State v. Schultz

548 P.3d 559

STATE of Washington, Respondent,

v.James Dean SCHULTZ, Appellant.

No. 84570-5-I (consolidated with No. 84972-7-I)

Court of Appeals of Washington, Division 1.

Filed May 13, 2024

Honorable Chad Allred, Judge

Kate Benward, Washington Appellate Project, 1511 3rd Ave. Ste 610, Seattle, WA, 98101-1683, for Appellant.

Stephanie Finn Guthrie, King County Prosecuting Attorney’s Office, 516 3rd Ave. Ste W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Hazelrigg, A.C.J.

¶1 James Schultz was convicted of murder in the second degree and the trial court imposed a standard range sentence of 220 months and ordered him to pay restitution. On appeal, he argues the judge did not meaningfully consider his intellectual disability as a mitigating factor for an exceptional sentence below his standard range, presents a number of challenges to the award of restitution, and assigns error to the imposition of certain legal financial obligations (LFOs) based on his indigency. We affirm the sentence and matters relating to restitution, but remand for the trial court to strike the LFOs and consider the statutory factors regarding imposition of interest on the award of restitution.

FACTS

¶2 On June 18, 2020, Schultz and a group of other people, including Nicholas Germer, gathered at a bonfire near the Cedar River in unincorporated King County. Schultz and Germer did not know each other. Germer and another individual got into an argument about current events. A tattooed man in a white T-shirt, red hat, and light-colored pants with paint on them, later identified as Schultz, approached the discussion and punched Germer in the face. Germer then hit Schultz in the head with a vodka bottle, causing him to fall over an embankment. Schultz went to his truck in the parking area while two other individuals attempted to calm Germer down. Schultz’s companion who had arrived at the bonfire with him saw blood on Schultz’s head and attempted to get Schultz into the truck, but Schultz said he was going to "get that guy." His companion urged him "not to go back there" but Schultz pushed him into the bushes and returned to the bonfire, concealing a handgun behind his back. When he reached Germer, Schultz pulled the gun from behind his back and shot Germer at least three times in the chest, abdomen, and leg. At approximately 11:39 p.m., one of the individuals who had been at the bonfire called 911 and reported that someone had been shot.

¶3 Four deputies from the King County Sheriff’s Office (KCSO) responded to the scene. They discovered Germer below the firepit and partially in the river. One deputy pulled Germer out of the water, observed a gunshot wound to the chest, and began performing CPR¹ while waiting for emergency medical aid to arrive. The deputies were able to identify Germer using a fingerprint scanner. Germer was transported by ambulance to the hospital where he later died during surgery as a result of his injuries.

¶4 Deputies surveyed the scene by the river and located four shell casings on the trail by the firepit, a hat at the bottom of the embankment, and broken branches and shrubbery in the area. They also discovered alcohol bottles, including a broken vodka bottle. Two detectives from the KCSO major crimes unit arrived on scene and collected additional evidence, including blood drops, saliva, footprints, bottles, cigarette butts, and the victim’s cell phone and clothing. Through a discussion with Germer’s friend, the detectives were able to locate and speak with several individuals who had observed the incident. Several of these witnesses identified Schultz with varying degrees of certainty through photo montages. Schultz turned himself in to the precinct, where he was advised of his Miranda² rights before participating in a recorded interview with police that lasted over four hours. In the statement Schultz provided to police, he denied that he had been hit with a bottle, possessed a gun, or shot anyone. Schultz claimed that he had been drinking and fell down the embankment. On June 29, 2020, Schultz was charged with murder in the first degree with a firearm enhancement.

¶5 The parties reached a plea agreement on April 26, 2022, wherein Schultz would plead guilty to a reduced charge of murder in the second degree, a class A felony, with the firearm enhancement and the State would recommend a sentence of 280 months in prison, including a mandatory consecutive term of 60 months for the firearm enhancement pursuant to RCW 9.94A.533. However, the plea agreement expressly noted that there was no agreement as to the length of incarceration; the State sought a high-end sentence and the defense requested an exceptional sentence below Schultz’s standard sentencing range. The terms of the plea negotiations also included an agreement to a no contact order with Germer’s family and other individuals, community custody, and restitution, and stipulated to the facts set out in the probable cause affidavit for purposes of the plea and sentencing. Schultz entered his guilty plea on May 5 and, in his statement of defendant on plea of guilty, recanted his earlier statements to police disclaiming involvement in any shooting and declared that he "intentionally, and without premeditation, caused the death of Nicholas Germer, a human being, by shooting him with a firearm."

¶6 Schultz filed a sentencing memorandum that requested an exceptional mitigated sentence of 78 months, below his standard range of 123-220 months, based on his offender score of zero. He argued that the court should consider that he has permanent brain damage as a result of a neurodevelopmental disorder associated with prenatal alcohol exposure (ND-PAE), a type of fetal alcohol spectrum disorder, that Germer was the initial aggressor of the incident by striking him with a bottle, and that he has no history of felony convictions or violence. To support the first factor, he presented expert testimony by Dr. Megan Carter, a forensic psychologist, and a report by Dr. Natalie Novick Brown, a clinical psychologist. Novick Brown conducted interviews with Schultz and his family, gathered a chronology of Schultz’s academic, medical, and criminal history, and executed several standardized psychological tests. Although the testing demonstrated that Schultz’s IQ³ "ruled out" an intellectual disability, his scores were low in other areas that were also evaluated. Novick Brown’s report stated that Schultz "functions within the intellectually disabled range in unstructured environments where he must think independently in order to problem solve—a finding that has direct, implications for his alleged conduct in the instant offense." She diagnosed Schultz with ND-PAE and opined that the condition "directly influenced his alleged offense conduct."

¶7 At the sentencing hearing on September 16, 2022, Carter concurred with Novick Brown’s diagnosis and testified that the ND-PAE would have impacted Schultz's behavior regardless of his alcohol consumption, but agreed that alcohol may have contributed to the actions as well. Carter stated that Schultz’s diagnosis could impact memory, an inability to understand the future impacts of statements made to the police, and the display of emotionally inappropriate behavior. The State countered this evidence with testimony from KCSO Sergeant James Belford, the lead detective on the case. Belford stated that, based on his training and experience, Schultz had exhibited behavior designed to evade responsibility for his conduct. Belford also said that, during the four-hour recorded interview, he did not have any difficulty communicating with Schultz and that he was not concerned that Schultz had any difficulty tracking the information they were discussing.

¶8 After expressly considering the purpose of the Sentencing Reform Act of 1981 (SRA),⁴ the testimony presented, the written materials of the parties, including the expert reports, and oral argument, the trial court imposed a high-end sentence of 280 months, In setting out the reasoning for the sentence, the judge noted that Schultz had left the scene of the initial altercation with Germer to retrieve the gun from his truck and that he disregarded his companion’s attempts to stop him. Although the judgment and sentence (J&S) indicated that restitution would be determined at a future hearing, the judge ordered Schultz to pay the $100 DNA⁵ collection fee and $500 victim penalty assessment (VPA) as was required by statute at the time.⁶

¶9 On November 2, 2022, the State submitted documentation in support of its request for restitution. The evidence included documentation of the bereavement leave and paid time off (PTO) that each of Germer’s parents used following their son’s death; 10 days of missed work for Germer’s mother between June 19 and July 2, 2020, and 9 days of missed work for his father between June 22 and July 6, 2020. The State sought an award of restitution in the amount of $1,784.72 to Germer’s mother and $2,334.08 to his father based on the reported loss. It also sought $45.00 to reimburse Germer’s sister for counseling and $6,375.87 for repayment to the crime victims’ compensation fund for Germer’s funeral expenses. The total amount of restitution requested by the State was $10,539.67. On December 19, 2022, Schultz filed a response and argued that he was entitled to a jury trial to determine the amount of restitution under the Sixth Amendment to the United States Constitution and that the portion of the award that the State was requesting for Germer’s parent’s PTO constituted an excessive fine in violation of the Eighth Amendment to the United States Constitution and article I, § 14 of the Washington Constitution.

¶10 A restitution hearing was held on January 31, 2023. After considering oral argument from both parties, the trial court awarded the full amount of restitution sought by the State. It concluded that case law did not provide the right to a jury trial for a determination of...