IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 74414-3-1
en
Respondent,
DIVISION ONE
v.
37"
JAMES ALLEN BEA, ••,- r
UNPUBLISHED OPINION -
Appellant. CO
FILED: November 14, 2016
Becker, J. — Appellant James Bea and the State agree the restitution
order in this case is inconsistent with the parties' plea agreement. They ask this
court to remand for an evidentiary hearing on disputed facts. We reverse and
remand for rehearing.
Bea worked for Jack Henry & Associates Inc. (Jack Henry), a company
that processes financial information for credit card companies. Employees of the
company began receiving text messages from an anonymous sender who
threatened to bomb Jack Henry branches. Around the same time, Maine State
Credit Union (Maine State) notified Jack Henry of potential 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 in the amount of $27,613.34. Bea appeals from this order.
No. 74414-3-1/2
A trial court's authority to impose restitution is derived entirely from
statute. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007). If a court
acts within its authority when ordering restitution, we will not reverse absent an
abuse of discretion. State v. Gray. 174 Wn.2d 920, 924, 280 P.3d 1110 (2012).
Our statutory scheme authorizes a court to impose restitution for losses
resulting from charged crimes. Restitution for loss beyond the scope of the crime
charged is properly awardable only when the defendant enters into an express
agreement to make such restitution as part of the 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 with the crime charged when
those acts are not part of the charge and are beyond the scope of the 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 of Jack Henry, two counts of identity theft
in the first degree, one count of identity theft in the second degree, and two
counts of felony harassment.
In the plea deal, Bea agreed to pay restitution "to Jack Henry and
Associates for all costs related to charged conduct including security measures
and reimbursement for fraud losses to credit customers; 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 request for restitution of
$40,924.31 to Jack Henry. The cover sheet stated that this amount included
restitution "for an occupational risk manager to 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 of financial 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 December 4, 2015. Bea
objected that the documents submitted by the State did not connect the
expenses to his conduct in the charged crimes—particularly with respect to the
financial institutions. The State responded that the 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 that the amount
claimed for "reimbursement of financial 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
"of financial institution I have limited to the one that [Bea] agreed to pay."1
1 Some confusion arises from the 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 of oral argument below, Bea agreed that Maine State
was entitled to be reimbursed but not in the amount claimed.
No. 74414-3-1/4
Instead of the total amount requested by the State for 13 different financial
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 in regard to card #[—]
involved in the Security Risk Issue," with details of what appear to be 9 separate
credit card charges. It is not clear from the record, and the State's brief does not
explain, how the amounts awarded for Maine State and Mainstreet are causally
connected either to Bea's offenses or to the language in the plea agreement. Bea
asks that the matter be remanded for an evidentiary hearing to determine this
question. See State v. Kinneman, 155 Wn.2d 272, 285-86, 119 P.3d 350 (2005).
The State contends the court abused its discretion by limiting the
restitution to only 2 of the 13 financial institutions that Jack Henry had to
reimburse for fraud losses. It is not clear from the record why all 13 claims are
not covered by Bea's agreement to reimburse Jack Henry "for fraud losses to
credit customers." The State agrees that the case should be remanded to the
trial court for an evidentiary hearing to determine the proper amount of restitution
consistent with the plea agreement.
No. 74414-3-1/5
We conclude it is appropriate to reverse the order of restitution and
remand for an evidentiary hearing where the parties will be permitted to explore
the factual basis for the items in dispute as well as the meaning of the language
used in the plea agreement.
The order of restitution is reversed. The matter is remanded for an
evidentiary hearing.
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WE CONCUR:
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