Baugh v. Commonwealth

• Decision Date: 10 December 2019
• Docket Number: Record No. 0347-18-2
• Parties: HAROLD BAUGH, S/K/A HAROLD J. BAUGH v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

HAROLD BAUGH, S/K/A HAROLD J. BAUGH v. COMMONWEALTH OF VIRGINIA

Record No. 0347-18-2

COURT OF APPEALS OF VIRGINIA

DECEMBER 10, 2019

UNPUBLISHED

Present: Judges O'Brien, Malveaux and Senior Judge Clements

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE MARY BENNETT MALVEAUX

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE

Humes J. Franklin, Jr., Judge Designate

J. Burkhardt Beale (Boone Beale, PLLC, on brief), for appellant.

Liam A. Curry, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Harold J. Baugh ("appellant") was convicted of attempted malicious wounding, in violation of Code §§ 18.2-51 and -26. He argues that the trial court erred in setting the amount of restitution it required him to pay his estranged wife ("the victim") as a condition of his suspended sentence. For the reasons that follow, we affirm the decision of the trial court.

I. BACKGROUND

On April 16, 2017, appellant drove his car into the victim's car three times. The victim suffered only minor injuries but her car was destroyed. Appellant was indicted for attempted malicious wounding, in violation of Code §§ 18.2-51 and -26, and convicted of that offense in a bench trial.¹

At sentencing, the Commonwealth requested that appellant be required to pay the victim $6,639.23 in restitution. That amount, the Commonwealth argued, represented the balance of a loan owed by the victim on her destroyed car and the sum of the victim's medical bills incurred as a consequence of appellant's offense. In support of its request, the Commonwealth proffered a credit union account statement indicating a current balance of $3,289.23 owed on the car and a victim impact statement indicating hospital costs of $3,350. The impact statement further indicated that the victim suffered "property lost as a result of this crime," specifically, a 2015 Nissan Rouge automobile with a "[c]ost" of $25,401.34.

Appellant objected to the admission into evidence of the victim impact statement, arguing that it overvalued the victim's car and that the court should only order restitution for medical expenses. Counsel for appellant stated that he had researched the car's value and asserted that it was "more in line with the figure that the insurance company paid [the victim], which was in the neighborhood of fifteen thousand dollars . . . , the fair market value." Thus, counsel argued, the victim had already been "fully compensated" for property damage.

The Commonwealth responded that the figure listed in the victim impact statement was the cost of the victim's car and that while she had received a $15,000 insurance settlement, "[u]nder the statute for restitution, the victim is allowed to be made whole, and that [includes] the balance that was owed on the vehicle that was destroyed."

The trial court sentenced appellant to ten years' incarceration with five years suspended and ordered that upon release he would be subject to three years of supervised probation. As one of the conditions of appellant's suspended sentence, he was ordered to pay the victim $6,639.23 in restitution.

This appeal followed.

II. ANALYSIS

Appellant argues that the trial court abused its discretion in setting the amount of his restitution at $6,639.23. He contends that "[t]he Code does not allow payment for the amount of a loan on personal property, only the value of the property itself," and cites Alger v. Commonwealth, 19 Va. App. 252 (1994), for the proposition that "payment by an insurance company is a reliable indicator" of that value. Consequently, appellant argues, the trial court was only permitted to order restitution in the amount of the "fair market value" of the victim's car, which was established by and paid to the victim in a $15,000 insurance settlement. Thus, appellant contends, it was error for the trial court to include in his restitution the $3,289.23 still owed by the victim on her car loan after the insurance company had paid her "full restitution."

"A sentencing decision will not be reversed unless the trial court abused its discretion." Fleisher v. Commonwealth, 69 Va. App. 685, 689 (2019) (quoting Burriesci v. Commonwealth, 59 Va. App. 50, 55 (2011)). "[T]he phrase 'abuse of discretion' means that the [trial] court 'has a range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.'" Ellis v. Commonwealth, 68 Va. App. 706, 711 (2018) (first alteration in original) (quoting Sauder v. Ferguson, 289 Va. 449, 459 (2015)). "The exercise of discretion . . . presupposes 'that, for some decisions, conscientious jurists could reach different conclusions based on exactly the same facts - yet still remain entirely reasonable.'" Fleisher, 69 Va. App. at 689 (alteration in original) (quoting Du v. Commonwealth, 292 Va. 555, 564 (2016)). Thus, "[i]t is immaterial that other judges 'might have reached a different conclusion than the one under review,'" and "'[o]nly when reasonable jurists could not differ can we say an abuse of discretion has occurred.'" Id. at 689, 691 (quoting Du, 292 Va. at 564). Consequently, "[o]n appeal, where the restitutionary amount is supported by a preponderance of the evidence and is 'reasonable in relation to the nature of the offense,' the determination of thetrial court will not be reversed." Burriesci, 59 Va. App. at 55-56 (quoting McCullough v. Commonwealth, 38 Va. App. 811, 817 (2002)).

Code § 19.2-303 provides, in pertinent part, that after conviction a trial court may suspend the sentence in whole or in part and "may, as a condition of a suspended sentence, require the defendant to make at least partial restitution to the aggrieved party . . . for damages or loss caused by the offense." See also Code § 19.2-305(B) (providing that where, as here, a defendant is placed on probation he "may be required to make at least partial restitution . . . for damages or loss caused by the offense for which conviction was had"). Further, Code § 19.2-305.1(A) provides, in pertinent part, that "no person convicted of a crime . . . which resulted in property damage or loss[] shall be placed on probation or have his sentence suspended unless such person shall make at least partial restitution for such property damage or loss." In turn, Code § 19.2-305.2(A) states that a trial court, when ordering restitution pursuant to Code § 19.2-305.1, "may require that [the] defendant, . . . if return of the property is impractical or impossible, pay an amount equal to the greater of the value of the property at the time of the offense or the value of the property at the time of sentencing." However, our Supreme Court has "specifically recognized that '[t]he General Assembly has limited the scope of restitution a court may order to payments for "damages or losses caused by the offense."'" Ellis, 68 Va. App. at 714 (alteration in original) (quoting Howell v. Commonwealth, 274 Va. 737, 740 (2007)). This insures that restitution "make[s] the victim whole." Fleisher, 69 Va. App. at 691.

We first note that nothing in the relevant provisions of Chapter 18 of Title 19.2 of the Code establishes fair market value as the measure of value which a trial court must use in determining the amount of restitution. The sole statutory provision which speaks to value in the context of restitution states only that where, as here, return of the property at issue is impracticalor impossible, a defendant ordered to pay restitution for property loss may be "require[d] . . . [to] pay an amount equal to the greater of the value of the property at the time of the offense or the value of the property at the time of sentencing." Code § 19.2-305.2(A). Thus, even where the Code establishes the relative value which a trial court may use to determine restitution in certain circumstances, it does not prescribe a basis for computing that value. Had the General Assembly intended to limit trial courts to determining the amount of restitution using only the "fair market value" of property damaged or lost through a defendant's criminal acts, it could have done so by including specific language to that effect in the relevant statutes. See Commonwealth v. Williams, 295 Va. 90, 101 (2018) ("[W]e regularly reject invitations to 'read into [a] statute language that is not there,' because of the long-established rule that '[c]ourts cannot add language to [a] statute the General Assembly has not seen fit to include.'" (second, third, and fourth alterations in original) (quoting Wakole v. Barber, 283 Va. 488, 495-96 (2012))); Leonard v. Commonwealth, 296 Va. 479, 484 (2018) ("We 'presume that the General Assembly chose, with care, the words that appear in . . . statute[s], and must apply the statute[s] in a manner faithful to that choice.'" (quoting Johnson v. Commonwealth, 292 Va. 738, 742 (2016))).

We further note that appellant misstates the holding of Alger. Under the facts of that case, this Court did conclude that the amount paid in an insurance settlement, together with the amount of a deductible, constituted "a reliable indicator of true loss" and that the trial court properly relied upon those amounts in determining restitution. Alger, 19 Va. App. at 258. However, Alger does not stand for the proposition that such insurance payments and deductibles, where proven before a trial court, are always the full measure of loss for determining restitution. In fact, the language from Alger quoted on brief by appellant—"proof of the amount paid by one in an arms-length transaction is considered prima facie evidence of the reasonableness of the payment"—is quoted out of context. Id. The Court in Alger made that statement in the contextof its examination of "other areas of the law," and did not hold that proof of the amount of an insurance settlement is prima facie evidence of the value of damaged or destroyed property for determining restitution pursuant to Code § 19.2-305.1. Id. Contrary to appellant's argument, neither the...