Opinion
No. 21275-1-III.
Filed: February 10, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Ferry County. Docket No: 02-1-00006-1. Judgment or order under review. Date filed: 07/02/2002.
Counsel for Appellant(s), David N. Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Michael George Sandona, Ferry Co Prosecutor's Office, 350 E Delaware Ave # 11, Republic, WA 99166.
James Alan Von Sauer, Ferry County Prosecuting Attorney, 350 East Delaware Ste 11, Republic, WA 99166-0566.
Robert Clough pleaded guilty to two counts of first degree child molestation. The court imposed a 180-month standard range minimum sentence, community custody for life, and $5,000 restitution for counseling costs. Claiming the court did not properly inform him that the length of community custody was for life, Mr. Clough appeals. He also contests the restitution award. We affirm the order of restitution, but reverse and remand for resentencing.
Mr. Clough's counsel initially filed an Anders brief and motion to withdraw. The court commissioner denied the motion and identified the two issues currently on appeal. The commissioner granted the motion to withdraw and ordered that new counsel be appointed to address these issues. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Pursuant to a plea bargain, Mr. Clough pleaded guilty to two counts of first degree child molestation. During his guilty plea hearing, the court informed him that the standard range sentence was 149-198 months. After some discussion about the length of community custody, the court advised Mr. Clough it was 36-48 months. The court accepted his guilty pleas.
At sentencing, the court informed Mr. Clough that the law applicable to his crimes had changed and the information he had been given at his guilty plea hearing as to the length of his sentence and community custody term were wrong. The law now required the court to sentence Mr. Clough to life as the maximum statutory term and to use the standard range for setting the minimum term. See RCW 9.94A.712. Once the minimum sentence had been served, Mr. Clough would then appear before a board to request release. He would either be released or sent back to prison for a period not to exceed two years. If sent back to prison, another release hearing could be held. Because the court had given Mr. Clough erroneous information at his guilty plea hearing, it gave him the opportunity to withdraw his guilty pleas. He did not take that opportunity and did not withdraw his pleas.
After imposing a minimum sentence of 180 months, the court told Mr. Clough he would be on community custody for life rather than the 36-48 months originally discussed at the guilty plea hearing. The court further ordered him to pay restitution in an amount not to exceed $5,000 for counseling costs actually incurred by the victims. This appeal follows.
Mr. Clough claims he is entitled to specific performance regarding sentencing terms of which he was informed at his guilty plea hearing. A defendant must understand the direct consequences of his guilty plea for it to be valid. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). Mandatory community placement, which includes community custody, is a direct consequence of a guilty plea. Id. Mr. Clough was originally told he would be subjected to 36-48 months of community custody. But at sentencing, he was informed the term of his community custody was for life. Mr. Clough did not understand the direct consequence of community custody and thus did not enter an intelligent, voluntary plea.
Furthermore, the court told Mr. Clough his standard range sentence was 149 to 198 months. At sentencing, however, he was told his standard range sentence would operate as a minimum term, after which he could ask to be released, and the maximum term was life. This change could be argued as another basis for invalidating his plea.
Two possible remedies exist. The court can either give the defendant an opportunity to withdraw his guilty plea or grant specific performance of the agreement. State v. Walsh, 143 Wn.2d 1, 8-9, 17 P.3d 591 (2001); State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988); State v. Hurt, 107 Wn. App. 816, 832, 27 P.3d 1276 (2001). The defendant must be given the choice between specific performance or withdrawal of the plea. Miller, 110 Wn.2d at 536. The State then has the burden to show the defendant's choice would be unjust. Id.; see also Hurt, 107 Wn. App. at 832.
The specific terms of the plea agreement may be enforced despite the explicit terms of a statute. Miller, 110 Wn.2d at 532. A court is not bound by a statutory minimum if it conflicts with the terms of a plea agreement. Id. For example, in State v. Cosner, 85 Wn.2d 45, 49-50, 530 P.2d 317 (1975), the defendants pleaded guilty after being informed the statutory minimum was 5 years. Because of prior convictions and the fact that the defendants were armed, however, the statutory minimum was 7-years for one defendant and 8-years for the other. Id. The court directed the Board of Prison Terms and Paroles to reduce the mandatory minimum in accordance with the defendants' understanding of the minimum length at the time of their pleas. Id. at 51-52.
The court here misinformed Mr. Clough not only about the length of his community custody, but also about how his standard range sentence operated. The court gave Mr. Clough only the option of withdrawing his pleas. But it was required to allow him to choose between specifically enforcing the plea agreement or to withdraw his pleas. This case must be remanded to allow him to make that choice because it is the defendant, not the court, who makes the choice of remedy. Miller, 110 Wn.2d at 534. If he chooses specific performance, the State would be entitled to make a showing that his choice would be unjust in that it would be unduly prejudicial. Hurt, 107 Wn. App. at 832.
Mr. Clough also contests the restitution award. If he chooses not to withdraw his plea, this issue will again arise so we address it. The victim's mother requested an award of $5,000 for prospective counseling costs for her two children. A counselor had written a letter to the court indicating that the average sexual abuse victim has 23 counseling sessions at approximately $100 an hour. For both children that would amount to $4,600. Mr. Clough objected, claiming restitution was for specific costs. We review a challenge to a restitution order for an abuse of discretion. State v. Fleming, 75 Wn. App. 270, 274, 877 P.2d 243 (1994). An abuse of discretion occurs when the court's decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State v. Wilson, 100 Wn. App. 44, 47, 995 P.2d 1260 (2000).
RCW 9.94A.753(3) permits an award of restitution for ascertainable damages. Evidence of the amount of damages need not be proven with specific accuracy. State v. Kisor, 68 Wn. App. 610, 619, 844 P.2d 1038, review denied, 121 Wn.2d 1023 (1993); State v. Fambrough, 66 Wn. App. 223, 225, 831 P.2d 789 (1992). The evidence is sufficient if it provides the trial court with a reasonable basis for estimating losses and requires no speculation or conjecture. Kisor, 68 Wn. App. at 619; Fambrough, 66 Wn. App. at 225.
A counselor provided evidence of how long the average victim is in counseling. She also indicated the cost of such counseling for each victim. This information provided the court with a reasonable basis for estimating the loss. Moreover, Mr. Clough is not required to pay any restitution until counseling charges are actually incurred.
Relying on State v. Goodrich, 47 Wn. App. 114, 116-17, 733 P.2d 1000 (1987), Mr. Clough asserts that the court cannot award restitution for future expenses. In Goodrich, the court reversed an award of restitution for medical expenses that had not yet been incurred. It based its ruling on the fact that, under former RCW 9.94A.140(1) (2001), an order of restitution could be modified for 10 years after the imposition of the sentence. Goodrich, 47 Wn. App. at 117. But here the court awarded restitution pursuant to RCW 9.94A.753, which does not include a provision for modification. Therefore, Goodrich is not instructive.
The court had a reasonable basis for its restitution order as to the victims' expenses. Mr. Clough is not required to pay any restitution for costs that are not incurred. The court did not abuse its discretion. We affirm the order of restitution, but reverse and remand for resentencing.
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.
BROWN, C.J. and SCHULTHEIS, J., concur.