Opinion
No. 33374-1-II.
June 20, 2006.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 04-1-01353-1, James E. Warme, J., entered June 1, 2005.
Counsel for Appellant(s), Anne Mowry Cruser, Law Office of Anne Cruser, PO Box 1670, 124 N 1st Ste 4, Kalama, WA 98625-1501.
Counsel for Respondent(s), James B Smith, Hall of Justice, 312 SW 1st Ave, Kelso, WA 98626-1739.
Reversed by unpublished opinion per Hunt, J., concurred in by Houghton and Bridgewater, JJ.
Daniel Clayton Turley, Jr. appeals a restitution order entered as part of his sentence for possessing stolen property. He argues that (1) the trial court denied his right to a restitution hearing, (2) there was insufficient evidence supporting the restitution order, and (3) the amount ordered was based on the victim's loss for an offense for which Turley was not charged. The State concedes that (1) the restitution order in this case was entered without sufficient proof of causation for the amount owed to the victims, and (2) the order should be vacated. Accepting the State's concessions and holding insufficient proof of causation dispositive, we vacate the restitution order.
FACTS
The State originally charged Daniel Clayton Turley, Jr. with second degree possession of stolen goods valued at an amount greater than $250 but not more than $1500. He pled guilty to third degree possession of stolen goods valued at not more than $250. As part of his plea bargain, Turley agreed to certain financial obligations including, $500 for `victim assessment,' $260 for court costs, and $674 for court-appointed attorney fees.
The restitution section of Turley's judgment and sentence reads, `TBD,' short for `to be determined.' Turley argued below that possession of stolen property cases do not authorize restitution and, therefore, the only part left `to be determined' was that no restitution was due. The trial court determined, however, that Turley had agreed to pay restitution, leaving only the amount to be determined.
The State presented an order setting restitution, along with documentation from Safeco Insurance Company. Over Turley's objections, the trial court ordered Turley to pay restitution totaling $5,401.57 as follows: $688 for the victim, Eric Meath; and $4713.57 for Safeco Insurance Co.
Turley appeals this restitution order and the State concedes error.
ANALYSIS
Turley argues that the trial court lacked authority to order him to pay restitution because there was no evidence showing a causal connection between his actions and the victim's losses. We accept the State's concession of error and agree.
I. Standard of Review
The trial court must base an order of restitution on easily ascertainable damages that are supported by sufficient evidence. State v. Tobin, 132 Wn. App. 161, 174, 130 P.3d 426 (2006) (citing State v. Bush, 34 Wn. App. 121, 124, 659 P.2d 1127, review denied, 99 Wn.2d 1017 (1983)). The decision to impose restitution and the amount imposed are within the trial court's discretion. State v. Woods, 90 Wn. App. 904, 906, 953 P.2d 834, review denied, 136 Wn.2d 1021 (1998) (citing State v. Bennett, 63 Wn. App. 530, 535, 821 P.2d 499 (1991)). We will reverse such an order only if it is manifestly unreasonable or the trial court exercised its discretion on untenable grounds or for untenable reasons. Woods, 90 Wn. App. at 906 (citing State v. Smith, 33 Wn. App. 791, 798-99, 658 P.2d 1250, review denied, 99 Wn.2d 1013 (1983)).
II. Causal Relationship
Because the power to impose restitution derives entirely from statute, `a trial court exceeds its statutory authority in ordering restitution where the loss suffered is not causally related to the offense committed by the defendant, or where the statutory provisions are not followed.' Woods, 90 Wn. App. at 907 (quoting State v. Vineyard, 50 Wn. App. 888, 891, 751 P.2d 339 (1988)). RCW 9.94A.753(3) allows restitution ranging from none up to double the offender's gain or the victim's loss. Tobin, 132 Wn. App. at 174 (citing State v. Kinneman, 155 Wn.2d 272, 282, 119 P.3d 350 (2005)).
Generally, the trial court may order a criminal defendant to pay restitution only for losses incurred as a result of the precise offense he is charged with having committed. State v. Miszak, 69 Wn. App. 426, 428, 848 P.2d 1329 (1993) (citing State v. Johnson, 69 Wn. App. 189, 191, 847 P.2d 960 (1993)). Restitution for loss beyond the scope of the crime charged is properly awardable only when the defendant enters into an express agreement to make such restitution as part of the plea bargain process. Miszak, 69 Wn. App. at 429 (citing State v. Raleigh, 50 Wn. App. 248, 252, 748 P.2d 267, review denied, 110 Wn.2d 1017 (1998)).
In determining any sentence, including restitution, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. State v. Dedonado, 99 Wn. App. 251, 256, 991 P.2d 1216 (2000) (citing Woods, 90 Wn. App. at 907). The State must prove the restitution amount by a preponderance of the evidence. Tobin, 132 Wn. App. at 174 (citing Kinneman, 155 Wn.2d at 285). While restitution need not be proven with specific accuracy, evidence is sufficient only if it affords a reasonable basis for estimating loss based on a causal connection between the crime and the victim's damages. Dedonado, 99 Wn. App. at 256. `A causal connection is not established simply because a victim or insurer submits proof of expenditures for replacing property stolen or damaged by the person convicted.' Dedonado, 99 Wn. App. at 257.
Here, Turley pled guilty to possession of stolen property in the third degree. The offense charged specified that the property in his possession totaled a value of less than $250. Except for the proposed order the State presented and Safeco's documentation, there was no evidence indicating that Turley had caused any loss to the victim, let alone a loss totaling $5401.57. Moreover, Turley did not agree to pay this amount of restitution as part of his plea agreement.
The record before us on appeal, however, does not contain this documentation from Safeco Insurance. Because we accept the State's concession on the restitution error, this deficiency in the record is moot.
Accordingly, we accept the State's concession that the trial court lacked authority to order Turley to pay this amount of restitution, and we order that the restitution order be vacated.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.