IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. JAMES ALLEN BEA, Appellant. No. 74414-3-1 DIVISION ONE en

37" UNPUBLISHED OPINION

- FILED: November 14, 2016 CO 

### Becker, J. —Appellant James Bea and the State agree the restitution order inthis case is inconsistentwith the parties' plea agreement. They ask this 

### courtto remand for an evidentiary hearing on disputed facts. We reverse and remand for rehearing. 

### Bea worked forJack Henry &Associates Inc. (Jack Henry), a company 

### thatprocesses financial information for credit card companies. Employees of the company began receiving text messages from an anonymous senderwho threatened to bomb Jack Henry branches. Around the same time, Maine State Credit Union (Maine State) notifiedJack Henry ofpotential fraudulent activity on four credit card accounts. Police traced both the bomb threats and fraudulent 

### activity to Bea. Bea pled guilty. The court ordered him to pay restitution to Jack Henry inthe amount of$27,613.34. Bea appeals from this order. ••,- rNo. 74414-3-1/2 

### A trialcourt's authority to impose restitution is derived entirelyfrom statute. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007). Ifa court acts within its authority when ordering restitution, we will not reverse absent an 

### abuse ofdiscretion. State v. Gray. 174 Wn.2d 920, 924, 280 P.3d 1110 (2012). Our statutory scheme authorizes a courtto impose restitution for losses 

### resulting from charged crimes. Restitution for loss beyond the scope of the crime charged is properly awardable only when the defendantenters into an express agreementto make such restitution as part ofthe plea bargain process. RCW 9.94A.753(5); State v. Woods, 90 Wn. App. 904, 908, 953 P.2d 834, review denied, 136 Wn.2d 1021 (1998). A court may not impose restitution based on a 

### defendant's general scheme or acts connected withthe crime charged when those acts are not part ofthe charge and are beyond the scope ofthe plea 

### agreement. State v. Dauenhauer, 103 Wn. App. 373, 378, 12 P.3d 661 (2000), review denied. 143 Wn.2d 1011 (2001); Woods, 90 Wn. App. at 907-08. Bea was charged with and pled guilty to seven counts: two counts of threats to bomb or injure the property ofJack Henry, two counts ofidentitytheft inthe first degree, one count ofidentity theft inthe second degree, and two counts offelony harassment. Inthe plea deal, Bea agreed to pay restitution "to Jack Henry and Associates for all costs related to charged conduct including security measures and reimbursementfor fraud losses to creditcustomers; for actual losses by Main [sic] State Credit Union credit card customers [four names are listed]."No. 74414-3-1/3 

### The State presented a documented 44-page requestforrestitution of $40,924.31 to Jack Henry. The cover sheet stated thatthis amount included 

### restitution "for an occupational riskmanagerto address trauma caused by the 

### defendant's threats ($2,971.21), auditing costs ($9,714.15), credit monitoring for affected cardholders ($6,637.42), and reimbursement offinancial institution that 

### sustained a loss ($21,601.53)." The documents represented that Jack Henry's losses included reimbursement of 13 financial institutions for "Fraud Losses." A brief hearing on restitution was held on December4, 2015. Bea objected thatthe documents submitted by the State did not connectthe expenses to his conduct inthe charged crimes—particularly with respectto the financial institutions. The State responded thatthe amount claimed in restitution
was authorized by the plea agreement. The trial court examined the documents and determined that the claimed amounts for the risk manager, the auditing costs, and the credit monitoring were directly related to the plea agreement. The court decided thatthe amount claimed for "reimbursement offinancial institution that sustained a loss" should 

### be reduced. The court stated, "The financial institution—I am going to limit it to the Maine State Community Bank and the Maine State Credit Union sums" and 

### "offinancial institution Ihave limited to the one that [Bea] agreed to pay."1

1Some confusion arises fromthe similarity between Mainstreet's and Maine State's names and the court's statement of its intention to impose restitution for "one" financial institution, the one that Bea "agreed to pay." As reflected by the transcript oforal argument below, Bea agreed that Maine State was entitled to be reimbursed but not in the amount claimed.No. 74414-3-1/4 Instead ofthe total amount requested by the State for 13 differentfinancial institutions, the court included only two items for financial institutions: the amount of$7,717 claimed for Maine State Credit Union and the amount of $573.56 claimed for Mainstreet Community Bank. The court ordered restitution totaling $27,613.34. Bea claims the restitution award exceeds the court's authority insofar as it 

### covers losses sustained by Maine State and Mainstreet. Maine State's claim for $7,717 was for issuing 82 new credit cards, pins, alerts, and similar items. 

### Mainstreet's claim was for an expense titled "Goodwill credit inregard to card #[—] involved inthe Security Risk Issue," with details ofwhat appearto be 9 separate 

### credit card charges. It is not clearfromthe record, and the State's briefdoes not 

### explain, how the amounts awarded for Maine State and Mainstreetare causally connected eitherto Bea's offenses or to the language inthe plea agreement. Bea asks thatthe matter be remanded for an evidentiary hearing to determine this 

### question. See Statev. Kinneman, 155 Wn.2d 272, 285-86, 119 P.3d 350 (2005). The State contends the court abused its discretion by limitingthe 

### restitution to only 2 of the 13 financial institutions thatJack Henry had to reimburse for fraud losses. It is not clearfrom the record why all 13 claims are 

### not covered byBea's agreementto reimburse Jack Henry"forfraud losses to creditcustomers." The State agrees thatthe case should be remanded to the 

### trial court for an evidentiary hearing to determine the properamountof restitution consistent with the plea agreement.No. 74414-3-1/5 We conclude it is appropriate to reverse the orderofrestitution and 

### remand for an evidentiary hearing where the parties will be permitted to explore the factual basis for the items indispute as wellas the meaning ofthe language used inthe plea agreement. The order of restitution is reversed. The matter is remanded for an evidentiary hearing. 

# cife*^ \ v

WE CONCUR: 

# \ft^Jp^yJ»