IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 77627-4-I

Respondent,

DIVISION ONE

V.

UNPUBLISHED OPINION

DAVID P. OLSON,

Petitioner. FILED: December 30, 2019

DWYER, J. — A jury convicted David Olson of vehicular 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. A jury in a civil case later

awarded $415,034 in damages to the victim. When Olson’s insurance carrier

paid its $50,000 policy limit to the victim’s attorney in trust for the victim, those

funds were applied to reduce the civil judgment, but not applied to restitution. In

postsentencing motions, Olson urged the sentencing court to reallocate the

insurance proceeds to satisfy the restitution portion of his judgment and

sentence. The court declined to do so. And based on the agreement of Olson

and the State, the court allowed the victim, through his attorney, to participate in

the proceedings involving restitution.

No authority prohibited the court from allowing the victim to participate in

the postsentencing proceedings involving restitution. Because the parties’

agreement to allow such participation was not unlawful, the court did not abuse
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its discretion by enforcing it. And whether or not to credit funds paid to the victim

by the insurer against the defendant’s restitution obligation is a matter reserved

to the discretion of the sentencing court. We discern no abuse of discretion here.

We affirm.

Driving while intoxicated in Skagit County, David Olson struck and injured

an oncoming motorcyclist, David Zinkand. In 2010, two years after the collision,

a jury convicted Olson of vehicular assault. The court sentenced Olson to a 6-

month term of confinement 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 order on 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 payment to the Skagit County

Superior Court Clerk and for the clerk to disburse the payments to the victim, but

did not set forth a payment schedule.

In 2013, Zinkand filed a personal injury action against Olson and,

ultimately, a jury awarded him damages of $415,034.04. The jury’s verdict

designated $165,034.04 for economic (special) damages and $250,000 for

noneconomic (general) damages. Zinkand obtained a judgment on the jury’s

Olson paid the nonrestitution legal financial obligations to the Skagit County Clerk’s

Office in 2014.

2 The restitution order and attached appendix lists only the total amount of restitution. By

statute, restitution must be based on “easily ascertainable damages,” such as property loss,

expenses incurred for medical treatment, and lost wages, 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 lost wages.

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verdict, plus costs. In connection with the civil suit, Olson and Zinkand stipulated

that any funds paid toward restitution in the criminal matter would also be

credited toward the civil judgment.

Olson appealed his criminal conviction and the trial court stayed 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 trust for Zinkand. After we affirmed

Olson’s conviction, the trial court lifted the order staying his sentence. ~ State

v. Olson, noted at 170 Wn. App. 1032 (2012).

Several months after his release from jail, 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 of garnishment at regular intervals. These required Olson’s

employer to withhold 25 percent of his wages. The garnished wages were

applied to reduce the amount of the civil judgment.

In October 2014, Olson filed a motion in the criminal cause to make

restitution concurrent with civil judgment and to strike accrued interest. Olson

asked the sentencing court to discharge his restitution obligation to account for

the payment made by his insurer to the victim. Based on Zinkand’s agreement

that the civil judgment represented the total recovery to which he was entitled

and his agreement to credit restitution payments toward the civil judgment, Olson

argued that, reciprocally, all payments toward the civil judgment should apply to

the restitution obligation. He also asked the criminal court to strike the interest

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• 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.”

At the hearing, Zinkand agreed that he could not recover twice for the

same losses, recognizing overlap between a portion of the special damages

awarded by the jury and the restitution imposed by the court. Zinkand took the

position that all payments should be credited toward the civil judgment until the

“last [$J40,000” in order to provide “leverage” to enforce the civil judgment. The

State was present at the hearing but did not participate.

The sentencing court denied the motion and declined to credit the

payments, made via the insurance payment and garnishment, to restitution. The

sentencing court’s order did not prevent Olson from making voluntary payments

toward the restitution obligation directly to 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 interest that had not

been cited in his 2014 motion, he sought the same relief. Namely, he requested

that the court deem the restitution obligation satisfied and discharge the debt.

Olson claimed that there were “extraordinary circumstances,” as

contemplated by the applicable statute, because his insurer paid, and the victim

received, an amount that exceeded the amount of the restitution obligation, and

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No. 77627-4-1/5

yet he remained subject to a “lifelong” order to pay the restitution. Olson

asserted that it was improper to allow the use of the criminal case as a means to

secure the collection of a civil judgment. He also asked the sentencing court to

strike any interest accrued on the restitution debt, arguing that if the insurance

proceeds had been allocated to restitution, no interest would 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 of the 2011 order, the State urged the court to deny the motion.

Following a hearing in October 2017, the sentencing court denied the

motion. In accordance with its 2014 ruling, the court determined that there 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, approximately two months later, under the criminal

cause number, the Skagit County Superior Court authorized collection of

restitution by sending a notice of involuntary wage assignment to Olson’s

employer.

Zinkand then filed a motion in the criminal case, seeking to “coordinate”

the collection of restitution with the collection of the civil judgment. Zinkand’s

attorney informed the court that he had been regularly garnishing Olson’s wages

for more than four years and that the unpaid portion of the civil judgment

amounted to almost $300,000. He argued that collection processes should not

~ ROW 1 O.82.090(2)(b) allows the sentencing court to reduce restitution interest only if

the principal balance has been paid in full.

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No. 77627-4-1/6

be simultaneous because duplicative efforts resulted in unnecessary costs and

complications. Zinkand’s counsel argued that the civil judgment 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 for a

continuance, but did not otherwise respond. Defense counsel expressed “great

concerns” about Zinkand’s appearance in the criminal matter and questioned the

court’s authority to authorize that participation.5 As to the merits, Olson did not

object to garnished wages being applied to restitution, based on his position that

all funds received by the victim should apply to both the civil judgment and

restitution.

Both Zinkand and the State opposed a continuance. The State took no

position on Zinkand’s motion, stating that its only interest was in full

compensation to the victim.

The court denied Olson’s motion to continue and granted Zinkand’s

motion. The court noted that the garnishment issue arose because Olson was

not voluntarily paying either obligation and that the 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

judgment and sentence, he turned 60 in 2017.

~ Defense counsel also requested a continuance to brief the issue of the victim’s

participation in the criminal matter and also to allow Olson to personally attend the hearing.

6 Zinkand’s counsel explained that, unlike wage assignment for collection of restitution,

civil garnishment requires renewal each time, and splitting the 25 percent deduction between

restitution and the civil judgment prolonged the victim’s need to retain counsel to facilitate

collection of the civil judgment.

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No. 77627-4-1/7

Restitution Collection Delay,” stating that “collection of restitution is stopped and

will not be continued without the written agreement” of Zinkand, 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 that the language of the order was 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 of the October 2017 order denying 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 that the

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.

Our state constitution specifically provides that all prosecutions shall be

conducted by and in the name of the State of Washington. CONST. art. IV, § 27.

Olson’s prosecution was conducted by the elected prosecutor of Skagit County.

The court did not allow a private party to control the prosecution by enforcing the

~ The order further directs that amounts collected for restitution in the future must be

applied first to principal, then to interest.

8 Discretionary review was also granted as to the April 2018 order “Directing Restitution

Collection Delay” and the June 2018 order denying reconsideration. However, Olson makes no

specific arguments on appeal with respect to the later orders. In addition, Zinkand filed briefing in

this appeal. Although he did not seek prior authorization under RAP 10.1(h) to do so, we have

exercised our discretion under the rule and considered the briefing in resolving this matter.

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No. 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. For the reasons that follow, we conclude it was

within the court’s discretion to do so.

Our statutes reflect the significant interest of victims in the matter of

restitution. In the absence of “extraordinary circumstances,” victims are entitled

to entry of an order of 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 whether to impose restitution is a part of the sentencing

process and during that process, RCW 9.94A.500(1) provides for the victim, the

victim’s survivor, or the victim’s representative to be heard. And finally, RCW

9.94A.753(9) specifically provides that victims may enforce court-ordered

restitution in the same manner as a civil judgment.

Consistent with these statutory provisions, the people of Washington

adopted the victims’ rights amendment to our state constitution. See CONST. art.

I, § 35. The mandate of the amendment is a guaranty to victims of a “meaningful

role in the criminal justice system.” CONST. art. I, § 35. The amendment provides

crime victims with specific “basic and fundamental rights” in criminal proceedings,

including the right to notice, the right to attend proceedings “subject to the

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No. 77627-4-119

discretion of the individual presiding over the trial or court proceedings,’ and the

right to make a statement at sentencing.9 CONST. art. I, § 35. Our Supreme

Court has recognized that this amendment speaks powerfully to the fundamental

principle of restoring what is taken from a victim of crime. State v. Gentry, 125

Wn.2d 570, 628-29, 888 P.2d 1105 (1995).

It is against this statutory and constitutional background that the

sentencing court allowed the victim to participate in restitution matters, in

accordance with the parties’ agreement. Olson provides no authority suggesting

that the court was prohibited from doing so in these circumstances. Victims’

interest in restitution, as codified by provisions of the Sentencing Reform Act of

1981 (SRA), chapter 9.94A RCW, and embodied in the victims’ rights

amendment, does not undermine the State’s authority to 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 civil judgment.1° Similar to Olson’s argument, Wiens

claimed that the 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 of a crime charged as a felony

shall have the right to be informed of and, subject to the discretion of the individual

presiding over the trial or court proceedings, attend trial and all other court proceedings

the defendant has the right to attend, and to make a statement at sentencing and at any

proceeding where the defendant’s release is considered, subject to 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).

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No. 77627-4-1110

after conviction, the “intervention” in question did not interfere with the State’s

constitutional authority to 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 that victims have an absolute right to such participation, or a right

to participate in a particular manner. While not required, the sentencing court

here determined that it was appropriate not only to allow the victim to respond to

Olson’s motion, but also to allow the victim to file a motion seeking the court’s

intervention in the garnishment process. We see no reason why the sentencing

court should not have the discretion to permit such participation and determine

the appropriate manner and scope of the participation, as the court did here. To

be clear, nothing in the SRA or the constitution makes victims parties to criminal

proceedings or affords victims a right to appeal a criminal judgment 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 or constitutional right to appeal a federal criminal judgment);

United States v. Aquirre-Gonzalez, 597 F.3d 46, 53 (1st Cir. 2010) (“[Cjrime

victims are not parties to 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.

~ Our courts have also allowed limited intervention by nonparties in criminal matters to

challenge trial court orders 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 under GR

15(e) for the purpose of moving to unseal court records may occur only “after the criminal trial is

completed or the defendant has pleaded guilty.” 170 Wn.2d at 801 n.1 1.

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No. 77627-4-Ill 1

2012) (dismissing victim’s appeal to enforce rights afforded under state’s

constitutional crime victims’ rights amendment because only the State and the

accused are parties to a criminal action).

We conclude that the sentencing court did not impermissibly allow the

State to delegate the prosecutorial role. Nor did it abuse its discretion in

affording the victim an opportunity to be heard.

III

Olson also challenges the trial court’s denial of his 2017 motion to strike or

reduce restitution and restitution interest.

The authority to 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 under the SRA, restitution for injury is mandatory absent

extraordinary circumstances. ROW 9.94A.753(5) provides, in relevant part:

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 . . . unless extraordinary circumstances exist which

make restitution inappropriate in the court’s judgment and the court

sets forth such circumstances in the record.

Restitution must be paid to the superior court clerk and then disbursed directly to

the victims. Shultz, 138 Wn.2d at 644.

The trial court also has authority to modify restitution. ROW 9.94A.753(4)

specifically provides that the “portion of the sentence concerning restitution may

be modified as to amount, terms, and conditions during any period of time the

offender remains under the court’s jurisdiction.” A court’s decision to modify the

amount or terms of a restitution order under RCW 9.94A.753(4) is reviewed for

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No. 77627-4-1/12

abuse of discretion. 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 lack the ability to pay the total amount.” ROW 9.94A.753(4).

Olson claims that the court’s ruling denying his motion was manifestly

unreasonable because, by refusing to extinguish his restitution obligation based

on his insurer’s payment to the victim, the sentencing court permitted “the

criminal case to be used as leverage over the civil collections.” He relies on

language from 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 for the collection of private debt.” But Pike involved a conviction of

theft by taking allegedly committed when the defendant reclaimed his own

vehicle from a mechanic without authorization and without paying for repairs

performed. Pike, 118 Wn.2d at 587. The court observed that the contractual

debt owed to the mechanic created a right to recover damages in a civil lawsuit,

but could not form the basis for criminal liability absent a specific statute or

evidence of contractual fraud. Pike, 118 Wn.2d at 595. In contrast, Olson’s

private debt was not the basis for his criminal conviction. Pike is wholly

inapposite.

To the extent that Olson suggests that the sentencing court’s order

requires restitution to be paid last, after he fully satisfies the civil judgment (minus

$40,000) and interest upon that judgment, he is mistaken. Although the victim’s

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No. 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 of a sentence, and a willful failure

to comply with these conditions can result in further confinement. See ROW

9.94A.760(11). This statutory scheme does not allow the sentencing court to

prevent a defendant from voluntarily complying with the criminal judgment, 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 satisfy the requirements of law set forth in RCW

46.29.090(1). The mandatory coverage amounts encompassed in the statute

reflect policy choices that the legislature has the power to make, and also, to

amend. See El Centro De La Raza v. State, 192 Wn.2d 103, 428 P.3d 1143

(2018).

Olson contends that the sentencing court abused its discretion by denying

his motion because the fact that all payments made to the victim on his behalf

were not credited against his restitution obligation constitutes an “extraordinary”

circumstance. Olson cites to no authority that supports his position. And, in fact,

12 With respect to the allocation of payments made to the court to satisfy the terms of the

judgment, the court must, of course, be mindful of the distribution order set forth in RCW

9.94A.760(2).

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No. 77627-4-1/14

it is well-settled that “[t]he decision whether or not to credit payments to the victim

by [the defendant’s] insurance carrier against the 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

of two counts of vehicular homicide and, as restitution, was ordered to pay the

monthly child support obligation of one of the deceased victims. Young, 63 Wn.

App. at 326. Because Young’s insurance carrier had tendered payment to the

victim’s family, he argued on appeal that, as a matter of law, the insurance funds

had to be allocated first to “easily ascertainable damages,” such as lost child

support, and then to other items of damage. Young, 63 Wn. App. at 335. The

appellate court rejected the argument, noting that the manner of allocating

insurance payments against a victim’s loss was a matter for the court’s

discretion. Young, 63 Wn. App. at 335.

Similarly, a jury convicted Shannahan of negligent driving and the court

ordered restitution of approximately $1 1,000 for the victim’s injuries. Shannahan,

69 Wn. App. at 514. Thereafter, the defendant’s insurer paid $25,000, the policy

limit, to the victim. Shannahan, 69 Wn. App. at 514. Shannahan argued that as

a result of funds his insurer tendered to the victim, his restitution obligation

should be discharged because the amount received by the victim from his insurer

exceeded the amount of court-ordered restitution. Shannahan, 69 Wn. App. at

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No. 77627-4-1/15

518-19. We rejected this argument, holding that the manner of allocating

insurance payments was 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 of the loss that the

victim or next of kin will recover.” Shannahan, 69 Wn. App. at 519 (quoting

Young, 63 Wn. App. at 336).

Likewise here, the sentencing court did not abuse its discretion when it

declined to allocate the insurance payments in the manner advocated by Olson.

And in these circumstances, when the restitution amount overlapped with the

special damages awarded by the jury, but not with the general damages awarded

by the jury, the court’s ruling was consistent with doctrines that promote full

compensation of the 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); Sherry v. Fin. lndem. Co., 160 Wn.2d 611, 622, 160

P.3d 31(2007) (recognizing Washington’s “broad view of full compensation”).

In a different case, the facts may be such that it would be appropriate for a

judge to order that insurance payments be first allocated to a restitution

obligation. This merely illustrates the wisdom of leaving such a determination to

the sound discretion of the sentencing judge.

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No. 77627-4-1/16

We affirm the sentencing court’s order denying Olson’s motion to reduce

or strike restitution and accrued interest and the subsequent restitution orders.

WE CONCUR: /

~4aaL~A I ____________

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