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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,

Respondent,

v.

JOSHUA PAUL MOWERY,

Appellant.

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No. 79311-0-I

DIVISION ONE

UNPUBLISHED OPINION

HAZELRIGG, J. — Joshua P. Mowery entered a guilty plea to the charge of 

burglary in the second degree. He now contends that the State breached the plea 

agreement when it requested restitution not included in the categories of damages 

that he specifically agreed to pay. Because the plain language of the restitution 

provision obligates Mowery to pay restitution in full to the victim of the burglary as 

well as certain specific categories of damages, the State did not breach the plea 

agreement when it requested restitution for alleged losses to the victim of the crime 

of conviction. However, the State did not meet its burden to show the causal 

connection between the claimed items of clothing, the victim of the crime of 

conviction, and the crime itself. We vacate the restitution order as to the items of 

clothing and remand for entry of a revised order.
No. 79311-0-I/2

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FACTS

Joshua Mowery broke into the underground parking garage of Silver Cloud 

Inn in Bellevue, causing damage to the premises and to two vehicles inside the 

garage. He was charged with second degree burglary and attempted theft of a 

motor vehicle. Mowery entered a plea of guilty to the charge of second degree 

burglary. The plea agreement provided that the State would dismiss the charge of 

attempted theft of a motor vehicle, recommend an agreed sentence of nine months 

confinement, and request restitution. The restitution provision appeared in 

substantially the following form:

[X] RESTITUTION: Pursuant to RCW 9.94A.753, the defendant shall 

pay restitution in full to the victim(s) on charged counts and

[ ] agrees to pay restitution in the specific amount of $ _ _.

[X] agrees to pay restitution To Be Determined for (i) damage 

to premises of Silver Cloud, (ii) any damage to vehicles during this 

incident, and (iii) any injury suffered by Bellevue Police Officer 

McGuigan, as referenced in the PC Certification and discovery.

The court imposed a sentence of nine months in jail, a victim penalty assessment 

of $500, a DNA collection fee of $100, and restitution in an amount to be 

determined at a future hearing.

At the restitution hearing, the State requested an award of $3,774.50 to 

Silver Cloud Inn and $2,618.52 to Berkley North Pacific Group, Silver Cloud Inn’s 

insurer. Mowery objected to the inclusion of two items of clothing and a knife in 

the State’s request and asked that the value of those items, $57.70, be excluded 

from the amount of restitution ordered. He argued that the language of the plea 

agreement obligated him to pay restitution for damage to the premises of Silver 
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Cloud Inn and damage to the cars, but not “losses suffered by the business or 

items taken.”

The State argued that it was not bound by the plea agreement to limit its 

restitution request to the categories expressly listed and could request restitution 

for any losses stemming from the crime. Although the State agreed it would be 

limited in its restitution request if the plea agreement had included a restitution cap, 

it argued that the absence of a cap in this agreement showed that restitution “was 

not limited to these items only. This is what the defendant has agreed to pay and 

[he] cannot argue against a substantiated claim up.”

Mowery responded that the restitution language in the plea agreement 

could have been left open-ended, simply stating that restitution was owed in an 

amount to be determined, but it was not. He argued that a restitution request 

beyond the damages explicitly referenced in the plea agreement had not been

bargained for between the parties. The court pointed out that the defense also 

could have included language specifically limiting or capping restitution, but it did 

not do so.

The court stated its understanding that the categories of restitution included 

in the plea agreement represented “a floor, not a ceiling.” The court included the 

replacement value of a shirt and sweatshirt in the restitution order. It excluded the 

value of the knife because the knife was not referenced as a missing item in any 

of the discovery documents. Restitution of $2,102.53 to Silver Cloud Inn and 

$2,618.52 to Berkley North Pacific Group was ordered, and the court granted a 

continuance to allow the State to submit supplemental information regarding 
No. 79311-0-I/4

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another portion of Silver Cloud Inn’s claim. After a second restitution hearing, the 

court imposed an additional $1,650 in restitution to Silver Cloud Inn. Mowery 

appealed.

ANALYSIS

I. Breach of Plea Agreement

Mowery first contends that the State violated the plea agreement by seeking 

restitution beyond that allowed under the agreement.

Plea agreements are contracts formed between a criminal defendant and 

the State and are analyzed using contract principles. State v. Sledge, 133 Wn.2d 

828, 838–39, 947 P.2d 1199 (1997). The law imposes an implied duty of good 

faith and fair dealing on the State when entering into plea agreements. Id. at 839. 

We review a prosecutor’s actions and comments using an objective standard to 

determine whether the State has breached a plea agreement. State v. Jerde, 93 

Wn. App. 774, 780, 970 P.2d 781 (1999). Because plea agreements also concern 

the fundamental rights of the accused, “[d]ue process requires a prosecutor to 

adhere to the terms of the agreement.” Sledge, 133 Wn.2d at 839. The State may 

not “undercut the terms of the agreement explicitly or by conduct evidencing an 

intent to circumvent the terms of the plea agreement.” Id. at 840.

Some of the arguments made by the prosecutor at the restitution hearing 

appeared to contend that the State is not bound by restitution terms in a plea 

agreement unless the amount of restitution is specified or capped. For example, 

the State argued:
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I’m not saying at all that the defendant agreed to this. The State can 

request any amount of restitution it wants on any basis, whether the 

defendant agrees or not . . . . [T]he State is not bound—is not limited 

by the Plea Agreement in what it can ask for.

This contention is inaccurate. Once the court accepts a plea, the State is bound 

by the terms of the plea agreement, whatever they may be. If the plea agreement 

leaves the amount of restitution to be determined without further specificity or 

includes a nonexhaustive list, then the State is not limited by the agreement in the 

restitution it can request.1 However, if the plea agreement limits restitution by, for 

example, restricting it to certain categories of damages or setting a fixed amount 

or cap for the award, the State is bound to abide by those terms.

The question remains whether this plea agreement limited the restitution 

that the State could request. Mowery argues that the State breached the plea 

agreement because the terms of the agreement limited the acceptable categories 

of restitution to those enumerated. The State argues that it adhered to the terms 

of the agreement because Mowery’s promise to pay restitution “in full to the 

victim(s) on charged counts” showed that the permissible restitution award was not 

limited to the listed damages.

The object of contract interpretation is to ascertain and give effect to the 

intent of the parties. Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 

(1990); State v. Oliva, 117 Wn. App. 773, 779, 73 P.3d 1016 (2003). To do so, we

“‘view[] the contract as a whole, the subject matter and objective of the contract, 

all the circumstances surrounding the making of the contract, the subsequent acts 

 

1 Ordinarily, restitution is only allowed for losses that are causally connected to the crime 

charged. State v. Kinneman, 155 Wn.2d 272, 286, 119 P.3d 350 (2005).
No. 79311-0-I/6

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and conduct of the parties to the contract, and the reasonableness of respective 

interpretations advocated by the parties.’” Berg, 115 Wn.2d at 667 (quoting State 

v. Twin City Food, Inc., 82 Wn.2d 250, 254. 510 P.2d 221 (1973)).

Here, the only indications of the parties’ intent in the record before us are 

the words of the plea agreement, the parties’ arguments at the restitution hearing, 

and the reasonableness of their proposed interpretations. We look first to the 

language of the contract. The parties used a pre-printed plea agreement form that 

included both standard language and typed-in language specific to this case. The 

main clause of the pre-printed restitution section of the form provides that the 

defendant “shall” pay restitution in full to the victim of the charged crime in 

accordance with RCW 9.94A.753. This reflects the language of the statute

authorizing restitution, which provides that

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 exist which make 

restitution inappropriate in the court’s judgment and the court sets 

forth such circumstances in the record.

RCW 9.94A.753(5). The amount of restitution “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.” RCW 

9.94A.753(3).

This box was checked on Mowery’s plea agreement. Mowery admitted to

the crime of burglary in the second degree. The victim of this crime was Silver 

Cloud Inn. Therefore, under the standard language of the form, Mowery would 
No. 79311-0-I/7

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owe restitution to Silver Cloud Inn for all “easily ascertainable damages for injury 

to or loss of property” resulting from the burglary.

Generally, the court may only require a defendant to pay restitution for 

damages causally connected to the charged crime; damages stemming from 

crimes of which the defendant was not convicted may not be included in a 

restitution order absent the defendant’s express agreement. State v. Dauenhauer, 

103 Wn. App. 373, 378, 12 P.3d 661 (2000). However, these damages may be 

included if a defendant 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.” RCW 9.94A.753(5). The plea agreement form reflects this 

principle with options for two additional forms of restitution. If the general 

restitution box is checked, the form provides that the defendant “shall” pay 

restitution to the victim of the crime of conviction as described above “and agrees 

to pay” restitution in a specific amount or as otherwise described.

Here, the option to list a specific amount of restitution was unchecked, but 

the option to enumerate other specific restitution was checked. The second part 

of the restitution section stated that Mowery “agrees to pay restitution” for damage 

to the premises of Silver Cloud Inn, damage to the vehicles involved, and any injury 

to a responding police officer. Because the vehicles were owned by Silver Cloud

Inn, the first two enumerated categories of damages seem to be covered by the 

general language of the restitution provision, which obligated Mowery to pay 

restitution to the named victim of the crime of conviction.
No. 79311-0-I/8

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The parties expressed two different interpretations of the restitution section 

of Mowery’s plea agreement when read as a whole. The State read the language 

of this provision literally, construing the repetition simply as a “belt and suspenders” 

approach. Mowery interpreted the more specific language of the listed categories 

to supplant the general requirement of restitution “in full.” Despite the redundancy, 

the plain language of the provision supports the State’s interpretation. The 

restitution term indicates that Mowery will pay restitution in full to the victim “and” 

restitution for the listed categories of damages. The provision contains no 

language indicating that the enumerated categories are intended to alter the 

obligation to pay restitution in full to the victim.

Mowery argues that the State’s reading renders superfluous the portion of 

the restitution provision specifying the categories of damages to be included in the 

award. Courts favor interpretations of contracts that give effect to all provisions of 

the contract over those that render some of the language meaningless or 

ineffective. Wagner v. Wagner, 95 Wn.2d 94, 101, 621 P.2d 1279 (1980). “[A] 

court should not disregard language that the parties have used.” Snohomish 

County Pub. Transp. Benefit Area Corp. v. FirstGroup Am., Inc., 173 Wn.2d 829, 

840, 271 P.3d 850 (2012).

Here, neither proposed interpretation gives full effect to every word of the 

restitution provision. Although the State’s reading includes unnecessary repetition, 

Mowery’s interpretation renders the first portion of the restitution provision 

requiring him to pay restitution in full to the victim entirely superfluous. Allowing a 

redundancy is a lesser evil than deleting a phrase of a signed contract. The State 
No. 79311-0-I/9

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did not breach the plea agreement by requesting restitution for losses sustained 

by the victim of the crime of conviction even though they were not included in the 

enumerated categories of damages.

II. Causal Connection

Mowery also argues that the court erred in imposing restitution for the 

contested items over his objection. A trial court’s order of restitution will not be 

disturbed on appeal absent an abuse of discretion. State v. Tobin, 161 Wn.2d 517, 

523, 166 P.3d 1167 (2007). An abuse of discretion occurs when the trial court’s 

discretion is exercised on untenable grounds or for untenable reasons. State v. 

Enstone, 137 Wn.2d 675, 679–80, 974 P.2d 828 (1999).

It is the State’s obligation to establish the amount of restitution. State v. 

Dedonado, 99 Wn. App. 251, 257, 991 P.2d 1216 (2000). Because the clothing 

items did not fall into the categories of damages for which Mowery agreed to pay 

restitution, the State needed to show that they were losses sustained by Silver 

Cloud Inn that were causally connected to the burglary. See RCW 9.94A.753(3); 

Tobin, 161 Wn.2d at 524. A causal connection exists if the State shows by a 

preponderance of the evidence that the loss to the victim would not have occurred 

but for the offense. Id. “A causal connection is not established simply because a 

victim or insurer submits proof of expenditures for replacing property.” Dedonado, 

99 Wn. App. at 257. Such documentation does not necessarily show how or 

whether the costs were related to the offender’s crime. See Id.

Here, to support its request for restitution, the State presented a letter from 

Emmett Boyle, Silver Cloud Inn’s director of assets, stating that Mowery “stole a 
No. 79311-0-I/10

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shirt and a neon green construction sweatshirt—which he was wearing per the 

clothing description on the Bellevue Police report.” No report describing Mowery’s 

attire at the time of his arrest appears in the record before this court. Boyle 

submitted a victim loss statement listing a shirt and sweatshirt as unrecovered 

property and declared under penalty of perjury that the statement was true and 

correct. The State also presented receipts showing the replacement value of the 

items.

The documentation provided by the State was insufficient to establish the 

connection between the clothing items, the crime of conviction, and the victim of 

that crime. Although Silver Cloud Inn’s representative asserted that Mowery stole 

the clothing items, nothing in the record before this court indicates that Mowery 

took the items from Silver Cloud Inn during the burglary. The trial court abused its

discretion when it ordered restitution based on evidence that did not establish a 

causal connection between Mowery’s actions and the claimed damages.

If the State fails to establish the causal connection between the crime of 

conviction and the damages within the 180-day period set forth in RCW 

9.94A.753(1), this court must vacate the unproven portions of the restitution order. 

Dedonado, 99 Wn. App. at 257–58. Mowery was sentenced on May 25, 2018. 

Because the 180-day period for setting restitution has expired, we vacate the 

portions of the restitution order relating to the clothing items and remand for entry 

of a revised restitution order.
No. 79311-0-I/11

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III. Legal Financial Obligations

Mowery argues that the $100 DNA collection fee should be stricken from 

his judgment and sentence in light of State v. Ramirez, 191 Wn.2d 732, 426 P.3d 

714 (2018). In 2018, the legislature amended a number of statutes concerning 

legal financial obligations, including the statute governing the DNA collection fee. 

LAWS OF 2018, Ch. 269, § 18. The current version of the statute provides that 

qualifying sentences must include the DNA collection fee “unless the state has 

previously collected the offender’s DNA as a result of a prior conviction.” RCW 

43.43.7541. The Washington Supreme Court held that these statutory changes 

applied prospectively on remand to cases pending on appeal when the 

amendments were enacted. Ramirez, 191 Wn.2d at 747. The State agrees that 

it is appropriate to strike this fee because its records show that Mowery’s DNA was 

previously collected before the sentencing in this case. We accept the State’s 

concession and order that the DNA collection fee be stricken from the judgment 

and sentence on remand.

Remanded for further proceedings.

WE CONCUR: