State v. Raftis

STATE OF WASHINGTON, Respondent, v. LISSA RAFTIS, Appellant.

No. 32087-1-III

Court of Appeals of Washington, Division 3

October 20, 2015

UNPUBLISHED OPINION

SIDDOWAY, C.J.

Lissa Raftis appeals an order setting restitution following her agreement to plead guilty to a single count of second degree theft in exchange for the State reducing its original charges of residential burglary and theft of a motor vehicle. The court's order adjudged her jointly and severally liable to pay $79, 440 with five other defendants who were involved to varying degrees in a series of thefts of a single residence. Ms. Raftis argues that she never agreed to pay restitution for uncharged offenses as part of her plea, very little of the loss was causally connected to her acts, and because the State simply relied on a restitution amount proved against another defendant, its evidence was insufficient to support any order of restitution against her.

We agree that the State's evidence does not support the restitution ordered. We vacate the order of restitution and remand for the trial court to determine an appropriate amount of restitution based on Ms. Raftis's limited admissions in pleading guilty.

FACTS AND PROCEDURAL BACKGROUND

In January 2013, police responded to a possible burglary at the home of Danny Mayes, located in rural Sprague, Washington. The responding officer placed a motion sensitive camera at the home in hopes of capturing pictures of the burglars if they returned. When reviewed on March 7, 2013, the camera had taken more than 1, 000 photographs of five individuals-four men and on one occasion, a woman-on several dates. The men and woman were photographed removing personal property from the home and grounds and loading it into a Ford truck, whose license plate number was readable in the pictures.

The photographs were shown to the county's chief criminal sheriff deputy the next day, who drove out on SR 231 and saw the Ford truck and three men at the Mayes property. He waited at a distance until the men drove away and then conducted a traffic stop of the truck. The three men in the truck-Robert Clark, Joshua Letchworth, and Roger Lewis-proved to be among the men photographed burglarizing the Mayes home.

The three were arrested and were interviewed at the Lincoln County Jail. Mr. Clark and Mr. Lewis identified the woman who had been photographed loading items into the truck as Mr Clark's girlfriend: the defendant, Lissa Marie Raftis. Upon executing a search warrant for Ms. Raftis's Spokane address, police located items stolen from the Mayes home.

Ms Raftis was charged with one count of residential burglary and one count of theft of a motor vehicle. The information alleged that the offenses were committed "on or about February 26, 2013, " the only day on which Ms. Raftis appeared in the photographs. Clerk's Papers (CP) at 1.

Ms Raftis reached a plea agreement under which the State amended the charge to reflect a single count of second degree theft to which Ms. Raftis entered a guilty plea. The amended information again alleged that the offense was committed "on or about February 26, 2013." CP at 10.

At the plea and sentencing hearing, the State recommended that restitution be determined at a later date. The prosecutor explained that the State was "struggling with the restitution because of all the defendants and the different times they were involved, here. So I would-I would include [Ms. Raftis] in that." Report of Proceedings (RP) at 9. In response to the court's question whether "the restitution issues are referencing the-the February 26th issue, that date, " the prosecutor answered yes adding, "We're going to have to-we're going to have to sort through it in one big hearing, I think." Id. at 9-10. The judgment and sentence was completed consistently, stating that the legal financial obligation total reflected "does not include all restitution or other legal financial obligations, which may be set by later order of the court." CP at 28.

The "one big hearing" did not go forward quite as expected; by the time of the restitution hearing for Ms. Raftis and one of her codefendants, Mr. Lewis, in November 2013, a restitution hearing had already been held for Mr. Clark, at which the homeowners' total losses resulting from all of the thefts had been found by the court to be $79, 440.^[1] The prosecutor expressed his "hope that we can stay with that figure, since we already have a judgment entered in one cause joint and several with other defendants" and asked the court to find Ms. Raftis and Mr, Lewis jointly and severally liable for the full $79, 440. RP at 14. He also stated "it would be the state's position that we not relitigate the Mayes matter" but later pointed out that "[t]he Mayes are present in the courtroom to testify if need be. I don't think it's necessary again." RP at 15, 18-19.

Ms. Raftis's lawyer argued that while Ms. Raftis was accountable for her involvement on February 26, the State had failed to establish a causal connection between her single second degree theft offense and the full amount it sought as restitution. He pointed out that the $79, 440 "reflects the actions of several other defendants and co-defendants not just from February 26, 2013, but many other dates as well, " CP at 43. He argued that Ms. Raftis was the "least culpable out of all the co-defendants, " because she was only at the house "one time." RP at 21. As to an amount, he said:

She recollects taking some boxes of DVDs, and I see those are valued around $2, 000.

It's just not easily ascertainable to calculate what was taken the one time she was there. I would suggest-She was convicted of a Theft 2. I would suggest an amount closer to $5, 000-That's the high end of a Theft 2-for Ms. Raftis.

I-I do believe she needs to be accountable, but I don't believe that she should be accountable for $79, 000 for the minimal involvement of her actions.

RP at 21-22.

The prosecutor also told the court, "On all my deals with all defendants, we-the plea agreement took into account restitution on all counts originally charged. And that was the agreement." RP at 16. He also argued that Ms. Raftis had more knowledge and involvement than photographs taken by the motion sensitive camera would suggest, explaining:

Ms. Raftis is the-I believe the sister of Mr. Lewis, and the girlfriend of Mr. Clark, resided in the same household, surrounded by stolen items. And-her mother-we have numerous pawn chits [sic] showing her mother pawning some of the stolen items-. . . [I]'m arguing there's an overarching conspiracy, here, involving all of them. And [defense counsel] has continuously asserted that his client was only caught one time.

But again, she resided there, she . . . had to know what was going on. She was out there one time burglarizing. And all of them were pawning the Mayes stolen items.

RP at 18. Although no conspiracy had been charged, the prosecutor stated that "the court's entitled to recognize conspiracy in terms of restitution." Id.

The trial court followed the State's recommendation, imposing restitution of $79, 440 on Ms. Raftis and Mr. Lewis, jointly and severally with their codefendants. But in doing so, it expressed "concern" that neither Ms. Raftis's statement on plea of guilty nor her judgment and sentence referred to restitution for other uncharged or dismissed offenses. RP at 23. It cautioned that with respect to Ms. Raftis, its ruling was "based upon the representation today from the prosecutor that there's understanding that there's overriding-that the restitution was part of the plea negotiations for the entry of the plea." RP at 27.

Ms. Raftis appeals.

ANALYSIS

Ms Raftis makes three related assignments of error to the restitution order: (1) the court erred in ordering restitution for losses not causally connected to her acts, (2) the trial court erred in ordering restitution because she did not agree to pay restitution for uncharged offenses in her plea agreement, and (3) the evidence was insufficient to impose any order of restitution against her. After reviewing the applicable statute and its interpretation, we address her arguments and, finding error, address the appropriate remedy.

A trial court's authority to order restitution is derived entirely from statute. State v. Tobin, 161 Wn.2d517, 523, 166 P.3d 1167(2007). Under RCW 9.94A.753(5), 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" make restitution inappropriate. The statutes authorize a court to order restitution up to twice the amount of the victim's loss resulting from the crime. RCW 9.94A.753(3).

Under RCW 9.94A.753(3), restitution must be based on "easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury." But while the damages must be "easily ascertainable, " the "' amount of harm or loss need not be established with specific accuracy."' State v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d 350 (2005) (internal quotation marks omitted) (quoting State v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006)). Rather, "' [e]vidence 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.'" State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008) (internal quotation marks omitted) (quoting Hughes, 154 Wn.2d at 154).

Restitution is only allowed for losses "causally connected" to the crime charged. Kinneman, 155 Wn.2d at...