IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

MARCUS LADON LONG,

Appellant.

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No. 82464-3-I

DIVISION ONE

PUBLISHED OPINION

HAZELRIGG, J. — After entering a guilty plea, Marcus L. Long was ordered 

to pay restitution. A portion of the total amount of restitution ordered by the trial 

court was compensation to the victim for the paid vacation and sick leave she 

utilized due to her injuries. Long avers that this part of the restitution award was 

improper, arguing it constitutes a speculative future benefit which doesn’t fall within 

the scope of RCW 9.94A.753. We disagree and find that vacation and sick leave 

constitute property under the restitution statute, and that the amount sought was 

easily ascertainable, such that the award was proper.

FACTS

Marcus Long pleaded guilty to theft of motor vehicle and assault in the 

second degree-domestic violence. As part of his plea, Long agreed to pay 

restitution. At sentencing, the court ordered him to pay restitution in an amount to 
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be determined at a future hearing and accepted his request to waive his presence 

at that hearing.

The restitution hearing was held in March 2021 and Long’s counsel 

appeared on his behalf. The State requested $6,860.80 for Maureen Zebley, 

based on time she had taken off of work during her recovery from injuries Long 

inflicted and for which she utilized accrued paid vacation and sick leave.

1

 Long 

argued that the claim based on Zebley’s leave time was one arising from a 

prospective future benefit rather than a remedial lost wage and, therefore,

speculative. The State argued that Zebley was entitled to restitution because she 

“had to pay essentially to recover from an injury.”

The evidence provided by the State as to the amount sought for Zebley was 

a “time loss claim” she had submitted to the prosecutor’s office in which she 

asserted that she missed 240 hours of work valued at $26.92 per hour. She further 

indicated on the form that she had utilized paid sick and vacation time to make up 

for those lost hours. The document also contained her Leave Administrator’s 

contact information and signature.

The trial court ultimately ruled in favor of the State, providing:

So I’m going to award the amount requested and my reasoning is [ ] 

that essentially she took off work as a result of the injuries she 

suffered at the hands of the Defendant. And in lieu of not being paid 

during that time, she utilized her sick leave or vacation leave during 

that time period. And essentially that is a lost wage.

I don’t see that as a benefit. I see this as different than say I 

had to take off six months form work therefore my retirement . . . has

to now be recalculated.

 

1 The State also requested $6,368.46 for Progressive Insurance. Long did not dispute the 

restitution owed to Progressive Insurance which was based on damage he had caused to Zebley’s 

vehicle.
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Long now timely appeals the restitution order only as to the amount 

awarded for Zebley’s claim.

ANALYSIS

Long argues on appeal, as he did in the trial court, that the court lacked 

authority to order him to pay $6,860.80 in restitution to Zebley based on 

speculation that she “lost” the sick and vacation leave that she used because she 

will be unable to access those work benefits in the future. A trial court’s decision

to impose restitution is reviewed for abuse of discretion. State v. Gray, 174 Wn.2d 

920, 924, 280 P.3d 1110 (2012). However, the trial court’s interpretation of the 

restitution statute is an issue this court reviews de novo. State v. Burns, 159 Wn. 

App. 74, 78, 244 P.3d 988 (2010).

“A court’s authority to order restitution is derived solely from statute.” State 

v. Gonzalez, 168 Wn.2d 256, 261, 226 P.3d 131 (2010). RCW 9.94A.753 governs 

restitution within our state. A court ordering restitution must do so within 180 days 

of sentencing. RCW 9.94A.753. “If an offender objects to the restitution amount, 

the court must hold a hearing and accurately determine the amount within the 

allotted time.” Gray, 174 Wn.2d at 925–26. When restitution is disputed, the State 

bears the burden of proving the amount sought by a preponderance of the 

evidence. State v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d 350 (2005).

Long asks this court to resolve the question of whether paid leave (sick or 

vacation) properly falls within the scope of RCW 9.94A.753(3). The language of 

RCW 9.94A.753(3) states in relevant part:
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[R]estitution ordered by a court pursuant to a criminal conviction shall 

be based on easily ascertainable damages for injury to or loss of

property, actual expenses incurred for treatment for injury to 

persons, and lost wages resulting from injury.

Long argues that paid sick and vacation leave are analogous to the retirement 

income at the heart of this court’s decision in State v. Lewis. 57 Wn. App. 921, 791 

P.2d 250 (1990). In Lewis, we considered “whether restitution may include future 

retirement income losses resulting from . . . use of sick leave.” Id. at 923. We held 

that, in light of the fact that lost future earnings of a deceased victim were neither 

“easily ascertainable damages” nor “lost wages resulting from injury,” making such 

an award as restitution in a criminal case was improper. Id. at 924. We reinforced 

that ascertainability is key to criminal restitution determinations because the 

complexities as to calculations like those undertaken by the trial court in Lewis are 

properly addressed by civil damage concepts, in part because criminal 

proceedings are “ill-equipped for such a task.” Id. at 924. The Lewis court noted 

the choice of the Legislature to refer to “lost wages resulting from injury” in the past 

tense, which is suggestive of expenses already incurred. Id. at 926. As such, 

Lewis directs that any claim for restitution for lost future earnings of a deceased 

victim should be rejected. Id.

However, in Lewis we also accepted the State’s concession of error as to 

the award of restitution for a victim’s loss of future retirement income due based 

on their use of sick leave. Id. (citing State v. Goodrich, 47 Wn. App. 114, 116–17, 

733 P.2d 1000 (1987)). In Goodrich, we rejected the notion that restitution could 

be ordered for costs not yet incurred. 47 Wn. App. at 116–17. In Lewis, relying 

on the reasoning in Goodrich, we remanded for the trial court to determine whether 
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the victim who claimed lost retirement earnings had retired yet and, if so, what 

deductions were made due to their use of sick leave stemming from the underlying 

crime. 57 Wn. App. at 926. This result established that such an award would have 

only been improper if the loss had not yet been incurred, rather than a declaration 

that such a loss could not ever be recovered as restitution under RCW 

9.94A.753(3).

Lewis is unhelpful for Long’s argument, as we did not reject the notion that 

a reduction in retirement due to use of sick leave could not be ascertainable or 

ever properly awarded, but only that such a loss must have been actually incurred

and not merely speculative. Sick and vacation leave are clearly ascertainable 

benefits that one may possess and that may have easily calculable value.2 One 

may use such a benefit by seeking payment from it during their employment or, in 

some circumstances, cash out the value of the benefit upon separation from their 

employment. As such, sick and vacation leave are properly classified as property

for purposes of the restitution statute. In affirming one aspect of the restitution 

award in State v. Young, we determined that a child support judgment constitutes 

property for purposes of the restitution statute, and concluded that when the party 

responsible for that judgment died as a result of a criminal defendant’s actions, the 

 

2 Here, Long does not challenge the truth of Zebley’s claimed utilization of 240 hours of 

paid vacation and sick time, nor does he argue to this court that the State failed to meet its burden 

in proving this portion of restitution amount. However, we can conceive of fact patterns that would 

call for more proof than submitted by the State here as variances among employer leave policies 

necessarily impact the value of different types of leave. For example, some technology companies 

in our state provide their employees with unlimited leave time such that time taken by a victim with 

that sort of benefit may not be properly claimed as a loss on a request for restitution in a criminal 

case. But, these nuances are a question for another time.
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defendant became responsible for replacing that property by paying out the child 

support judgment as restitution. 63 Wn. App. 324, 331-332, 818 P.2d 1375 (1991).

Having determined that paid sick or vacation leave constitute property for 

purposes of RCW 9.94A.753(3), we find the trial court’s award to Zebley was not 

error. However, the trial court here concluded that the award was based on “lost 

wages.” This was an improper interpretation of the statute, but in light of the fact 

that the award properly falls under RCW 9.94A.753(3) as “property,” the error was 

nonetheless harmless. State v. Kitchen, 46 Wn. App. 232, 238, 730 P.2d 103 

(1986) (“A harmless error is an error which is trivial, formal, or merely academic, 

was not prejudicial to the substantial rights of the defendant, and in no way affected 

the final outcome of the case.”).

Affirmed.

WE CONCUR: