No. 26018-2-II.The Court of Appeals of Washington, Division Two.
Filed: December 18, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Cowlitz County, No. 99-1-00976-0, Hon. James Edgar F. Warme, May 30, 2000, Judgment or order under review.
Counsel for Appellant(s), Eleanor M. Couto, Attorney At Law, 1402 Broadway, Suite 102, Longview, WA 98632.
Counsel for Respondent(s), Susan I. Baur, Cowlitz County Prosecuting Attorney, Hall of Justice, 312 S.W. 1st, Kelso, WA 98626.
QUINN-BRINTNALL, J.
Michael Karl Stocks appeals the judgment and sentence entered following his Alford[1] plea to third degree assault. The sentence included a restitution award of $9,360 for costs of psychological counseling for the 12-year-old victim. He argues on appeal that because he only pleaded guilty to a crime involving physical injury, there was no causal connection between his offense and costs of counseling for psychological injuries. Where the underlying facts of the Stocks’ offense revealed that he had sexual contact with S.V., we find that the counseling costs were foreseeable and reasonably related to his crime and affirm.
Facts
The State filed an information charging Stocks with third degree assault. The probable cause statement indicated that, on September 28, 1999, 12-year-old S.V. reported to the police that Stocks had touched her bare breasts, buttocks, and vaginal area on several occasions over the past few months. On one occasion, he inserted his fingers into her vagina and, on two other occasions, there was penile-vaginal intercourse. Stocks was 36 years old at the time of the offense and a friend of S.V.’s family.
At the change of plea hearing held November 4, 1999, Stocks entered an Alford plea to third degree assault in exchange for the State’s agreement not to pursue charges of child rape or child molestation. At this hearing and in his written statement on plea of guilty, Stocks denied any sexual contact with S.V. but acknowledged that the State had sufficient evidence to prove that he and S.V. had sexual contact and intercourse. The court accepted Stocks’ Alford plea.
The court adopted the parties’ joint sentence recommendation of 30 days’ confinement and 24 months’ community supervision with certain conditions. Without objection from Stocks, the court also imposed restitution in the amount of $550 for counseling costs based on S.V.’s father’s statement that S.V. had been attending weekly therapy sessions. It then scheduled a hearing in March `to see if there’s any additional expenses for therapy.’ Report of Proceedings (11/4/99) at 13. Stocks stated that he had no objection.
At the hearing held March 16, 2000, the State requested that the restitution award be increased to $9,840 based on S.V.’s therapist’s recommendation for up to three years of counseling. At this hearing, S.V.’s mother stated that S.V. had been attending weekly therapy sessions and the resulting out-of-pocket expense of $60 per session created a heavy burden on the family finances. The $9,840 amount included $480 incurred for the costs of eight sessions in November and December 1999.
Stocks objected to the restitution amount. Though he acknowledged that the therapist was treating S.V. for psychological injuries resulting from her sexual relationship with him, he argued that the causal connection necessary for restitution could not be established because he only pleaded guilty to third degree assault and not to any crime involving a sexual relationship. The court rejected this argument and, on May 30, 2000, modified the sentence to include a restitution award of $9,360. Stocks appealed.
Analysis
The court’s power to impose restitution derives wholly from statute. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). `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 we will not reverse it absent an abuse of discretion. Davison, 116 Wn.2d at 919. Former RCW 9.94A.142(1) (1997) expressly allows for counseling costs, stating: `Restitution . . . may include the costs of counseling reasonably related to the offense.’
Stocks contends that because the crime of third degree assault only involved physical injury, there was no causal connection between counseling for psychological injuries and the offense to which he pleaded guilty. This argument lacks merit.
Division One has rejected the argument that Stocks makes here under similar facts. State v. Landrum, 66 Wn. App. 791, 799, 832 P.2d 1359
(1992). Though Landrum involved the juvenile restitution statute, its analysis is instructive because the pertinent language authorizing counseling costs is identical in the juvenile and adult statutes.[2] See State v. Mollichi, 132 Wn.2d 80, 85-88, 936 P.2d 408 (1997) (construing the word `shall’ as mandatory for timing requirements to set restitution in the juvenile statute, based in part on prior decision interpreting identical language in adult restitution statute).
In Landrum, the juvenile defendants were initially charged with first degree child molestation but entered Alford pleas to fourth degree assault. 66 Wn. App. at 793-94. On appeal, they argued that psychological counseling for sexual assault was not reasonably related to the offense of fourth degree assault. Landrum, 66 Wn. App. at 796. The court reasoned that to determine whether a causal connection exists, `we look to the underlying facts of the charged offense, not the name of the crime to which the defendant entered a plea.’ Landrum, 66 Wn. App. at 799. Thus, a causal link exists when the underlying facts indicate that the victim would not have suffered the damages or injuries `but for’ the defendant’s criminal acts. Landrum, 66 Wn. App. at 799; see also State v. Hunotte, 69 Wn. App. 670, 676, 851 P.2d 694 (1993).
Here, the underlying facts set forth in the probable cause statement provided sufficient evidence of a causal link between Stocks’ crime and S.V.’s injuries. See State v. Tindal, 50 Wn. App. 401, 403, 748 P.2d 695 (1988) (information contained in certificate of probable cause, incorporated by reference in plea agreement, `becomes fact’). Not only did Stocks touch private areas of S.V.’s body, but he also had sexual intercourse with her on two occasions. Thus, it was foreseeable that such contact between a 36-year-old male and a 12-year-old girl would lead to psychological injuries requiring counseling for the young victim. As the Landrum court stated, `[b]ecause the psychological damage to the child sexual abuse victim may last a lifetime, counseling for these victims is now commonly recognized as an essential part of the recovery process.’ 66 Wn. App. at 797. Here, S.V.’s need for psychological counseling was foreseeable and causally connected to Stocks’ criminal acts. The trial court did not abuse its discretion by ordering restitution for three years of counseling.
Stocks also appears to argue that the evidence was insufficient to establish the need for counseling for the three-year period recommended. Where a defendant disputes material facts for purposes of restitution, the sentencing court must either not consider those facts or grant an evidentiary hearing where the State must establish the amount of restitution by a preponderance of the evidence. State v. Dedonado, 99 Wn. App. 251, 256, 991 P.2d 1216 (2000); former RCW 9.94.142(1) (`restitution . . . shall be based on easily ascertainable damages for injury to or loss. . .’). Restitution need not be proven with specific accuracy so long as the evidence is sufficient to afford a reasonable basis for estimating loss.’ Dedonado, 99 Wn. App. at 256.
At the March 16 hearing, Stocks did not object to the document submitted by the State and considered by the court to prove the therapist’s recommendation for up to three years of counseling.[3]
Furthermore, Stocks indicated his willingness to stipulate to the fact that S.V. was being treated for injuries resulting from her sexual relationship with him. Thus, the invited error doctrine precludes Stocks from arguing now that the State did not provide sufficient evidentiary proof to link S.V.’s counseling costs with crime. State v. Young, 63 Wn. App. 324, 330, 818 P.2d 1375 (1991).
In sum, where the reason for S.V.’s therapy was undisputed and her therapist recommended three years of counseling at $60 per session, the restitution order was based on easily ascertainable damages and the court acted within its discretion to impose a restitution award of $9,360.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: ARMSTRONG, C.J., HUNT, J.
(1970).