STATE v. YAKE, 21439-7-III (Wash.App. 8-14-2003)

STATE OF WASHINGTON, Respondent, v. EDWARD CLYDE YAKE, Appellant.

No. 21439-7-IIIThe Court of Appeals of Washington, Division Three. Panel Two.
Filed: August 14, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Whitman County Docket No: 01-8-00074-8 Judgment or order under review Date filed: 08/30/2002

Counsel for Appellant(s), David N. Gasch, Attorney at Law, P.O. Box 30339, Spokane, WA 99223-3005.

Counsel for Respondent(s), Carol L. La Verne, Attorney at Law, Whitman Co Pros Attorney, P.O. Box 30, Colfax, WA 99111-0030.

KATO, J.

Edward C. Yake, a juvenile who pleaded guilty to three counts of first degree rape of a child, appeals an order requiring him to pay $6,309.60 in restitution. He contends a portion of the amount is speculative. We agree and remand for a new restitution hearing.

After Mr. Yake pleaded guilty, the court held a restitution hearing at which a psychologist testified that TD, the 7-year-old victim, would require approximately 40 counseling sessions costing $100 each.[1] The court thus ordered Mr. Yake to pay $4,000 for that counseling. The court also ordered restitution for other expenses related to counseling, calculated as follows:

[TD] can’t drive himself to counseling. He lives in Thornton with his mother, and Pullman’s 38 miles away. . . .

. . . I’m required to set the restitution figure to reimburse the victim for what it costs for treatment. And then the victim lives 38 miles away and the victim can’t take themselves to the doctor, there’s — his loss is greater than somebody that might live in the Campus Vista Trailer Park right next door to Dr. Wilson’s office and can walk all by himself — although I don’t think a seven-year-old could, or would, to that doctor — there is a right to — part of the damages here would be for having someone to drive to Pullman and the mileage costs.

If [the mother] made $100 an hour herself she wouldn’t be entitled to — I think it would take at least — I’m going to say, three hours to go from Thornton, to spend an hour, and to come back. It might take more, it might take a little less. But that appears reasonable to me. If she made $100 an hour, she — I don’t think it would be proper to charge $300 for the time. I think the figure would have to be what — what would it cost to hire somebody to drive [TD] from Thornton to Pullman, and I think, by coincidence here, I think she’s saying she makes $10 an hour. I think you’d have trouble hiring anyone to do the drive less than $10 an hour.

And there’s also mileage costs. And I don’t know what the IRS rate is. I think — last I heard I think it’s 34 cents a mile. Is that —

[Defense counsel]: 32 or 30. [Prosecutor]: 34-point-something, I think is what the county pays, 34.2

FEMALE VOICE: (Inaudible).

THE COURT: Is that what — They use the IRS amount. So, —

FEMALE VOICE: (Inaudible).

THE COURT: So I’m going to — 76 times — Now, I’ve taken 38 times 2, 76 times 36 per mile. That’s $27.36 a trip, times 40. That’s $1,094.40.

[Defense counsel]: What was the figure, your Honor?

THE COURT: Well, let me make sure. It’s 18 — or, 38 times two, that’s 76 miles. I’ve taken 76 times 36 cents a mile. And that’s $27.36 — — Okay; let me back up. 76 times — . 36.5. All right. And that’s $27.74 per trip, times 40. And that’s $1,109.60.

All right. So, — And then I’m taking — I’m — I’m awarding — three hours — I’m awarding $30 a trip for the cost of obtaining the medical treatment — Not as lost wages, but what it would reasonably cost to hire someone. And I think that’s fairly — It’s an allowable civil cost; I think it would be allowable here. So I take $30 times $40 [sic]; that’s $1,200.

So, I’m going to award $4,000 — `award’ isn’t the proper — I’m setting $4,000 as Dr. Wilson’s costs, and I’m setting $1,200 as the cost of someone to drive [TD] to Pullman from Thornton and back. And I’m awarding the vehicle costs, the mileage, $1,109.60. And that makes a total of $6,309.60.

Report of Proceedings at 181-83. Mr. Yake appeals the order requiring him to pay restitution of $6,309.60 to TD.

Upon conviction of a juvenile offender, a court is required in its disposition to order the offender to make restitution to victims. RCW 13.40.190(1).

‘Restitution’ means financial reimbursement by the offender to the victim, and shall be limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical treatment for physical injury to persons, lost wages resulting from physical injury, and costs of the victim’s counseling reasonably related to the offense if the offense is a sex offense. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses. Nothing in this chapter shall limit or replace civil remedies or defenses available to the victim or offender[.]

RCW 13.40.020(22).

A court’s decision to order restitution and its determination of the amount is reviewed for an abuse of discretion. State v. Hunotte, 69 Wn. App. 670, 674, 851 P.2d 694 (1993). A restitution order may be reversed only if it is manifestly unreasonable or based on untenable grounds or reasons. Id. In determining the amount of restitution, mathematical precision is not required. State v. Fellers, 37 Wn. App. 613, 619, 683 P.2d 209 (1984). `Evidence of proof of loss is sufficient if it affords a reasonable basis for estimating the loss and does not subject the trier of fact to mere speculation or conjecture.’ Id.

Mr. Yake neither disputes that counseling expenses were appropriately included in the restitution amount, nor challenges the court’s decision to include the costs of traveling to and from counseling sessions. But he contends there is no basis in the record for the court’s calculation of the costs of driving TD to and from the sessions.

Mr. Yake is correct. The record clearly shows that the court merely guessed at the appropriate mileage cost and the rate for obtaining a driver. It is unclear why the court settled on the amount of 36.5 cents for mileage expenses and why the court found it would be difficult to locate a person who would drive TD to the sessions for less than $10 per hour. In the absence of any supporting evidence, the restitution amount was based on untenable grounds. The court abused its discretion. The matter is remanded for another restitution hearing where the court shall set forth the evidence that supports its calculating travel costs.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

BROWN, C.J. and SCHULTHEIS, J., concur.