Opinion
No. 36144-2-II.
July 29, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-05824-4, Bryan E. Chushcoff, J., entered March 23, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Quinn-Brintnall, JJ .
The State appeals the trial court's denial of its request for restitution under the crime victims compensation act (CVCA), chapter 7.68 RCW, for insufficient documentation and failure to meet due process requirements. It argues that the trial court is statutorily mandated to order restitution once presented with evidence that funds were paid out of the CVCA as a result of a defendant's criminal acts and that sufficient evidence was presented to the trial court here. We affirm.
FACTS
On February 15, 2006, the State filed an amended information charging Filimaua with attempted second degree assault, domestic violence. The State agreed to reduce Filimaua's charge based on his lack of felony criminal history and in exchange for his plea agreement. On February 15, he pleaded guilty to one count of attempted second degree assault.
The declaration of probable cause in the first information stated that Manuao Ioane reported to police that Filimaua, his uncle, punched him in the face several times; the assault cracked two of his teeth and he was spitting out pieces of his teeth. Defense counsel informed the trial court that Ioane was Filimaua's uncle.
The signed plea agreement contained a provision acknowledging that the trial court would order restitution if Filimaua's crime resulted in injury to another person. The State also noted in the plea agreement that it would recommend restitution and a $500 CVPA (Crime Victim Penalty Assessment). The State reported to the trial court that, as of February 15, it was still gathering restitution information from the victim and asked the court to set restitution by a later order. On February 15, the trial court sentenced Filimaua to one day of custody and 12 months' community custody and scheduled a separate restitution hearing for March 13.
On February 21, the State struck the March 13 restitution hearing because the victim failed to respond to its inquiry regarding losses. On January 16, 2007, the State rescheduled the restitution hearing for January 30.
On January 23, Filimaua opposed restitution, arguing that the State failed to provide adequate documentation. He acknowledged receipt of the State's documentation showing $4,836 in medical costs "claimed by CVC . . . and apparently provided by the Department of Labor and Industries (L I)," but he argued that the State failed to provide any medical reports or bills as required under RCW 9.94A.753(3). CP at 32-33.
The State provided the following documentation to the trial court and Filimaua:
(1) A cover page requesting restitution in the amount of $4,836;
(2) A letter from the Victim-Witness Assistance Service at the Pierce County Prosecutor's Office to defense counsel, enclosing "a copy of the restitution documentation"; and
(3) An L I request for $4,836, stating, "Please consider ordering restitution to include Crime Victims Compensation for benefits paid for victim's injuries that resulted from the offender's assault," and attaching an L I bill itemizing benefits paid as:
St Clare Ho 11/27/05 $1,031.52 Bjarke Erik 11/27/05 $ 38.00 Foto Walter 12/08/05 $1,274.00 Foto Walter 04/07/06 $3,657.00 Clerk's Papers (CP) at 40-44.
The restitution hearing was held on January 30, 2007. At the hearing, the State informed the trial court that it was seeking $4,836, the Crime Victim Compensation Fund claim, and handed forward correspondence between the State and L I documenting the medical expenses for the amount of restitution. Filimaua argued he was entitled to see the actual medical expenses rather than just summary figures.
The State also argued that Filimaua took the benefit of a plea bargain, including an agreement to pay restitution. On appeal, the State raises no argument that restitution is mandatory based on his signed plea agreement.
The trial court determined that it was reasonable Filimaua to "at least see what was paid on an underlying basis" in case the expenses were not paid "for the kind of things [for which] the Court can order restitution." Report of Proceedings (RP) (Jan. 30. 2007) at 7. It also noted it was not clear to the court from the documents that the amounts listed were for medical expenses. The trial court also noted that Filimaua was entitled to the underlying documentation because it would show if the summary sheet was in error. The trial court temporarily denied the State's motion for restitution without prejudice, stating that Filimaua was entitled to the documentation. "I will deny the motion for restitution at this point, but not with any prejudice. They can still come back with this." RP (Jan. 30, 2007) at 8. The trial court continued the matter for 180 days, finding good cause based on the State's prima facie showing that "some medical care" was provided. RP (Jan. 30, 2007) at 9.
The trial court noted that the item for "St. Clare Hospital is straightforward" and that the printout items contained a "`provider number,'" suggesting someone identified by the State of Washington as a medical care provider but stated that the items were otherwise not clear. RP (Jan. 30, 2007) at 7.
Under RCW 9.94A.753(1), the trial court must determine restitution at the sentencing hearing or within 180 days except as provided under subsection seven, but it may continue the restitution hearing beyond 180 days for good cause.
On March 13, the State sought reconsideration. It argued that once it presented the trial court with evidence showing that the victim was entitled to benefits under the CVCA and that the CVCA had in fact paid the victim's medical expenses stemming from Filimaua's assault, the court was mandated to order restitution under RCW 9.94A.753(7).
The State provided the trial court with no additional documentation at the March 23 argument on reconsideration. The trial court noted that even if it should award the CVPA, there should be more documentation as a matter of due process to make sure the amounts are correct. It noted its concern about the unreliability of solely a computer printout. The State informed the trial court that no further documentation was available. The trial court stated that L I must have paid the claim based on some information, to which the State replied,
My reading of the statute is that Criminal Victim Penalty Assessment goes through Labor and Industries. They have a huge bureaucracy. They have already determined, through their methods, that these are reasonable costs related to the crime. They have submitted the bill. We have submitted it to Your Honor. That is what we have.
. . . .
That's the typical kind of documentation that we would get in this type of case, so I'm asking Your Honor to make a ruling based on the documentation that we have submitted.
RP (Mar. 23, 2007) at 20.
Defense counsel argued that the State had many times provided "itemization and bills" in addressing restitution matters, including on CVCA claims. RP (Mar. 23, 2007) at 20-21. The trial court acknowledged that RCW 9.94A.753(7) made some distinctions for CVCA restitution but noted that the statute did not "necessaryily change[s] everything." RP (Mar. 23, 2007) at 22. It noted that restitution is ordinarily a matter within the trial court's discretion as a factor in a defendant's rehabilitation but that RCW 9.94A.753(7) mandated it to order CVCA restitution. But the trial court determined that documentation must be more significant than the summary amount the State provided. It also noted that the "easily ascertainable damages" standard under RCW 9.94A.753 subsections one through six did not apply, stating, "I'm not saying this information isn't easily ascertainable damages. I'm simply saying there is no documentation that these were actually for what they . . . I don't know who [the individuals] are. I don't know what they were for. I don't even know if it was really paid." RP (Mar. 23, 2007) at 25.
The trial court denied the State's motion for reconsideration on the basis that it provided inadequate documentation and failed to meet due process requirements. The State appeals.
ANALYSIS
The State contends that the CVCA creates a unique system of reimbursement to crime victims for injuries proximately caused by a defendant's criminal acts. It argues that once the State presents evidence that payment was made under the CVCA, RCW 9.94A.753(7) mandates reimbursement and no further evidence of causation is required. It asserts that this is because the legislature built a causal connection into the CVCA that the criminal act and the victim's bodily injury must be connected before CVCA payment is made. It argues that the evidence here was not speculative and, in any event, the question for the trial court was not what the underlying basis for the amount was but whether L I made such payment at all. It also notes that it presented Filimaua with evidence of L I's payment and that he could have challenged the amount paid but he failed to do so.
We review a trial court's restitution order for an abuse of discretion. State v. Morse, 45 Wn. App. 197, 199, 723 P.2d 1209 (1986). The trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Although we do not disturb a trial court's order on appeal absent an abuse of discretion, the application of an incorrect legal analysis or other error of law constitutes an abuse of discretion. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007). The trial court's authority to order restitution is purely statutory. State v. Smith, 119 Wn.2d 385, 389, 831 P.2d 1082 (1992). See also State v. Tribblet, 96 Wn. App. 662, 664, 980 P.2d 794 (1999) (where the trial court fails to follow the provisions of the governing statute, its restitution order is void). The meaning of a statute is a question of law that we review de novo, with our fundamental objective to ascertain and carry out legislative intent. State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720, aff'd, 144 Wn.2d 472, 28 P.3d 720 (2001). Where the statute's meaning is plain, we give effect to that meaning and do not engage in judicial construction. J.M., 144 Wn.2d at 480.
RCW 9.94A.753(3) sets forth in relevant part that restitution by court order after a criminal conviction "shall be based on easily ascertainable damages for . . . actual expenses incurred for treatment for injury to persons." Under RCW 9.94A.753(5), the trial court "shall" order restitution whenever an offender is convicted of an offense resulting in injury to another unless it finds restitution inappropriate under extraordinary circumstances set forth in the record. RCW 9.94A.753(7) creates an exception from subsections one through six where a victim is entitled to benefits under the CVCA. There, the trial court "shall order restitution in all cases." RCW 9.94A.753(7). If it does not and the victim has been determined to be entitled to CVCA benefits, L I "may petition the court within one year of entry of the judgment and sentence for entry of a restitution order . . . [and][u]pon receipt of [such] petition . . . the court shall hold a restitution hearing and shall enter a restitution order." RCW 9.94A.753(7). See also Tribblet, 96 Wn. App. at 664 (L I, may seek restitution if statutory benefits have been paid as a result of the defendant's crime). The CVCA's purpose is to advance "compelling state interests in compensating the victims of crime and in preventing criminals from profiting from their crimes." RCW 7.68.300.
Here, the State essentially argues that because restitution is mandatory under the CVCA, the same evidentiary burden as to other forms of restitution does not apply. Although RCW 9.94A.753(7) mandates an order of restitution under the CVCA, on its face, it does not mandate that the order is made strictly in the amount requested. See also RCW 9.95.210 (setting forth that the trial court "shall order" restitution under the CVCA and also that the court may require the defendant to make restitution payments on such terms as it deems necessary where the offender is required to pay restitution). The trial court has discretion to determine the amount of restitution. State v. Mark, 36 Wn. App. 428, 433, 675 P.2d 1250 (1984). See also State v. Mead, 67 Wn. App. 486, 490, 836 P.2d 257 (1992) (the size of a restitution award is within the trial court's discretion, not to be disturbed absent a showing of abuse).
The State relies on Judge Quinn-Brintnall's concurrence in State v. Thomas, 138 Wn. App. 78, 155 P.3d 998 (2007), to argue that when read together, RCW 9.94A.753(7) and chapter 7.68 RCW require restitution in all cases where the victim is entitled to benefits under the CVCA. The opinion does not state what evidence was before the trial court in ordering restitution, but in any event the case is distinguishable because there the defendant did not challenge the amount of the restitution order but only whether the trial court could find her drunk-driving accident caused the victim's injury when the jury failed to convict her of vehicular assault. We determined that the jury's acquittal did not preclude the sentencing court from awarding restitution based on a preponderance of the evidence finding. Thomas, 138 Wn. App. at 85.
Because the trial court determines the amount of restitution, it must have an evidentiary basis on which to do so. The Rules of Evidence do not apply at restitution hearings, but the evidence before the court must be sufficient to support its finding. State v. Pollard, 66 Wn. App. 779, 784, 834 P.2d 51 (1992). 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." Mark, 36 Wn. App. at 434.
Further, the constitution limits legislative power and we do not read state statutes so as to conflict with it. State ex rel. Billington v. Sinclair, 28 Wn.2d 575, 583, 183 P.2d 813 (1947). Filimaua is entitled to due process protections under both the Washington and United States Constitutions. See, e.g., State v. Grenning, 142 Wn. App. 518, 530, 174 P.3d 706 (2008). Thus, the rule that evidence presented at a restitution hearing must meet due process requirements, including that it is reliable and affords the defendant an opportunity to refute it, must also apply under the CVCA. Pollard, 66 Wn. App. at 784-85.
Here, the record reflects the trial court's acknowledgment that restitution under the CVCA was mandatory under RCW 9.94A.753(7) and that the "easily ascertainable damages" standard under the statute's preceding subsections did not apply. The trial court simply asked the State for supporting documentation showing that the summary amounts it presented were correct, were in fact paid by L I to medical providers for treatment, and were not, for example, a data entry or computer error. Although Washington courts do allow for estimated damages in restitution cases, there still must be a sufficient evidentiary basis for estimating the loss not subject to speculation or conjecture. State v. Tobin, 132 Wn. App. 161, 173, 130 P.3d 426 (2006) aff'd, 161 Wn.2d 517, 166 P.3d 1167 (2007).
Without any evidence beyond the summary L I statement, Filimaua could not rebut that the printout was reliable and that L I in fact paid those amounts for medical expenses. Likewise, the trial court had to speculate that the summary amounts reflected actual amounts L I paid.
The State contends that there was sufficient proof of causation because L I would not have paid the claim unless it had already made a determination of causation between the crime and the victim's injuries. Although not under the CVCA, State v. Bunner, 86 Wn. App. 158, 936 P.2d 419 (1997), addressed a similar argument where the defendant challenged the State's proof on a claim paid by the Department of Social and Human Services (DSHS). There, the State provided a DSHS medical recovery report itemizing amounts the State paid for the victim's medical treatment and counseling and listing several providers, including Fairfax Hospital. Bunner, 86 Wn. App. at 159. The trial court relied on the fact that DSHS had already made a determination to pay benefits as sufficient proof, stating, "`[T]he Office of Provider Services made a judgment that . . . these were expenses that were necessitated by this crime, whether or not the proportionate amounts that were paid were because of limitation of funds or because of some indication of — or some adjudication of proximate cause, I have no idea, but it just seems to me that there has already been a determination made.'" Bunner, 86 Wn. App. at 159.
Division One determined that the inference that DSHS would not have paid the medical bills if not related to Bunner's crimes was insufficient evidence and violated Bunner's due process rights. Bunner, 86 Wn. App. at 160. It noted that the trial court admitted that it had "`no idea'" how the document alone established a causal relationship and that the summary document not showing why medical services were provided failed to establish the required causal connection to the costs incurred with the crime. Bunner, 86 Wn. App. at 160.
Here, although the State's documentation showed L I paid the claim under the CVCA, there was no other evidence that the summary statement accurately reflected amounts L I actually paid for medical expenses. The trial court provided the State an opportunity to supplement the record with this information and extended the time period for it to do so. Even assuming no other documentation was available to the State regarding the basis for payment, it could have called Manuao Ioane to testify about his medical treatment or an L I representative to testify as to what the printout contained, how L I generated it, and that the amounts accurately reflected what L I in fact paid. See, e.g., State v. Blanchfield, 126 Wn. App. 235, 241-42, 108 P.3d 173 (2005) (finding no abuse of discretion where the trial court based the amount of restitution for medical expenses on the victim's statement, the CVCA report, and the victim's testimony).
Ultimately, our review of the trial court's decision is for an abuse of discretion. The trial court did not abuse its discretion here.
RCW 9.94A.753(7) also provides a remedy that where the trial court does not enter restitution, L I may petition the court within one year of entry of the judgment and sentence for a restitution order. Because Filimaua's judgment and sentence is not final until our determination in this matter, L I would still be allowed to file a petition for restitution. See In the Pers. Restraint of Skylstad, 160 Wn.2d 944, 948, 162 P.3d 413 (2007) (a judgment is final for purpose of collateral attack when review of the judgment and sentence is terminated); State v. Dorenbos, 113 Wn. App. 494, 497, 60 P.3d 1213 (2002) (once imposed, a restitution order becomes part of a defendant's judgment and sentence). We also note that the trial court had already extended the one-year time limit from entry of the judgment and sentence for good cause when it denied the State's motion for reconsideration and that RCW 9.94A.753(1) exempts from subsection (7) the limitation that restitution must be entered at the sentencing hearing or within 180 days.
Affirmed.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, J. concur.