Cave v. State

• Decision Date: 01 March 2022
• Docket Number: S-21-0147
• Citation: 2022 WY 30
• Parties: ALEXANDER VINCENT RAY CAVE, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2022 WY 30

ALEXANDER VINCENT RAY CAVE, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-21-0147

Supreme Court of Wyoming

March 1, 2022

Appeal from the District Court of Sweetwater County The Honorable Suzannah G. Robinson, Judge

Representing Appellant: Nathan W. Jeppsen, Law Office of Nathan W. Jeppsen, Rock Springs, Wyoming.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C Eames, Senior Assistant Attorney General; Catherine M Mercer, Assistant Attorney General.

Before FOX, C.J., and DAVIS ^[*] , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

KAUTZ JUSTICE

[¶1] Alexander Vincent Ray Cave pled no contest to aggravated assault and battery and was ordered to pay $63, 428.29 in restitution to Rafael Magana, the victim of his offense. Mr. Cave appeals from the district court's award of restitution to Mr. Magana. We affirm.

ISSUES

[¶2] Mr. Cave raises three issues which we re-state and re-order as follows:

1. Did the district court have authority to award restitution to Mr. Magana?

2. Was there sufficient evidence supporting the district court's award of restitution to Mr. Magana?

3. Did the district court abuse its discretion by failing to consider Mr. Magana's comparative fault in determining the amount of restitution?

FACTS

[¶3] Mr. Cave stabbed Mr. Magana five times during a drug transaction. Mr. Magana was treated for his injuries at Memorial Hospital of Sweetwater County. He was later billed $74, 678.27 for his treatment. The Wyoming Attorney General Office's Division of Victim Services (DVS) paid $11, 249.98 of these expenses.

[¶4] The State charged Mr. Cave with attempted second-degree murder. The parties eventually entered into a plea agreement wherein Mr. Cave agreed to plead no contest to an amended charge of aggravated assault and battery in exchange for a sentence of 6-10 years imprisonment, suspended in favor of 5 years of supervised probation. With respect to restitution, the agreement stated "tbd," which based on statements made by the court and the parties at the change of plea hearing, we understand to be the abbreviation for "to be determined." Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/TBD (last visited Feb. 16, 2022). The court accepted Mr. Cave's no contest plea.

[¶5] Prior to sentencing, Mr. Magana provided the State the medical bills for the treatment he received following the assault and battery. The State, in turn, filed a written request for restitution which outlined the medical expenses Mr. Magana incurred as a result of the assault and battery and the amount of those expenses paid by DVS. The State requested $11, 249.98 be paid to DVS and $63, 428.29 be paid to Mr. Magana. The State attached the medical bills to its request.

[¶6] At sentencing, Mr. Cave did not dispute the amount owed to DVS or the validity of Mr. Magana's medical bills. He also agreed the medical bills stemmed from the treatment Mr. Magana received following the assault and battery. However, Mr. Cave argued he did not have the present or future ability to pay restitution; there was no evidence as to the amount Mr. Magana or a third-party insurer had paid toward the medical bills; there was no evidence as to whether Mr. Magana will ultimately be responsible for paying the bills or if they will be reduced or discharged in a future bankruptcy; and the court should consider Mr. Magana's comparative fault in that he actively participated in a drug transaction where bodily harm can occur.

[¶7] The district court found Mr. Cave had the ability to pay restitution and declined to apply comparative fault principles to determine the amount of restitution. It also decided "whether or not Mr. Magana has made any payments to the [medical] providers" was "really not [its] concern. It's still a loss that he has as a result and he owes the money to other individuals . . . ." The court sentenced Mr. Cave in accordance with the parties' plea agreement and ordered him to pay $74, 678.27 in restitution-$11, 249.98 to DVS and $63, 428.29 to Mr. Magana. Mr. Cave timely appealed.

STANDARD OF REVIEW

[¶8] We review a district court's authority to order restitution "'under a de novo statutory interpretation standard, because a court has only that authority to act which is conferred by the subject statute.'" O'Halloran v. State, 2014 WY 95, ¶ 11, 331 P.3d 121, 125 (Wyo. 2014) (quoting Frederick v. State, 2007 WY 27, ¶¶ 14-15, 151 P.3d 1136, 1141 (Wyo. 2007)) (other citation omitted). "Challenges to the factual basis for a restitution order are reviewed for procedural error or clear abuse of discretion." Freeman v. State, 2019 WY 86, ¶ 9, 448 P.3d 194, 196 (Wyo. 2019) (citing O'Halloran, ¶ 11, 331 P.3d at 125). "'A court abuses its discretion only when it could not reasonably decide as it did.'" Steffey v. State, 2019 WY 101, ¶ 18, 449 P.3d 1100, 1105 (Wyo. 2019) (quoting Berger v. State, 2017 WY 90, ¶ 7, 399 P.3d 621, 623 (Wyo. 2017)) (other citation omitted). "'An abuse of discretion can [also] exist if the wrong law has been applied, the correct law has been applied but incorrectly interpreted, or if the correct law has been improperly applied.'" Id. (quoting Grove v. Pfister, 2005 WY 51, ¶ 6, 110 P.3d 275, 278 (Wyo. 2005)) (other citation omitted).

DISCUSSION

[¶9] The district court found Mr. Cave had the ability to pay restitution. Mr. Cave has not appealed from that finding. As a result, the court was required to order him to "pay restitution to each victim." Wyo. Stat. Ann. § 7-9-102 (LexisNexis 2021) ("In addition to any other punishment prescribed by law the court shall, upon conviction for any misdemeanor or felony, order a defendant to pay restitution to each victim as determined under W.S. 7-9-103 and 7-9-114 unless the court specifically finds that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay."). See also, Solis v. State, 2010 WY 165, ¶ 8, 245 P.3d 323, 325 (Wyo. 2010) ("As part of the sentencing process, a trial court is required to order a defendant to pay restitution to each victim unless the court specifically finds that the defendant has no ability to pay and no reasonable possibility exists that he will have an ability to pay.").

[¶10] Mr. Cave does not dispute the district court's order of restitution to DVS. He argues only that the court erred in awarding restitution to Mr. Magana. His argument is threefold.

[¶11] First, Mr. Cave claims the court was without authority to award restitution to Mr. Magana because no request for restitution was made by Mr. Magana or on his behalf as required by Wyo. Stat. Ann. § 7-9-103(a) (LexisNexis 2021). That statute provides: "As part of the sentencing process including deferred prosecutions under W.S. 7-13-301, in any misdemeanor or felony case, the prosecuting attorney shall present to the court any claim for restitution submitted by any victim." Mr. Cave acknowledges the State filed a written request for restitution to be made to Mr. Magana in the amount of his medical expenses not paid for by DVS. However, he maintains the State clarified at sentencing that its request was on behalf of Mr. Magana's medical providers, not Mr. Magana.

[¶12] The prosecutor stated at sentencing: "[I]f the [c]ourt does order [Mr. Cave to pay] the full amount [of Mr. Magana's medical expenses] we would probably have to attribute the $63, 000 to the direct providers of the services provided to Mr. Magana because if not Mr. Magana would be receiving [it] and he has not paid [his medical expenses] as of yet." We do not interpret this statement as the prosecutor withdrawing the State's written request for restitution to be made to Mr. Magana. Rather, the prosecutor was simply acknowledging Mr. Magana owes the money to his medical providers. In any event, the State's written request for restitution for Mr. Magana satisfied § 7-9-103(a) and gave the district court the authority to award restitution to him, even if the State also suggested the medical providers were ultimately entitled to the money. See Whitten v. State, 2005 WY 55, ¶¶ 18, 22, 110 P.3d 892, 897 (Wyo. 2005) (affirming the district court's modification of its sentencing order to require restitution be paid to the victim, rather than the victim's insurer, even though the victim never requested restitution).

[¶13] Second, Mr. Cave contends the district court erred in awarding restitution to Mr. Magana because the State failed to show Mr. Magana suffered any "actual pecuniary damage" as a result of the assault and battery as required by § 7-9-103(b). According to him, there was no evidence Mr. Magana had paid any of his medical bills or that he had agreed to, or was otherwise legally obligated to, pay them. Even if Mr. Magana is legally obligated to pay the bills, Mr. Cave asserts it is highly likely Mr. Magana will file for bankruptcy and have those bills discharged.

[¶14] Upon receiving the State's request for restitution, the district court was required to "fix a reasonable amount as restitution owed to each victim for actual pecuniary damage resulting from the defendant's criminal activity . . ." Section 7-9-103(b). "'Pecuniary damage' means all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event . . . ." Wyo. Stat. Ann. § 7-9-101(a)(iii) (LexisNexis 2021). Evidence is sufficient to support a district court's restitution order "'if it affords a reasonable basis for estimating a victim's loss.'" Voelker v. State, 2018 WY 72, ¶ 16, 420 P.3d 1098, 1100 (Wyo. 2018) (quoting Smiley v. State, 2018 WY 50, ¶ 13, 417 P.3d 174, 177 (Wyo. 2018)) (other citations omitted). "We view the evidence...