### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 77627-4-I

Respondent, DIVISION ONE V. UNPUBLISHED OPINION DAVID P. OLSON, Petitioner. FILED: December 30, 2019 DWYER, J.

—Ajury convicted David Olson ofvehicular assault after he struck and injured a motorcyclist. As a part of his sentence, the court ordered Olson to pay restitution of$40,744.57 to the victim. Ajury in a civil case later awarded $415,034 in damages to the victim. When Olson’s insurance carrier paid its $50,000 policy limitto the victim’s attorney in trustforthe victim, those funds were applied to reduce the civiljudgment, but not applied to restitution. In postsentencing motions, Olson urged the sentencing courtto reallocate the insurance proceeds to satisfythe restitution portion of hisjudgment and sentence. The court declined to do so. And based on the agreement ofOlson and the State, the court allowed the victim, through his attorney, to participate in the proceedings involving restitution. No authority prohibited the courtfrom allowing the victim to participate in the postsentencing proceedings involving restitution. Because the parties’ agreementto allow such participation was not unlawful, the court did not abuseNo. 77627-4-1/2

its discretion by enforcing it. And whetheror notto creditfunds paid to the victim bythe insureragainstthe defendant’s restitution obligation is a matter reserved to the discretion ofthe sentencing court. We discern no abuse ofdiscretion here. We affirm.
Driving while intoxicated in Skagit County, David Olson struck and injured
an oncoming motorcyclist, David Zinkand. In 2010, two years afterthe collision,
ajury convicted Olson ofvehicular assault. The court sentenced Olson to a 6- month term ofconfinement and imposed several nonrestitution legal financial obligations, including a $500 victim penalty assessment, a $200 criminal filing fee, and a $100 deoxyribonucleic acid (DNA) collection fee.1 Several months later, the court entered an agreed orderon restitution, ordering Olson to pay restitution of$40,744.57, based on the victim’s medical expenses and lost wages.2 The restitution order provided for paymentto the Skagit County Superior Court Clerk and forthe clerkto disburse the payments to the victim, but did not setforth a payment schedule. In 2013, Zinkand filed a personal injury action against Olson and, ultimately, ajury awarded him damages of$415,034.04. Thejury’s verdict designated $165,034.04 foreconomic (special) damages and $250,000 for noneconomic (general) damages. Zinkand obtained ajudgment on thejury’s

Olson paid the nonrestitution legal financial obligations to the Skagit County Clerk’s Office in 2014.

2 The restitution orderand attached appendix lists only the total amountof restitution. By statute, restitution must be based on “easily ascertainable damages,” such as property loss, expenses incurred for medical treatment, and lostwages, and may not be based on “intangible losses” such as “mental anguish, pain and suffering.” RCW 9.94A.753(3). It is undisputed that the restitution order herein was based on Zinkand’s medical expenses and lostwages. 2No. 77627-4-1/3

verdict, plus costs. In connection with the civil suit, Olson and Zinkand stipulated that anyfunds paid toward restitution in the criminal matterwould also be credited toward the civiljudgment. Olson appealed his criminal conviction and the trial courtstayed his sentence pending appeal. In March 2013, while his sentence was stayed, Olson’s insurer paid the $50,000 policy limit of his insurance policy. The check
was made payable to Zinkand’s attorney, in trustforZinkand. Afterwe affirmed Olson’s conviction, the trial court lifted the orderstaying his sentence. ~ State
v. Olson, noted at 170 Wn. App. 1032 (2012). Several months after his release fromjail, having served the confinement portion of his sentence, Olson reestablished his credentials and resumed working
as a commercial airline pilot. Beginning in June 2014, Zinkand’s attorney obtained writs ofgarnishment at regular intervals. These required Olson’s employerto withhold 25 percent of hiswages. The garnished wageswere applied to reduce the amount ofthe civiljudgment. In October2014, Olson filed a motion in the criminal cause to make restitution concurrentwith civil judgment and to strike accrued interest. Olson asked the sentencing courtto discharge his restitution obligation to accountfor the payment made by his insurerto the victim. Based on Zinkand’s agreement thatthe civiljudgment represented the total recoveryto which he was entitled and his agreementto credit restitution payments toward the civiljudgment, Olson argued that, reciprocally, all payments toward the civiljudgment should applyto the restitution obligation. He also asked the criminal courtto strike the interest

3• No. 77627-4-1/4

accrued on the restitution obligation. In connection with this motion, the sentencing court entered an order, enforcing the agreement between Olson and the State, and allowing Zinkand, through his attorney, to appear in the criminal matter and “provide briefing and oral argument regarding restitution matters in this case.” Atthe hearing, Zinkand agreed that he could not recovertwice forthe
same losses, recognizing overlap between a portion ofthe special damages awarded bythejury and the restitution imposed bythe court. Zinkand tookthe position that all payments should be credited toward the civiljudgment until the “last [$J40,000” in orderto provide “leverage” to enforce the civiljudgment. The State was present atthe hearing but did not participate. The sentencing court denied the motion and declined to creditthe payments, made via the insurance payment and garnishment, to restitution. The sentencing court’s orderdid not prevent Olson from making voluntary payments toward the restitution obligation directlyto the court. More than two years later, in March 2017, Olson, through new counsel, filed a “Motion to Reduce or Strike Restitution and Accrued Interest.” Although Olson relied on statutes governing restitution and restitution interestthat had not been cited in his 2014 motion, he soughtthe same relief. Namely, he requested thatthe court deem the restitution obligation satisfied and discharge the debt. Olson claimed thatthere were “extraordinary circumstances,” as contemplated bythe applicable statute, because his insurerpaid, and the victim received, an amountthat exceeded the amount ofthe restitution obligation, and

4No. 77627-4-1/5

yet he remained subjectto a “lifelong” orderto paythe restitution. Olson asserted that itwas improperto allowthe use ofthe criminal case as a means to
secure the collection ofa civiljudgment. He also asked the sentencing courtto strike any interestaccrued on the restitution debt, arguing that ifthe insurance proceeds had been allocated to restitution, no interestwould have subsequently accrued. The State responded that Olson was merely attempting to relitigate the unchallenged 2014 order. Pointing to Olson’s substantial reported earnings since entry ofthe 2011 order, the State urged the courtto denythe motion. Following a hearing in October2017, the sentencing court denied the motion. In accordance with its 2014 ruling, the court determined thatthere were no “extraordinary circumstances” to warrant modifying the restitution obligation and no basis to strike the accrued interest.3 Olson appealed from that order. In the meantime, approximatelytwo months later, underthe criminal
cause number, the Skagit County Superior Court authorized collection of restitution bysending a notice of involuntarywage assignmentto Olson’s employer. Zinkand then filed a motion in the criminal case, seeking to “coordinate” the collection of restitution with the collection ofthe civiljudgment. Zinkand’s attorney informed the courtthat he had been regularly garnishing Olson’s wages for more than fouryears and thatthe unpaid portion ofthe civil judgment amounted to almost $300,000. He argued that collection processes should not

~ ROW 1O.82.090(2)(b) allowsthesentencing courtto reduce restitution interest only if the principal balance has been paid in full. 5No. 77627-4-1/6

be simultaneous because duplicative efforts resulted in unnecessary costs and complications. Zinkand’s counsel argued thatthe civiljudgment collection should precede collection for restitution, in part, based on Olson’s alleged prior statement that he intended to retire when he turned 6O.~ Therefore, he wanted to “keep restitution in the background” because it has “teeth.” The day before the hearing on Zinkand’s motion, Olson filed a motion fora continuance, but did not otherwise respond. Defense counsel expressed “great concerns” aboutZinkand’s appearance in the criminal matterand questioned the court’s authorityto authorize that participation.5 As to the merits, Olson did not objectto garnished wages being applied to restitution, based on his position that all funds received bythe victim should applyto both the civiljudgment and restitution. Both Zinkand and the State opposed a continuance. The State took no position on Zinkand’s motion, stating that its only interestwas in full compensation to the victim. The court denied Olson’s motion to continue and granted Zinkand’s motion. The court noted thatthe garnishment issue arose because Olson was notvoluntarily paying eitherobligation and thatthe simultaneous collection of both debts prejudiced Zinkand.6 The court entered an order“Directing

~This apparently did not occur because, according to the date of birth listed on Olson’s judgmentand sentence, he turned 60 in 2017.

~ Defense counsel also requested a continuance to briefthe issue ofthe victim’s participation in the criminal matterand also to allow Olson to personally attend the hearing.

6 Zinkand’s counsel explained that, unlikewage assignmentforcollection of restitution, civil garnishment requires renewal each time, and splitting the 25 percent deduction between restitution and the civiljudgment prolonged the victim’s need to retain counsel to facilitate collection ofthe civiljudgment. 6No. 77627-4-1/7

Restitution Collection Delay,” stating that “collection of restitution is stopped and will not be continued withoutthe written agreement” ofZinkand, through his attorney. The order directed the superior court clerk’s office to disburse the funds that had been collected for restitution to Zinkand’s trust account held by his attorney.7 The court orally clarified thatthe language ofthe orderwas not intended to prevent Olson from making voluntary payments toward restitution. Both parties moved for reconsideration. On June 19, 2018, the sentencing court entered a memorandum decision denying both motions. We granted discretionary review ofthe October2017 orderdenying the motion to strike or reduce restitution and accrued interest.8

Despite stipulating to the victim’s participation in the proceedings involving restitution, Olson challenges that participation on appeal. He claims thatthe parties’ agreement is a “nullilty” because it allowed the State to delegate its prosecutorial function to a private party and the sentencing court lacked authority to authorize it. Ourstate constitution specifically provides that all prosecutions shall be conducted by and in the name ofthe State ofWashington. CONST. art. IV, 

### § 27. Olson’s prosecution was conducted bythe elected prosecutor ofSkagit County. The court did not allow a private partyto control the prosecution by enforcing the

~ The orderfurtherdirects that amounts collected for restitution in the future must be applied firstto principal, then to interest.

8 Discretionary reviewwas also granted as to the April 2018 order“Directing Restitution Collection Delay” and the June 2018 orderdenying reconsideration. However, Olson makes no specific arguments on appeal with respectto the laterorders. In addition, Zinkand filed briefing in this appeal. Although he did not seek priorauthorization under RAP 10.1(h) to do so, we have exercised ourdiscretion underthe rule and considered the briefing in resolving this matter. 7No. 77627-4-1/8

agreement between the State and Olson. The trial court permitted the victim to participate only as a nonparty, in postconviction, postsentencing, proceedings limited to the issue of restitution. Forthe reasons thatfollow, we conclude itwas within the court’s discretion to do so. Ourstatutes reflectthe significant interest ofvictims in the matter of restitution. In the absence of“extraordinary circumstances,”victims are entitled to entry ofan orderof restitution in felony cases. RCW 9.94A.753(5) (restitution “shall be ordered”); see ~ RCW 9.94A.505(8) (a sentencing court “shall order restitution”). And although restitution is also punitive, the remedial component of restitution is “strong” because restitution is directly connected to the victim’s losses. RCW 9.94A.753(3); State v. Kinneman, 155 Wn.2d 272, 279-81, 119 P.3d 350 (2005); State v. Shultz, 138 Wn.2d 638, 643-44, 980 P.2d 1265 (1999). The decision as to whetherto impose restitution is a part ofthe sentencing process and during that process, RCW 9.94A.500(1) provides forthe victim, the victim’s survivor, orthe victim’s representative to be heard. And finally, RCW 9.94A.753(9) specifically provides thatvictims may enforce court-ordered restitution in the same manneras a civiljudgment. Consistentwith these statutory provisions, the people ofWashington adopted the victims’ rights amendmentto ourstate constitution. See CONST. art. I, 

## § 35. The mandate ofthe amendment is a guarantyto victims ofa “meaningful role in the criminaljustice system.” CONST. art. I, 

## § 35. The amendment provides crime victimswith specific “basic and fundamental rights” in criminal proceedings, including the rightto notice, the rightto attend proceedings “subjectto the

8No. 77627-4-119

discretion ofthe individual presiding overthe trial orcourt proceedings,’ and the rightto make a statement at sentencing.9 CONST. art. I, 

### § 35. Our Supreme Court has recognized thatthis amendment speaks powerfullyto the fundamental principle of restoring what is taken from a victim ofcrime. State v. Gentry, 125 Wn.2d 570, 628-29, 888 P.2d 1105 (1995). It is againstthis statutory and constitutional background thatthe sentencing court allowed the victim to participate in restitution matters, in accordancewith the parties’ agreement. Olson provides no authoritysuggesting thatthe courtwas prohibited from doing so in these circumstances. Victims’ interest in restitution, as codified by provisions ofthe Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, and embodied in the victims’ rights amendment, does not undermine the State’s authorityto conduct criminal prosecutions. Indeed, in State v. Wiens, 77 Wn. App. 651, 654, 894 P.2d 569 (1995), we addressed a defendant’s challenge to former RCW 9.94A.145(4) (1989), which authorized crime victims to enforce a criminal restitution order in the same manner as a civiljudgment.1° Similarto Olson’s argument, Wiens claimed thatthe statute infringed on the State’s exclusive authority and obligation to prosecute criminal matters. Wiens, 77 Wn. App. at 654. Rejecting his argument, we reasoned that because the statute authorized the victim to act only

~ CONST. art. I, § 35 (amend. 84), provides in part: Upon notifying the prosecuting attorney, a victim ofa crime charged as a felony shall have the rightto be informed ofand, subjectto the discretion ofthe individual presiding overthe trial or court proceedings, attend trial and all othercourt proceedings the defendant has the rightto attend, and to make a statement atsentencing and atany proceeding where the defendant’s release is considered, subjectto the same rules of procedure which govern the defendant’s rights. 10 Now codified at RCW 9.94A.760(5) (legal financial obligations) and ROW 9.94A.753(9) (restitution). 9No. 77627-4-1110

after conviction, the “intervention” in question did not interfere with the State’s constitutional authorityto prosecute criminal actions.11 Wiens, 77 Wn. App. at 655. The court’s discretion to allow a victim to be heard on restitution matters does not mean thatvictims have an absolute rightto such participation, or a right to participate in a particular manner. While not required, the sentencing court here determined that itwas appropriate not onlyto allowthe victim to respond to Olson’s motion, but also to allowthe victim to file a motion seeking the court’s intervention in the garnishment process. We see no reason whythe sentencing court should not have the discretion to permitsuch participation and determine the appropriate manner and scope ofthe participation, as the court did here. To be clear, nothing in the SRA orthe constitution makes victims parties to criminal proceedings oraffords victims a rightto appeal a criminaljudgment or restitution order. ~ United States v. Kovall, 857 F.3d 1060, 1066, 1073 (9th Cir. 2017) (while victims have a “discrete and quantifiable” interest in restitution, they have no statutory orconstitutional rightto appeal a federal criminaljudgment); United States v. Aquirre-Gonzalez, 597 F.3d 46, 53 (1st Cir. 2010) (“[Cjrime victims are not partiesto a criminal sentencing proceeding. Thus, the baseline rule is that crime victims, as non-parties, may not appeal a defendant’s criminal sentence.” (citation omitted)); State v. Gault, 39 A.3d 1105, 1113-14 (Conn.

~ Ourcourts have also allowed limited intervention by nonparties in criminal matters to challenge trial courtorders sealing records. ~ Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775, 801, 246 P.3d 768 (2011), overruling State v. Bianchi, 92 Wn.2d 91, 593 P.2d 1330 (1979). In Herald-Republic, the court determined that such intervention by a nonparty underGR 15(e) forthe purpose of moving to unseal court records may occuronly “afterthe criminal trial is completed orthe defendant has pleaded guilty.” 170 Wn.2d at 801 n.1 1. 10No. 77627-4-Ill 1

2012) (dismissing victim’s appeal to enforce rights afforded understate’s constitutional crime victims’ rights amendment because onlythe State and the accused are parties to a criminal action). We conclude thatthe sentencing court did not impermissibly allowthe State to delegate the prosecutorial role. Nordid it abuse its discretion in affording the victim an opportunityto be heard. III Olson also challenges the trial court’s denial of his 2017 motion to strike or reduce restitution and restitution interest. The authorityto impose restitution is derived from statute. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). As previously noted, when imposing a sentence underthe SRA, restitution for injury is mandatory absent extraordinary circumstances. ROW 9.94A.753(5) provides, in relevant part: Restitution shall be ordered wheneverthe offender is convicted of an offense which results in injuryto any person ordamage to or loss of property

. . . unless extraordinary circumstances existwhich make restitution inappropriate in the court’sjudgment and the court setsforth such circumstances in the record. Restitution must be paid to the superiorcourt clerk and then disbursed directlyto the victims. Shultz, 138 Wn.2d at 644. The trial court also has authorityto modify restitution. ROW 9.94A.753(4) specifically provides thatthe “portion ofthe sentence concerning restitution may be modified as to amount, terms, and conditions during any period oftime the offender remains underthe court’sjurisdiction.” A court’s decision to modifythe amount orterms ofa restitution order under RCW 9.94A.753(4) is reviewed for

11No. 77627-4-1/12

abuse ofdiscretion. State v. Gray, 174 Wn.2d 920, 931, 280 P.3d 1110 (2012) (allowing modification of restitution to include expenses incurred before the court issued the original restitution order). The only limitation on the court’s discretion is that it “may not reduce the total amount of restitution ordered because the offender may lackthe abilityto paythe total amount.” ROW 9.94A.753(4). Olson claims thatthe court’s ruling denying his motion was manifestly unreasonable because, by refusing to extinguish his restitution obligation based
on his insurer’s paymentto the victim, the sentencing court permitted “the criminal case to be used as leverage overthe civil collections.” He relies on languagefrom the decision in State v. Pike, 118 Wn.2d 585, 595, 826 P.2d 152 (1 992), cautioning against allowing the criminal justice system to be used as a “mechanism forthe collection of private debt.” But Pike involved a conviction of theft bytaking allegedly committed when the defendant reclaimed his own vehicle from a mechanicwithout authorization and without paying for repairs performed. Pike, 118 Wn.2d at 587. The court observed thatthe contractual debt owed to the mechanic created a rightto recoverdamages in a civil lawsuit, but could notform the basis for criminal liability absent a specific statute or evidence ofcontractual fraud. Pike, 118 Wn.2d at 595. In contrast, Olson’s private debtwas notthe basisfor his criminal conviction. Pike is wholly inapposite. To the extentthat Olson suggests thatthe sentencing court’s order 

### requires restitution to be paid last, after he fully satisfies the civil judgment (minus $40,000) and interest upon thatjudgment, he is mistaken. Although the victim’s

12No. 77627-4-1/13

attorney suggested that it might be possible to prevent Olson from making payments to the court clerk’s office toward restitution, the sentencing court correctly confirmed at several points that none of its orders prevented Olson “from making voluntary payments toward this restitution.” 12 Legal financial obligations, including restitution, are conditions ofa sentence, and a willful failure to complywith these conditions can result in further confinement. See ROW 9.94A.760(11). This statutoryscheme does not allowthe sentencing courtto prevent a defendantfrom voluntarily complying with the criminaljudgment, which could then provide the basis for incarceration. In addition, to the extent the State suggests that Olson was underinsured and that his “low” policy limit of$50,000 supports the denial of his motion, we disagree. Although Olson’s insurance policy is not in the record, there is nothing to indicate that it did not satisfythe requirements of law setforth in RCW 46.29.090(1). The mandatory coverage amounts encompassed in the statute reflect policy choices thatthe legislature has the powerto make, and also, to amend. See El Centro De La Raza v. State, 192 Wn.2d 103, 428 P.3d 1143 (2018).Olson contends thatthe sentencing court abused its discretion by denying his motion because the factthat all payments made to the victim on his behalf
were not credited against his restitution obligation constitutes an “extraordinary” circumstance. Olson cites to no authoritythat supports his position. And, in fact,

12With respectto the allocation of payments made to the courtto satisfythe terms ofthe judgment, the court must, ofcourse, be mindful ofthe distribution ordersetforth in RCW 9.94A.760(2). 13No. 77627-4-1/14

it is well-settled that “[t]he decision whether or notto credit payments to the victim by [the defendant’s] insurance carrieragainstthe restitution order [is] a matter within the trial court’s discretion.” State v. Shannahan, 69 Wn. App. 512, 519, 849 P.2d 1239 (1993) (citing State v. Young, 63 Wn. App. 324, 333-34, 818 P.2d 1375 (1991)). Even though neither case involves a separate civil judgment, the decisions in State v. Young and State v. Shannahan are instructive. Young was convicted oftwo counts ofvehicular homicide and, as restitution, was ordered to paythe monthly child support obligation ofone ofthe deceased victims. Young, 63 Wn. App. at 326. Because Young’s insurance carrier had tendered paymentto the victim’s family, he argued on appeal that, as a matterof law, the insurance funds had to be allocated firstto “easily ascertainable damages,” such as lost child support, and then to other items ofdamage. Young, 63 Wn. App. at 335. The appellate court rejected the argument, noting thatthe mannerofallocating insurance payments against a victim’s loss was a matterforthe court’s discretion. Young, 63 Wn. App. at 335. Similarly, ajury convicted Shannahan of negligent driving and the court ordered restitution ofapproximately $1 1,000 forthe victim’s injuries. Shannahan, 69 Wn. App. at 514. Thereafter, the defendant’s insurer paid $25,000, the policy limit, to thevictim. Shannahan, 69 Wn. App. at 514. Shannahan argued that as a result offunds his insurertendered to the victim, his restitution obligation should be discharged because the amount received bythe victim from his insurer exceeded the amount ofcourt-ordered restitution. Shannahan, 69 Wn. App. at

14No. 77627-4-1/15

518-19. We rejected this argument, holding thatthe mannerofallocating insurance paymentswas within the court’s discretion. Shannahan, 69 Wn. App. at 519. Under Shannahan and Young, the sentencing court does not abuse its discretion when it applies insurance payments “first against items of loss that are not recoverable by restitution, ‘thereby maximizing that portion ofthe loss thatthe victim or next of kin will recover.” Shannahan, 69 Wn. App. at 519 (quoting Young, 63Wn. App. at 336). Likewise here, the sentencing court did not abuse its discretion when it declined to allocate the insurance payments in the manneradvocated by Olson. And in these circumstances, when the restitution amount overlapped with the special damages awarded bythejury, but notwith the general damages awarded bythejury, the court’s ruling was consistentwith doctrines that promotefull compensation ofthe victim in the context of insurance reimbursement and subrogation. ~Thiringerv. Am. Motors Ins. Co., 91 Wn.2d 215, 219, 588 P.2d 191 (1978) (insurer not entitled to reimbursement until the insured had been made whole; therefore, insurance proceeds are allocated to general damages before special damages); Sherryv. Fin. lndem. Co., 160 Wn.2d 611, 622, 160 P.3d 31(2007) (recognizing Washington’s “broad view offull compensation”). In a different case, the facts may be such that itwould be appropriate fora judge to orderthat insurance payments be first allocated to a restitution obligation. This merely illustrates the wisdom of leaving such a determination to the sound discretion ofthe sentencing judge.

15No. 77627-4-1/16 We affirm the sentencing court’s order denying Olson’s motion to reduce
orstrike restitution and accrued interest and the subsequent restitution orders.

WE CONCUR: / 

# ~4aaL~A I

____________

16