Anderson v. State

• Decision Date: 22 January 2018
• Docket Number: S-17-0123
• Citation: 408 P.3d 1148
• Parties: Donna ANDERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

408 P.3d 1148

Donna ANDERSON, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-17-0123

Supreme Court of Wyoming.

January 22, 2018

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L Delicath, Deputy Attorney General; Christyne Martens, Senior Assistant Attorney General; and Samuel Williams, Assistant Attorney General. Argument by Mr. Williams.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

HILL, Justice.

[¶1] Donna Anderson pled guilty to exploitation of a vulnerable adult and was sentenced to a prison term of four to six years, suspended in favor of six years of supervised probation. As a condition of her probation, Ms. Anderson was ordered to pay restitution to her victim. Ms. Anderson does not claim error in the amount of restitution ordered, but she contends on appeal that the district court exceeded its authority by imposing additional probation conditions related to the restitution. We find no error in the district court's sentencing order and affirm.

ISSUE

[¶2] Ms. Anderson presents one issue on appeal, which we restate as:

Did the district court have authority to impose restitution-related conditions on Ms. Anderson's probation without first approving a restitution plan?

FACTS

[¶3] Donna Anderson was the designated social security disability payee for her brother, Glendon "AD" Hines, from October 2014 until sometime in December 2015. At some point, Mr. Hines discovered that Ms. Anderson had been using his benefits for her own personal expenses. When Mr. Hines' other family members learned of this, they confronted Ms. Anderson and demanded that she repay Mr. Hines. When Ms. Anderson showed no remorse for her actions and refused to adhere to a payment plan for returning Mr. Hines' funds, the family, in April 2016, contacted law enforcement.

[¶4] Detective Terry Jackson of the Casper Police Department investigated the allegations against Ms. Anderson. As part of that investigation, Detective Jackson obtained a search warrant for bank records pertaining to Ms. Anderson and Mr. Hines. Through examination of those records, Detective Jackson learned that during the period of December 2, 2014 to December 21, 2015, Ms. Anderson had used a total of $27,879.16 of Mr. Hines' disability benefits for her own personal expenses, which included $11,469.30 for mortgage payments on her home.

[¶5] On October 19, 2016, the State filed an information against Ms. Anderson, followed by an amended information on November 3, 2016. The amended information charged Ms. Anderson with one count of theft of property valued in excess of $1,000.00, and one count of exploitation of a vulnerable adult. On January 24, 2017, pursuant to a plea agreement, Ms. Anderson pled guilty to exploitation of a vulnerable adult. The district court accepted Ms. Anderson's guilty plea and granted the State's motion to dismiss the theft charge.

[¶6] On April 21, 2017, the district court entered its judgment and sentence. The court sentenced Ms. Anderson to a prison term of four to six years, suspended in favor of six years of supervised probation. The court placed a number of conditions on Ms. Anderson's probation, including the following:

8. That the Defendant shall not purchase any cable television or cell phone services while restitution obligations are outstanding.

....

10. That the Defendant shall liquidate any recreational vehicle or trailer in her possession and shall put funding from said recreational vehicle or trailer liquidation towards any restitution owed forthwith and without undue delay.

11. That the Defendant pay restitution in the amount of Twenty-Seven Thousand Eight Hundred Seventy-Nine Dollars and Sixteen Cents ($27,879.16) to Glendon Hines through his payee, [payee name and address omitted], and shall make minimum monthly payments each and every month of no less than Five Hundred Dollars ($500.00), and with the first payment to be paid by May 31, 2017, with said sum being paid through the Clerk of the District Court, in and for Natrona County, Wyoming, as directed by the Department of Corrections, Probation and Parole.

[¶7] On April 28, 2017, Ms. Anderson filed a timely notice of appeal to this Court.

DISCUSSION

[¶8] Ms. Anderson contends that the district court acted outside its authority when it set her restitution payments at $500.00 per month, restricted her from purchasing cable television or cell phone services, and directed that her recreational vehicles and trailers be liquidated. In so arguing, Ms. Anderson does not claim that these conditions are inherently impermissible or that the district court abused its discretion in imposing the conditions. She instead argues that per the governing statutes, such conditions may only be imposed as part of a restitution plan that has been prepared by a defendant in cooperation with a probation officer, or whomever else the court directs, and submitted to the sentencing court for its approval or modification. Absent this process, Ms. Anderson contends that the sentencing court is without authority to impose the challenged conditions.

[¶9] The State argues that the district court has authority with or without a restitution plan to impose restitution-related conditions on a defendant's probation. In keeping with that position, the State contends that the $500.00 minimum monthly payment was a reasonable requirement and one that the district court had authority to impose. As to the remaining conditions, however, the State takes a different position and offers to concede error. With respect to the restriction on the purchase of cell phone and cable television services, the State contends that such a restriction may in some cases be a reasonable probation condition, but it asserts that in this case, the record does not support the condition. With respect to the required liquidation of recreational assets, the State contends that the district court exceeded its authority because such a liquidation may only be accomplished through an execution on the court's judgment.

[¶10] Because the State conceded error that was not asserted by Ms. Anderson, we will address the State's concession separately from our consideration of Ms. Anderson's claim. We thus begin our discussion with Ms. Anderson's contention that any restitution-related condition on probation exceeds the sentencing court's authority unless it is imposed as part of a court-approved restitution plan. We will then turn to the State's concessions.

A. Standard of Review

[¶11] To the extent we must interpret the district court's sentencing authority, the question is one of statutory construction, which we review de novo . Farnsworth v. State , 2017 WY 137, ¶ 7, 405 P.3d 1067, 1069 (Wyo. 2017) ; see also Smith v. State , 2012 WY 130, ¶¶ 12-13, 286 P.3d 429, 433 (Wyo. 2012) (noting court's authority to order restitution is statutory and any challenge to that authority is reviewed de novo ). As to the appropriateness of the district court's probation conditions, we have recognized that a district court has broad discretion in making sentencing decisions, including in imposing conditions on probation. Harada v. State , 2016 WY 19, ¶ 13, 368 P.3d 275, 279-80 (Wyo. 2016). "An abuse of discretion does not occur unless a court has acted in a manner which exceeds the bounds of reason under the circumstances." Harada , ¶ 13, 368 P.3d at 280 (quoting Noel v. State , 2014 WY 30, ¶ 38, 319 P.3d 134, 147 (Wyo. 2014) ).

B. Sentencing Court's Authority Outside a Restitution Plan

[¶12] Ms. Anderson's claim that a sentencing court may impose a restitution-related condition on probation only through the use of a restitution plan is strictly a question of statutory interpretation. We thus consider her claim according to our usual rules of statutory interpretation.

We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia . When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Moreover, we must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation.

Sikora v. City of Rawlins , 2017 WY 55, ¶ 23, 394 P.3d 472, 479 (Wyo. 2017) (quoting Bates v. Chi. Lumber Co. , 2016 WY 58, ¶ 27, 375 P.3d 732, 739 (Wyo. 2016) ).

[¶13] A sentencing court "may impose, and at any time modify, any condition of probation or suspension of sentence." Wyo. Stat. Ann. § 7-13-304(a) (LexisNexis 2017). We have interpreted this provision to allow a court discretion to impose any condition of probation that is "reasonably related to rehabilitation, to the criminal conduct for which the probationer was convicted, and to the deterrence of future criminal conduct." Harada , ¶ 21, 368 P.3d at 281 (quoting Perkins v. State , 2014 WY 11, ¶ 16, 317 P.3d 584, 588 (Wyo. 2014) ). Here, Ms. Anderson does not challenge the reasonableness of the district court's probation conditions but instead contends only that the statute requiring preparation of a restitution plan restricts a court's authority to otherwise impose restitution-related probation conditions. We disagree.

[¶14] The statutory requirement for a restitution plan reads, in relevant part:

In any case in which the court has ordered restitution under W.S. 7-9-102, 7-9-113 or 7-13-301, if the sentencing court orders suspended imposition of sentence, suspended sentence or probation, the court shall require that the defendant in cooperation with the probation and parole officer assigned to the defendant, or in

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