FILED 


OCTOBER 20, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 32087-1-111 

Respondent, ) 

) 

v. ) 

) 

LISSA RAFTIS, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

SIDDOWAY, C.J. -Lissa Raftis appeals an order setting restitution following her 

agreement to plead guilty to a single count ofsecond degree theft in exchange for the 

State reducing its original charges ofresidential burglary and theft of a motor vehicle. 

The court's order adjudged her jointly and severally liable to pay $79,440 with five other 

defendants who were involved to varying degrees in a series ofthefts of a single 

residence. Ms. Raftis argues that she never agreed to pay restitution for uncharged 

offenses as part of her plea, very little ofthe loss was causally connected to her acts, and 
No. 320871 

State v. Rajas 

because the State simply relied on a restitution amount proved against another defendant, 

its evidence was insufficient to support any order of restitution against her. 

We agree that the State's evidence does not support the restitution ordered. We 

vacate the order of restitution and remand for the trial court to determine an appropriate 

amount of restitution based on Ms. Raftis's limited admissions in pleading guilty. 

FACTS AND PROCEDURAL BACKGROUND 

In January 2013, police responded to a possible burglary at the home of Danny 

Mayes, located in rural Sprague, Washington. The responding officer placed a motion 

sensitive camera at the home in hopes of capturing pictures of the burglars if they 

returned. When reviewed on March 7, 2013, the camera had taken more than 1,000 

photographs of five individuals-four men and on one occasion, a woman-on several 

dates. The men and woman were photographed removing personal 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 chief criminal sheriff deputy the next 

day, who drove out on SR 231 and saw the Ford truck and three men at the Mayes 

property. He waited at a distance until the men drove away and then conducted a traffic 

stop of the truck. The three men in the truck-Robert Clark, Joshua Letchworth, and 

Roger Lewis-proved to be among the men photographed burglarizing the Mayes home. 

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No. 320871 

State v. Raflis 

The three were arrested and were interviewed at the Lincoln County Jail. Mr. 

Clark and Mr. Lewis identified the woman who had been photographed 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 count of residential burglary and one count of 

theft of a motor vehicle. The information alleged that the offenses were committed "on 

or about February 26,2013," the only day on which Ms. Raftis appeared in the 

photographs. Clerk's Papers (CP) at 1. 

Ms. Raftis reached a plea agreement under which the State amended the charge to 

reflect a single count of second degree theft, to which Ms. Raftis entered a guilty plea. 

The amended information again alleged that the offense was committed "on or about 

February 26,2013." CP at 10. 

At the plea and sentencing hearing, the State recommended that restitution be 

determined at a later date. The prosecutor explained that the State was "struggling with 

the restitution because of all the defendants and the different times they were involved, 

here. So I would-I would include [Ms. Raftis] in that." Report ofProceedings (RP) at 

9. In response to the court's question whether "the restitution issues are referencing 

the-the February 26th issue, that date," the prosecutor answered yes adding, "We're 

going to have to-we're going to have to sort through it in one big hearing, I think." Id. 

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No. 320871 

State v. RaJtis 

at 9-10. The judgment 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 of the court." CP at 28. 

The "one big hearing" did not go forward quite as expected; by the time of the 

restitution hearing for Ms. Raftis and one of her codefendants, Mr. Lewis, in November 

2013, a restitution hearing had already been held for Mr. Clark, at which the 

homeowners' total losses resulting from all of the thefts had been found by the court to be 

$79,440. 1 The prosecutor expressed his "hope that we can stay with that figure, since we 

already have a judgment entered in one cause joint and several with other defendants" 

and asked the court to find Ms. Raftis and Mr. Lewis jointly and severally liable for the 

full $79,440. RP at 14. He also stated "it would be the state's position that we not 

relitigate the Mayes matter" but later pointed out that "[t]he Mayes are present in the 

courtroom to testify if need 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 out that the $79,440 "reflects the actions of several other defendants and codefendants not just from February 26,2013, but many other dates as well." CP at 43. He 

J Mr. Kittleson and Mr. Walrath had not yet been tried. 

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No. 320871 

State v. Raflis 

argued that Ms. Raftis was the "least culpable out of all the co-defendants," because she 

was only at the house "one time." RP at 21. As to an amount, he said: 

She recollects taking some boxes of DVDs, and I see those are valued 

around $2,000. 

It's just not easily ascertainable to calculate what was taken the one 

time she was there. I would suggest-She was convicted of a Theft 2. I 

would suggest an amount closer to $5,000-That's the high end of a Theft 

2-for Ms. Raftis. 

I-I do believe she needs to be accountable, but I don't believe that 

she should be accountable for $79,000 for the minimal involvement of her 

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-I believe the sister of Mr. Lewis, and the girlfriend of 

Mr. Clark, resided in the same household, surrounded by stolen items. 

And-her mother-we have numerous pawn chits [sic] showing her mother 

pawning some of the stolen items-... [I]'m arguing there's an overarching conspiracy, here, involving all of them. 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 of them were pawning the 

Mayes stolen items. 

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No. 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 of restitution." 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 of guilty 

nor her judgment 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-that the restitution was part of the plea negotiations for the entry of the 

plea." RP at 27. 

Ms. Raftis appeals. 

ANALYSIS 

Ms. Raftis makes three related assignments of error to 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 her plea agreement, and (3) the evidence was insufficient to 

impose any order of restitution against her. After reviewing the applicable statute and its 

interpretation, we address her arguments and, finding error, address the appropriate 

remedy. 

6 

No. 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 ordered whenever the offender is convicted of an offense which 

results in injury to any person or damage to or loss of property," unless "extraordinary 

circumstances" make restitution inappropriate. The statutes authorize a court to order 

restitution up to twice the amount of the victim's loss resulting from the crime. RCW 

9.94A.753(3). 

Under RCW 9.94A.753(3), restitution must be based 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." But while the damages must be 

"easily ascertainable," the'" amount of harm or loss need not be established with 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), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 

2546, 165 L. Ed. 2d 466 (2006)). Rather, '" [e]vidence supporting restitution is sufficient 

if it affords a reasonable basis for estimating loss and does not subject the trier of fact to 

mere speculation or conjecture.'" State v. Griffith, 164 Wn.2d 960,965, 195 P.3d 506 

(2008) (internal quotation marks omitted) (quoting Hughes, 154 Wn.2d at 154). 

Restitution is only allowed for losses "causally connected" to the crime charged. 

Kinneman, 155 Wn.2d at 286-87; State v. Enstone, 89 Wn. App. 882, 886,951 P.2d 309 

7 

No. 320871 

State v. Raftis 

(1998), ajJ'd, 137 Wn.2d 675,974 P.2d 828 (1999) (there must be a causal connection 

"between the crime and the injuries for which compensation is sought"). And in this 

connection, while cases commonly refer to the crime "charged," the statute actually 

requires "that the injury or damage be the result of the 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"); see RCW 9.94A.753(5) ("Restitution 

shall be ordered whenever the offender is convicted ofan 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 incurred the 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 of the precise offense 

charged, the general rule is that "[aJ defendant may not be required to pay restitution 

beyond the crime charged or for other uncharged offenses." State v. Johnson, 69 Wn. 

App. 189, 191,847 P.2d 960 (1993). In other words, restitution may not be imposed 

"based on the defendant's 'general scheme' or acts 'connected with' the crime charged, 

when those acts are not part of the 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)). 

8 

No. 320871 

State v. Raftis 

An exception to this rule applies where a defendant pleads gUilty and "expressly 

agrees" as part of the plea bargaining process "to pay restitution 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 "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"). 

In determining restitution, a court may rely on no more information than is 

"admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the 

time of sentencing." 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 consider those facts or grant an evidentiary hearing where the State must 

prove the restitution amount by a preponderance of the evidence." Id.; Kinneman, 155 

Wn.2d at 285. The loss "must be 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 of restitution will not be disturbed 

on appeal unless it is '" manifestly unreasonable or the sentencing court exercised its 

9 

No. 320871 

State v. Raftis 

discretion on untenable grounds or for untenable reasons.'" Id. (quoting State v. 

Hunotte, 69 Wn. App. 670, 674,851 P.2d 694 (1993), abrogated on other grounds 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 she pleaded guilty and the total value of the 

Mayes's loss from a series of burglaries. Miszak, 69 Wn. App. 426, and State v. Raleigh, 

50 Wn. App. 248, 748 P.2d 267 (1988) support her position. 

In Miszak, Mr. Miszak and a codefendant were charged with second degree theft 

for taking jewelry from a victim "on or about February 27, 1989." Miszak, 69 Wn. App. 

at 426. Mr. Miszak later pleaded guilty to an amended information charging him with 

attempted theft in the second degree. Id. at 426-27. In his statement on plea of guilty, 

Mr. Miszak admitted that, on February 27, 1989, he took one article ofjewelry 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 ofjewelry she contended had been taken. Id. 

On appeal, Division I held that the restitution order violated the rule that 

restitution "cannot be imposed based on the defendant's 'general scheme' or acts 

10 

No. 320871 

State v. RaJlis 

'connected with' the crime charged, when those acts are not part of the charge." ld. at 

428 (quoting State v. Harrington, 56 Wn. App. 176, 179,782 P.2d 1101 (1989). It 

explained that Mr. Miszak 

was charged with and adjudged guilty of attempted theft ofjewelry on 

February 27, 1989, the date designated in the information. At the 

restitution hearing, the State offered no evidence whatsoever to prove that 

the 13 items had been taken during commission of the charged crime. In 

fact, the evidence tended to prove the contrary. The victim's letter, which 

was the sole evidence ofloss offered by the State, affirmatively established 

that the losses took place 'systematically' over a period of 'months.' Thus, 

the evidence was insufficient to support the restitution order for the entire 

loss claimed by the victim. 

ld. at 428. Because the record did not show which item Mr. Miszak took on February 27 

and because he had not agreed to pay restitution for losses incurred as a result of 

uncharged crimes, the court vacated the portion ofthe judgment and sentence setting 

restitution and remanded for the trial court to determine the appropriate amount of 

restitution, stating, "[i]n the absence of any additional evidence ofwhat [Mr.] Miszak 

agreed to, the 'victim's loss' in this case is limited to the one item ofjewelry that [Mr.] 

Miszak actually admitted taking." ld. at 430. 

Similarly in Raleigh, the defendant and a codefendant were 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 of guilty only that he broke into the church 

and "took Rainier Beer." ld. at 249-50. The trial court imposed the $9,179.01 in loss 

11 

No. 320871 

State v. Raftis 

proved against Mr. Raleigh's codefendant jointly and severally on Mr. Raleigh. Id. at 

250. As in this case, the issue on appeal was whether the trial court erred in ordering Mr. 

Raleigh to pay restitution for the total amount of damages sustained by the church in the 

course of several burglaries during the time period in which the count was charged. Id. at 

251. 

The court held that the restitution order violated the principle that restitution may 

only be ordered for losses incurred as a result of crimes charged. Id. It found that 

[w]hile, technically, it may be said that [Mr.] Raleigh was ordered to pay 

restitution for loss incurred as a result of the crime charged, this is so only 

because of the imprecise manner in which the crime was charged. In 

reality, there is a disparity between the crime to which [Mr.] Raleigh 

pleaded guilty (in his own words, he entered the church and took beer) and 

the extent of loss to the church in the course of several burglaries during the 

period for which [Mr.] Raleigh was charged. 

Id. at 253. 

These cases establish that "[w]hen a series of thefts is committed against the same 

victim, restitution can only be imposed for the specific theft that the defendant was 

convicted of." 13B SETH A. FINE & DOUGLAS J. ENDE, WASHINGTON PRACTICE: 

CRIMINAL LAW § 3611, at 336 (2d ed. 1998). The principle clearly applies here, making 

it improper for the court to have granted the State's request that Ms. Raftis be adjudged 

jointly and severally liable for the Mayes's total losses. 

12 

No. 320871 

State v. RaJtis 

Agreement to pay losses not established 

The State defended the insufficiency of its evidence tying all of the loss to Ms. 

Raftis at the restitution hearing by representing to 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. In her statement on plea of guilty, 

however, Ms. Raftis merely agreed, "If this crime resulted in injury to any person or 

damage to or loss ofproperty, the judge will order me to make restitution, unless 

extraordinary circumstances exist which make restitution inappropriate." CP at 13 

(emphasis added). 

Courts have repeatedly held that restitution may only be imposed for losses 

resulting from uncharged crimes if the defendant "enters into an express agreement to 

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 other than the theft offense to which she pleaded guilty. 

Remedy 

Because the 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 

proving the restitution amounts by a preponderance of the evidence. Accordingly, the 

13 

No. 320871 

State v. Raftis 

restitution order must be 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 "for the trial court to determine the 

value of [the victim's] unrecovered items from the police report that can be identified by 

a preponderance of the evidence to have been in [the defendant's] possession." Griffith, 

164 Wn.2d at 968. However, it held that no new evidence could be admitted on remand 

because doing so "would conflict with the statutory requirement that restitution 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 reviewing the 

statement on plea of guilty with Ms. Raftis, the court reviewed that statement as to value 

and asked her if it was correct, to which she responded, "Yeah." RP at 7. The guilty plea 

form in this case permitted the court to "review the police reports and/or a statement of 

probable cause supplied by the prosecution to establish a factual basis for the plea." CP 

at 19. But the affidavit of probable cause that was supplied by the State contained no 

evidence as to the items stolen by Ms. Raftis. 

The order of restitution is vacated. We grant the State's request that we remand 

for the trial court to determine an appropriate amount of restitution, but with the caveat 

14 

No. 320871 

State v. Raftis 

that no new evidence may be offered. The State will be required to rely on Ms. Raftis's 

limited admissions made in pleading guilty. 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Siddoway, C.J. 

WE CONCUR: 


\. ~J- l ~_ ,. '!.. "" < 5. - Vr>.<""1 I \ 

Fearing, 1. Lawrence-Berrey, J. 

15