Bush v. State, 02-218.

• Citation: 2003 WY 156,79 P.3d 1178
• Decision Date: 02 December 2003
• Docket Number: No. 02-218.,02-218.
• Parties: Tucker James BUSH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

79 P.3d 1178

2003 WY 156

Tucker James BUSH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 02-218.

Supreme Court of Wyoming.

December 2, 2003.

Representing Appellant: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Senior Assistant Attorney General. Argument by Ms. Cooley.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

HILL, Chief Justice.

[¶ 1] Appellant, Tucker James Bush (Bush), challenges the district court's sentence ordering him to pay $9,744.00 in restitution to the victim of his crime. Bush entered a plea of guilty to stealing a 1988 Chevrolet pickup from the victim, parts from which he and his girlfriend, Nikki Jo Sparby (Sparby), used to rebuild her 1991 GMC pickup that she had damaged while driving drunk. It is his contention that the district court substantially overvalued the pickup by setting restitution in an amount that allowed the victim to rebuild it piece by piece. We will hold that the restitution order exceeds the district court's legislatively authorized sentencing authority. Thus, we reverse and remand for additional proceedings consistent with this opinion.

ISSUES

[¶ 2] Bush raises this issue:

Did the district court err when it ordered [Bush] to pay restitution to the victim for rebuilding his stolen 1988 vehicle, including labor costs, updating the transmission, and replacement parts, instead of setting the amount of restitution at the fair market value of the 1988 vehicle at the time it was stolen?

The State poses two issues for our consideration:

I. Whether this Court has jurisdiction to hear this appeal, as [Bush] knowingly and voluntarily waived the right to appeal his sentence, including restitution?

II. Whether the district court abused its discretion in its award of restitution to the victim?

FACTS

[¶ 3] The issues raised in this appeal arise from a plea bargain agreement that contained this language:

The Defendant has been charged with the following offenses: Count I—Wrongful Taking or Disposing of Property (concealing/disposing) Valued at $500.00 or More, in violation of Wyoming Statute § 6-3-403(a)(i)(b), a felony; and Count II—Conspiracy to Wrongfully Take or Dispose of Property Valued at $500.00 or More, in violation of Wyoming Statute § 6-1-303(a) and § 6-3-403(a)(i)(b), a felony.

AGREEMENT

In consideration of the mutual terms, covenants and conditions of this Statement of Agreement, the respective parties agree with one another and respectfully submit to this Honorable Court as follows:

1) The Defendant will enter a plea of guilty to Count I of the Felony Information: Wrongful Taking or Disposing of Property (concealing/disposing) Valued at $500.00 or More, and establish a factual basis for said plea of guilty.

2) After the Court has accepted the Defendant's plea of guilty to Count I and entered the guilty plea of record, the State will then move the Court to dismiss Count II of the Felony Information.

3) There is no agreed upon recommendation to the Court regarding sentencing; the respective parties would be free to recommend to the Court whatever sentence they deem to be just under the circumstances of this case; Defendant shall pay restitution as ordered by the Court and determined by the State Department of Corrections, Field Services Division.

4) As the plea of guilty herein is based upon this Agreement and the mutual consideration contained in the Agreement itself, the Defendant will not file any post guilty plea/conviction motions, request(s) for sentence reduction, appeals, or post conviction relief petitions.

5) This agreement will be disclosed and recommended to the Court pursuant to Rule 11 of the Wyoming Rules of Criminal Procedure.

6) The above recitation constitutes the entire agreement between the respective parties.

[¶ 4] A prison sentence was imposed, but suspended, and Bush was given a split sentence with probation. At the hearing on Bush's change of plea, the subject of restitution came up only briefly and almost as an afterthought, although it was made clear to Bush that the sentence to be imposed was a matter within the discretion of the district court.¹

[¶ 5] At the sentencing hearing, the incarceration portion of the sentence was imposed, but restitution was set to be done another day. Eventually, a hearing was held to determine the amount of restitution to be paid by Bush to the victim. The amount was set at $9,744.00 ($8,954.00 owed jointly and severally with Sparby, the remainder was owed individually by Bush). We will set out the restitution order in detail and begin by noting the district court's apt description of this case as one "involving the theft and subsequent dismantling of a 1988 Chevrolet Pickup, ... and the combining of many of said parts with a wrecked 1991 GMC Pickup, and the victim representing the 1988 Chevrolet Pickup to have unique and special value to him and the victim wishing to rebuild the 1988 Chevrolet Pickup and restore it to its former condition...." The district court then went on to make these findings and conclusions:

1. The test which is to be applied in this particular matter is the one set forth in W.S. § 7-9-103, specifically relating to determination of restitution amounts owed, which directs the Court to fix a reasonable amount as restitution owed to each victim for actual pecuniary damage, and this is the touchstone that the Court will apply in this case.

2. Pecuniary damage means all damages which a victim could recover against a defendant in a civil action arising out of the same facts or event, including damages for wrongful death. It does not include punitive damages, damages for pain and suffering, mental anguish and loss of consortium.

3. As the Court pointed out in the companion case involving co-defendant Sparby (State v. Sparby, Criminal case # 3759) this is not simply a case involving the theft of a motor vehicle; rather, the facts of this criminal action involve co-defendant Sparby knowing that the 1998[sic] Chevrolet Pickup was stolen. Ms. Sparby paid money for the victim's stolen vehicle, knowing she wasn't going to get a good title. [Bush] eventually figured this out and further, was advised by Ms. Sparby that the 1988 Chevrolet Pickup was, in fact, stolen. The fact that someone else stole the 1988 Chevrolet Pickup and sold it to Ms. Sparby does not give rise to any claim of unjust enrichment.

4. Further, this case involves the theft of a vehicle for its parts and as the parts are worth more than the whole in this motor vehicle theft, a jury could reasonably award a damage amount that exceeds the book value of the 1988 Chevrolet Pickup at the time of the theft. Book value of the stolen 1988 Chevrolet Pickup at the time of its theft, however, is not the appropriate value for the determination of restitution in this case.

5. The Court finds that $8,700.00 is an appropriate restitution value for reconstruction labor in rebuilding the 1988 Chevrolet Pickup, and that $4,434.00 is an appropriate value for the restitution of replacement parts. Further, the sum of $750.00 is a reasonable sum for transportation of vehicle and parts back to the victim's residence in Longmont, Colorado. The total of these amounts is $13,884.00.

6. In the appropriate case and by reason of the wording of the statute, attorney's fees could be awarded but attorney's fees are not appropriate in this case, and therefore, the requested $1,100 claim for attorney's fees is disallowed.

7. As parts from the victim's 1988 Chevrolet Pickup were combined with parts from the wrecked 1991 GMC Pickup, the Court will grant a credit in favor of [Bush] to be deducted from the restitution figure set forth in paragraph numbered 5 herein, and in this regard, a credit of $4,200.00 shall be given for the 1991 GMC Pickup parts.

We note that a mathematical error occurred in the district court's calculation, and the restitution amount should have been set at $9,644.00. Because we reverse and remand for further proceedings, this error is of no consequence, but we did not want the miscalculation to appear to have gone unnoticed.

DISCUSSION

Waiver of Right to Appeal

[¶ 6] The threshold question is whether Bush's waiver of right to appeal encompasses the right to appeal the district court's determination of restitution. The State's contention is that the waiver was plenary and bars this appeal. It is established that a defendant may waive his right to appeal, so long as that waiver is knowing and voluntary. United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir.1998). However, the sentence imposed in such a circumstance must be within that which is authorized by statute. See United States v. Glass, 15 Fed. Appx. 621 (10th Cir.2001); United States v. Baeza, 16 Fed. Appx. 973 (10th Cir.2001); United States v. Neill, 17 Fed. Appx. 743 (10th Cir.2001); and Kristine Cordier Karnezis, Annotation, Validity and Effect of Criminal Defendant's Express Waiver of Right to Appeal as Part of Negotiated Plea Agreement, 89 A.L.R.3d 864 (1979 and 2002 Supp.).

[¶ 7] We are able to readily conclude that Bush knowingly and voluntarily waived his right to appeal, in a general sense. However, he did not waive his right to appeal a sentence that exceeded the punishment prescribed by law:

The source of the legislature's power to limit judicial authority as to sentencing is found in the constitutional separation of powers. The legislative branch has the exclusive power to define crimes and to prescribe punishments for those crimes. Billis v. State, 800 P.2d 401, 412-15 (Wyo. 1990). Consequently, a court may only impose a sentence of incarceration that falls within the minimum and maximum punishment prescribed by statu

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