Corr v. State
| Citation | 2022 WY 113 |
| Decision Date | 20 September 2022 |
| Docket Number | S-22-0064 |
| Parties | MICHAEL JOHN CORR, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Appeal from the District Court of Natrona County The Honorable Kerri M. Johnson, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig Deputy Attorney General; Joshua C. Eames [*] , Senior Assistant Attorney General; Donovan Burton, Assistant Attorney General.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
[¶1] Michael John Corr pled guilty to felony property destruction. On appeal, he challenges the restitution award of $7,398 to the victim, claiming the State did not present sufficient credible evidence to support the award. We affirm.
[¶2] The dispositive issue on appeal is:
Did Mr. Corr waive his right to contest the amount of restitution when he failed to timely object to the victim's damages identified in the presentence investigation report?
[¶3] On the evening of May 6, 2021, the owner of a motel in Casper, Wyoming saw Mr. Corr pulling copper wiring from the motel's electrical panel with his truck. The owner photographed Mr. Corr and his vehicle, and Mr. Corr fled. The owner then reported the incident to the Casper Police Department.
[¶4] The responding officer "observed the electrical box had been pulled away from the West facing wall and the conduit which contained the copper wire along with the copper wire had been cut down to the concrete slab." The owner reported that before Mr. Corr's actions, "the electrical box had been properly attached to the wall, the conduit was undamaged, and the copper wire had extended all the way into the box." The officer estimated the value of the missing copper wire to be approximately $200. At that time, the owner was unable to estimate the cost to repair the damaged property but believed it could cost several thousand dollars as the entire main line would require replacement.
[¶5] The State charged Mr. Corr with one count of misdemeanor theft and one count of felony property destruction and defacement. The circuit court bound Mr. Corr over to district court where he pled not guilty to the charges. The State and Mr. Corr thereafter reached a plea deal under which Mr. Corr agreed to plead guilty to the felony count in exchange for the State's dismissal of the misdemeanor count. The parties agreed to probation but had no agreement on the length of the suspended sentence.
[¶6] At the change of plea hearing, defense counsel advised the district court that the amount of restitution may be a contested issue requiring a hearing. The court summarized the agreement for Mr. Corr and, in doing so, advised him of his right to contest the amount of restitution. In entering his guilty plea, Mr. Corr admitted to damaging the motel's electrical box and that the cost of repairs would exceed $1,000.
[¶7] The district court accepted Mr. Corr's guilty plea and ordered a presentence investigation. Its order directed:
[C]ounsel for the State and Defense shall file and serve on opposing counsel, not less than three (3) working days prior to sentencing, any material objections as to the accuracy of the Presentence Investigation Report concerning: 1) Terms of the plea agreement, 2) Prior Offense History, or 3) Restitution and costs. Failure to timely present these objections may be considered a waiver of any objection and/or subject to sanction.
[¶8] On December 28, 2021, the Department of Corrections filed its presentence investigation (PSI) report, and on that same date, the district court set Mr. Corr's sentencing for February 8, 2022. The PSI's writer noted she had been unable to reach the victim for an impact statement but stated that "there was an estimate for repair of the damage made to the [victim's] property from Modern Electric in the court file totaling seven thousand three hundred ninety eight dollars ($7,398.00)."
[¶9] At sentencing, the State asked that Mr. Corr's sentence include $7,398 in restitution to the victim. It noted the victim had provided the estimate, and the property damage had been substantial. Defense counsel objected to the restitution calculation.
[¶10] The State did not have a copy of the estimate but noted that it had been provided to the defense during discovery. It argued:
I would just also note for the Court, Your Honor, that within the order for presentence investigation, it says in there that if they have any objection to anything within the presentence investigation, that they will file within, what, three days before the sentencing any objection to anything within there. It does indicate the amount of restitution. I think restitution has been verified, and they didn't object to that. Otherwise, we would probably have [the owner] here to even provide testimony for the Court.
[¶11] Defense counsel confirmed that he had received a copy of the estimate and explained that he "would have filed a formal written objection had the amount of restitution been verified." The district court sentenced Mr. Corr to three to five years in prison, suspended in favor of three years of probation. As to restitution, it ruled:
In this case, I am going to order restitution in the amount of $7,398. I believe, one, it was part of a plea agreement that restitution would be paid. Second, I think that an estimate is sufficient proof of money owed, and the Court can order that based on a victim coming in and providing evidence either in the form of estimate or testimony that they've suffered this damage. And so I'm going to order that be paid over the term of probation in this case.
[¶12] "Challenges to the factual basis for a restitution order are reviewed for procedural error or clear abuse of discretion." Cave v. State, 2022 WY 30, ¶ 8, 505 P.3d 191, 194 (Wyo. 2022) (quoting Freeman v State, 2019 WY 86, ¶ 9, 448 P.3d 194, 196 (Wyo. 2019)). "A court abuses its discretion only when it could not reasonably decide as it did." Cave 2022 WY 30, ¶ 8, 505 P.3d at 194 (quoting Steffey v. State, 2019 WY 101, ¶ 18, 449 P.3d 1100, 1105 (Wyo. 2019)). "[W]e may affirm the district court's judgment on any basis supported by the record." Sparks v. State, 2019 WY 50, ¶ 22,...
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