STATE v. REGAN, 144 Wn. App. 1005 (2008)

Reversedandremandedby unpublished opinion per Lau, J., concurred in by Becker and Ellington, JJ.

This case concerns a restitution order and presents the issue of whether the trial court, acting under the erroneous assumption that its order could not be modified, erred by requiring Charles Regan to pay for the victim's future counseling expenses. The restitution statute, RCW9.94A.753(3), requires that restitution orders be based on "actual expenses incurred for treatment for injury to persons." The State agrees that the court awarded future counseling expenses, but argues that such expenses are permissible under the restitution statute because they are not for "treatment for injury to persons." We reject this argument because treatment for injury to persons includes counseling expenses. We reverse and remand for the court to recalculate the actual counseling expenses incurred, taking into account that under RCW9.94A.753(4), its restitution order may be modified at a later date. Regan pleaded guilty to one count of indecent liberties and one count of fourth degree assault of M.K., a developmentally disabled adult who resides at a group home that is a subsidiary of The Camelot Society. As part of Regan's sentence, the State sought restitution for M.K. In support of its request, the State submitted a letter from The Camelot Society requesting $8,892.50 for M.K.'s counseling. The letter was dated July 31, 2006, and requested restitution for counseling services M.K. received from June 2005 through June 2006, and for counseling expenses from July 2006 through December 2007. Also attached was a letter from M.K.'s counselor stating that she expected M.K. "to require therapy through the end of 2007." Clerk's Papers at 60.

The restitution hearing occurred on November 14, 2006. The court was concerned that by ordering restitution for future counseling expenses, The Camelot Society could "potentially get a windfall . . . if that care didn't continue." Verbatim Report of Proceedings (VRP) (Nov. 14, 2006) at 20. The court continued,

If we entered an order now for [$8,892.50] . . . the victim moves to another facility or the therapist decides that this wasn't really necessary to have that therapy? Conceivably the victim could die. Then you wouldn't have that therapy. How do you account for that in the form of an order?

Id. at 21. The court later asked if the restitution order could be modified:

The Court: . . . Are you suggesting that there is any ability by the State to come back and ask for more restitution?

State: I don't think so, your Honor. I think that's why we are asking for the total costs up front at this time.

Id. at 24. Defense counsel did not correct the State's misrepresentation. Relying on the State's answer, the court granted its entire restitution request, including the future expenses through December 2007. Regan appeals the court's order setting restitution. Regan challenges the portion of the restitution order requiring him to pay for M.K.'s future counseling expenses. "`Restitution is authorized only by statute, and a trial court exceeds its statutory authority in ordering restitution where the loss suffered is not causally related to the offense committed by the defendant, or where the statutory provisions are not followed.'" State v. Woods,90 Wn. App. 904,907,953 P.2d 834(1998) (emphasis added) (quoting State v. Vinyard,50 Wn. App. 888,891,751 P.2d 339(1988)). The general authority to impose restitution is found in RCW9.94A.753, which provides in relevant part,

[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. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense. . . .

RCW9.94A.753(3). Subsection 4 of the statute allows the court to modify its restitution order.

For an offense committed on or after July 1, 2000, the offender shall remain under the court's jurisdiction until the obligation is completely satisfied, regardless of the statutory maximum for the crime. The portion of the sentence concerning restitution may be modified as to amount, terms, and conditions during any period of time the offender remains under the court's jurisdiction, regardless of the expiration of the offender's term of community supervision and regardless of the statutory maximum sentence for the crime. . . .

RCW9.94A.753(4).

The trial court erred by ordering restitution for M.K.'s future counseling expenses based on its erroneous belief that it did not have the authority to modify the order at a later date. This conclusion is supported by State v. Goodrich,47 Wn. App. 114,733 P.2d 1000(1987). In that case, Goodrich was ordered to pay for medical expenses not yet incurred by the victim. The restitution statute at that time contained the same language as the current statute: "`Restitution 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.'" Goodrich,47 Wn. App. at 116(quoting former RCW 9.94A.140(1) (1987)). The court explained,

The statute empowers a court to order restitution for "actual expenses incurred for treatment for injury to persons . . ." RCW 9.94A.140(1). The State argues that a trial court should be allowed to order restitution based on testimony of future medical expenses. The statute does not provide for this. Instead, [the modification provision] offers an alternative. . . .

Goodrich,47 Wn. App. at 116. The court then held, "The trial court erred if it awarded restitution for future medical expenses not yet incurred by the victim." Goodrich,47 Wn. App. at 117.

The Goodrich court also reasoned that if the victim incurred additional expenses as a result of the crime, the restitution amount could be modified, as provided for under former RCW 9.94A.140(1). As in Goodrich, the sentencing court in this case erred by awarding future counseling expenses. It appears from the record that the sentencing court was concerned about its authority to award future counseling expenses and would not have awarded them but for the State's erroneous contention that its order could not be modified at a later date. We reverse and remand for the court to order restitution for "actual expenses incurred," taking into account its authority under RCW9.94A.753(4) to modify the order at a later date.

The State does not dispute that the trial court awarded future counseling expenses. See Br. of Resp't at 10 ("the trial court here awarded restitution for future counseling costs. . . ."). Instead, the State argues that Goodrich is distinguishable because it involved medical expenses, not counseling expenses. The State reasons, "The clause in the statute permitting restitution for counseling costs does not have the same qualifier as the clause pertaining to medical expenses limiting reimbursement to `actual' or `incurred' expenses." Br. of Resp't at 10. The sentence that the State is referring to reads, "Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense." RCW9.94A.753(3). The State fails to interpret this sentence in context.

Under the doctrine of "noscitur a sociis," "`the meaning of words may be indicated or controlled by those with which they are associated.'" State v. Jackson,137 Wn.2d 712,729,976 P.2d 1229(1999) (quoting Ball v. Stokely Foods, Inc.,37 Wn.2d 79,87,221 P.2d 832(1950)). "[U]nder that doctrine `it is . . . familiar policy in the construction of terms of a statute to take into consideration the meaning naturally attaching to them from the context, and to adopt the sense of the words which best harmonizes with the context.'" Jackson,137 Wn.2d at 729(quoting McDermott v. Kaczmarek,2 Wn. App. 643,648,469 P.2d 191(1970)).

The State misreads the statute. The relevant subsection of the restitution statute reads in its entirety,

Except as provided in subsection (6) of this section, restitution 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. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense. The amount of restitution shall not exceed double the amount of the offender's gain or the victim's loss from the commission of the crime.

RCW9.94A.753(3). The sentence relating to "the costs of counseling" must be read in conjunction with the general clause limiting restitution to "actual expenses incurred for treatment for injury to persons." RCW9.94A.753(3). When the two sentences are read together, the "costs of counseling" sentence clarifies that counseling costs are available as expenses associated with "treatment for injury to persons," as opposed to "damages for mental anguish, pain and suffering, or other intangible losses." RCW9.94A.753(3). Contrary to the State's argument, the "costs of counseling" sentence does not stand alone.

The State next argues that the standard of review for a restitution order is abuse of discretion and that the trial court did not abuse its discretion because its award was based on a reliable projection of M.K.'s future counseling costs. The issue is not discretion, but whether the court exceeded its statutory authority.

Finally, the State argues that the language of the order remedies any risk of windfall to The Camelot Society. The order provides,

IT IS ORDERED that defendant make payments through the registry of the clerk of the court as follows:

The Camelot Society for the benefit of M.K.

Attn: Autumn Calkins, Executive Director

18606 Bothell Way NE

Bothell, WA 98101

To reimburse for actual Therapy Sessions provided by Jennifer Loewen, MSW Total: $8,892.50.

CP 89. The State cites no authority for its contention and ignores the statute's requirement that restitution orders must be based on actual expenses incurred.

We reverse and remand for the court to recalculate the actual expenses incurred for M.K.'s counseling through December 2007. This remedy is consistent with Goodrich, where the court remanded to the trial court "to determine whether the victim has incurred the medical expenses for which restitution was awarded." Goodrich,47 Wn. App. at 117. On remand, pursuant to its authority under RCW9.94A.753(4), the court may modify the restitution order to include any counseling expenses that have been actually incurred since December 2007.

For the foregoing reasons, we reverse and remand.

WE CONCUR: