in part:
1. Atthe February 13, 2009 resentencing hearing the Court was not made aware ofJudge Jones' prior restitution order dated 6/7/05. 2. Instead, the prosecutor represented to the Court (mistakenly) during the February 2009 resentencing hearing that there was no previous restitution order. 3. At the February 2009 resentencing hearing the Court indicated that restitution would be determined at a future hearing. 4. The order entered in February 2009 had a check inthe box "Defendant shall pay restitution as setforth inthe previously filed appendix E," but there was no appendix E and the court was not aware that there had been a previous restitution order. 5. The State waited too long to get a hearing setto determine restitution. 6. The Court believes itdoes not have any authority to set a restitution order, Judge Jones' order having expired when it was not made a condition ofthe new sentence. The State appeals the 2015 orders.

The State contends that the superior court erred by striking the restitution 

### hearings as untimely. It argues that the 2005 order setting the restitution amount


### was timely and unaffected by either the Washington Supreme Court's decision
on appeal orJensen's resentencing on remand. Therefore, the State reasons, the restitution hearings on remand were modifications of the 2005 restitution 

### order, notoriginal hearings to set restitution, and did not have to occurwithin 180

6No. 74319-8-1/7 days of resentencing under RCW 9.94A.753(1). Jensen, on the other hand, contends the State cannot raise this issue because the prosecutor "conceded that the restitution order from the first sentencing was not adopted at the resentencing hearing and no longer had any force or effect" on remand. Br. of Resp't at 1. He concludes that "the State should not be heard to argue the 

### opposite position now." Br. ofResp't at 4. Jensen's argumentfails for several

reasons. 

### First, the argument is not supported by pertinent authority. Although Jensen cites cases regarding preservation of errors, he cites nothing relating to a 

### party changing theirposition on appeal orbeing bound by a concession below. Second, to the extent that Jensen contends that the State needed to 

### objectto preserveits claim that the 180-daytime limit in RCW9.94A.753(1) did 

### not apply to the stricken restitution hearings, the record shows that the Statedid objecton those grounds at the hearings. And even in the absence of an objection and/orthe occurrence of a concession, the issue may still be raised on appeal because it concerns an error oflaw in the court's sentence. See In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 877, 50 P.3d 618 (2002) (error of 

### law in sentence cannot be waived bystipulation and is reviewable for the first 

### time onappeal); RAP 2.5(a) (granting thiscourt discretion to review unpreserved errors).

### Finally, the State contends, and Jensen does not dispute, that thevictims received no notice of the restitution hearing at which the State made itsNo. 74319-8-1/8 concession. Because the victims had a constitutional right to notice of, and 

### participationin, any restitution hearings,2 we have discretion to review the court's 

### striking of those hearings as a manifest erroraffecting a constitutional right. RAP 2.5(a). 

### Turning to the merits, RCW9.94A.753(1) states, in pertinent part, that 

### "[w]hen restitution is ordered, the court shall determine the amount ofrestitution due at the sentencing hearing orwithin one hundred eighty days ...." This time 

### limit only applies to an initial hearing to set restitution; itdoes not apply to a 

### hearing set tomodify anearliertimely restitution order. See RCW 9.94A.753(4) (stating thatrestitution may bemodified as toamount, terms, andconditions while the offender remains under the court's jurisdiction); State v. Gray, 174 

### Wn.2d 920, 927, 935, 280P.3d 1110(2012) (holding that courtsmay modify the total amount ofrestitution after 180days). The central dispute in this case is whether the strickenrestitution hearings were, in essence, hearings to modify a 

### timely restitution order, orhearings to set restitution in thefirst instance. Resolution ofthisdispute turns onwhetherthe 2005 restitution ordersurvived the 

### first appeal andresentencing. Ifitdid, then thestricken restitution hearings were 

### essentially modification proceedings and the 180-daytime limitdid notapply. Citing Statev. Harrison, 148Wn.2d 550, 562, 61 P.3d 1104 (2003), 

### Jensen argues thatwhen, as here, acourtremands amatterfor "resentencing," the entire sentence is reversed orvacated. Jensen concludes that the 2005

2Wash. Const, art. I, § 35.
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restitution order was vacated when the Washington Supreme Court remanded his case for "resentencing." And because the resentencing court did not reimpose that order, Jensen maintains that the stricken hearings were not modification hearings and were therefore untimely. We disagree. In Harrison, the appellate court "'reverse[d] Harrison's sentences and remand[ed] for resentencing.'" Harrison, 148 Wn.2d at 562 (emphasis added) (alterations in original) (quoting State v. Harrison, noted at 100 Wn. App. 1049 

### (2000)). The appellate court in Harrisonthus clearly reversed the defendant's sentences in toto. By contrast, our Supreme Court inJensen's appeal stated: "We reverse, inpart, and remand forvacation of two convictions and 

### resentencing." Jensen, 164Wn.2d at 947 (emphasis added). This language did not reverse Jensen's sentences intheir entirety. Nor did itaffect the 2005 

### restitution orderthat Jensen had not appealed. State v. Rowland, 160 Wn. App. 

### 316, 328, 249 P.3d 635 (2011) (noting that portions of an originaljudgment and 

### sentence that were valid when pronounced are "'unaffected by the reversal of one or more counts'" (quoting State v. Kilqore, 167 Wn.2d 28, 37, 216 P.3d 393 

### (2009))), affd, 174Wn.2d 150, 272 P.3d 242 (2012). Thus, contrary toJensen's assertions, itwas not necessary for the resentencing court to reimpose the 2005 restitution order for it to have force and effect on remand. Because the 2005 order remained in effect on remand, the stricken restitution hearings were 

### hearings to modify restitution and were not subject to the 180-daystatutorytime
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And even ifwe were to conclude that the 2005 order had to be reimposed, the record indicates that itwas. Interpretation of a court order orjudgment is a question of law, and we interpret such orders to give effect to the issuing court's intent. In re Marriage ofThompson. 97 Wn. App. 873, 877, 988 P.2d 499 (1999); Hillv. Hill. 3 Wn. App. 783, 786, 477 P.2d 931 (1970), overruled on other grounds by Stokes v. Pollev. 145 Wn.2d 341, 37 P.3d 1211 (2001). We may consider a trial court's oral decision when interpreting a court's findings and conclusions so long as there is no inconsistency. City of Lakewood v. Pierce County, 144Wn.2d 118, 127. 30 P.3d 446 (2001) (quoting State v. Eppens. 30 Wn. App. 119, 126,633 P.2d 92 (1981)). An ambiguity in a court'sjudgment or 

### written decision may also be clarified by reference to the court's oral ruling. State v. Smith. 82 Wn. App. 153, 159, 916 P.2d 960 (1996); State v. Hescock. 98 Wn. 

### App. 600, 606, 989 P.2d 1251 (1999). In addition, we have previously looked to
a resentencing court's oral ruling to determine its intent regarding the original 

### judgment and sentence. Rowland, 160 Wn. App. at 328. Here, the judgment and sentence entered on remand is ambiguous regarding restitution. It firststates that Jensen "shall pay restitution
... as set forth
... in the previously filed Appendix E." But it also states that restitution is "to be determined at future restitution hearing" on a "[d]ate to be set." As noted 

### above, there was no previouslyfiled appendix E, butthere was a previouslyfiled order of restitution. In addition, thejudgment purports to require payment of an 

### amountpreviously set, but then states that restitution will be set in the future.

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These ambiguities justify resort to the resentencing court's oral decision. Inthat decision, the court announced the length ofJensen's confinement and then expressly stated its intention to "reimpose all the other conditions ofthe sentence" including restitution. While the prosecutor later misinformed the court that no order setting restitution had previously been entered, the court's intent to 

### reimpose any and allaspects of the priorsentence otherthan those mentioned in its ruling is clear. For the reasons setforth above, we conclude the stricken restitution 

### hearings involved the modification of an extant restitution order and were therefore not subject to the 180-daytime limit in RCW9.94A.753(1). The superior court erred inruling otherwise and in striking the hearings. Reversed and remanded forproceedings consistentwith this opinion.

We concur:,

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