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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                             FILED
                                                                        APRIL 26, 2012
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint             No.  28855-2-III
of:                                             )
                                                )
                                                )   Division Three
                                                )
BRADY JOE LEWIS,                                )   UNPUBLISHED OPINION
                                                )
              Petitioner.                       )
                                                )

       Kulik, J.  --  As part of a plea agreement, Brady Joe Lewis pleaded guilty to second 

degree murder in 2009 and the State dismissed other charges.  But Mr. Lewis was ordered 

to pay restitution for the uncharged offenses.  Nothing in the record shows that Mr. Lewis 

agreed to restitution for the uncharged offenses.  Therefore, we grant Mr. Lewis's 

personal restraint petition and remand for vacation of the restitution related to the 

uncharged offenses.

                                            FACTS

       Brady Joe Lewis pleaded guilty to second degree murder on April 8, 2009.  The 

State dismissed other charges as part of the plea agreement.  The statement of defendant 

on plea of guilty agreed that the State would recommend a sentence as follows: 

No. 28855-2-III
In re the Pers. Restraint of Lewis

       Mid-Range Sentence of 347.5 months.  Dismissal of other pending filed 
       charges.  Standard fines & costs.  Restitution.  

Br. of Resp't App. B at 4.  Although the statement states that it incorporates a 

separate plea agreement, no such document exists.  

       At the sentencing hearing, the judge discussed the recommendation made by the 

State, noting that it included "standard fees and costs and restitution."  Report of 

Proceedings (RP) at 9. The only mention made as to the details of the restitution was 

made by the prosecutor, who stated:

              The State is seeking the $500 victim assessment, $200 in court costs, 
       $100 for the [deoxyribonucleic acid] collection fee and restitution.  We 
       have an agreed restitution schedule for $16,456.87.  This is primarily burial 
       costs as well as restitution regarding a property case that was added into 
       this as negotiations.

RP at 19.  The court accepted the State's recommendation and imposed standard fines 

and costs, which raised the total restitution cost to $17,256.87.  

       Once incarcerated, Mr. Lewis received a restitution schedule that showed the cost 

of restitution for the charge to which he pleaded guilty was $1,950.39.  The remaining 

restitution in the amount of $14,506.48 related to the dismissed charges.  

       In February 2010, Mr. Lewis filed a letter with the Spokane County Superior 

Court.  In that letter, he stated that he did not agree to this restitution and that his attorney 

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No. 28855-2-III
In re the Pers. Restraint of Lewis

failed to inform him of the details of the restitution schedule.  Moreover, he stated his 

belief that his attorney was ineffective for a variety of reasons, though the only one of 

legal significance relates to whether his attorney informed him of the nature of the 

restitution.  

       The letter was transferred to this court as a personal restraint petition pursuant to 

CrR 7.8(c).  This court accepted the transfer, determined that Mr. Lewis raised 

nonfrivolous issues, and referred the matter to a panel for consideration pursuant to 

RAP 16.11(b). 

       When raising a nonconstitutional issue in a personal restraint petition, the 

petitioner must demonstrate that the claimed error "constitutes a fundamental defect 

which inherently results in a complete miscarriage of justice."  In re Pers. Restraint of 

Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990).  

       To meet his initial burden, Mr. Lewis must state in his petition the facts underlying 

the claim of unlawful restraint and the evidence available to support the factual 

allegations which, if true, would entitle him to relief.  RAP 16.7(a)(2)(i); In re Pers. 

Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992).  Mr. Lewis had to 

show that the factual allegations are based on more than speculation, conjecture, or 

inadmissible hearsay.  Id. at 886.

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In re the Pers. Restraint of Lewis

       Once the petitioner satisfies his or her initial burden, the State's response is 

examined; where the parties' materials establish the existence of a dispute as to a material 

issue of fact, a reference hearing is necessary to resolve the issue.  Id. at 886-87.

       Here, Mr. Lewis argues that the trial court erred in imposing restitution for the 

uncharged offenses because he did not agree to pay such restitution and was not aware of 

it until he received the schedule while in confinement.  In its response, the State argues 

that Mr. Lewis was aware of the amount of restitution to be repaid, that it included the 

uncharged offenses, and that he entered into the agreement knowingly, voluntarily, and 

intelligently.  

       The requirement that a defendant agree to pay restitution for uncharged offenses 

has been construed to mean that he or she must expressly agree.  E.g., State v. 

Dauenhauer, 103 Wn. App. 373, 378, 12 P.3d 661 (2000).  Thus, "restitution cannot be 

imposed based on a defendant's 'general scheme' or acts 'connected with' the crime 

charged, when those acts are not part of the charge." Id. When a sentencing court fails to 

abide by these principles, its restitution order is void.  State v. Duback, 77 Wn. App. 330, 

332, 891 P.2d 40 (1995).

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No. 28855-2-III
In re the Pers. Restraint of Lewis

       Here, the parties agree that Mr. Lewis was assessed restitution for the uncharged 

offenses.  But the statement on plea of guilty shows Mr. Lewis did not expressly agree to 

pay restitution for the uncharged offenses as part of the plea agreement.  And there was 

no express agreement at the sentencing hearing.  
       Although the prosecutor did allude to a "property case"1 that was part of the 

negotiation, there is no evidence as to what case or charge that was, and if it was simply 

one case, that statement would still fail to support an agreement to pay restitution for 

multiple uncharged offenses.  Thus, the record supports Mr. Lewis's contention that he 

did not agree to pay restitution for the uncharged offenses and, thus, renders the 

restitution order void.  Duback, 77 Wn. App. at 332.

       Given our decision, we need not address Mr. Lewis's ineffective assistance of 

counsel claim.

       The trial court exceeded its authority by ordering restitution on the uncharged 

offenses that Mr. Lewis did not expressly agree to pay as a condition of his plea 

agreement.  We grant the personal restraint petition and remand for vacation of the 

restitution related to the uncharged offenses.

       1 RP at 19.

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No. 28855-2-III
In re the Pers. Restraint of Lewis

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

                                            _________________________________
                                            Kulik, J.

WE CONCUR:

______________________________              _________________________________
Sweeney, J.                                 Brown, J.

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