                                                                                                              COURT'
                                                                                                                          iF9PaL
                                                                                                                    DIVISION II
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                                    1R
                                                    DIVISION II
                                                                                                                            IndzTO!
STATE OF WASHINGTON,                                                              No. 45237 -5 -II


                                         Respondent,


           v.

                                                                                 consolidated with

TERRY L. SIMMONS,


                                         Appellant.
                                                                                  No. 45267 -7 -II
    STATE OF WASHINGTON,


                                         Respondent,


           v.



    JOANNE M. SIMMONS,                                                        UNPUBLISHED OPINION


                                         Appellant.


          Melnick, J. —      Terry and Joanne Simmons ( Simmonses) appeal the restitution amount the

trial court imposed following their guilty pleas for two counts of animal cruelty in the second

degree' to horses.        The State originally charged the Simmonses with six counts of animal cruelty

in the first
                degree2
                          and   two counts       of animal   cruelty in the   second   degree.   After accepting the

State'   s amended plea offer,      the Simmonses       pleaded    guilty to the two    second   degree   counts.   The


Simmonses argue that the trial court abused its discretion when it imposed restitution for costs

connected       to   uncharged or   dismissed     crimes.    The Simmonses contend that a trial court may not

order    such restitution       absent   their   agreement.     Because the Simmonses did not agree to pay

restitution for the cost of care for all the horses associated with the original animal cruelty charges,



    RCW 16. 52. 207

2
    RCW 16. 52. 205
45237 -5 -II / 45267 -7 -II




the trial court erred by ordering them to pay restitution for the cost of caring for all the horses. We

reverse the portion of the trial court' s restitution orders that awards restitution for the horses not

subject of the pleas, and we remand for modification of the restitution order to provide for an award

of restitution against the Simmonses for the costs associated with the horses subject to the pleas.

                                                       FACTS


         The State charged the Simmonses with six counts of animal cruelty in the first degree and

two counts of animal cruelty in the second degree for failure to properly care for eight horses.

During plea negotiations, the State offered to drop some of the charges if the Simmonses agreed

to " pay all costs by private or other public entities associated with [ the] investigation of all the

animals in this case, counts charged or uncharged, including but not limited to the animals' care,

euthanization,   boarding     or adoption and all     veterinary   costs."   Report of Proceedings ( RP) at 20.


The    Simmonses      rejected    this   offer.     Shortly before trial began, the State filed amended

informations charging both Simmonses with two counts of animal cruelty in the second degree,

one   for " horse 704,"   and one   for " horse 706."    Clerk' s Papers ( CP) at 19, 20, 42, 43.


         On February 1, 2013, the Simmonses appeared and each entered guilty pleas to two counts

of animal    cruelty in the      second   degree.     The "   Statement[ s] of Defendant on Plea of Guilty"

included the     following      statement    made   by   each   defendant: "   On 9 -24 -12 in Lewis County I

neglected some of     my horses     which caused     unnecessary    physical pain."   CP at 24, 47. Each guilty

plea statement also included a sentencing recommendation, written by the prosecutor, which

included "   cost   of care / boarding      of animals [ and]    vet   expenses   TBD."   CP   at   22, 45.   The


Simmonses each acknowledged awareness of the prosecutor' s sentencing recommendation at the

hearing.
45237 -5 -II / 45267 -7 -II



          On    July   26, 2013, the Simmonses       appeared     for   a restitution   hearing. At this hearing, the

trial   court   inquired   whether   the parties   reached an agreement as         to   restitution.   The Simmonses


argued they did not agree to pay restitution for all eight horses. They argued that they rejected the

State' s original offer, which included restitution for all the horses, and accepted the State' s " new

offer," which      did   not mention restitution,    to   plead   guilty to the two     misdemeanor counts.    RP at


21.     The State argued that it did not provide a new offer, but instead amended the previous offer


only as to the charges to which the Simmonses would plead guilty.

          The trial court then imposed restitution in the amount of $20, 589. 42 for the care of all eight

horses, as the State requested. It ruled:


          THE COURT: All right. I' m going to order the whole amount... .

           These individuals, I don' t know them, I don't know what happened here, they
           caused the damage. Somebody is paying for it, and it won't be the people that take
          these damaged animals in.


           And I get there from saying, look, this may be ambiguous, but there is little question
           in my mind that what was meant was restitution for all of them, and I just can' t get
           by that. And also the overlay of reading restitution statutes liberally in favor of the
           victims —that' s an unfortunate         term   here —is what I'm supposed to do, and that' s

           what I' m going to do.

RP at 28 -29. The Simmonses both appealed, and we consolidated their appeals.

                                                      ANALYSIS


I;         STANDARD OF REVIEW


           A trial court' s authority to impose restitution is statutory. State v. Deskins, 180 Wn.2d 68,

81, 322 P. 3d 780 ( 2014); RCW 16. 52. 200( 6).            When restitution is authorized by statute, we review

the imposition and amount of restitution for an abuse of discretion. State v. Davison, 116 Wn.2d

917, 919, 809 P. 2d 1374 ( 1991).          We must determine whether substantial evidence supports the


trial court' s findings that the Simmonses agreed to pay restitution for uncharged and dismissed,


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45237 -5 -II / 45267 -7 -II



counts.       We hold that insufficient evidence exists to support a finding that the Simmonses so

agreed.



II.          RESTITUTION PRINCIPLES


             A.        Statutory Authority

             As a preliminary matter, the parties here cite to RCW 9. 94A.753( 5) as the statute under

which     the trial     court exercised   its authority to impose            restitution   in this    case.    This restitution


statute of the Sentencing Reform Act (SRA) applies only .to felonies. Deskins, 180 Wn.2d at 78;

State   v.   Marks, 95 Wn.      App.   537, 539, 977 P. 2d 606 ( 1999).              The Simmonses were convicted of


misdemeanor animal cruelty, therefore, the felony restitution statute does not apply.

             Restitution in   animal   cruelty   cases   is   governed     by   a specific statute.     It provides:


             In addition to fines and court costs, the defendant, only if convicted or in agreement, shall
             be liable for reasonable costs incurred pursuant to this chapter by law enforcement
             agencies, animal care and control agencies, or authorized private or public entities involved
             with the care of the animals. Reasonable costs include expenses of the .investigation, and
             the animal' s care, euthanization, or adoption.



RCW 16. 52. 200( 6).


             B.        Restitution for Other Uncharged Offenses by Agreement

             As a general principle in criminal cases, restitution must be based on a causal connection

between the crime and the damages. State v. Griffith, 164 Wn.2d 960, 965, 195 P. 3d 506 ( 2008)

 construing RCW 9. 94A.753,            worded     similarly to RCW 16. 52. 200( 6)). A causal connection exists


when, "      but for" the    offense committed, the           loss   or   damages   would not    have    occurred.       Griffith,


164 Wn.2d         at   966. "[ R] estitution cannot be imposed based on a defendant' s ` general scheme' or


acts ` connected with'         the crime   charged, when             those acts   are not part of      the    charge."   State v.


Dauenhauer, 103 Wn.             App.    373, 378, 12 P. 3d 661 ( 2000).               A trial court generally may order

restitution for only losses incurred as a result of the precise offense for which the defendant is


                                                                 4
45237 -5 -II / 45267 -7 -II



convicted.     State      v.   Miszak, 69 Wn.      App.       426, 428, 848 P. 2d 1329 ( 1993).         However, RCW


16. 52. 200( 6) provides an exception to this general principle when the defendant agrees to liability

for animal care costs.

                    1.          The Restitution Statute is Clear


         RCW 16. 52.200( 6), provides that a defendant is liable for animal care costs outside of

conviction "   only if ... in      agreement."     Statutes are interpreted to give effect to all language in the


statute and   to   render no portion meaningless or superfluous.               State   v.   J.P., 149 Wn.2d 444, 450, 69


P. 3d 318 ( 2003).        We give effect to the statute' s plain language when it can be determined from

the text. State    v.    Evans, 177 Wn.2d 186, 192, 298 P. 3d 724 ( 2013). We give undefined terms their


plain and    ordinary meaning         unless a    contrary legislative intent is indicated.          State v. Ervin,. 169


Wn.2d 815, 820, 239 P. 3d 354 ( 2010).


         Here, the plain language of RCW 16. 52.200( 6) makes clear that an agreement between the

defendant and the state is required to allow the trial court the authority to impose restitution beyond

the convictions. The trial court had authority to impose restitution for the cost of care of all eight

horses only if the Simmonses had an agreement with the State to pay.

                    2.          Analogy with Other Restitution Statutes

         Similar language from the           felony      restitution statute   is instructive here.      Interpreting the

agreement required by RCW 9. 94A.753( 5), 3 our courts have held that the trial court may not



3"
     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....   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."




                                                                  5
45237 -5 -II / 45267 -7 -II



impose restitution " beyond the crime charged or for other uncharged offenses absent a guilty plea

with an express agreement as part of that process to pay restitution for crimes for which the

defendant    was not convicted."         Dauenhauer, 103 Wn. App. at 378 ( construing RCW 9. 94A.753( 5))

 emphasis added).          We " must vacate the restitution order if the defendant did not make a specific

agreement     to pay     when    pleading guilty."      State v. Osborne, 140 Wn. App. 38, 42, 163 P. 3d 799

 2007) ( construing       RCW 9. 94A.753( 5)).

III.      NO AGREEMENT


          In this case, the Simmonses pleaded guilty to two counts of second degree animal cruelty

related to horses 704 and 706. These crimes are not attributable to the cost of care of the other six


horses.    Therefore, restitution for the care of horses outside of those subject to the guilty pleas is

properly ordered only if the Simmonses entered into an agreement to make such restitution as part

of the plea bargain process. RCW 16. 52. 200( 6).

          At the                               the    Simmonses                to the imposition         of $ 20, 589. 42
                     restitution    hearing,                        objected




restitution for care of all eight horses subject to the original charges because they did not agree to

restitution for other uncharged offenses in exchange for guilty pleas. In the guilty plea statements

in this   case,   the Simmonses each state        they   neglected " some"     of   their horses.   CP at 24, 47. Use


of the word " some" is ambiguous as to whether the Simmonses were referring to all eight horses

or only horses 704 and 706 enumerated in the animal cruelty charges to which they pleaded guilty.

Also, each guilty plea statement includes a sentencing recommendation, written by the prosecutor,

which     includes " cost    of care / boarding      of animals [ and]   vet expenses    TBD."      CP   at   22, 45.   The


trial court found that this language           was ambiguous.        See State v. Hinds, 85 Wn. App. 474, 486,

936 P. 2d 1135 ( 1997) (          appellate court may resort to the trial court' s oral decision to interpret

findings    as    long   as no   inconsistency   with written     findings.) Thus, substantial evidence does not




                                                              6
45237 -5 -II / 45267 -7 -II




exist to support the finding of fact that the Simmonses agreed to pay restitution for the cost of care

for all the horses.


          Additionally,        no written plea agreement exists              in the   record.   Absence of a formal plea


agreement is relevant to determining whether the Simmonses agreed on restitution. See Miszak,

69 Wn.     App.    at   429.    The State argues that the Simmonses agreed to pay for restitution for all

animals    in   exchange       for pleading to          misdemeanors rather     than   felonies. But the record does not


support this argument. The trial court relied on a colloquy with the prosecutor and defense attorney

in which each informed the court of his conflicting understandings of the plea agreement.4 The
parties each referred to letters exchanged, but the trial court did not review the letters and they are

not   included in the record           on appeal.          Neither the State nor the Simmonses' defense attorney

submitted affidavits or declarations regarding negotiations.

          In reaching its decision, the trial court relied only on the attorneys' responses to inquiries

regarding their understanding                of   the   negotiation process and agreement reached.         The trial court


could not find that the Simmonses agreed to restitution for all the horses because the parties did

not agree on the outcome of negotiations and the Simmonses objected to the restitution order at


the   hearing.    See State     v.   Fleming,       75 Wn.     App.   270, 277, 877 P. 2d 243 ( 1994) (   despite less than


clear language in guilty plea statement, defendant agreed to pay restitution for uncharged theft by

subsequently admitting to the uncharged loss at the restitution hearing, arguing to the trial court

that the only disputed issue was the value of other items, and failing to object to the prosecutor's



4
    We   note   that the State   said   it   made an amended offer          to the Simmonses. " The general rule is that

an amended        pleading     supersedes         the   original."   State v. Oestreich, 83 Wn. App. 648, 651, 922 P. 2d
1369 ( 1996). And under contract law, an offer is terminated when the offeree rejects it.
Minneapolis & St. L. Ry. Co. v. Columbus Rolling -Mill Co., 119 U.S. 149, 151, 7 S. Ct. 168, 30 L.
Ed. 376 ( 1886).
45237 -5 -II / 45267 -7 -II



request   for the   uncharged restitution until appeal).    Based on these facts, the trial court could not


have found an agreement.


          The trial court abused its discretion by ordering restitution for damages that were not

encompassed     in the guilty   pleas.   We reverse the portion of the trial court' s restitution orders that


awards restitution for the horses not subject of the pleas, and we remand for modification of the

restitution order to provide for an award of restitution against the Simmonses for the costs

associated with the horses subject to the pleas.


          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 in accordance with RCW 2. 06. 040,

it is so ordered.




                                                                    Melnicic, J. ,   f

We concur:




                         Irc.    i

            orgen,' A.C. J.
