Opinion
No. 31644-7-II
Filed: June 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 03-1-01216-3. Judgment or order under review. Date filed: 03/15/2004. Judge signing: Hon. Anna M Laurie.
Counsel for Appellant(s), Roger A. Hunko, Attorney at Law, Attorney At Law, 569 Division St Ste E, Port Orchard, WA 98366-4600.
Thomas E. Jr Weaver, Attorney at Law, PO Box 1056, Bremerton, WA 98337-0221.
Counsel for Respondent(s), Neil Robert Wachter, Kitsap County Prosecutor's Office, M/S 35, 614 Division St, Port Orchard, WA 98366-4681.
Gregory John Knutzen appeals a restitution order of the Kitsap County Superior Court following his guilty plea to first degree theft. We reverse and remand.
Facts
Knutzen entered an Alford plea to first degree theft. The stolen items included some 97 aluminum hatches, each 3-5 feet in diameter and weighing 50-100 pounds,
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). An Alford plea does not admit guilt, but acknowledges that the prosecution has sufficient evidence to prove its case.
which were components of Hood Canal Bridge replacement pontoons anchored offshore in Port Gamble Bay. In the plea agreement, Knutzen agreed `to pay restitution to victims of uncharged crimes contained in the discovery or as otherwise stated — court to dermine [sic] any uncharged crimes at hearing for restitution purposes.' Clerk's Papers (CP) at 21. He also agreed that the sentencing court could `consider the discovery and/or certification(s) for probable cause as the material facts.' CP at 20.
At the restitution hearing, the trial court considered police reports filed by Kitsap County sheriff's deputy Krista McDonald. She reported that on September 5, 2003, Department of Transportation (DOT) employee Keith Howard, while driving along Highway 104 at Port Gamble Bay, came upon two men loading eight aluminum rings into a Toyota hatchback. He confronted them and told them to put the rings into his DOT truck bed. He memorized the Toyota's description and license number before the men drove off. Later that afternoon, Howard and another DOT employee took a boat out to the replacement bridge sections and discovered that massive quantities of aluminum hatches, hatch rings, steel bolts, and copper wiring had been stolen, presumably to be sold as scrap metal. They called the sheriff to report the theft.
Deputy McDonald responded to the scene, talked to the DOT men, and took photographs. She traced the Toyota to Knutzen. She learned that another deputy had come upon the Toyota, together with a Chevrolet truck with a punched ignition, near the same location on the night of August 26. At that time, the other deputy had inquired of the truck's owner and learned it had been lent to Knutzen. The deputy did not report seeing anyone near the vehicles, or anything in them.
According to McDonald's report, she pursued her investigation by going to Knutzen's home on September 7. Knutzen spoke with her, explaining the encounter with DOT's Howard as follows:
Gregory [Knutzen] told me that he was in the area visiting a friend named Mike. Mike apparently lives on a [sic] older beat up sailboat just off Port Gamble. Mike had told Gregory that he had found some aluminum rings that they could sell. He and Mike parked his car on Hwy 104 in a pullout. Gregory stated that the rings[,] about six or seven, were on the other side of an orange cable about ten feet into the woods. They had loaded his car and Mike wanted to take them to Navy City Metal. Gregory said that once they were loaded a DOT worker showed up and told them to put them in his truck. They put the rings in the truck[,] then left.
I next asked Gregory why [h]is vehicle along with a truck being loaned to him was see[n] parked in the area at 2345 hours on 082603. Gregory admitted that the truck had been loaned to him because his Toyota had broken down. I asked why he was not [with] the vehicles then. He stated because he was on Mike's boat. Gregory told me that at this time [August 26] his car and the truck were probably parked a half mile south of the location where DOT contacted him.
CP at 8.
Knutzen could not give McDonald `Mike's' last name or whereabouts, except to say he had been living on a sailboat in Port Gamble Bay.
McDonald arrested Knutzen. She noticed aluminum corrosion inside his Toyota before taking him to jail. She contacted another deputy, who works mainly in the Port Gamble area, who told her that a man named Michael Mahle lived on an older sailboat and matched the description provided by Howard. Dean Crawford, a DOT supervisor at the Hood Canal Bridge, testified at the restitution hearing. He said the stolen aluminum items were large, finely machined hatches and hatch covers uniquely designed to keep water out of three replacement pontoons built for the bridge. The pontoons had been exhaustively stripped of 97 hatches, many hatch rings, stainless steel bolts and pins, 120 galvanized steel ladders, and copper wiring. Crawford had located some stolen hatches and rings at a metal recycling business in Tacoma, but the great majority of the items were not recovered. Another DOT employee, Chris Keegan, inventoried the missing materials and calculated their replacement cost, including labor, at $431,054.
Mahle was charged in a separate action, not at issue here.
On cross-examination, Crawford said the pontoons were anchored about 150 feet from shore. He had last inspected them about two months before Howard's encounter with Knutzen and `Mike,' and had found all the hatches intact. Crawford opined it would take awhile to steal that many large items, but that one man, using a rowboat and a crescent wrench, could get out to them and remove perhaps 10 hatches at a time. Crawford also said that twice during the previous two years, he had seen two men on the pontoons and asked the State Patrol to order them off. He might have been able to identify those men, but Knutzen did not attend the restitution hearing, so Crawford was not asked if Knutzen was one of them. On another occasion, the `[s]ame people' were seen coming from the vicinity of the pontoons, accompanied by two women. Report of Proceedings (RP) at 15.
Over defense counsel's objection that Knutzen could be linked only to the eight rings Howard caught him stealing, the trial court ruled `that there is a significant link between the theft that did occur on September 5th of `03 and the disappearance of the remaining 89 rings and other pontoon parts to assess restitution against Mr. Knutzen for the entire amount requested by the state of $431,054.' RP at 20. The issue on appeal is whether the record supports the trial court's imposition of restitution for the entire amount.
Discussion
RCW 9.94A.753(5) directs the trial court to order convicted criminals to pay restitution:
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.
The determination of the appropriate amount of restitution lies within the trial court's discretion. State v. Kisor, 68 Wn. App. 610, 619, 844 P.2d 1038 (1993). Restitution shall be based on `easily ascertainable' damages, RCW 9.94A.753(3), but the amount of loss need not be established with specific accuracy as long as the trier of fact avoids mere speculation or conjecture. State v. Wilson, 100 Wn. App. 44, 52, 995 P.2d 1260 (2000). Unless the defendant concedes the amount of restitution, the State has the burden of proving the amount by a preponderance of the evidence. State v. Ryan, 78 Wn. App. 758, 761, 899 P.2d 825 (1995).
Restitution can be ordered only for losses caused by the particular offense charged, State v. Woods, 90 Wn. App. 904, 907-08, 953 P.2d 834 (1998) — not for losses resulting from a `general scheme' or merely `connected with' the charged crime. State v. Miszak, 69 Wn. App. 426, 428, 848 P.2d 1329 (1993) (quoting State v. Harrington, 56 Wn. App. 176, 179, 782 P.2d 1101 (1989)). The State may not seek restitution for uncharged crimes unless the defendant agrees to pay additional restitution as part of a plea agreement to make restitution for such crimes. RCW 9.94A.753(5); State v. Dauenhauer, 103 Wn. App. 373, 378, 12 P.3d 661 (2000). Here, Knutzen agreed `to pay restitution to victims of uncharged crimes contained in the discovery,' with the court to determine uncharged crimes at a restitution hearing. The State agreed not to charge him with trafficking in stolen property or any other crimes.
The `real facts' doctrine applies in restitution hearings, meaning that the court may rely only on information admitted by the plea agreement or proved at the restitution hearing, and not on disputed information unless the court holds an evidentiary hearing to resolve the factual dispute. RCW 9.94A.530(2); State v. Tindal, 50 Wn. App. 401, 748 P.2d 695 (1988). Knutzen agreed that the court could consider the `discovery,' including the police reports, as the `material facts' pertaining to restitution. CP at 20. What he disputes is that any evidence ties him directly to the theft of more than the eight rings he had in his possession.
It may well be that Knutzen and `Mike' stole all of the missing materials, but the facts simply do not support the restitution order, insofar as it obligates Knutzen to pay for more than the items in his possession. The evidence is that Knutzen was in the vicinity of the thefts twice, on August 26, and September 5. On the latter occasion, he and `Mike' possessed eight aluminum hatch rings. Although Crawford had seen two men on and around the pontoons in the previous couple of years, those sightings were not connected to Knutzen. Crawford could not identify Knutzen, and at his last inspection of the pontoons, in the summer of 2003, the hatches were still intact — meaning that everything had been stolen in the two months or so before September 5. Given these facts, implicating Knutzen in the entire theft is too speculative an exercise to establish a causal link between his possession of the eight rings and DOT's greater loss. Woods, 90 Wn. App. at 909.
Knutzen's Alford plea did not admit guilt of the crime charged, let alone any other. Although he agreed the trial court could determine the existence of additional crimes for restitution purposes, the record must support that determination. Applying the preponderance of evidence standard, we find a lack of proof that Knutzen was involved in the theft of other items from the pontoons floating in Port Gamble Bay. He had no boat and no tools; he was not proven to be in the vicinity at any other time except when the borrowed truck was there on August 26; he was never identified as being on or near the pontoons; although the rings in his possession on September 5, were destined to be sold for scrap, Knutzen was not known to have sold anything previously to scrap metal yards; he was not shown to have come into large amounts of money from such sales; he did not confess, nor was he implicated by anyone else, as far as the record shows. On the record before us, the State's agreement not to charge additional crimes rings hollow, as it does not appear other charges were sustainable. At the least, no other crimes were proven at the restitution hearing to support the amount ordered.
Accordingly, we reverse the restitution order and remand for the superior court to impose an amount of restitution appropriate for the theft of the eight rings found in Knutzen's possession on September 5.
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.
ARMSTRONG, P.J. and HUNT. J., Concur.