Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 76051-9
Title of Case: State of Washington, Respondent v. Zachary
A. Kinneman, Petitioner.
File Date: 09/08/2005
Oral Argument Date: 06/30/2005

Appeal from Superior Court,
King County
Honorable Jeffrey M Ramsdell

Authored by Barbara A. Madsen
Concurring: James Johnson
Bobbe J Bridge
Charles W. Johnson
Gerry L Alexander
Richard B. Sanders
Susan Owens
Tom Chambers
Mary Fairhurst

Counsel for Petitioner(s)
Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Counsel for Respondent(s)
John Christopher Carver
Attorney at Law
500 4th Ave Rm 840
Seattle, WA 98104-2371

Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA 98104


) No. 76051-9
Respondent, )
v. ) En Banc
Petitioner. ) Filed September 8, 2005

MADSEN, J. - Zachary Kinneman, an attorney, was convicted of 67 counts of
theft in connection with real estate transactions that he handled for a
client. Kinneman raises several challenges to an order of restitution,
including the question whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), apply to restitution under RCW
9.94A.753.1 We conclude that Apprendi and Blakely do not apply and affirm
the Court of Appeals' decision on the remaining issues.
Mr. Kinneman was a Washington licensed attorney who was hired in June
1997 to act as the escrow and closing agent for five separate real estate
refinance transactions involving five properties in Seattle. The borrower
in these transactions was Rodney E. Brown and the lender was Option One
Mortgage Company (Option One). Brown (who was in prison for unrelated
offenses) had executed a power of attorney enabling his brother William
Michael Brown (W.M. Brown) to handle his financial matters. W.M. Brown
applied for the loans from Option One in his brother's name,2 and arranged
with a mortgage broker for Kinneman to serve as escrow agent. In June
1997, Option One transferred $499,506.96 to Kinneman's trust account.
Kinneman did not carry out Option One's escrow/closing instructions.
He failed to record deeds of trust. And although he purchased title
insurance for four of the properties, he did not for the fifth (the
Columbia Street property). Initially he also failed to pay off the prior
lienholders on all of the properties, although he eventually paid the prior
lienholders on two properties in order to avoid looming foreclosure
proceedings. He never paid the prior lienholders on the other three
properties. Kinneman paid W.M. Brown about $92,000.00, approximately
$8,000.00 more than he had been instructed to pay to the borrower.
Between June 17, 1997, when the first of the loan proceeds were
transferred to the account, and October 22, 1998, Kinneman made nearly 70
unauthorized withdrawals from his trust account that were not related to
the escrow/closing instructions. In all, Kinneman diverted over
$200,000.00 to his own use.
On December 30, 1998, Kinneman disclosed in an interview with FBI
(Federal Bureau of Investigation) agents that he used the Option One funds
because of financial difficulties related to his divorce. On June 20,
2000, the State charged Kinneman with 77 counts of theft (30 counts of
first degree theft and 47 counts of second degree theft)--some of these
counts were later dismissed on the State's motion. Kinneman was convicted
of 67 counts of theft.3
When Kinneman was sentenced on February 8, 2002, he tendered a
$208,713.10 check as restitution. On September 20, 2002, a restitution
hearing was held.4 The court ordered restitution of $206,770.10 to Rodney
Brown, the amount of the Option One funds that Kinneman stole,5 plus
$40,000.00 in interest, a total of $246,770.10.6 Clerk's Paper's (CP) at
16. The court also ordered restitution of $308,616.73 to Old Republic
Title Insurance Company (Old Republic). Id. Old Republic was Option One's
title insurance company on the two properties that Kinneman had purchased
title insurance for but on which he failed to pay the prior lienholders
(the 25th Avenue and Brandon Street properties). Old Republic paid the
senior lienholders on these properties in order to put Option One in first
priority position. The restitution to Old Republic included $263,616.73
for paying off the liens, plus interest.7 The court declined to order
restitution for attorney fees and costs that Old Republic claimed were
causally related to Kinneman's thefts. The court directed that restitution
to Rodney Brown was to be satisfied before any restitution was to be paid
to Old Republic.
Kinneman appealed the restitution order. The State cross-appealed.
The Court of Appeals affirmed in part and reversed in part. State v.
Kinneman, 122 Wn. App. 850, 95 P.3d 1277 (2004), review granted, 154 Wn.2d
1001 (2005). The Court of Appeals held that the State was entitled to
appeal the restitution order, that the superior court abused its discretion
in ordering restitution to Rodney Brown in the total amount that Kinneman
stole, and that the order of restitution to Old Republic was not an abuse
of discretion. The Court of Appeals remanded for an evidentiary hearing to
determine Brown's loss and to determine restitution in the amount, if any,
of restitution for the attorney fees and costs incurred by Brown, Old
Republic, and Option One that were causally related to Kinneman's crimes.
Kinneman argues that under the Sixth Amendment he is entitled to a
jury determination of the facts essential to restitution.
In Apprendi, the United States Supreme Court held that '{o}ther than
the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.' Apprendi, 530 U.S. at 490; see Ring
v. Arizona, 536 U.S. 584, 602, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002)
('{i}f a State makes an increase in a defendant's authorized punishment
contingent on the finding of a fact, that fact--no matter how the State
labels it--must be found by a jury beyond a reasonable doubt'). In
Blakely, the Court explained that ''statutory maximum'' means 'the maximum
sentence a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.' Blakely, 124 S. Ct. at
2537 (emphasis omitted). It is 'not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may impose
without any additional findings.' Id. (emphasis omitted). In Blakely, the
Court held that the right to a jury trial was violated by imposition of an
exceptional sentence upward where, under Washington's Sentencing Reform
Act, chapter 9.94A RCW (SRA), a judge was authorized to impose an
exceptional sentence only upon finding some additional fact beyond the
jury's verdict. Blakely, 124 S. Ct. at 2537-38.8
The first question is whether, as Kinneman argues, punishment for
purposes of Apprendi and Blakely includes punishments other than prison
sentences. The State maintains that Apprendi and Blakely do not apply to
restitution because they deal solely with imprisonment, which is purely
punitive. Punishment includes both imprisonment and other criminal
sanctions. See United States v. Nachtigal, 507 U.S. 1, 3, 113 S. Ct. 1072,
122 L. Ed. 2d 374 (1993) ('the word 'penalty' refers both to the term of
imprisonment and other statutory penalties'). We do not understand
Apprendi and Blakely to apply only to punishment in the form of prison
sentences; both cases refer to punishment and neither limits its analysis
to imprisonment.
The State next says that not all punishments are within the scope of
the Sixth Amendment guaranty to trial by jury, and that there is a
distinction between imprisonment and other components of a criminal's
sentence that shows that the Court did not intend Blakely to apply to
restitution. The State relies on Blanton v. City of North Las Vegas,
Nevada, 489 U.S. 538, 542, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989) and
Nachtigal, 507 U.S. 1 (applying Blanton).
In Blanton, the Court was asked whether there was a right to a jury
trial for an offense punishable by a maximum term of six months'
imprisonment. The Court noted that it had long been settled that petty
crimes or offenses were not within the scope of the Sixth Amendment right
to a jury trial. In determining whether an offense is a petty offense, the
most relevant criterion is the maximum authorized penalty, with the primary
emphasis on the length of the prison term. Blanton, 489 U.S. at 541-42.
Blanton does not support the State's argument that Apprendi and
Blakely do not apply to restitution. While Blanton says the length of
imprisonment is the most important criterion, it also explains that if the
punishment is a prison term of less than six months the crime is presumed
petty, but a defendant is nevertheless entitled to a jury trial if he can
show that additional statutory penalties, in conjunction with the maximum
authorized period of incarceration, are so severe that they show
legislative intent to treat the offense as a serious one. Id. at 543.
Thus, all of the punishment imposed may be considered when deciding whether
the defendant has overcome the presumption that an offense punishable by a
prison term of six months or less is a petty offense. Punishment other
than a prison sentence may tip the scales and require a jury trial. See
also Nachtigal, 507 U.S. at 3. We do not agree that the only punishment
falling within Apprendi and Blakely is a prison term.
The next question is whether restitution is punishment. In Washington
restitution is both punitive and compensatory. E.g., State v. Moen, 129
Wn.2d 535, 539 n.1, 919 P.2d 69 (1996); State v. Barr, 99 Wn.2d 75, 79, 658
P.2d 1247 (1983); State v. Ewing 102 Wn. App. 349, 352-53, 7 P.3d 835
(2000) (restitution is primarily punitive).9 The State agrees that
restitution is a 'hybrid' that is both punitive and compensatory. The
State argues, however, that restitution is not sufficiently punitive to
bring it within the ambit of Apprendi and Blakely. The State relies on
State v. Shultz, 138 Wn.2d 638, 980 P.2d 1265 (1999), where we addressed an
ex post facto challenge to amendments to former RCW 9.94A.142 that extended
trial courts' jurisdiction over restitution orders. The State refers to
our observation in Shultz that restitution contains a strong remedial
component because it is statutorily connected to the victims' losses.
Shultz, 138 Wn.2d at 643-44. However, we found it unnecessary to decide
whether restitution is penal or remedial because, even if punitive, the
amendments did not alter the quantum of punishment and therefore did not
violate the ex post factor prohibition. Id. at 644. Moreover, while we
noted the statutory language indicating that restitution is tied to the
victim's losses, we did not address another part of the restitution statute
that provides that '{t}he amount of restitution shall not exceed double the
amount of the offender's gain or the victim's loss from the commission of
the crime.' RCW 9.94A.753(3). This part of the restitution statute shows
that restitution is also strongly punitive because it authorizes
restitution in an amount that exceeds the amount necessary to compensate
the victim. See Ewing, 102 Wn. App. at 353. As we later commented in
State v. Hughes, 154 Wn.2d 118, 155, 79, 110 P.3d 192 (2005), ''{u}nder
the sentencing reform act, restitution is part of an offender's sentence''
(quoting State v. Edelman, 97 Wn. App. 161, 166, 984 P.2d 421 (1999)).10
Restitution is at least as punitive as compensatory.
But while restitution is punishment, it does not require jury fact-
finding under the post-Blakely decision in United States v. Booker, U.S.
, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). In Booker the Court held
that provisions making the Federal Sentencing Guidelines mandatory and
setting forth the standard of review on appeal were unconstitutional
because they violated the Sixth Amendment right to a jury trial. The Court
severed these provisions, leaving the Guidelines as effectively advisory.
The Sixth Amendment was then not implicated because statutes that do not
impose mandatory, binding requirements on sentencing judges do not
implicate the right to a jury trial. Booker, 125 S. Ct. at 750 ('when a
trial judge exercises his discretion to select a specific sentence within a
defined range, the defendant has no right to a jury determination of the
facts that the judge deems relevant'); id. at 764.
Washington's restitution statutes are more like the advisory Federal
Sentencing Guidelines after Booker than the mandatory sentencing guidelines
found to violate the Sixth Amendment in Blakely. RCW 9.94A.753(5) provides
that '{r}estitution 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.' RCW 9.94A.753(3)
provides that restitution 'shall be based on easily ascertainable damages
for injury to or loss of property, actual expenses incurred for treatment
for injury to persons, and lost wages resulting from injury . . . {and} may
include the costs of counseling reasonably related to the offense.' As
noted, the statute also provides that '{t}he amount of restitution shall
not exceed double the amount of the offender's gain or the victim's loss
from the commission of the crime.' Id.
While the restitution statute directs that restitution 'shall' be
ordered, it does not say that the restitution ordered must be equivalent to
the injury, damage or loss, either as a minimum or a maximum, nor does it
contain a set maximum that applies to restitution. Instead, RCW 9.94A.753
allows the judge considerable discretion in determining restitution, which
ranges from none (in some extraordinary circumstances) up to double the
offender's gain or the victim's loss. See Hughes, 154 Wn.2d at 153, 76
('{t}he trial court has great power and discretion in issuing
restitution'); State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999)
(when authorized by statute, imposition of restitution is generally within
the discretion of the trial court, and absent abuse of discretion will not
be disturbed on appeal).
Given the broad discretion accorded the trial judge by the statute,
the lack of any set maximum, and the deferential abuse of discretion review
standard, the restitution statute provides a scheme that is more like
indeterminate sentencing not subject to Sixth Amendment jury determinations
than the SRA's determinate sentencing scheme at issue in Blakely. Booker
underscores the critical fact that the mandatory and binding nature of the
SRA's provisions for imposing exceptional sentences was crucial to the
holding in Blakely. Booker, 125 S. Ct. at 750, 764; see Blakely, 124 S.
Ct. at 2537-38.
There is no right to a jury trial to determine facts on which
restitution is based under RCW 9.94A.753.
Next, we are asked to review issues addressed by the Court of Appeals,
related to the State's cross-appeal of the restitution order. Initially,
Kinneman argues that the State is not entitled to appeal restitution
ordered under RCW 9.94A.753 claiming an abuse of trial court discretion.
He relies on State v. A.M.R., 147 Wn.2d 91, 51 P.3d 790 (2002), which
involved appeal from a juvenile restitution order, for the proposition that
in adult cases an appeal by the State is permitted only when 'specifically
allowed by statute, court rule, or case law.' Id. at 95. Kinneman
contends that while RAP 2.2(b)(6) and RCW 9.94A.585(2) permit an appeal by
the State when a sentence outside the standard range is imposed or an
offender score has been miscalculated, under State v. Mail, 121 Wn.2d 707,
854 P.2d 1042 (1993), appeal by the State is otherwise permitted only when
the sentencing court violated fundamental procedural tenets or a
constitutional requirement. In Mail, we reasoned that the State may appeal
where the sentencing court had a duty to follow a specific procedure under
the SRA and failed to carry out that duty. Id. at 712.
RAP 2.2(b)(6), RCW 9.94A.585(2), and Mail, do not foreclose the
State's appeal of the restitution order. In Mail we explained that '{a}
trial court's decision regarding the length of a sentence within the
standard range is not appealable because 'as a matter of law there can be
no abuse of discretion.'' Mail, 121 Wn.2d at 710 (quoting State v. Ammons,
105 Wn.2d 175, 183, 713 P.2d 719, 718 P.2d 796 (1986)). In contrast, 'it
is well established that appellate review is still available for the
correction of legal errors or abuses of discretion in the determination of
what sentence applies.' State v. Williams, 149 Wn.2d 143, 147, 65 P.3d
1214 (2003) (emphasis added). And a party may 'challenge the underlying
legal conclusions and determinations by which a court comes to apply a
particular sentencing provision' notwithstanding the principle that
generally the State may not appeal a sentence within the standard range.
Id. at 146-47.
As the Court of Appeals reasoned, the restitution part of a sentence
under RCW 9.94A.753 is 'separate and distinct from the standard-range
portion, which is identified without exercise of discretion according to
the {SRA's} matrix of crimes and offender scores,' and in contrast to a
standard range sentence, '{t}he amount of restitution ordered is at the
discretion of the trial court.' Kinneman, 122 Wn. App. at 859. The Court
of Appeals concluded that '{u}nlike a standard range sentence, restitution
is not entitled to a presumption that there can be no abuse of discretion
as a matter of law.' Id. at 859. We agree. The Court of Appeals did not
err in allowing the State to appeal the restitution order.
Next, as noted, the trial court ordered Kinneman to pay restitution to
Rodney Brown in the amount that Kinneman stole plus interest. The Court of
Appeals held that the trial court abused its discretion because, although
Brown sustained some loss, there is evidence that he had sought and
received reimbursement from some of the parties that Kinneman had paid from
the stolen funds. Id. at 861.11 Moreover, the Court of Appeals noted, the
escrow funds that Kinneman stole were not intended to go to Rodney Brown.
Id. The Court of Appeals remanded for an evidentiary hearing, saying that
'{d}etermining Brown's losses requires arithmetical calculations not yet
before the court. . . . The calculations may be somewhat complex. This
does not mean that they will not be easily ascertainable.' Id. at 861,
Kinneman contends, though, that the Court of Appeals' decision
violates the statutory requirement that restitution
shall be based on easily ascertainable damages for injury to or loss of
property, actual expenses incurred for treatment for injury to persons, and
lost wages resulting from injury. Restitution shall not include
reimbursement for damages for mental anguish, pain and suffering, or other
intangible losses, but may include the costs of counseling reasonably
related to the offense.

RCW 9.94A.753(3). Kinneman says that Brown's loss in equity is not an
easily identified, discrete sum, and determining the loss involves a
complicated analysis beyond the authority of a trial court in a criminal
The statute precludes restitution for speculative and intangible
losses. However, while restitution must be based on ''easily ascertainable
damages,'' the 'amount of harm or loss 'need not be established with
specific accuracy.'' Hughes, 154 Wn.2d at 154, 77 (quoting State v.
Fleming, 75 Wn. App. 270, 274, 877 P.2d 243 (1994)). 'Evidence supporting
restitution is sufficient if it affords a reasonable basis for estimating
loss and does not subject the trier of fact to mere speculation or
conjecture.' Id. (quoting Fleming, 75 Wn. App. at 274-75). If the
defendant disputes facts relevant to determining restitution, the State
must prove the damages at an evidentiary hearing by a preponderance of the
evidence. Id. There is no requirement that a victim's damages be
foreseeable. Enstone, 137 Wn.2d at 680-81. The 'easily ascertainable'
standard does not mean that restitution can be awarded only under simple
calculations, as the Court of Appeals said.
Kinneman argues, however, that Brown lost title to his properties
because he failed to pay his mortgages and monitor his finances, and this
loss was not due to Kinneman's theft. He argues that Brown had no legal
right to the money that was stolen because that money was intended to give
Option One first priority security interests in the properties. And,
Kinneman says, Brown has obtained a large civil judgment against Kinneman
covering loss of equity, attorney's fees and other damages.
These assertions highlight the need for an evidentiary hearing to
determine Brown's losses and whether they were a direct result of
Kinneman's thefts, as the Court of Appeals reasoned. As the Court of
Appeals also noted, both Kinneman and the State requested an evidentiary
hearing, but the trial court declined to hold one. We conclude that the
Court of Appeals did not err in remanding for an evidentiary hearing to
determine restitution for Brown's losses.
Kinneman also argues that restitution cannot be based on cumulative
harm from his individual acts and that restitution was improperly imposed
because, he says, he was not convicted of theft for all money allegedly
misspent. Restitution is allowed only for losses that are causally
connected to a crime, and may not be imposed for a '''general scheme,'''
acts '''connected with''' the crime charged, or uncharged crimes unless the
defendant enters into an express agreement to pay restitution in the case
of uncharged crimes. State v. Woods, 90 Wn. App. 904, 907-08, 953 P.2d 834
(1998) (quoting State v. Miszak, 69 Wn. App. 426, 428, 848 P.2d 1329
(1993)). However, although the State originally charged 77 counts of theft
and then moved to dismiss some of the charges, this record shows that there
is no doubt that the thefts for which Kinneman was convicted made the
escrow funds unavailable for the refinancings. And, because money is
essentially 'fungible,' there is no requirement that the victims' losses
must be tied causally to specific individual thefts for which Kinneman was
The next question is whether the trial court abused its discretion in
denying restitution for attorney fees and costs sought by Rodney Brown, Old
Republic, and Option One. The Court of Appeals found an abuse of
discretion and remanded for an evidentiary hearing on this matter.
Kinneman claims that the Court of Appeals erred, arguing that the trial
court properly concluded that the attorney fees and costs for which
restitution was sought 'were either associated with other civil claims or
impossible to parcel out from the other civil claims' and that the trial
court 'found the attorneys' fees sought in the case at bar were related to
other litigation.' Pet'r's Suppl. Br. at 22.
Kinneman misrepresents the trial court's ruling. The trial court did not
examine whether the attorney fees and costs for which restitution was
sought represented damages within the meaning of the restitution statute
and whether they were causally connected to Kinneman's thefts. Instead,
the trial court simply followed State v. Martinez, 78 Wn. App. 870, 899
P.2d 1302 (1995), as stating a rule that restitution could not be based on
attorney fees and costs, subject to only two exceptions, i.e., under the
specific factual circumstances in State v. Wilson, 100 Wn. App. 44, 995
P.2d 1260 (2000) and State v. Christensen, 100 Wn. App. 534, 997 P.2d 1010
(2000). See CP at 13 (trial court's memorandum ruling on restitution).
In Martinez, the defendant was convicted of arson after a fire
destroyed his business. His insurance company had incurred expenses in
investigating the fire and attorney fees in defending a civil suit brought
by the defendant to collect on the insurance policy. As to the
investigation costs the court said, among other things, that they did not
fall within any of the categories of losses identified in the restitution
statutes--property loss or damage, injury to persons, lost wages, and
counseling. Martinez, 78 Wn. App. at 882. We disagree with this
We have held that funds expended by a victim as a direct result of the
crime (whether or not the victim is an 'immediate' victim of the offense)
can be a loss of property on which restitution is based. State v. Smith,
119 Wn.2d 385, 831 P.2d 1082 (1992) (funds expended by a burglarized bank
to develop film, and unload and reset surveillance camera constituted
'property'); State v. Davison, 116 Wn.2d 917, 921-22, 809 P.2d 1374 (1991)
(funds paid by a city to its employee who was the immediate victim of an
assault while he was unable to work as a result of the assault constituted
property). Within this principle, expenditure of funds for investigative
costs can be loss of property. In Wilson, 100 Wn. App. at 50, for example,
the court concluded that restitution may be ordered for investigative costs
if they are 'reasonably and rationally related to the crime and
consequential in the sense that but for the {crime}, the victim would not
have incurred them.' The court upheld restitution ordered for an
employer's investigative costs to prove monetary loss due to embezzlement
of funds by her employee.
The court in Martinez also said, as to the attorney fees and costs
incurred in the civil litigation, that attorney fees are not costs and thus
not recoverable 'as an element of damages.' Martinez, 78 Wn. App. at 884.
In addition, the court concluded, attorney fees can be awarded only when
authorized by statute, contract, or a recognized ground of equity--absent
one of these bases, attorney fees cannot be awarded. Id. at 884. Again,
we disagree with this reasoning. The civil rule regarding whether attorney
fees may be awarded as an element of damages and the 'American rule' for an
award of attorney fees simply have no place in the criminal restitution
scheme. See Ewing, 102 Wn. App. at 353-54 (the court is 'unable to discern
why civil doctrines . . . have any place in interpretation of criminal
statutes'); Christensen, 100 Wn. App. at 537-38 (the court 'fail{s} to see
how {the 'American rule' of attorney fees,} designed to regulate recovery
of attorney fees in civil cases{,} has any application in deciding an award
of restitution in a criminal proceeding').
Attorney fees and costs may constitute damages on which restitution
may be based, depending on the circumstances. In Christensen, for example,
an attorney was convicted of stealing from his clients. The victim sued
the defendant for recovery of her losses, incurring attorney fees, and then
settled the suit for less than the amount of her loss. She recovered part
of the remainder of her loss through the Washington State Bar Association
Client Protection Fund. The trial court ordered restitution in an amount
that would make the victim whole, including the amount of attorney fees
that had been deducted from her settlement. The Court of Appeals affirmed,
reasoning that because the victim had to pay attorney fees to get any
recovery in the civil suit, incurring the fees was a direct result of the
defendant's offense. However, restitution is improper if the fees are not
sufficiently causally connected to the offense. See, e.g., State v.
Vinyard, 50 Wn. App. 888, 894, 751 P.2d 339 (1988) (the defendant was
convicted of custodial interference; attorney fees connected with the
victim's representation in a separate domestic action regarding the
defendant's visitation rights were not sufficiently causally related to the
crime of custodial interference and thus restitution for the attorney fees
was improperly imposed).
Here, the trial court simply concluded that the attorney fees and
costs were not incurred in an attempt to investigate and assess the amount
of the loss as in Wilson, nor were they sought to make the victim whole
when a civil settlement received by the victim failed to do so because
attorney fees and costs were deducted from the settlement, as in
Christensen. The court erred by applying Martinez to preclude restitution
for attorney fees and costs unless the particular factual circumstances are
identical to those in Wilson or Christensen. Because the trial court
applied an incorrect legal analysis, it abused its discretion. See City of
Kennewick v. Day, 142 Wn.2d 1, 8, 11 P.3d 304 (2000) (a decision based on
an erroneous view of the law constitutes an abuse of discretion). The
Court of Appeals correctly directed that this case be remanded for an
evidentiary hearing on the requests for restitution for attorney fees and
Finally, although there has been no complaint about the trial court's
instruction that Rodney Brown be paid in full before other restitution is
paid, we draw the parties attention to RCW 9.94A.753(9),12 which provides
{t}he state or victim may enforce the court-ordered restitution in the same
manner as a judgment in a civil action. Restitution collected through
civil enforcement must be paid through the registry of the court and must
be distributed proportionately according to each victim's loss when there
is more than one victim.

The State was entitled to appeal the restitution order, asserting that
the trial court abused its discretion. Further, we hold that Apprendi and
Blakely do not apply to restitution under RCW 9.94A.753. Finally, the
Court of Appeals properly remanded this case for an evidentiary hearing on
Rodney Brown's losses and to determine whether restitution should be
imposed for attorney fees and costs incurred by Brown, Option One and Old
Republic allegedly as a direct result of Kinneman's thefts.
The Court of Appeals' decision is affirmed.


1 Former RCW 9.94A.142 is now codified at RCW 9.94A.753. The relevant
substantive provisions have not changed. RCW 9.94A.753 will be cited
except for references to the former statute when citing prior case law.
2 He did not disclose that he was W.M. Brown rather than Rodney Brown, and
he signed his brother's name to the documents. There is no claim at this
point, however, that W.M. Brown did not act with authority when he obtained
the loans
3 The Court of Appeals upheld Kinneman's convictions. State v. Kinneman,
120 Wn. App. 327, 84 P.3d 882 (2003), review denied, 152 Wn.2d 1022 (2004).
4 The State moved, and Kinneman joined the motion, to continue the
restitution hearing beyond the 180-day statutory period after Kinneman's
counsel moved to withdraw and substitute counsel had not been appointed as
of a few days before the hearing was originally scheduled.
5 The State says that the amount stolen was $208,713.10, the same as the
amount of the tendered check, and that the court's figure of $206,770.10 is
in error.
6 Brown had asked for the amount stolen, plus attorney fees and costs
totaling $100,000.00 and interest of $108,756.01.
7 Old Republic had asked for a total of $423,649.90. This included
$173,233.55 to pay off the note and deed of trust on the 25th Avenue
property and $90,383.18 to pay off the Brandon Street property. It also
included $42,663.76 in attorney fees to defend the validity and
enforceability of Option One's deed of trust in a suit brought by Rodney
Brown in federal bankruptcy court. In addition, Old Republic sought
$17,805.23 in attorney fees and costs it had expended in pursuing a civil
action against Kinneman for damages caused by his thefts. Old Republic
also sought interest.
8 The legislature responded to Blakely by amending the SRA to provide for
jury determinations of aggravating factors justifying exceptional sentences
upward. Laws of 2005, ch. 68 (amending RCW 9.94A.530 and RCW 9.94A.535,
and adding RCW 9.94A.537 (effective April 15, 2005)).
9 See also State v. Smith, 119 Wn.2d 385, 389, 831 P.2d 1082 (1992)
(restitution promotes '''respect for the law by providing punishment which
is just''') (quoting State v. Davison, 116 Wn.2d 917, 922, 809 P.2d 1374
(1991)); Davison, 116 Wn.2d at 920 (restitution has a ''strong punitive
flavor'') (quoting David Boerner, Sentencing in Washington sec. 4.8, at 4-
14 (1985)); State v. Dennis, 101 Wn. App. 223, 229, 6 P.3d 1173 (2000)
(restitution has a compensatory purpose but is primarily punitive); State
v. Edelman, 97 Wn. App. 161, 166, 984 P.2d 421 (1999) (restitution is part
of an offender's sentence and is primarily punitive); State v. Young, 63
Wn. App. 324, 329, 818 P.2d 1375 (1991) (restitution is both compensatory
and punitive); State v. Eyre, 39 Wn. App. 141, 144-45, 692 P.2d 853 (1984)
(same). Because restitution is punishment, the Court of Appeals has held
that the obligation to pay restitution does not abate with the death of the
victim. Edelman, 97 Wn. App. 161.
10 The State also says that Kinneman's reliance on Davison is misplaced. As
the State says, the court there declined to construe the restitution
statute strictly in the defendant's favor, Davison, 116 Wn.2d at 919-20,
and the State reasons this undercuts the view that restitution is punitive.
However, the court did not conclude that the restitution statute is not
punitive. Instead, the court construed the statute to effectuate
legislative intent. Id. at 920-21. The court said:

Our interpretation of the statutes requires the defendant to face the
consequences of his criminal conduct. We interpret the statute to carry
out its purpose to '{p}romote respect for the law by providing punishment
which is just'. RCW 9.94A.010(2). We will not give the statutes an overly
technical construction which would permit the defendant to escape from just

Id. at 922.
11 Restitution does not preclude civil remedies. RCW 9.94A.753(9).
12 The same language appeared in former RCW 9.94A.142.