Opinion
67717-9-I
11-13-2012
STATE OF WASHINGTON, Respondent, v. JONATHAN WAYNE GRANTHAM, Appellant.
UNPUBLISHED OPINION
Leach, C.J.
Jonathan Grantham appeals an order of restitution. After he pleaded guilty to taking a motor vehicle without permission in the second degree, the trial court ordered him to pay restitution for costs to repair a fence he damaged while driving the stolen vehicle. Grantham claims the damage resulted from a separate "hit-and-run" offense and that he did not agree, as part of the plea agreement, to restitution for the fence repair. Even if he did agree, Grantham contends the trial court exceeded its statutory authority in imposing the restitution. The trial court, however, imposed restitution only for losses that would not have occurred but for the conduct underlying Grantham's conviction for taking a motor vehicle without permission. Accordingly, we affirm.
FACTS
As part of his plea, Grantham stipulated to the court's consideration of the facts set forth in the affidavit of probable cause to determine his sentence. According to the affidavit, Grantham's mother parked her car for the night in Everett on July 26, 2010. Early the next morning, she received a telephone call from Grantham. Grantham said he had taken the car, crashed it, and that she should "call Sequim to see where the vehicle was." Grantham's mother reported that Grantham did not have permission to use her car, and he could not have reasonably believed he had permission.
Police officers recovered the car in Clallam County. It had been driven off the roadway and "mowed down 200 feet of fence." The car was unoccupied, but the officers found Grantham's punched license on the console. A neighbor reported that a man had come to his door earlier, accompanied by a young girl, and said he collided with a deer. Grantham's mother confirmed that Grantham had a seven-year-old stepdaughter. Grantham was later arrested and admitted to "borrowing" the car.
According to the plea documents, the State agreed to recommend a sentence of 29 months to run concurrently with several Clallam County felony convictions. The State also informed Grantham that it would seek a $500 victim penalty assessment, court costs and costs of appointed counsel, a $100 DNA (deoxyribonucleic acid) fee, and restitution. Grantham agreed to the State's sentencing recommendation, except for the "legal financial obligations." Grantham also specifically agreed to "pay restitution in full" for both charged and uncharged crimes. This section of the plea agreement identified a Snohomish County incident number and a Clallam County incident number and listed the owner of the fence, James Diedrichs, and Grantham's mother as victims of the Clallam County offense. The State asked the court to impose total restitution of $1, 097 and submitted documents to establish this amount as the cost of repairing the fence.
Grantham objected to paying restitution to repair the damage to the fence. He argued that, as a matter of law, because the crime of hit and run is based on the conduct of fleeing the scene of an accident, the offense could not support the imposition of restitution for damages that occurred before he left the scene of the crash. Moreover, he pointed out that the hit and run was not an "uncharged" offense because he was prosecuted for the crime in Clallam County. The trial court imposed the restitution in the amount requested by the State, concluding that Grantham expressly agreed to the restitution in the plea agreement.
See State v. Hartwell, 38 Wn.App. 135, 138-41, 684 P.2d 778 (1984) (reversing restitution order imposed as a condition of sentencing on a hit-and-run conviction because losses suffered from a collision were not caused by the core offense of fleeing the scene), overruled on other grounds by State v. Krall, 125 Wn.2d 146, 149, 881 P.2d 1040 (1994).
Grantham informed the trial court that there was a restitution hearing in the Clallam County case but did not argue that restitution would result in double recovery. Grantham's appellate counsel indicates that no restitution was ordered as part of the sentence in that case. There is nothing in the record to confirm this, but presumably restitution for damage caused by the collision would have been impermissible for Grantham's hit-and-run conviction under the rationale of Hartwell.
According to the State, the trial court also ordered restitution for the damage to the vehicle, but the order appealed imposes restitution only for costs to repair the fence.
DECISION
The legislature intended that restitution be "widely available" to the victims of crimes. And in interpreting restitution statutes, we "recognize that they were intended to require the defendant to face the consequences of his or her criminal conduct." The trial court must order restitution whenever a defendant is convicted of an offense that results in loss of or damage to property. Restitution is allowed only for losses that are causally connected to the crimes charged unless the defendant expressly agrees to pay restitution for crimes for which he was not convicted. The statutory provision authorizing restitution provides, in relevant part,
State v. Hiett, 154 Wn.2d 560, 564, 115 P.3d 274 (2005).
State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007).
State v. Griffith, 164 Wn.2d 960, 965-66, 195 P.3d 506 (2008).
Restitution 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 and the court sets forth such circumstances in the record. In addition, restitution shall be ordered to pay for an injury, loss, or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement.
Whether a loss is causally connected to the crime for which the defendant was convicted is a question of law reviewed de novo. To determine if the underlying causal connection exists, we look to the underlying facts and circumstances of the charged offense, not the title or the elements of the crime to which the defendant entered a plea. "Losses are causally connected if the victim would not have incurred the loss but for the crime."
State v. Acevedo, 159 Wn.App. 221, 229-30, 248 P.3d 526 (2010).
Griffith, 164 Wn.2d at 966; Hiett, 154 Wn.2d at 565; State v. Thomas, 138 Wn.App. 78, 82, 155 P.3d 998 (2007).
Acevedo, 159 Wn.App. at 230.
Thus, a defendant can be held liable for losses resulting from the charged criminal acts, even if the offense of conviction does not require or take into account those losses. State v. Hiett is instructive. In that case, a juvenile, David McNulty, stole a car. He then picked up three other juvenile passengers, including Ferguson Hiett and Ian Freilinger. When a marked patrol car began to follow them, Freilinger and Hiett jumped out of the moving car. Shortly thereafter, the police officer activated his car's siren, and McNulty hit a curb, spun out of control, hit a truck, and crashed into a storefront. The three passengers were convicted of taking a motor vehicle without permission. At a joint restitution hearing, the passengers and the driver were found jointly and severally responsible for missing property from the stolen vehicle, damage to that vehicle, damage to the truck, and damage to the store.
See Thomas, 138 Wn.App. at 83 (defendant convicted of driving under the influence, but acquitted of vehicular assault, was properly ordered to pay restitution for passenger's injuries); State v. Landrum, 66 Wn.App. 791, 799-80, 832 P.2d 1359 (1992) (defendants who pleaded guilty to fourth degree assault after being charged with first degree child molestation were properly required to pay restitution for the victim's sex abuse counseling).
154 Wn.2d 560, 115 P.3d 274 (2005).
Hiett, 154 Wn.2d at 562-63.
Passengers Hiett and Freilinger appealed the order of restitution. They argued that restitution was authorized only when the damage is causally connected to the individual defendant's conduct. They claimed there was an insufficient causal connection between the taking of the vehicle and the damage that occurred after they fled from the vehicle.
Hiett, 154 Wn.2d. at 564. Similar to the Sentencing Reform Act provision, RCW 9.94A.753(5), the statute authorizing restitution in a juvenile case requires the court to order restitution "to any persons who have suffered loss or damage as a result of the offense committed." RCW 13.40.190.
Hiett, 154 Wn.2d at 564.
The Supreme Court affirmed the restitution order, explaining that in providing for restitution, the legislature intended to protect the victims of crimes. As a result, courts look not just to the abstract elements of the crime but also to the actual conduct of the defendant. The court concluded that the losses were a reasonably foreseeable consequence of the underlying facts of the crime and would not have occurred but for the taking of the vehicle.
Hiett, 154 Wn.2d at 564.
Hiett, 154 Wn.2d at 564.
[B]ut for the taking of the automobile without permission, the crash and resulting damage to the car and to the Les Schwab property would not have occurred. Petitioners do not deny the existence of a causal connection, but instead argue that McNulty's attempt to elude police pursuit was a superseding cause which effectively cut off their restitution responsibility. Without deciding whether principles of proximate cause or the superseding cause apply in the criminal restitution context, we note that an intervening act must be unforeseeable in order for it to break the causal chain. While there might be some set of factual circumstances which would break the causal chain, we cannot say that it was unforeseeable that a person guilty of taking a motor vehicle would steal personal property in the vehicle, attempt to elude the police, or cause an accident.
Hiett, 154 Wn.2d at 566 (citation omitted).
Likewise, here, there is no dispute that Grantham took his mother's car, drove away in it, and before she knew the car was missing, crashed the car, causing damage to the fence. The property damage would not have occurred but for Grantham's commission of the offense of taking a motor vehicle without permission. The direct causal connection is clear. Although the trial court determined that Grantham agreed to pay restitution to repair the fence as a part of the plea agreement, Grantham's agreement was unnecessary because the loss was the direct result of Grantham's offense.