                                                                                                             FILED
                                                                                                 COjPIf OF APPEALS
                                                                                                 0 J4 ! J.   17     4r1 o f
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN(^

                                              DIVISION II



STATE OF WASHINGTON,                                                     No. 43819- 4- 11


                                 Respondent,


       v.



SAMUEL PATRICK FARLAND,                                            UNPUBLISHED OPINION


                                 Appellant.


       MAXA, J. —    Samuel Farland appeals his restitution order following his guilty plea on a

burglary charge. The prosecutor' s recommendations in Farland' s guilty plea statement did not

provide for payment of restitution on uncharged crimes, but the State' s offer of settlement

 attached to the guilty plea statement) stated that Farland would pay restitution for uncharged

crimes. Farland argues that the trial court erred in ordering restitution for an uncharged burglary

because he never agreed to the restitution provision in the offer of settlement. We agree.


Because there is no evidence that Farland expressly agreed to pay restitution for the uncharged

burglary, we strike the portion of the ordered restitution relating to that crime.

       Anticipating this appeal, the trial court ordered that if Farland was successful on appeal

regarding restitution on the uncharged burglary, the amount of restitution for the charged

burglary would be double the victim' s actual damages as allowed by statute. Farland argues that

this violates his constitutional right to appeal. We disagree. However, we hold that the trial

court abused its discretion in doubling the amount of restitution if Farland' s appeal was

successful without               a   basis for that increase.   Accordingly,   we strike   the   portion of   the
                     providing
No. 43819- 4- 11



contingent provision in the restitution order that doubles the amount of restitution for the charged

crime. We remand for modification of the restitution order to provide for an award of restitution

against Farland in the amount of $10, 107. 80.

                                                        FACTS


         Farland pleaded guilty to one count of second degree burglary for a July 13, 2011 break -

in at a business. His guilty plea statement expressly provided for restitution on the charged

crime, but did not reference restitution on uncharged crimes. The guilty plea statement was

signed by Farland, his attorney, and the prosecutor. As part of Farland' s sentence, the trial court

ordered that he pay restitution in an amount to be determined at a future restitution hearing.

         At Farland' s restitution hearing the business owner testified that the July 13, 2011 break -

in   caused $   10, 107. 80 in damages. He also testified that on July 15, 2011, the business was

broken into     again,   resulting in $ 16, 656. 25   in damages. Although Farland was not charged with


the second burglary, the State sought restitution for both crimes. The State requested restitution

of only $22,264. 05 ( rather than the full $26, 764.05) because a co- defendant had admitted

liability and reached an agreement with the business owner to pay $4, 500 in restitution. Farland

argued that he only agreed to pay restitution for the crime to which he pleaded guilty.

         The trial court ruled that Farland had agreed to pay restitution for both the July 13 and the

July 15 burglaries and ordered restitution in the amount of $22,264. 05. The trial court relied on

an unsigned, undated offer of settlement attached to the back of the guilty plea statement that

provided, "     The defendant agrees to pay restitution to victims of uncharged crimes contained in

the   discovery,   and /or   dismissed   counts."     Clerk' s Papers ( CP) at 17. The guilty plea statement

did not incorporate or reference this offer. And defense counsel did not recall attaching the offer




                                                            2
No. 43819 -4 -II



of settlement to the plea form and could only speculate how it became attached. The trial

further ordered that " if [
                          Farland] appeals and prevails, the court finds that the State has

damages from            July   13, 2011   burglary   at $   10, 107. 80   and   the   court per     RCW 9. 94A.750( 3) [   sic]




sets restitution at $ 20, 215.       60."    CP at 32. Farland appeals the amount of restitution ordered


the trial court.


                                                            ANALYSIS


A.        RESTITUTION FOR UNCHARGED CRIME


           1.     Standard of Review


          Plea agreements are contracts and issues concerning their interpretation are reviewed

de    novo.     State   v.   Bisson, 156 Wn.2d 507, 517, 130 P. 3d 820 ( 2006).                 Our primary object in

interpreting a plea agreement is to give effect to the intent of the parties. State v. Lathrop, 125

Wn.    App.     353, 362, 104 P. 3d 737 ( 2005).            Any ambiguities are resolved against the drafter.

Lathrop, 125 Wn. App. at 362.

           Challenges to the amount of restitution are reviewed for an abuse of discretion. State

v.   Griffith, 164 Wn.2d 960, 965, 195 P. 3d 506 ( 2008). " A trial court abuses its discretion when


it bases its decision          on untenable or unreasonable grounds."                  State   v.   R. G.P.,   175 Wn. App.

131, 136, 302 P. 3d 885,           review   denied, 178 Wn.2d 1020 ( 2013). A decision is based on


untenable grounds when the court bases its decision on an incorrect interpretation of the law.

R. G.P.,      175 Wn. App. at 136.




 1
     RCW 9. 94A.753( 3) is the proper statute.




                                                                  3
No. 43819- 4- 11


        2.    Restitution Principles


         A   court' s   authority to impose       restitution   is statutory."   Griffith, 164 Wn.2d at 965.


RCW 9. 94A.753( 3) provides that a restitution award must be " based on easily ascertainable

damages for    injury to    or   loss   of property."   The statute allows the trial court broad discretion


in determining     restitution.    State   v.   Kinneman, 155 Wn.2d 272, 282, 119 P. 3d 350 ( 2005).           The


State need not prove the specific amount of damages with certainty, and it need only prove the

damages by a preponderance of the evidence. State v. Tobin, 132 Wn. App. 161, 173 -74, 130

P. 3d 426 ( 2006), affd, 161 Wn.2d 517, 166 P. 3d 1167 ( 2007).


        One limitation on the award of restitution is that the damages supporting restitution

must be causally connected to the crime charged. Kinneman, 155 Wn.2d at 286. And

restitution cannot be imposed for uncharged crimes unless the defendant enters into an

express agreement to pay restitution for such crimes. Kinneman, 155 Wn.2d at 286.

        3.    Farland' s Plea Agreement


        Farland argues that the trial court erred in ordering him to pay restitution for the

uncharged burglary because he never expressly agreed to pay restitution on uncharged

crimes. We agree.


        Farland did not agree to restitution for uncharged crimes in the body of the guilty plea

statement signed by Farland, Farland' s counsel, and the prosecutor. Section 6( e) of the

specifically references restitution for the charged burglary. But the statement makes no

to paying    restitution   for   uncharged crimes.       Section 6( g) states that the prosecutor will make

listed sentencing recommendations to the judge, but that list does not include restitution for

uncharged crimes.          In fact, although the standard plea form provided in CrR 4.2( g)




                                                            4
No. 43819- 4- II



provides an option at section 6( g) to incorporate by reference a separate plea agreement, that

provision was not included in Farland' s plea statement.


            The issue here is whether Farland' s plea agreement included the terms of the State' s

offer of settlement, which was attached to the guilty plea statement. Under a heading entitled

 Terms Applicable to All Recommendations" the                     offer of settlement stated, "    The defendant


agrees to pay restitution to victims of uncharged crimes contained in the discovery, and /or

dismissed      counts."   CP   at   17 ( capitalization   omitted).    The offer was not dated and the


signature line for the prosecutor was blank. Neither Farland nor his attorney signed the offer

of settlement. Farland' s attorney stated that he deliberately did not sign the offer of settlement

because it gave away or waived too much.

            The guilty plea statement did not expressly incorporate or even reference the offer of

settlement.      Further, the record does not reflect when the offer was attached or who attached


it. At the restitution hearing, Farland' s counsel represented that he did not recall who

attached the offer and the prosecutor remained silent. Farland' s counsel did not remember

                                        that " we                  time crafting            the   plea— change of
attaching the      offer and stated                 spent some                     within




plea form that he was only pleading to this one count and not agreeing to anything else."

Report of Proceedings ( RP) at 66.


            During the guilty plea hearing there was no discussion of the offer of settlement and

no indication that Farland agreed to pay restitution for uncharged crimes. At one point

during the hearing, the trial court stated " Well, he said he only did it one time at this location.

That'   s   his indicia....    So, that' s what he has agreed to plead to. So, that' s for restitution

purposes what you         have   agreed    to, is that   correct ?"   Farland   replied " Yeah."     RP at 17.




                                                              5
No. 43819 -4 -II



          There also was no mention of restitution for uncharged crimes at the subsequent


sentencing hearing. The following exchange took place regarding restitution:

            STATE]: . . . There was one question on restitution. Is that in dispute?


            DEFENSE COUNSEL]:                Yes. Well, I don' t know what you came to a figure —
           it   was.   We decided    a restitution   hearing would be needed. There' s — perhaps
          you are not     familiar   with   it.   There were several people at different times going
           into [ the business].


            COURT]:       He testified to one only. What was his amount of restitution [ ]?

            STATE]:        Well, the joint        and   several   amount   that is   listed is $ 10, 107. 00
            inaudible) —.


RP   at   81.    This exchange suggests that at the time of sentencing, the trial court, the State, and

Farland understood that restitution would be for the charged crime. It was not until the


restitution hearing that restitution for the uncharged crime was discussed.

           Under these facts, we hold that Farland did not expressly agree to pay restitution for

uncharged crimes. The signed guilty plea statement did not provide for restitution for

uncharged crimes, and the statement did not incorporate or even reference the State' s offer of


settlement containing the provision on restitution for the uncharged crime. The attached offer

is of dubious significance because the record does not reflect how it came to be attached to

Farland' s statement. Therefore, the State has not proven that Farland expressly agreed to pay

restitution for uncharged crimes. See State v. Raleigh, 50 Wn. App. 248, 253, 748 P. 2d 267

 1988) (    ambiguity between guilty plea form acknowledging restitution for uncharged crimes

and a signed plea agreement only agreeing to restitution in full did not demonstrate an express

agreement).




                                                             6
No. 43819- 4- 11



           Because Farland never expressly agreed to pay restitution for uncharged crimes, we

hold that the trial court erred by ordering Farland to pay restitution for the uncharged

burglary. Accordingly, we strike the amount of the ordered restitution attributable to the July

15, 2011 burglary.

B.         CONTINGENT ORDER DOUBLING RESTITUTION


           After ordering restitution for the uncharged burglary, the trial court stated in its

order that " if [Farland] appeals and prevails, the court finds that the State has proven

                                                                                                                           2
from   July      13, 2011    burglary      at $   10, 107. 80   and   the   court per    RCW 9. 94A.750( 3) [       sic]       sets




restitution at $      20,215. 60."        CP    at   32.   Farland argues that issuing an alternative restitution

amount contingent on the outcome of his appeal violated his constitutional right to appeal

because that order is not a final order and therefore is not appealable. We disagree that the

does not violate Farland' s right to appeal. However, we hold that the trial court abused its

discretion in increasing the amount of restitution for the charged crime in the contingent

Accordingly, we strike the portion of the contingent provision in the restitution order that

doubles the amount of restitution for the charged crime.


            1.    Violation of Right to Appeal


            Article I,     section   22   of   the Washington Constitution              provides: "        In criminal


prosecutions         the   accused shall       have ...     the   right   to   appeal   in   all cases."    See State v. Tomal,


 133 Wn.2d 985, 988, 948 P. 2d 833 ( 1997).                       Farland argues that the contingent order violates


this right. We disagree.




2
     The   correct   statutory   reference           is RCW 9. 94A. 753( 3).
No. 43819 -4 -II



         Farland' s reasoning is that the contingency is not a final order and therefore cannot

be   appealed, which constitutes a constitutional violation.          However, he provides no authority

for his assertion and his argument is misguided. If the initial order was not vacated, the

contingency never would have gone into effect and would have had no impact on Farland.

But because we ruled in favor of Farland, the contingent order became effective and matured

into an appealable final order. Accordingly, we hold that Farland' s constitutional right to

appeal has not been violated.

         2.   Abuse of Discretion


         Farland does not argue that the trial court abused its discretion in entering the

order. We generally,do not address issues the parties do not raise on appeal. However, we

the authority to   raise an   issue   sua sponte and   base   our   decision   on   that issue.   State v. Aho,

                                                                                        3
Wn. 2d 736, 741, 975 P. 2d 512 ( 1999). We       exercise     that authority here.


           In the absence of the contingent order, in all likelihood we would order that on


the portion of the restitution amount relating to the uncharged crime must be stricken from

restitution order. This order would result in a reduction of the restitution amount to


the amount of damages the trial court found were attributable to the charged burglary. The

question is whether the trial court can change this result through an order that increases the

restitution amount for the charged burglary in anticipation of our reversal on restitution for

uncharged burglary without providing a basis for that increase.

3 The State argues that we cannot reach the issue because the contingent order is not ripe for
review. The State' s point may be well taken, and we do not decide whether we would be
obligated to consider argument on the propriety of the contingent order in anticipation of the
court' s opinion. However, our decision striking the restitution attributable to the July 15,
2011 burglary causes the contingency to mature, and we have decided to address the issue sua
sponte.




                                                        8
No. 43819- 4- 11


           Under RCW 9. 94A. 753( 3), a trial court has discretion to order restitution in an


amount up to double the victim' s loss. But that discretion is not unlimited. Increasing the

amount of restitution must involve " a consciously exercised choice by the court, utilized to

further the   purposes of   the   restitution statue."   State v. Fleming, 75 Wn. App. 270, 276, 877

P. 2d 243 ( 1994). Here, the trial court' s contingent order doubles the amount of restitution


owed by Farland without any explanation. Nothing in the record suggests that awarding

double the amount of damages relating to the charged burglary resulted from a consciously

exercised choice or furthered the purposes of the restitution statute. Instead, the contingent


order has the appearance of punishing Farland for appealing.

         Because the trial court provided no basis for doubling the restitution if Farland' s

appeal was successful, we hold that the trial court abused its discretion in doubling the

amount of restitution for the charged crime in the contingent provision of the restitution

order. As a result, we strike the portion of the restitution order that doubles the amount of

restitution for the charged crime.


C.       AMOUNT OF RESTITUTION ON REMAND


         At Farland' s restitution hearing the business owner testified that the July 13 break -in

caused $   10, 107. 80 in damages, and that on July 15, 2011, the business was broken into again,

resulting in $ 16, 656. 25 in damages. The trial court awarded restitution of $22, 264. 05, which


represented the full $26, 764. 05 less $ 4, 500 in restitution a co- defendant agreed to pay.

we .are striking the award of restitution for the uncharged crime, the question remains whether

the   restitution award on remand should        be for the full $10, 107. 80 in damages   related   to the
No. 43819 -4 -II



charged crime or whether that amount should be reduced by some portion of the $4, 500 the co-

defendant agreed to pay;

        In the contingent order, the trial court indicated an intention to award the full amount of

the damages relating to the July 13 burglary without a reduction for the co- defendant' s payment.

We give effect to that intent, and order that on remand the trial court modify the restitution order

to provide for an award of restitution against Farland in the amount of $10, 107. 80.

         We strike the portions of the trial court' s restitution order that ( 1) award restitution for

the uncharged July 15, 2011 burglary, and ( 2) double the amount of restitution for the charged

July 13, 2011 burglary in the event of a successful appeal. We remand for modification of the

restitution order to provide for an award of restitution against Farland in the amount of

  10, 107. 80.


         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.




                                                       Maxa, J.
We concur:




                                                     10
