STATE OF WASHINGTON v. SCOTT CHARLES (2026)

ORDER CLARIFYING COURT'S OPINION

The court has considered the State's motion to clarify the unpublished portion of the opinion dated August 6, 2026.

To the extent the unpublished portion of the opinion implies that only felonies prevent criminal history from washing out, this implication is incorrect. The relevant statute states that “any crime that subsequently results in a conviction” may prevent a washout. RCW 9.94A.525(2)(b), (c) (emphasis added).

FOR THE COURT:

FILED

AUGUST 6, 2026

In the Office of the Clerk of Court

WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON, Respondent,

v.

SCOTT A. CHARLES, Appellant.

No. 40514-1-III

OPINION PUBLISHED IN PART

Lawrence-Berrey, J. — Scott Charles pleaded guilty to first degree malicious mischief after he broke a hospital's medical device, a slit lamp. The device was at the end of its useful life. On appeal, Charles challenges his offender score and the restitution order that he pay the hospital $14,563.49 for a new slit lamp.

In the unpublished portion of this opinion, we conclude that Charles waived his right to contest his offender score. In the published portion of this opinion, we emphasize that trial courts are precluded by statute from awarding more than twice the amount of the victim's loss, and here the State failed to prove the hospital's loss. We remand for an evidentiary hearing to ensure that the ordered restitution is no more than twice the hospital's true loss.

FACTS

In August 2023, Scott Charles stopped as he was being escorted down a hallway at Providence Holy Family Hospital, turned toward a medical device, and broke it by throwing it on the floor. The device was a Marco 5 Ultra Slit Lamp, and the hospital used it for eye exams. Charles explained to the investigating officer that he threw the device on the floor because he believed it was a ghost.

The State charged Charles with malicious mischief in the first degree. Charles pleaded guilty, and the court later entered a drug offender sentencing alternative (DOSA). The sentence indicated that Charles’ plea was an Alford ¹ plea.²

Later, the State requested the entry of a restitution order in the amount of $14,563.49, the price the hospital would pay for a comparable but new slit lamp. In response, Charles provided a declaration that the device's manufacturer believed the slit lamp could be repaired for $330.90, and he also included several work orders from the hospital's technician as far back as December 2019. Although the work orders did not say how old the slit lamp was, the technician's July 2022 work order described the device as an “ol[d] horse [that] needs to be put out to pasture,” and recommended the hospital “get a newer model.” Clerk's Papers (CP) at 250.

At the hearing, Charles noted there was a question of fact about the proper restitution amount and requested an evidentiary hearing. The trial court continued the hearing to give the State the opportunity to obtain a declaration to support its argument that the damaged device was not repairable and what the hospital paid for a new device.

At the continued hearing, the State presented a declaration from the hospital's technician who inspected the device soon after Charles broke it. The declaration stated that the device could not be repaired.³ The State also presented a receipt from the hospital showing it paid $14,563.49 for a new slit lamp. Charles renewed his request for an evidentiary hearing, asking for the opportunity to have an appraiser testify about the value of the used device. The trial court denied the request and entered a restitution order in favor of the hospital for $14,563.49. In denying the request, the court explained that the continued hearing had a limited purpose—for the State to obtain sufficient documentary evidence—and that Charles had not earlier requested additional discovery.

Charles appeals to this court.

ANALYSIS

The Restitution Order

Charles raises two arguments for reversing the trial court's restitution order. Before addressing each argument, we set forth the general standards of our review.

General standards for reviewing restitution orders

Appellate courts will not disturb a trial court's restitution order absent an abuse of discretion. State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008). A trial court abuses its discretion when it “(1) adopts a view that no reasonable person would take and is thus ‘manifestly unreasonable,’ (2) rests on facts unsupported in the record and is thus based on ‘untenable grounds,’ or (3) was reached by applying the wrong legal standard and is thus made ‘for untenable reasons.’ ” State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).

A sentencing court's authority to order restitution is purely statutory, and restitution is required “whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property.” RCW 9.94A.753(5). In general, “restitution ordered by a court ․ 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․ [B]ut [r]estitution shall not include ․ intangible losses [other than] counseling reasonably related to the offense.” RCW 9.94A.753(3)(a). “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.” Id.

“If the defendant disputes facts relevant to determining restitution, the State must prove the damages at an evidentiary hearing by a preponderance of the evidence.” State v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d 350 (2005).

The evidentiary hearing requirement

Charles’ first of two arguments is that the trial court erred in denying him an evidentiary hearing. The State responds that Charles received one. We agree with the State.

In State v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005), the court recognized that case had not yet defined “evidentiary hearing” in the restitution context. The court seemingly approved Black's Law Dictionary’s definition of the term “as ‘[a] hearing at which evidence is presented, as opposed to a hearing at which only legal argument is presented.’ ” Id. (quoting Black’s Law Dictionary 738 (8th ed. 2004)).

In the first hearing, the trial court considered evidence presented by both the State and by Charles; in the second hearing, the trial court considered only evidence presented by the State. Charles was given the opportunity to refute the State's evidence, and, as we explain later, he refuted it successfully. We conclude that Charles received an evidentiary hearing.

Discretion abused by awarding more restitution than permitted by statute

Charles's second argument is that the trial court abused its discretion by awarding the cost of a new slit lamp when, one year before he broke it, the hospital's technician compared the old device to a horse that needed to be put out to pasture. We agree.

As noted previously, the restitution statute limits the amount of restitution a trial court can order. In the context here, the limitation is “double the amount of ․ the victim's loss from the commission of the crime.” RCW 9.94A.753(3)(a). One year before Charles broke the device, the hospital's technician had recommended that the hospital put the old device “out to pasture” and “get a newer model.” CP at 250. The State failed to submit any evidence to contradict the notion that the slit lamp was at the end of its useful life. To the extent $14,563.90 is more than double the hospital's loss, the trial court abused its discretion by awarding more than permitted under the restitution statute.⁴

In fact, the State presented no evidence whatsoever of the hospital's loss. See State v. Morley, 119 Wn. App. 939, 944, 83 P.3d 1023 (2004) (market value of new generator is not the appropriate value of a stolen used generator). It had the burden of proof, yet failed in this burden. In its motion for restitution, the State argued to the trial court:

Unlike for instance a used vehicle, determining the monetary value of pre-owned medical equipment is not widely available. At this time, the State has not found a readily accessible means of ascertaining the value of the specific model of the slit lamp in question. Given that there are no other alternatives, ․ the State requests that the court grant the requested restitution amount of $14,563.49 [for a new slit lamp].

CP at 190. We disagree with this argument. Even if a victim's loss is not provable, the trial court is limited by statute to awarding no more than double the victim's loss. But as explained below, the State may be able to sufficiently prove the hospital's loss.

“While the claimed loss ‘need not be established with specific accuracy,’ it must be supported by ‘substantial evidence.’ ” Griffth, 164 Wn.2d at 965 (quoting State v. Fleming, 75 Wn. App. 270, 274-75, 877 P.2d 243 (1994)). “Evidence supporting restitution ‘is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.’ ” Hughes, 154 Wn.2d at 154 (internal quotation marks omitted) (quoting Fleming, 75 Wn. App. at 274-75).

Here, the State has options other than locating a market for used medical equipment to establish the value of the hospital's old slit lamp. The hospital can provide the State with the year it purchased the slit lamp, the approximate purchase price, and its technician can estimate the remaining useful life of the old device before Charles broke it. With such information the court could can calculate a pro rata useful life value of the device and award as restitution no more than twice that amount.

We reverse the trial court's restitution order and remand for a new evidentiary hearing.⁵

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

ADDITIONAL FACTS

Before pleading guilty, Charles signed a document entitled “Understanding of Defendant's Criminal History.” Clerk's Papers (CP) at 47-48 (some capitalization omitted). The first page of the two-page document set forth Charles’ criminal history, which included five prior felonies. A noticeable gap existed between the time of two prior felonies: on December 3, 2007, an Idaho court sentenced Charles for a felony conviction of injury to jail property, and, on October 25, 2018, Charles committed his next felony, another injury to jail property. This gap suggests that the 2007 felony (along with two earlier felonies) would have washed out from Charles’ offender score unless it was comparable to a Washington class B felony, such as malicious mischief in the first degree. RCW 9A.48.070(2).

The second page of the two-page document contains a paragraph that states:

Defendant's understanding and agreement that his/her criminal conviction history is set forth above in this document. Defendant affirmatively agrees that the State has proven, by a preponderance of the evidence, defendant's prior convictions and stipulates, without objection, by his/her signature below, unless a specific objection is otherwise stated in writing within this document—UNDERSTANDING OF DEFENDANT'S CRIMINAL HISTORY, each of the listed criminal convictions contained within this document count in the computation of the offender score and sentencing range and that any out-of-state or foreign conviction(s) is the equivalent of a Washington State criminal felony offense and conviction for the purposes of computation of the resultant offender score and sentencing range. The defendant further stipulates and agrees he/she has read or has had the contents of the document read to him/her and he/she understands and agrees with the entirety of the contents of this document.

CP at 48 (emphasis added). Charles initialed next to this paragraph and signed at the bottom of the page.

The trial court sentenced Charles according to the agreed on criminal history with an offender score of 5. The standard range for the conviction was 14 to 18 months. In lieu of confinement, he received a DOSA, which ordered 24 months of community custody as part of a residential substance use disorder treatment-based alternative.

ANALYSIS

Charles’ Offender Score

Charles argues the trial court erred in calculating his offender score as a 5 because the State failed to prove that score by a preponderance of the evidence. We conclude that Charles waived this challenge.

A trial court may only impose a sentence within its statutory authority. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 867-68, 50 P.3d 618 (2002). It must determine the sentence by first calculating the defendant's offender score in accordance with their criminal history. RCW 9.94A.525, .530(1).

The State must prove a defendant's prior convictions by a preponderance of the evidence. State v. Hunley, 175 Wn.2d 901, 909-10, 287 P.3d 584 (2012). This burden is met if the defendant affirmatively acknowledges their criminal history on the record. Id. at 912.

When a statutorily dictated, crime-free period has elapsed, a defendant's prior offense is said to have “washed out” and may not be included in their offender score. State v. Schwartz, 194 Wn.2d 432, 439, 450 P.3d 141 (2019). A defendant's prior class B felony conviction washes out after 10 consecutive crime-free years in the community. RCW 9.94A.525(2)(b).

Criminal defendants may challenge the trial court's legal determination of their offender score for the first time on appeal. Goodwin, 146 Wn.2d at 874. However, the factual basis for a sentence may be waived by a stipulation. Id.

Charles argues that the stipulation, quoted above, failed to include his agreement that the 2007 Idaho felony did not wash out. We disagree.

The plain intent of the paragraph was to relieve the State of its burden to prove Charles’ offender score, including the factual or legal comparability of Charles’ Idaho convictions. This agreement may well have been in exchange for the State's agreement to recommend a residential DOSA. Regardless, Charles agreed that each of his five felony convictions “count[ed] in the computation of [his] offender score and sentencing range.” CP at 48. We conclude that Charles waived the right to challenge the factual basis of his plea, including whether the 2007 Idaho felony conviction (and two later convictions) washed out.⁶

Sentence affirmed, restitution order reversed and remanded.

Lawrence-Berrey, J.

WE CONCUR:

Murphy, J.

Hill, J.

FOOTNOTES

1.   North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

2.   We provide more details about the plea in the unpublished portion of this opinion.

3.   We note that this opinion was included in the August 2023 work order provided by Charles to the trial court.

4.   In State v. Smith, 42 Wn. App. 399, 711 P.2d 372 (1985), we upheld a trial court's award of the actual amounts insurers paid to the victims of a burglary. Under the insurance contracts, the insurers were obligated to pay replacement costs to the burgled victims to replace the items stolen with new items. Id. at 400. There, the insurers were the victims, and the ordered restitution was their actual loss. Id. at 402. A restitution award for a victim's actual loss is consistent with our analysis here.In State v. Waters, No. 69932-6-I (Wash. Ct. App. Apr. 28, 2014) (unpublished), https://www.courts.wa.gov/opinions/pdf/699326.pdf, Division One of this court cited Smith for the proposition that “[i]t is not an abuse of discretion to utilize replacement value instead of fair market value.” Waters, slip op. at 7. We disagree that Smith stands for this broad proposition. Regardless, Division One upheld a restitution order for $35 for each of the 50 cattle guards Waters stole. Id. at 8. The evidence was that the original cattle guard prices ranged from $30 to $42. Id. In Waters, there was no evidence that the cattle guards (commonly made from high strength structural steel) had a limited useful life. On this basis, the result we reach here is consistent with Waters.

5.   In his briefing, Charles focused on the trial court's failure to give him the additional hearing he requested. We thus limit his relief to an additional hearing.

6.   In an additional statement of authorities (ASOA), Charles asserts he is challenging his Alford plea to malicious mischief in the first degree, “since the item damaged was used and the State failed to produce any evidence of its market value as a used, piece of equipment.” ASOA, filed May 23, 2025, at 1. First, Charles did not challenge his Alford plea in his opening brief. Second, we do not consider issues raised for the first time in a reply, In re Marriage of Bernard, 165 Wn.2d 895, 908, 204 P.3d 907 (2009), much less in a later-filed ASOA.

TRACY STAAB CHIEF JUDGE