State of Washington v. Joseph Fitzgerald Mandoli ( 2016 )

FILED
JUNE 16, 2016
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, )
) No. 33524-1-111
Respondent, )
)
v. )
)
JOSEPH FITZGERALD MANDOLI, ) UNPUBLISHED OPINION
)
Appellant. )
)
SIDDOWAY, J. - Joseph Mandoli and a confederate stole two loads of copper
from Alcoa, Inc. Mr. Mandoli pleaded guilty in Chelan County to second degree
possession of stolen property. After a contested restitution hearing in May 2015, the trial
court set the amount of restitution at $17,945. On appeal, Mr. Mandoli contends the trial
court abused its discretion in determining the amount of copper he stole. We conclude
that the trial court properly exercised its discretion in choosing a reasonable basis for
estimating the amount of loss, but remand for correction of a calculation error.
FACTS
Between May 30, 2013, and October 14, 2013, Mr. Mandoli and Andrew
Frederick, both Alcoa employees, stole two pickup truck loads of copper tabs and shunts
from an Alcoa plant. Police arrested them as they were stealing a third load. The State
No. 33524-1-III
State v. Mandoli
charged Mr. Mandoli with three counts of first degree theft and two counts of first degree
trafficking in stolen property. After plea negotiations, Mr. Mandoli agreed to plead guilty
to one count of second degree possession of stolen property that exceeded a value of
$750.
At the restitution hearing, Mr. Frederick testified that he sold all 3,023 pounds of
one load of the copper for $2.28 per pound (a total of $6,892.00) and Mr. Mandoli sold
810 pounds of the other load. Mr. Frederick did not know if Mr. Mandoli sold all of his
load. Mr. Frederick estimated that the first two loads weighed about the same, but he
thought the third load, which he and Mr. Mandoli were caught with, was about 30 to 40
percent heavier. This third load weighed 3,895 pounds. An Alcoa employee estimated
that the value of the copper tabs would be about $3 .11 per pound at auction. The shunts,
which were worn but could be resurfaced for continued use, typically cost about $6.88
per pound when new.
The trial court accepted Mr. Frederick's estimate that the first two loads weighed
30 to 40 percent less than the third load. Splitting the difference, the court concluded that
each of the first two loads was 35 percent less than the third load, for a total of
approximately 2,885 pounds per load. Doubled, the two loads were estimated to weigh
5,770.00 pounds. The court then multiplied the total weight by the auction market value
of $3.11 per pound, for a total restitution amount of $17,945.00.
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ANALYSIS
Mr. Mandoli does not assign error to the trial court's valuation of the copper at
$3 .11 per pound. What he challenges is the weight of the stolen loads. He contends the
evidence shows that only one load of 3,023 pounds and one load of 810 pounds (a total of
3,833 pounds) were stolen and sold.
By Washington statute, a court must order restitution whenever a defendant is
convicted of an offense that causes loss of property. RCW 9.94A.753(5); State v.
Griffith, 164 Wash. 2d 960, 965, 195 P.3d 506 (2008). The amount of restitution must be
based on easily ascertainable damages, but need not be established with specific
accuracy. Griffith, 164 Wash. 2d at 965. In a contested restitution hearing, the claimed loss
must be supported by substantial credible evidence. Id. This evidence is sufficient if it
provides a reasonable basis for estimating the loss and does not constitute mere
speculation. Id. We review the trial court's restitution award for abuse of discretion. Id.
The court may, in its discretion, order up to double the amount of the victim's loss. RCW
9.94A.753(3); Griffith, 164 Wash. 2d at 966.
Mr. Mandoli pleaded guilty to possessing two loads of stolen copper. Alcoa
claimed losses of $24,258.00, based on two loads of approximately 3,900 pounds each
times $3 .11 per pound. Mr. Mandoli contends the sales receipts reasonably support the
conclusion that he and Mr. Frederick possessed only 3,833 pounds of copper in total. But
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State v. Mandoli
the State also produced credible evidence from Mr. Frederick that each load weighed
either 3,023 pounds or 30 to 40 percent less than the 3,895-pound third load. The trial
court accepted Mr. Frederick's testimony as credible that the first two loads were
somewhat smaller than the third load. Thus, the trial court had a reasonable basis for
estimating that the first two loads were 3 5 percent smaller than the third load.
The trial court's calculations do not, however, support restitution for $17,945.00.
Although neither party mentions it, the trial court's conclusion that 2,885 pounds
represents 35 percent less than the third load is erroneous. Thirty-five percent less than
3,895 pounds is actually 2,532 pounds. 1 That amount doubled-for the two loads-is
5,064 pounds. Multiplied by the agreed price of $3.11 per pound, the total restitution that
should have been imposed based on the trial court's method of calculation is $15,749.00.
CONCLUSION
On this record, we hold that the trial court did not abuse its discretion in imposing
restitution based on a calculation that the first two loads were each 35 percent smaller
than the third load, and multiplied by a value of $3 .11 per pound. We remand, however,
for correction of the calculation error consistent with this opinion.
Affirmed in part and remanded.
1
3,895 x 65 percent equals 2,532, rounded.
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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.
WE CONCUR:
Pennell, J.
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