                                                                      F ;L.E,f)
                                                             COURT, OF APPEALS DIY I
                                                             •STATE OF WASHINGTON

                                                             2018 APR 30 Ail 8:29


 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,                     )
                                              )         No. 75973-6-1
                      Respondent,             )
                                              )         DIVISION ONE
               v.                             )
                                              )         UNPUBLISHED OPINION
 JARED MICHAEL BUTCHER,                       )
                                              )
                     Appellant.               )         FILED: April 30, 2018
                                              )
       APPELWICK, C.J. — Butcher appeals a restitution order entered after he
pleaded guilty to assaulting and injuring Abbey. He argues that the court should

have held an evidentiary hearing after he disputed material factors relevant to the

restitution. And, he argues that the State did not establish a causal connection

between the requested restitution and the assault. We reverse and remand.

                                     FACTS

       The State initially charged Jared Butcher with second degree assault —

domestic violence for acts he committed against his then wife, Terri Abbey.1

Pursuant to a negotiated plea deal, the State reduced the charge to domestic

violence assault in the fourth degree. On January 11, 2016, Butcher pleaded guilty

to fourth degree assault. The trial court imposed the agreed upon recommended




       1 Many portions of the Clerk's papers refer to Abbey as "Terri Butcher," but
it appears that Abbey changed her surname following her divorce. We refer to her
as "Abbey."
No. 75973-6-1/2


sentence, which included 364 days of suspended jail time, chemical dependency

treatment, and restitution.

       At a restitution hearing on July 12, 2016, the State requested that Butcher

pay a total of $45,546.04 in restitution. This request included $13,656.61 to Abbey

for out-of-pocket medical and counseling expenses, $22,131.22 to BlueCross

BlueShield for medical and counseling expenses, and $9,758.21 to the Crime

Victims Compensation program. In support of its request, the State submitted

more than 150 pages of documents. At the hearing, Butcher argued that the State

failed to establish a causal connection between the amount sought and the assault

for which he was convicted. The court noted the extensive documentation, and

stated that it wanted to review the record again before issuing an order.

       On July 21, 2016 the court issued a written order, directing the State to

provide a declaration from Abbey to address

       first, the medical services received and the associated costs,
       including the nature of the need and services; second, the amount of
       compensation she received from the Crime Victims Compensation
       Fund for her loss of time at work, and show [how] much of [the]
       medical expenses w[ere] paid by the Crime Victim Compensation
       fund.

       In a declaration dated July 27, 2016, Abbey wrote,

       As a result of the assault and injuries I sustained I required a lot of
       medical treatment. After the physical injuries were healed, I then
       required mental health treatment. I received medical services for a
       lacerated liver which required a CT scan, blood work, and a hospital
       admission. I was transported from one hospital to another by
       ambulance. After being released I had a follow up appointment, and
       required more blood work and another CT scan of the liver. I needed
       treatment for ongoing headaches, which required a head scan, and
       IV [(intravenous)] pain medications. I still continue to have frequent
       headaches. 1 saw my primary care physician multiple visits who


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No. 75973-6-1/3

      prescribed medications for depression, and diagnosed me with post-
      traumatic stress disorder.      She prescribed medications for
      nightmares, and had me take a 6 month leave of absence from work.
      She referred me to a therapist who I saw on a weekly basis. She
      spoke with me, checked on how I was on the medications, and
      assessed my depression. My therapist then referred me to
      Harborview Sexual Assault Trauma clinic. I was assigned a
      counselor who I saw weekly for several months, and then weekly and
      biweekly for extensive counseling until I was released from her the
      beginning of April 2016. The purpose of these sessions was to help
      me deal with the trauma, get back to normal day to day life, and help
      me quickly be mentally ready to return to work where the assault
      would not disrupt me from doing my job functions. The counseling
      sessions focused entirely on the assault. Everything was billed to
      Blue Cross Blue Shield of North Carolina.

      The end of August 2015, 1 began receiving wage loss from Crime
      Victim's after my personal time from my job had been exhausted. I
      received $9619.61 in wage loss from Crime Victim's Compensation,
      and they paid out $138.60 in medical. $113.17 was for an
      Emergency room visit, and $25.43 was for medical records.

      I have reviewed all of the information in the restitution packet and
      declare that all of the information included in this packet was all
      related to the assault. The medical bills and time loss were all
      because of the incident. The counseling sessions were all because
      of the assault resulting in Post-Traumatic Stress Disorder.
The declaration was "misplaced," and no further action was taken until September

27, 2016 when the State inquired into the status of the case.

      On September 30, 2016, the court held another restitution hearing. Butcher

argued that the State's request for restitution was no longer timely, and that the

State's evidence was insufficient to establish a nexus between the crime of

conviction and the requested restitution. The court rejected Butcher's arguments

and stated that it found Abbey's declaration persuasive. The court then ordered

Butcher to pay the full restitution amount requested by the State. Butcher appeals.




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No. 75973-6-1/4


                                   DISCUSSION

       Butcher makes two arguments. First, he argues that the trial court denied

him his right to due process by not granting an evidentiary hearing when he

disputed material facts relevant to the requested restitution amount. Second, he

argues that the State failed to prove the restitution amount by a preponderance of

the evidence.

  I.   Standard of Review

       The authority to impose restitution is not an inherent power of the court, but

is derived from statutes. State v. Soderholm, 68 Wn. App. 363, 377, 842 P.2d

1039 (1993). In the case at hand, the restitution award was based on Butcher's

misdemeanor conviction. An award for restitution for a misdemeanor offense is

authorized under RCW 9.92.060(2)(b) and 9.95.210(2)(b), both of which allow the

court to require the defendant "to make restitution to any person or persons who

may have suffered loss or damage by reason of the commission of the crime in

question." Restitution orders, when authorized by statute, are reviewed for abuse

of discretion. State v. Deskins, 180 Wn.2d 68, 77, 322 P.3d 780 (2014). A trial

court abuses its discretion when a decision is manifestly unreasonable or based

on untenable grounds or untenable reasons. Id.

 II.   Due Process

       Butcher first contends that he was denied his right to due process when the

trial court required Abbey to submit a declaration after the first restitution hearing,

instead of requiring the State to prove the contested restitution amount at an




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No. 75973-6-1/5


evidentiary hearing.    At the first restitution hearing, he claims that he: (1)

challenged the connection between Abbey's medical expenses and the assault,

(2) highlighted the nondescript terms in the medical bills the State presented and

the fact that the bills spanned into 2016,(3) questioned why Abbey lost the ability

to work in the middle of 2015, "months after" the assault,(4) questioned why the

Crime Victims Compensation Fund's claim for lost wages listed Abbey's injury as

June 4, 2015, and (5) challenged whether Abbey's psychiatric sessions were

"purely focused on" the assault. Butcher argues that, without an evidentiary

hearing, he was left without the opportunity to contest the State's evidence and

Abbey's declaration.

       Here, the trial court held two restitution hearings. The State submitted

documentation to the court ahead of the first restitution hearing. The State's

evidence included Abbey's insurance statements for medical costs she incurred

after she was assaulted by Butcher. The statements do not contain information

regarding Abbey's medical history or describe the precise reasons for the services.

Under "types of service" they state reasons such as"ER [(emergency room)] visit,"

"outpatient hospital" "medical services," "office visit(s)," and "outp[atien]t

psychiatric." The State did not offer testimony from Abbey or her treatment

providers, or submit medical records with details establishing that the medical

treatments were for injuries resulting from the assault.

       At the first restitution hearing, Butcher argued that the State's

documentation did not meet its burden of proving the restitution amount by a




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No. 75973-6-1/6


preponderance of the evidence. He argued that the medical documents provided

were insufficient because they were "nondescript medical bills," and there was no

evidence that the assault to which Butcher pleaded guilty resulted in these medical

expenses. He also argued that the documents supporting the amount of lost

wages Abbey claimed did not have the requisite details. The trial court did not hold

an evidentiary hearing, but instead required the State to provide a declaration from

Abbey. It directed Abbey to address the nature of her medical needs and services,

as well as the amount of compensation she received from the Crime Victims

Compensation Fund for her loss of time at work. Those convicted under RCW

9.94A.530(2) have a statutory right to an evidentiary hearing if they dispute facts

at sentencing. An evidentiary hearing is a hearing at which evidence is presented,

as opposed to a hearing at which only legal argument is presented. BLACK'S LAW

DICTIONARY 836 (10th ed. 2014). Chapter 9.94A RCW applies only to felonies.

Deskins, 180 Wn.2d at 78. The State argues that this statute does not apply to

Butcher, who was convicted of fourth degree assault, a gross misdemeanor. This

is true and the misdemeanor restitution statutes do not contain a similar

requirement. See RCW 9.92.060(2) and 9.95.210(2).

       But, as the State acknowledges, due process requires that the defendant

have a meaningful opportunity to refute evidence offered by the State for

restitution. See State. v. Pollard, 66 Wn. App. 779, 784-85, 834 P.2d 51 (1992).

Here, neither the first nor the second hearing provided Butcher such an

opportunity. The trial court erred in failing to hold an evidentiary hearing.




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No. 75973-6-1/7


 III.   Restitution Amount

        Butcher argues that the State failed to meet its burden of proving the

restitution amount. Butcher disputed the causal connection between the claimed

costs for restitution and his convicted assault.

        The amount of restitution must be supported by substantial credible

evidence to ensure the award is not based on speculation or conjecture. Kisor, 68

Wn. App. at 620. And, the State must establish a causal link between the crime

and the victim's damages. State v. Bunner, 86 Wn. App. 158, 160, 936 P.2d 419

(1997).

        Causation between a defendant's charged actions and a victim's claimed

losses is not established simply because a victim or insurer submits proof of

expenditures. Dedonado, 99 Wn. App. at 257. A summary of medical expenses

that does not indicate the reason for the services provided is insufficient to

establish a causal connection between the victim's medical expenses and the

defendant's criminal actions. Bunner, 86 Wn. App. at 160; State v. Hahn, 100 Wn.

App. 391, 400, 996 P.2d 1125 (2000). Testimony, including from the victim, that

claimed expenses were caused by the defendant's charged actions can be

sufficient to establish causation. State v. Blanchfield, 126 Wn. App. 235, 241-42,

108 P.3d 173 (2005). There the victim testified that the medical charges for her

emergency room visit three days after she was assaulted were related to the

assault, as were charges for orthopedic follow-ups and physical therapy. Id. at

242.




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No. 75973-6-1/8


       Here, Abbey's medical bills range in date from December 18, 2014 to

February 19, 2016, and until March 18, 2016 for psychiatric visits.        Butcher

assaulted Abbey on December 11, 2014. The trial court apparently recognized the

State had not met its burden in establishing that the medical costs were causally

related to Butcher's conviction, because it solicited specific information in

declaration form from the victim to provide the evidence of causation. Under

Pollard, due process includes an opportunity to refute the evidence presented and

requiring that the evidence be reliable. See 66 Wn. App. at 784-85. While the

amount need not be proven with specific accuracy, it must be causally connected

to the crime. See Id. at 785; See also Bunner, 86 Wn. App. at 160. Butcher

disputed the fact of causality. Unlike in Blanchfield, there was no live testimony

and he was not given an opportunity at a hearing to challenge the victim's basis

for declaring the costs were causally connected. The medical records did not per

se establish that Abbey's treatment costs were incurred to treat injuries caused by

Butcher's convicted actions. As the award turned solely on the victim's declaration

that the expenses were causally connected, a hearing to cross-examine the basis

of that declaration was warranted to satisfy due process concerns of ascertaining

the reliability of her assertions.

       Therefore, we conclude that the trial court abused its discretion when it

ordered Butcher to pay the State's requested restitution. We reverse and remand

for an evidentiary hearing at which the State may submit additional evidence

establishing a causal connection between Butcher's convicted assault and




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No. 75973-6-1/9


Abbey's claimed medical expenses and claimed lost wages.                   See State v.

Gonzalez, 168 Wn.2d 256,266,226 P.3d 131(2010)(holding that the total amount

of restitution may be modified during any period of time the offender remains under

the court's jurisdiction); RCW 9.94A.753(4).

IV.    Statement of Additional Grounds

       In a Statement of Additional Grounds for Review, Butcher argues that (1)

the majority of the restitution the trial court ordered is not related to his convicted

assault, and (2) that Abbey informed him that "the total medical expense was

$2,200 about." As we have already concluded that the trial court abused its

discretion in not holding an evidentiary hearing and ordering the requested

restitution, we do not address these grounds.

       Reversed and remanded.




WE CONCUR:


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