Freeman v. State

• Decision Date: 23 August 2019
• Docket Number: S-18-0261
• Citation: 448 P.3d 194
• Parties: Linda Marlene FREEMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

448 P.3d 194

Linda Marlene FREEMAN, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-18-0261

Supreme Court of Wyoming.

August 23, 2019

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Public Defender.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jay Jerde, Special Assistant Attorney General; Katherine A. Adams^* , Senior Assistant Attorney General; and Ewa C. Dawson, Senior Assistant Attorney General. Argument by Ms. Adams.

Before FOX, KAUTZ, BOOMGAARDEN, GRAY, JJ., and SNYDER, DJ.

SNYDER, District Judge.

[¶1] Linda M. Freeman appeals entry of a restitution order following an unconditional "no contest" plea to one count of exploitation of a vulnerable adult. She contends that the district court acted contrary to law in awarding restitution. We affirm.

ISSUES

[¶2] Ms. Freeman challenges the district court’s award of restitution. She raises four separate issues:

I. Whether the district court erred in ordering Ms. Freeman to pay restitution for amounts transferred after L.L. Freeman’s death.

II. Whether the district court’s order of restitution to the Estate of L.L. Freeman is valid.

III. Whether the failure to submit a plan of restitution invalidates the restitution order.

IV. Whether there was sufficient evidence to support the district court’s order of restitution of $532,890.80.

FACTS

[¶3] Ms. Freeman pled no contest to one count of exploitation of a vulnerable adult resulting from the misappropriation of her father-in-law’s property. In 2001, L.L. Freeman moved from Kansas City, Missouri, to Cheyenne, Wyoming, to be closer to his son. Mr. Freeman suffered from poor health, including dementia and other mental and physical health infirmities. Mr. Freeman passed away on August 7, 2007.

[¶4] While in Cheyenne, Mr. Freeman resided at the V.A. Medical Center (V.A.). Ms. Freeman often visited Mr. Freeman at the V.A. and obtained access to his bank accounts. Due to her relationship with Mr. Freeman and access to his accounts, Ms. Freeman transferred hundreds of thousands of dollars for her benefit. Ms. Freeman used these funds to purchase and build property. In February 2003, Mr. Freeman opened two financial accounts listing Ms. Freeman as a use co-signature and pay-on-death beneficiary and one joint account with survivorship rights. Between 2004 and 2007, Ms. Freeman made multiple withdrawals and transfers of money from Mr. Freeman’s accounts. After Mr. Freeman’s death, she transferred an additional $91,330.97 from his accounts.

[¶5] Mr. Freeman’s children and his Estate filed a civil action against Ms. Freeman in 2007. In 2010, a district court entered judgment against Ms. Freeman in the amount of $722,870.56, plus punitive damages. Ms. Freeman made one payment of $526.10 toward the judgment.

[¶6] Due to Ms. Freeman’s lack of payment, Mr. Freeman’s family contacted law enforcement to pursue criminal charges. In 2015, the State charged Ms. Freeman with one count of exploitation of a vulnerable adult under Wyo. Stat. Ann. § 6-2-507 (LexisNexis 2019). The State later dismissed the case without prejudice.

[¶7] In July 2016, the State re-filed the same charge, starting the current litigation. The State alleged Ms. Freeman withdrew, transferred and converted the amount of $684,738.22, between January 7, 2004, and December 5, 2007. Of that amount, $91,330.97 was transferred after Mr. Freeman’s death. In 2018, the parties entered into a Plea Agreement for Recommended Disposition in which Ms. Freeman would plead "no contest" and pay restitution in exchange for a recommended sentence.

[¶8] In July 2018, the district court sentenced Ms. Freeman to not less than eight nor more than ten years of incarceration, suspended in favor of ten years of probation. The district court took judicial notice of the civil judgment entered against Ms. Freeman. The court ordered restitution of $532,890.80. The court reached this figure based upon the civil award amount of $722,870.56 minus $189,979.76, the amount recovered from the sale of real estate and Ms. Freeman’s one-time payment. The Judgment and Sentence states restitution is payable to the Estate of L.L. Freeman, in accordance with a restitution plan to be prepared by the Department of Corrections, Division of Probation and Parole, and submitted to the court for approval. Ms. Freeman filed a timely notice of appeal.

STANDARD OF REVIEW

[¶9] Challenges to the court’s authority to order restitution are reviewed "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) (internal citations omitted)). Challenges to the factual basis for a restitution order are reviewed for procedural error or clear abuse of discretion. Id. However, "challenges to the factual basis of an award of restitution can be waived in certain circumstances by the defendant’s voluntary actions, such as entering into a plea agreement, and then failing to make any objection at sentencing." Merkison v. State , 996 P.2d 1138, 1142 (Wyo. 2000). Further, this Court has determined that "(b)y agreeing in their plea agreements to pay restitution for the property damage and by failing to object to the restitution amount, the appellants waived their rights to contest the restitution awards on appeal." Meerscheidt v. State , 931 P.2d 220, 226 (Wyo. 1997).

DISCUSSION

I. Whether the district court erred in ordering Ms. Freeman to pay restitution for amounts transferred after L.L. Freeman’s death.

[¶10] Ms. Freeman argues the district court’s restitution order is invalid because it includes $91,330.97 for funds transferred after Mr. Freeman’s death. As Ms. Freeman transferred a portion of the money after Mr. Freeman’s death, she contends the amount was not a pecuniary damage resulting from the criminal activity of exploiting a vulnerable adult.

[¶11] The Wyoming statute regarding restitution states:

In every case in which a claim for restitution is submitted, the court shall fix a reasonable amount as restitution owed to each victim for actual pecuniary damage resulting from the defendant’s criminal activity , and shall include its determination of the pecuniary damage as a special finding in the judgment of conviction or in the order placing the defendant on probation under W.S. 7-13-301.

Wyo. Stat. Ann. § 7-9-103(b) (LexisNexis 2019) (emphasis added).

[¶12] "Pecuniary damage" is defined as "all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event, including damages for wrongful death. It does not include punitive damages and damages for pain, suffering, mental anguish and loss of consortium." Wyo. Stat. Ann. § 7-9-101(a)(iii) (LexisNexis 2019). "Criminal activity" is defined as "any crime for which there is a plea of guilty, nolo contendere or verdict of guilty upon which a judgment of conviction may be rendered and includes any other crime which is admitted by the defendant, whether or not prosecuted." Section 7-9-101(a)(i).

[¶13] This clear statutory language provided authority for the district court to include the amount Ms. Freeman transferred after Mr. Freeman’s death in the restitution order because it was pecuniary damage resulting from her criminal activity. See Mathewson v. State, 2018 WY 81, ¶ 9, 431 P.3d 1121, 1123 (Wyo. 2018) (interpreting statutory language in accordance with the plain, ordinary and usual meaning of words). Regardless of whether the State could have included the amount Ms. Freeman transferred after Mr. Freeman’s death in the exploitation of a vulnerable adult charge, it was part of her criminal activity. She admitted to taking the money and it was clearly unlawful. Further, the amount obviously could be recovered in a civil action against Ms. Freeman as it already was included in the Estate’s civil judgment against her.

[¶14] This Court has held that to justify restitution, the defendant’s criminal activity must have been a proximate cause of damages or loss to the victim. Alcaraz v. State , 2002 WY 57, ¶ 9, 44 P.3d 68, 72 (Wyo. 2002). Further, this Court held that legal causation is "conduct which is a substantial factor in bringing about the injuries." Id. (citing Buckley v. Bell, 703 P.2d 1089, 1091 (Wyo. 1985) ). However, if "the conduct created only a condition or occasion for the harm to occur, it would be regarded as a remote, not a proximate, cause and would not be a substantial factor in bringing about the harm." Id. (citing Buckley, 703 P.2d at 1092 ).

[¶15] We discuss Ms. Freeman’s evidentiary challenge to the restitution order in more detail, supra . However, at this juncture, we note that, to the extent Ms. Freeman claims there is an insufficient factual basis to include the $91,330.97 in the restitution award, she waived her factual challenge. Any argument that the $91,330.97 factually is not appropriately included in the restitution total ignores that Ms. Freeman knowingly and voluntarily entered into a plea agreement with the provision that she pay restitution to all victims for her criminal acts. Ms. Freeman did not object at the sentencing hearing to the court’s authority to enter restitution on behalf of the Estate, nor did she challenge the amount of restitution. Accordingly, she waived her right to contest the restitution award on appeal. Merkison , 996 P.2d at 1142 ; Meerscheidt , 931 P.2d at 226.

II. Whether the district court’s order of restitution to the Estate of L.L. Freeman is valid.

[¶16] Ms. Freeman challenges the district court’s authority to order restitution to the Estate of L.L. Freeman as opposed to individual victims.

[¶17] Wyoming law states, "the court shall fix a reasonable amount as restitution owed to each victim."...