Christensen v. State
| Decision Date | 09 June 1993 |
| Docket Number | No. 92-174,92-174 |
| Citation | 854 P.2d 675 |
| Parties | Blue Sky L. Rep. P 73,838 R. Craig CHRISTENSEN, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Richard H. Honaker of Honaker, Hampton & Newman, Rock Springs, for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., Cheyenne, for appellee.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
R. Craig Christensen appeals the district court's order nunc pro tunc, correcting his initial sentence, reinstating his probation and setting the amount of restitution owed at $130,000. Limited to the explanations set forth in this opinion, we affirm.
Appellant presents the following issues:
1. Did the trial court, upon a probation revocation hearing, have authority to amend nunc pro tunc the court's original Order Suspending Proceedings which had been entered more than five years earlier?
2. Was the trial court's original Order Suspending Proceedings a deferred sentence or parole before sentence, under Section § 7-13-203, W.S.1977?
3. Are the restitution provisions contained in the Order Suspending Proceedings and in the Order Amending Judgment Nunc Pro Tunc illegal and unenforceable?
Appellee frames the issues in this way:
I. Does the trial court have the authority to correct an ambiguous sentence by a nunc pro tunc order?
II. Was Christensen properly sentenced under W.S. 7-13-301 (1977)?
III. Did the trial court appropriately order Christensen to pay restitution?
R. Craig Christensen (appellant) was director of Lo-Call, U.S.A., Inc., a Wyoming corporation, engaged in Watts line rental and telephone retail sales. The corporation was not registered as a security broker in the state and it had not registered its securities. Approximately $200,000 had been invested by ten Wyoming investors in Lo-Call's operations. On January 2, 1985, a cease and desist order was filed against appellant and Lo-Call relating to offering interests in a partnership known as Western Wyoming Tele-Communications Project Limited Partnership. On September 16, 1985, Christensen was charged and pled not guilty to twenty-five violations of security laws under WYO.STAT. § 17-4-101(a) and 17-4-107(a) (1977).
At a hearing on January 27, 1987, appellant, under a plea agreement, pled no contest 1 to four counts, and the remaining counts were dismissed. After determining a factual basis to accept the plea, the district court stated:
It's the Order of this Court that you be placed on supervised probation--that you serve a term in the Wyoming State Penitentiary of not less than three years on each count to be served consecutively; that you be placed on supervised probation for a period of twelve years upon the following terms and conditions * * *.
Appellant's probation was conditioned upon paying a $5,000 fine, a surcharge of twenty-five dollars for each count to the Victim's Compensation Fund, and restitution to the "victims" of "between $157,000 and $130,000, depending upon what figure Counsel and the State come to." Earlier in the proceedings, appellant's counsel had noted his understanding of the restitution amount to be determined by stating, "it's also my understanding that the full amount of restitution will be determined based upon * * * the amount actually paid by the people named in the Complaint for purchase of the investment that forms the subject matter of this litigation."
The state reminded the court that "we have not received, as yet, the consent of the Defendant to being placed on probation pursuant to § 7-13-301." Appellant's counsel sought to clarify the status of the proceedings at that point by noting that [Appellant's counsel]: Excuse me, Your Honor. Before we do that, it was my understanding that under § 7-301 what we would do would be to suspend proceedings after the Court found the factual basis for the no contest plea. The consent that is required under the statute is the consent to the Defendant to the suspension of those proceedings at that time.
following the court's finding of a factual basis for the plea, under "301" the court is then required to request the consent of the defendant to suspend the proceedings. The following exchange occurred:
Court: Yes. Do you consent to the suspension of those proceedings during that period?
Mr. Christensen: Yes, I do.
Appellant's counsel then sought to clarify the consequences of proceeding in this manner by initiating the following exchange:
[Appellant's counsel]: Your Honor, just for purposes of the record, so that it's clear, right now the way the thing stands, if the Court accepts it based upon that consent, as far as this situation is concerned everything has been suspended effective after the Court's finding that there's a factual basis for the plea. If Mr. Christensen does not meet the terms of the probation, then at that point in time, the Court will factually accept the plea and impose the sentence to the State Penitentiary that was called; is that correct?
Court: That's right. As a matter of fact, we'll not only do that, we'll revoke the probation and sentence him--send him to the penitentiary.
On January 28, 1987, the district court judge then entered an "Order Suspending Proceedings Pursuant to Wyoming Statutes Section 7-13-301, 1977" and placed appellant on probation, three years for each count to be served consecutively, or twelve years total plus a fine of $5,000, and a $100 surcharge to the Victim's Compensation Fund. The district court also entered a restitution order for "either $157,000 or $130,000" as stipulated to by counsel. (Emphasis added). Appellant was ordered to pay restitution of $1,000 per month for eleven years and nine months with the remaining balance due at the end of that time. If appellant pre-paid the restitution and surcharge, probation would be reduced to one year. The order stated that if appellant "successfully completes his probation, the charge herein shall be dismissed pursuant to Wyoming Statutes Section 7-13-301, 1977."
On May 19, 1989, a petition was filed to rescind the order suspending proceedings and to conduct sentencing proceedings against appellant, alleging that he had failed to make payments for the months of March, April and May, 1989. The record reflects no action that was ever taken on that petition. On April 16, and again on May 26, 1992, the state filed a petition to revoke appellant's probation claiming that the last restitution payment was made on October 2, 1991, and that a balance of $105,153.95 remained. Appellant filed a motion on June 19, 1992, to dismiss the petition for revocation and to discharge him from probation. Appellant claimed that the district court's initial proceedings had applied WYO.STAT. § 7-13-203, which limited the court's jurisdiction to revoke probation to five years, since passed. Appellant claimed the court had "no statutory authority to require restitution unless a sentence was imposed and suspended under W.S. 7-13-301 * * * in [the] Order."
On July 17, 1992, the district court, with a different judge presiding, entered an order, nunc pro tunc, amending appellant's judgment which "by reason of ambiguity does not correctly state the judgment of the Court." The order stated that the
trial be, and is hereby, suspended pursuant to Wyoming Statutes § 7-13-301, 1977, paragraph two, and that the Defendant herein, R. CRAIG CHRISTENSEN, be placed on supervised probation on each of the four counts for a term of three (3) years for each count, to run consecutively for a total of twelve (12) years. While on probation, the Defendant must adhere to the following terms and conditions:
1. That Defendant will pay restitution in the amount of $130,000.00 in monthly installments of $1,000.00 for a period of eleven (11) years and nine (9) months * * *.
2. That Defendant pay a fine of $5,000.00 and a $100.00 surcharge to the Wyoming Crime Victims' Compensation Fund * * *.
* * * * * *
Defendant receive credit for time served successfully on probation to and including the date of this order * * *.
The district court also denied appellant's motion to dismiss the petition for probation revocation and his motion for discharge from probation. Appellant appeals the district court orders.
The standard we employ in reviewing decisions of the district court is well known and often repeated. We have said:
"[W]e will not interfere with the decision of the district court unless there is a procedural error or unless there is shown to be a clear abuse of discretion." In our determination whether appellant has clearly shown that the district court abused its discretion, we have said countless times "the ultimate issue is whether or not the court could reasonably conclude as it did."
Love v. Love, 851 P.2d 1283, 1286 (Wyo.1993) (quoting Gaines v. Doby, 794 P.2d 566, 570 (Wyo.1990)) (citations omitted). It is clear that:
A reviewing court cannot substitute its judgment for that of the trial court, whose judgment must be sustained unless clearly erroneous, manifestly wrong, or totally against the evidence. The appellate court will not set aside the trial court's findings merely because it might have reached a different result.
Love, at 1286 (quoting Roberts v. Vilos, 776 P.2d 216, 217 (Wyo.1989)).
Concerning the trial court's review of probation matters, we have specifically said:
The decision to revoke probation lies within the sound discretion of the trial court. We will not disturb the court's decision absent a clear showing of abuse of that discretion.
Kahlsdorf v. State, 823 P.2d 1184, 1187-88 (Wyo.1991) ().
We begin by noting that a conflict exists between the district court's 1987 oral pronouncement and the written order...
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