### FILED OCTOBER20, 2015 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32087-1-111 Respondent, ) ) v. ) ) LISSARAFTIS, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, C.J. -LissaRaftis appeals an order setting restitution following her agreementtoplead guiltyto a single count ofsecond degree theft in exchange for the Statereducing its original charges ofresidential burglary and theft ofa motor vehicle. The court's order adjudged herjointly and severally liable topay $79,440 with five other defendants whowere involvedto varying degrees in a series ofthefts ofa single residence. Ms. Raftis argues that shenever agreed topayrestitution for uncharged offenses as part ofherplea, very little ofthe loss was causally connectedtoher acts, andNo. 320871 State 

### v. Rajas
because the State simply relied on arestitution amount proved against another defendant, its evidence was insufficientto support any order ofrestitution against her. We agree that the State's evidence does not support the restitution ordered. We vacate the order ofrestitution and remand for the trial court to determine an appropriate amount ofrestitution based on Ms. Raftis's limited admissions in pleading guilty. FACTS AND PROCEDURAL BACKGROUND In January 2013, police responded to a possibleburglary at the home ofDanny Mayes, located in rural Sprague, Washington. The responding officerplaced a motion sensitive camera at the home in hopes ofcapturingpictures ofthe burglars ifthey returned. When reviewed on March 7, 2013, the camerahadtaken more than 1,000 photographs offive individuals-fourmen and on one occasion, a woman-on several dates. The men and woman were photographed removingpersonal 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 chiefcriminal sheriffdeputy the next day, who drove out on SR 231 and sawthe Ford truck and three men atthe Mayes property. He waited at a distance until the men drove away and then conducted a traffic stop ofthe truck. The three men in the truck-Robert Clark, Joshua Letchworth, and RogerLewis-provedto be among the men photographed burglarizing the Mayes home.



### 2No. 320871 State v. Raflis
The three were arrested and were interviewed at theLincoln County Jail. Mr. Clark and Mr. Lewis identified the woman who had beenphotographed 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 countofresidential burglary and one count of theft ofa motor vehicle. The information alleged thatthe offenses were committed "on
or about February 26,2013,"the only day on which Ms. Raftis appeared in the photographs. Clerk'sPapers (CP) at 1. Ms. Raftis reached a plea agreementunder which the State amended the charge to reflect a single count ofsecond degree theft, to which Ms. Raftis entered a guilty plea. The amended information again allegedthat the offense was committed "onor about February 26,2013." CP at 10. At the pleaand sentencing hearing, the State recommended thatrestitution be determined at a later date. The prosecutor explainedthatthe State was "strugglingwith the restitution because ofall the defendants andthe different times they were involved, here. So I would-Iwould include [Ms. Raftis] in that." Report ofProceedings (RP) at 9. In response to the court's question whether "the restitution issues are referencing the-theFebruary 26th issue, that date," the prosecutor answered yes adding, "We're going tohaveto-we're going to have to sortthrough it in onebighearing, I think." Id. 3No. 320871 State v. RaJtis

at 9-10. Thejudgment 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 ofthe court." CP at 28. The "one bighearing" did not go forward quite as expected; by the time ofthe restitution hearing for Ms. Raftis and one ofher codefendants, 

### Mr. Lewis, in November 2013, arestitution hearing had already been held for Mr. Clark, at which the homeowners' total losses resulting from all ofthe thefts had been found by the courtto be $79,440. 1 The prosecutor expressed his "hopethat we can stay with that figure, since we already have ajudgment entered in one causejoint and several with other defendants" and asked the courtto find Ms. Raftis and Mr. Lewisjointly and severally liable for the full $79,440. RP at 14. He also stated "itwould bethe state's position that we not relitigate the Mayes matter" but laterpointed out that "[t]he Mayes are present in the courtroom to testify ifneed 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 outthat the $79,440 "reflects the actions ofseveral other defendants and codefendants notjust from February 26,2013,butmany other dates as well." CP at 43. He

JMr. Kittleson and Mr. Walrath had not yet been tried. 4

### No. 320871 State v. Raflis 

### argued that Ms. Raftis was the "least culpable out ofall the co-defendants," because she
was only at the house "onetime." RP at 21. As to an amount, he said: She recollects taking some boxes ofDVDs, and I see those are valued around $2,000. It'sjustnot easily ascertainable to calculate what was taken the one time she was there. I would suggest-Shewas convicted ofa Theft 2. I would suggest an amount closer to $5,000-That's the high end ofa Theft 2-forMs. Raftis. I-Ido believe she needs to be accountable, but I don'tbelieve that she should be accountable for $79,000 for the minimal involvement ofher actions. RPat2l-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-Ibelieve the sister ofMr. Lewis, and the girlfriend of Mr. Clark, resided in the same household, surrounded by stolen items. And-hermother-we have numerous pawn chits [sic] showing her mother pawning some ofthe stolen items-
... [I]'m arguing there's an overarching conspiracy, here, involving all ofthem. 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 ofthem were pawning the Mayes stolen items.

5No. 320871 State v. Raftis
RP at 18. Although no conspiracy had been charged, the prosecutor stated that "the court's entitled to recognize conspiracy in terms ofrestitution." 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 ofguilty
nor herjudgment 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-thatthe restitution was part ofthe plea negotiations for the entry ofthe plea." RP at 27. Ms. Raftis appeals. ANALYSIS Ms. Raftis makes three related assignments oferrorto 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 herplea agreement, and (3) the evidence was insufficient to impose any order ofrestitution against her. After reviewing the applicable statute and its interpretation, we address her arguments and, finding error, address the appropriate remedy.



### 6No. 320871 State v. RaJtis
A trial court's authority to order restitution is derived entirely from statute. State
v. Tobin, 161 Wn.2d 517,523, 166 P.3d 1167 (2007). Under RCW 9.94A.753(5), restitution "shall be orderedwheneverthe offender is convicted ofan offensewhich results in injury to any person or damage to or loss ofproperty," unless "extraordinary circumstances" make restitution inappropriate. The statutes authorize a court to order restitution up to twice the amount ofthe victim's loss resulting from the crime. RCW 9.94A.753(3). UnderRCW 9.94A.753(3), restitution mustbebased on "easily ascertainable damages for injury to or loss ofproperty, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury." Butwhile the damages mustbe "easily ascertainable," the'" amount ofharm or loss neednot be establishedwith 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), overruledon othergrounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d466 (2006)). Rather, '"[e]vidence supportingrestitution is sufficient ifit affords a reasonable basis for estimating loss and does not subjectthe trier offact to
mere speculation or conjecture.'" State v. Griffith, 164 Wn.2d 960,965, 195 P.3d 506 (2008) (internal quotation marks omitted) (quotingHughes, 154 Wn.2d at 154). Restitution is only allowed for losses "causallyconnected"tothe crime charged. Kinneman, 155 Wn.2d at 286-87; State v. Enstone, 89 Wn. App. 882, 886,951 P.2d 309 7No. 320871 State v. Raftis (1998), ajJ'd, 137 Wn.2d 675,974 P.2d 828 (1999) (there mustbe a causal connection "betweenthe crime and the injuries for which compensation is sought"). Andin this connection, while cases commonlyrefer to the crime "charged,"the statute actually requires "thatthe injury or damage betheresult ofthe crime for which the defendant is 'convicted.'" State v. McCarthy, 178 Wn. App. 290, 297 n.3, 313 P.3d 1247 (2013) (noting that "[tJhe initial charges are immaterial"); seeRCW 9.94A.753(5) ("Restitution shall be ordered wheneverthe offender is convictedof an ojJense which results in injury to any person or damage to or loss ofproperty") (emphasis added). "Losses are causally connected if, but for the charged crime, the victim would not have incurredthe loss." McCarthy, 178 Wn. App. at 297 (internal quotation marks omitted) (quoting Tobin, 161 Wn.2d at 524.) Because restitution is limited to losses incurred as a result ofthe precise offense charged, the general rule is that "[aJ defendant may notberequired to payrestitution beyond the crime charged or for otheruncharged offenses." State v. Johnson, 69 Wn. App. 189, 191,847 P.2d 960 (1993). In other words, restitution may notbe imposed "based onthe defendant's 'general scheme' or acts 'connected with' the crime charged, when those acts are not part ofthe charge." State v. Woods, 90 Wn. App. 904, 907-08, 953 P.2d 834 (1998) (quoting State v. Miszak, 69 Wn. App. 426,428, 848 P.2d 1329 (1993)).

8No. 320871 State v. Raftis
An exception to this rule applies where a defendant pleads gUilty and "expressly agrees" as part ofthe pleabargainingprocess "topayrestitution for crimes for which, [she] was not convicted." Johnson, 69 Wn. App. at 191; RCW 9.94A.753(5) (providing that restitution shall be ordered "ifthe offenderpleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offenderbe required to pay restitution to a victim ofan offense or offenses which are notprosecutedpursuant to aplea agreement"). In determining restitution, a court may rely on no more information than is "admittedby the plea agreement, or admitted, acknowledged, or proved in a trial or at the time ofsentencing." State v. Dedonado, 99 Wn. App. 251, 256, 991 P.2d 1216 (2000). If the defendant disputes facts relevant to determining restitution, "the sentencing court must either not considerthose facts or grant an evidentiary hearing where the State must prove the restitution amount by a preponderance ofthe evidence." Id.; Kinneman, 155 Wn.2d at 285. The loss "mustbe supported by 'substantial credible evidence.'" Griffith, 164 Wn.2d at 965 (quoting State v, Fleming, 75 Wn. App. 270, 275, 877 P.2d 243 (1994)). Subject to these limitations, the trial court has broad discretion in deciding to impose restitution and the amount thereof. State v. Woods, 90 Wn. App. at 906; Hughes, 154 Wn.2d at 153. Accordingly, a trial court's order ofrestitution will not be disturbed
on appeal unless it is '" manifestly unreasonable or the sentencing court exercised its 9No. 320871 State v. Raftis
discretion on untenable grounds orfor untenable reasons.'" Id. (quoting State v. Hunotte, 69 Wn. App. 670, 674,851 P.2d 694 (1993), abrogatedon othergrounds by State v. R.G.P., 175 Wn. App. 131,302 P.3d 885 (2013), review denied, 178 Wn.2d 1020 (2013); Tobin, 161 Wn.2d at 523. Causal Connection Ms. Raftis claims the State failed to establish a causal connection between the second degree theft offense to which shepleaded guilty and the total value ofthe Mayes's loss from a series ofburglaries. Miszak, 69 Wn. App. 426, and State 

### v. Raleigh, 50 Wn. App. 248, 748 P.2d 267 (1988) support herposition. In Miszak, Mr. Miszak and a codefendant were charged with second degree theft for takingjewelry from a victim "on or about February 27, 1989." Miszak, 69 Wn. App. at426. Mr. Miszak laterpleaded guilty to an amended information charging him with attempted theft in the second degree. Id. at 426-27. In his statement on plea ofguilty, Mr. Miszak admitted that, on February 27, 1989, he took one article of jewelry belonging to the victim "valued [at] at least $250." Id. at 427 (alteration in original). Nevertheless, the trial court ordered him to pay $4,517 in restitution, representing the total loss claimed by the victim from 13 items of jewelry she contended had been taken. Id. On appeal, Division Iheld that the restitution order violated the rule that restitution "cannotbe imposed based on the defendant's 'general scheme' oracts

10No. 320871 State v. RaJlis
'connected with' the crime charged, when those acts are notpart ofthe charge." ld. at 428 (quoting State v. Harrington, 56 Wn. App. 176, 179,782P.2d 1101 (1989). 

### It explained that Mr. Miszak
was charged with and adjudged guilty ofattempted theft of jewelry on February 27, 1989, the date designated in the information. Atthe restitution hearing, the State offered no evidencewhatsoever to prove that the 13 items hadbeen taken during commission ofthe charged crime. In fact, the evidence tended to prove the contrary. The victim's letter, which was the sole evidence ofloss offeredbythe State, affirmatively established thatthe lossestookplace 'systematically' over aperiod of'months.' Thus, the evidence was insufficient to supportthe restitution order for the entire loss claimed by the victim. ld. at 428. Because the record did not showwhich item Mr. Miszak took onFebruary 27 and because hehad not agreed to pay restitution for losses incurred as a result of uncharged crimes, the court vacated the portion ofthejudgment and sentence setting restitution and remanded for the trial courtto determine the appropriate amount of restitution, stating, "[i]n the absence ofany additional evidence ofwhat [Mr.] Miszak agreed to, the 'victim's loss' in this case is limited to the one item of jewelrythat [Mr.] Miszak actually admitted taking." ld. at 430. Similarly in Raleigh, the defendant and a codefendantwere charged, "together with others," with burglarizing a church during a period between July 14, 1985 and July 21, 1985. Raleigh, 50 Wn. App. at 249. Mr. Raleigh pleaded guilty to second degree burglary, admitting in his statement on plea ofguilty only that he broke into the church and "tookRainier Beer." ld. at 249-50. The trial court imposed the $9,179.01 in loss 11No. 320871 State 

### v. Raftis proved against Mr. Raleigh's codefendantjointly and severally on Mr. Raleigh. Id. at 250. As in this case, the issue on appeal was whetherthe trial court erred in orderingMr. Raleigh to pay restitution for the total amount ofdamages sustained by the church in the
course ofseveral burglaries during the time period in which the countwas charged. Id. at 251. The courtheld that the restitution orderviolated the principle that restitution may onlybe ordered for losses incurred as a result ofcrimes charged. Id. Itfound that [w]hile, technically, itmay be said that [Mr.] Raleigh was ordered to pay restitution for loss incurred as aresult ofthe crime charged, this is so only because ofthe imprecise manner in whichthe crime was charged. In reality, there is a disparity betweenthe crime to which [Mr.] Raleigh pleaded guilty (in his own words, he entered the church and took beer) and the extent ofloss to the church in the course ofseveral burglaries during the period for which [Mr.] Raleigh was charged. Id. at 253. These cases establish that "[w]hen a series ofthefts is committed againstthe same victim, restitution can only be imposed for the specific theftthat the defendant was convicted of." 13B SETH A. FINE &DOUGLAS J. ENDE, WASHINGTON PRACTICE: CRIMINALLAW 

### § 3611, at 336 (2d ed. 1998). Theprinciple clearly applies here, making it improper for the courtto have granted the State's request that Ms. Raftis be adjudged jointly and severally liable for the Mayes's total losses.

12No. 320871 State v. RaJtis Agreementtopay losses notestablished The State defended the insufficiency ofits evidencetying all ofthe loss toMs. Raftis at the restitution hearing by representing to the court, "On all my deals with all defendants, we-theplea agreement took into account restitution on all counts originally charged. And that was the agreement." RP at 16. In her statement on plea ofguilty, however, Ms. Raftis merely agreed, "Ifthis crime resulted in injury to any person or damage to or loss ofproperty, thejudgewill orderme to make restitution, unless extraordinary circumstances existwhich make restitution inappropriate." CP at 13 (emphasis added). Courts have repeatedly held that restitution may only be imposed for losses resulting from uncharged crimes ifthe defendant "enters into an express agreementto pay restitution." Kinneman, 155 Wn.2d at 286; Woods, 90 Wn. App. at 908; Johnson, 69 Wn. App. at 19l. The prosecutor's representation does not suffice. The record on appeal contains no evidence that Ms. Raftis expressly agreed to make restitution based on any crimes otherthanthe theft offenseto which shepleaded guilty. Remedy Becausethe State did not establish a causal connection between Ms. Raftis's actions and the total losses incurred by the homeowners, it failed to meet its burden of provingthe restitution amounts by a preponderance ofthe evidence. Accordingly, the

13No. 320871 State v. Raftis
restitution order mustbe vacated. State v. Osborne, 140 Wn. App. 38,42, 163 P.3d 799 (2007); State v. Dennis, 101 Wn. App. 223, 229, 6 P.3d 1173 (2000). The State argues that under Griffith, the appropriate remedy is to remand for a new restitution hearing. 

### In that case, the court remanded "forthe trial courtto determine the value of[the victim's] unrecovered items from the policereportthat can be identified by
a preponderance ofthe evidenceto have been in [the defendant's] possession." Griffith, 164 Wn.2d at 968. However, it held that no new evidence couldbe admitted on remand because doing so "wouldconflict with the statutory requirement thatrestitution be set within 180 days after sentencing." Id. at 968 n.6 (citing RCW 9.94A.753(l); State 

### v. Dennis, 101 Wn. App. at 229-30. Ms. Raftis pleaded guilty to second degree theft and thereby to having stolen property with a value exceeding $750. RCW 9A.56.040(l)(a). 

### In reviewingthe statement on plea ofguilty with Ms. Raftis, the court reviewed that statement as to value and asked her ifit was correct, to which she responded, "Yeah." RP at 7. The guiltyplea form in this casepermitted the courtto "reviewthe police reports and/or a statement of probable cause suppliedby the prosecution to establish a factual basis for the plea." CP at 19. But the affidavit ofprobable cause that was supplied by the State contained no evidence as to the items stolen by Ms. Raftis. The order ofrestitution is vacated. We grant the State'srequest that we remand for the trial court to determine an appropriate amount ofrestitution, but with the caveat 14No. 320871 State v. Raftis
that no new evidence may be offered. The State will be requiredto rely on Ms. Raftis's limited admissions made in pleading guilty. A majority ofthe panel has determinedthis opinion will notbe printed in the Washington Appellate Reports, but itwill be filed for publicrecordpursuantto RCW 2.06.040. Siddoway, C.J. WE CONCUR:

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