IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 75229-4-1
Respondent, )
) DIVISION ONE
V. )
) UNPUBLISHED OPINION
EDMOND E. CUMMINGS, )
)
Appellant. ) FILED: November 13, 2017
TRICKEY, A.C.J. — Edmond Cummings pleaded guilty to assault in the third
degree. In his plea agreement, Cummings agreed to "pay restitution in full." The
State requested restitution in the amount of $12,195.80 to the victim for medical
expenses. The trial court found that Cummings had caused the injuries requiring
medical attention by a preponderance of the evidence and granted the State's
request for restitution. Cummings appeals, arguing that the restitution is beyond
that of the charged crime and that the State did not prove a causal connection
between his charged crime and the medical expenses. Because the State's
evidence supporting its restitution request was insufficient to establish causation
between Cummings's charged actions and the victim's claimed medical expenses,
we reverse and remand for additional proceedings.
FACTS
Cummings was charged by amended information with one count of assault
in the third degree. The State alleged that on May 11, 2015, Cummings acted with
criminal negligence to inflict bodily harm accompanied by substantial pain and
1 Clerk's Papers(CP) at 28.
No. 75229-4-1/ 2
suffering upon Christopher Connolly. The certificate of probable cause stated that
Cummings bit Connolly on the left side of his face, causing a large laceration.
Cummings pleaded guilty. His plea agreement stated,"If this crime resulted
in injury to any person . . ., the judge will order me to make restitution, unless
extraordinary circumstances exist which make restitution inappropriate."2
Cummings's plea agreement notified him that the prosecuting attorney would
recommend to the judge that Cummings should pay restitution.
The trial court held a plea colloquy at which the trial court accepted
Cummings's guilty plea. Cummings acknowledged that the State was
recommending that he pay "any restitution that may be owed."3
At Cummings's restitution hearing, the State requested restitution in the
amount of $12,195.80. The State's request was based on Connolly's medical bills
from his treatment at Swedish Edmonds Campus and other entities from May 16,
to May 18, 2015. The State claimed that these costs stemmed from treatment of
a MRSA (methicillin-resistant Staphylococcus aureus) infection Connolly
developed after he was injured by Cummings.4 The State argued that Connolly's
initial treatment for his bite wound at Harborview Medical Center was not included
in the restitution request.
2 CP at 11-12.
3 Report of Proceedings(RP)(Oct. 12, 2015) at 8.
4 Both parties cite to the Mayo Clinic's definition of MRSA in their briefs. Br. of Appellant
at 4; Br. of Resp't at 3. The Mayo Clinic's website provides in relevant part, "Methicillin-
resistant Staphylococcus aureus(MRSA) infection is caused by a type of staph bacteria
that's become resistant to many of the antibiotics used to treat ordinary staph infections."
http://www.mayoclinic.org/diseases-conditions/mrsa/basics/definition/con-20024479 (last
visited Nov. 2, 2017).
2
No. 75229-4-1/ 3
Cummings opposed the State's request, arguing that there was no causal
nexus between his actions and Connolly's MRSA infection. The State responded
that Cummings had agreed to pay restitution in full, and that the MRSA infection
was directly related to Cummings's actions. The trial court stated that it would
issue an order for restitution for costs incurred from the injury itself and reserved
its decision on Connolly's costs regarding the MRSA treatment.
On May 5, 2016, the trial court filed a written order granting the State's
requested restitution for the MRSA treatment. The trial court found by a
preponderance of the evidence that Connolly's injuries were caused by
Cummings's underlying criminal acts, and noted that Cummings had agreed to pay
"'full" restitution to Connolly as part of his plea agreement.5
Cummings appeals.
ANALYSIS
Cummings argues that the trial court abused its discretion when it granted
restitution based on a misinterpretation of his plea agreement and an unproven
causal connection between the charged crime and Connolly's medical expenses.
Specifically, Cummings argues that he did not agree to pay for damages beyond
those caused by his criminal acts, and that the State did not prove that his criminal
acts caused Connolly's claimed medical expenses by a preponderance of the
evidence. We reject Cummings's argument that the trial court misinterpreted his
plea agreement. But because the State's evidence did not establish that
5 CP at 45.
3
No. 75229-4-1 /4
Cummings's charged actions caused Connolly's claimed medical expenses, we
reverse and remand for an evidentiary hearing.
Cummings argues that the trial court abused its discretion when it
misinterpreted his plea agreement and thus imposed restitution beyond the scope
of the plea agreement. Because the record does not show that Cummings was
held responsible for any criminal actions beyond those underlying his charged
crime, we disagree.
"Restitution shall be ordered whenever the offender is convicted of an
offense which results in injury to any person . . . unless extraordinary
circumstances exist." RCW 9.94.753(5). Restitution "shall be based on easily
ascertainable damages for. . . actual expenses incurred for treatment for injury to
persons." RCW 9.94.753(3). "The order imposing restitution is void if statutory
provisions are not followed." State v. Duback, 77 Wn. App. 330, 332, 891 P.2d 40
(1995)
Here, at Cummings's plea colloquy and restitution hearing, the State did not
argue that Cummings should be held responsible for any actions other than those
underlying his charged crime. Cummings has not otherwise demonstrated that the
trial court ordered restitution for actions other than those constituting his assault
on Connolly. Therefore, we conclude that the trial court's restitution order is not
void for requiring Cummings to pay restitution for actions beyond his charged
crime.6
6Cummings argues that his plea agreement's restitution section was boilerplate language
and that it therefore did not require him to pay "for restitution beyond the standard causal
test for imposing restitution." Br. of Appellant at 9-11. This is unpersuasive. Cummings
does not cite legal authority in support of this argument. RAP 10.3(a)(6). In addition, the
4
No. 75229-4-1/ 5
Cummings next argues that the trial court erred when it concluded that the
State had proved a causal connection between Connolly's claimed medical costs
and Cummings's underlying criminal actions. Because the State's evidence did
not sufficiently establish that Connolly's claimed medical costs were caused by
Cummings's criminal acts, we agree.
Restitution may only be awarded for losses that are causally connected to
the charged crime, although the losses do not have to be foreseeable. State v.
Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167(2007); State v. Enstone, 137 Wn.2d
675,682-83, 974 P.2d 828 (1999). "Losses are causally connected if, but for the
charged crime, the victim would not have incurred the loss." State v. Griffith, 164
Wn.2d 960, 966, 195 P.3d 506 (2008).
When determining restitution, "the sentencing 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). The amount of restitution does not need to be
proven with specific accuracy. State v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d
350 (2005). Rather, "[e]vidence is sufficient if it affords a reasonable basis for
estimating loss." Dedonado, 99 Wn. App. at 256.
Causation between a defendant's charged actions and a victim's claimed
losses "is not established simply because a victim or insurer submits proof of
expenditures" because "[s]uch expenditures may be for items of substantially
fact that the restitution language in Cummings's plea agreement was boilerplate or taken
from a form plea agreement does not alter his obligations under it. Thus, we reject
Cummings's contention that the language of the plea agreement overrode the statutory
restrictions on restitution.
5
No. 75229-4-1 /6
greater or lesser value than the actual loss." Dedonado, 99 Wn. App. at 257. A
summary of medical expenses that does not indicate the reason for the services
is insufficient to establish a causal connection between the victim's medical
expenses and the defendant's criminal actions. State v. Bunner, 86 Wn.App. 158,
160, 936 P.2d 419 (1997); State v. Hahn, 100 Wn. App. 391, 400, 996 P.2d 1125
(2000). Testimony, including from the victim, that claimed expenses were caused
by the defendant's charged actions is sufficient to establish causation. State v.
Blanchfield, 126 Wn. App. 235,241-42, 108 P.3d 173(2005)(distinguishing Hahn,
100 Wn. App. at 399-400, and Bunner, 86 Wn. App. at 159-60).
Due process requires that the defendant be given "an opportunity to refute
the evidence presented, and [that the evidence presented at the restitution
hearing] being reasonably reliable." State v. Kisor, 68 Wn. App. 610, 620, 844
P.2d 1038 (1993). If the defendant disputes material facts underlying the
restitution decision, "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." Dedonado, 99 Wn. App. at 256; see State v.
Dennis, 101 Wn. App. 223, 226,6 P.3d 1173(2000).
"When the particular type of restitution in question is authorized by statute,
imposition of restitution is generally within the discretion of the trial court and will
not be disturbed on appeal absent an abuse of discretion." State v. Davison, 116
Wn.2d 917, 919, 809 P.2d 1374(1991).
Here, the State's evidence consisted of Connolly's medical bills for costs he
incurred after he was assaulted by Cummings. The medical bills do not contain
6
No. 75229-4-1/ 7
information regarding Connolly's medical history or describe the precise reasons
for the services. The State did not offer testimony from Connolly or his treatment
providers, or submit medical records establishing that Connolly developed MRSA
from being assaulted by Cummings. The State offered no proof that Connolly's
claimed expenses were all caused by Cummings's charged actions.
At the restitution hearing, the State suggested that Connolly had developed
the infection from Cummings's assault but did not offer supporting evidence
beyond Connolly's medical costs. Although Cummings stated that Connolly's
MRSA infection was "a complication of an injury caused by . . . Cummings," he
subsequently disputed that Connolly's claimed medical expenses were caused by
Cummings's actions.7
We conclude that the State's evidence was insufficient to establish that
Cummings's actions caused Connolly's claimed medical expenses. Connolly's
claimed medical expenses could have been for follow up treatment of his laceration
or been otherwise unrelated to his alleged MRSA infection. Absent medical
records or testimony establishing that Connolly's treatment costs were incurred to
treat an infection caused by Cummings's charged actions, the State did not carry
its burden of proving that the requested restitution was for losses that were
causally connected to Cummings's charged crime. Further, because Cummings
disputed the material fact of causation, the trial court should have held an
evidentiary hearing at which the parties could present evidence regarding whether
Connolly's claimed medical expenses were caused by Cummings's actions.
7 RP (Apr. 26, 2016) at 5.
7
No. 75229-4-1/ 8
Therefore, we conclude that the trial court abused its discretion when it
ordered Cummings to pay the State's requested restitution. We reverse and
remand for an evidentiary hearing at which the State may submit additional
evidence establishing a causal connection between Cummings's charged actions
and Connolly's claimed medical expenses underlying the State's restitution
request. See State v. Gonzalez, 168 Wn.2d 256, 261-66, 226 P.3d 131 (2010);
RCW 9.94A.753(4).
Reversed and remanded.
WE CONCUR:
xIT
:777r
I
8
State Of Washington v. Edmond E. Cummings
Combined Opinion