Grubb v. State

Decision Date25 February 2022
Docket NumberCourt of Appeals No. A-13074
Citation506 P.3d 791
Parties Brennan Adam GRUBB, Appellant, v. STATE of Alaska, Appellee.
CourtAlaska Court of Appeals

Renee McFarland, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.

OPINION

Judge WOLLENBERG.

Brennan Adam Grubb pleaded guilty to one count of second-degree sexual abuse of a minor after a series of incidents involving nine-year-old M.M. The superior court ordered Grubb to pay $216,307.55 in restitution, the majority of which compensated M.M.’s mother, T.R., for future lost wages and benefits after she resigned from her job as a public school teacher to care for M.M.

Grubb challenges, on a number of grounds, the portion of the restitution judgment awarding future lost wages and benefits. Principally, he contends that his criminal conduct was not the proximate cause of T.R.’s future lost wages and benefits. Stated differently, he asserts that T.R.’s losses resulted from a number of discretionary decisions that T.R. made and are therefore too attenuated from his criminal conduct to be compensable.

Because Alaska law establishes that the lost wages and benefits incurred under the circumstances of this case are not recoverable in a civil suit, and because restitution is not intended to allow for greater recovery in a criminal case than a victim would otherwise be entitled to recover under tort law, we conclude that the challenged portion of the restitution order awarding future lost wages and benefits must be vacated.

Underlying facts and proceedings

In October 2014, Brennan Grubb was charged with five counts of attempted first-degree sexual abuse of a minor for engaging in multiple sexual acts with nine-year-old M.M.1 Grubb, who was sixteen years old at the time of the offenses, was automatically charged as an adult pursuant to AS 47.12.030.

Pursuant to an agreement with the State, Grubb ultimately pleaded guilty to a single count of second-degree sexual abuse of a minor.2 The court sentenced him to 30 years with 20 years suspended (10 years to serve) and a 10-year term of probation. As part of his plea agreement, Grubb also agreed to pay restitution in an amount to be determined by the court within ninety days of sentencing.

Almost a year later, after two extension requests, the State submitted a proposed restitution judgment of $20,700.35 — which included reimbursement of approximately $9,000 to the State of Alaska Violent Crimes Compensation Board for payments to T.R., as well as restitution of approximately $11,000 to T.R. for the installation and maintenance of a security system at her home and M.M.’s future counseling costs. Grubb's attorney filed a partial objection to the proposal, asserting that portions of it were too speculative or not compensable in restitution. The attorney also requested an evidentiary hearing.

Prior to the hearing, the State filed an amended proposal, increasing its request from just over $20,000 to a total of $216,307.55. This amount included the restitution previously sought as reimbursement to the Violent Crimes Compensation Board ($6,575.43 of which compensated T.R. for her salary lost to date, as she had scaled back her teaching responsibilities to care for M.M. during the 2014-15 school year), as well as restitution to T.R. for the home security system ($5,233.04), M.M.’s past counseling costs ($2,364), and a portion of T.R.’s past lost wages that had not been compensated by the Violent Crimes Compensation Board. The State no longer sought restitution for M.M.’s future counseling costs.

The bulk of the amended proposal — $197,038 — was related to a new request for T.R.’s future lost wages and benefits: $52,144 for T.R.’s estimated diminished future salary and $144,894 for T.R.’s corresponding diminished retirement benefits. Included with the proposed judgment was a document prepared by T.R. outlining how she had calculated her future losses.

At the evidentiary hearing, T.R. testified that she resigned from her position as a public school teacher at the end of the 2014-15 school year, after sixteen years of service, so that she could better support M.M. T.R. testified that, following the abuse, M.M. was diagnosed with post-traumatic stress disorder

, had trouble feeling safe at home, and struggled with school. M.M.’s needs were time-consuming, and T.R. explained that attending to them often disrupted her teaching and caused her to be late for work. After being reprimanded for tardiness by her supervisor, T.R. ultimately felt unable to balance M.M.’s needs with her teaching responsibilities and her own well-being. Although T.R. could have taken a leave of absence instead of resigning, she explained why she chose not to do so: she was told that district policies prohibited her from pursuing her part-time job as a realtor while on leave, and she would have had no control over the time frame of her return or the position to which she returned.

T.R. stated that, at the time of her resignation, she had planned to teach for at least four more years, as she would be eligible for basic retirement after twenty years of service. According to T.R., her resignation impacted her progress along the school district's salary scale, which in turn affected the amount of her retirement benefits. If she returned to teaching, she would receive some credit for her previous experience, but she would not be restored to her former pay grade.

T.R. testified that she calculated the amount she was requesting for future lost wages — $52,144 — by estimating the difference between what she believed she would have earned over a four-year period if she had not resigned, and what she believed she would earn over a four-year period if she returned to teaching at a reduced salary and received a 2.5 percent pay raise each year thereafter.3 As for her retirement benefits, T.R. testified that, had she continued teaching, she would have been able to retire at age forty-two, and — based on her estimate that women in Alaska have an average life expectancy of eighty years — she calculated that she "could be losing out on as much as $144,894 over [her] lifetime."

On cross-examination, T.R. explained why she believed that Grubb should pay her restitution for lost wages and benefits, stating, "I can say with 100 percent certainty that I left teaching because of Mr. Grubb's actions." But she acknowledged that nobody forced her to resign and that she had the option of taking a leave of absence to care for M.M. instead of resigning.4

At the time of the hearing, T.R. felt that M.M. had improved enough for her to return to teaching. She had applied for a position but, because the school district was experiencing layoffs, she did not receive an interview.

Grubb's attorney opposed the amended proposal on numerous grounds. He argued, inter alia , that Grubb's conduct was not the proximate cause of T.R.’s future losses and that her future losses were too speculative to be compensable.

The superior court rejected Grubb's challenges and, crediting T.R.’s calculations and testimony, entered a judgment of restitution in the full amount requested by the State.

Grubb now appeals.

Why we vacate the restitution judgment and remand for entry of an amended judgment that does not include T.R.’s estimated future wage and benefit losses

On appeal, Grubb raises a number of challenges to the portion of the restitution judgment awarding $197,038 to T.R. for her future lost salary and benefits.

Chief among Grubb's challenges to T.R.’s lost wages and benefits are Grubb's contentions that these losses were too speculative to be compensable — and that, although the trial court could properly find that Grubb's conduct was the "but for" cause of T.R.’s losses, the trial court failed to properly evaluate whether Grubb's criminal conduct was the legal cause (i.e. , the proximate cause) of the particular losses challenged. Grubb also argues that the trial court failed to consider whether the award to T.R. for future losses should be offset by the mitigating effect of T.R.’s real estate earnings and reduced to present value. Finally, Grubb asserts that, in the event T.R.’s future lost wages and benefits are validly subject to a restitution order under state law, this portion of the restitution judgment violates the prohibition on excessive fines under the United States and Alaska Constitutions.5

Alaska's restitution statutes provide that, unless a victim declines restitution, a court shall order restitution for the actual damages or loss caused by the conduct for which the defendant was convicted.6 In particular, AS 12.55.045(a) authorizes restitution, as a direct component of a sentence, "to the victim or other person injured by the offense[.]"7 And AS 12.55.100(a)(2)(B) authorizes restitution, as a condition of probation, "to aggrieved parties for actual damages or loss caused by the crime for which conviction was had[.]"8

The purpose of the restitution statutes is to "make full restitution available to all persons who have been injured as a result of criminal behavior, to the greatest extent possible."9 At the same time, because restitution is intended to allow crime victims and others who have suffered losses as a result of a defendant's criminal conduct to recover monetary damages that would otherwise be subject to recovery only in a civil suit, we have recognized that a person injured by a defendant's criminal conduct may not recover more than the person could recover in a civil case based on the same conduct.10 Indeed, the legislature has declared that a restitution order is "a civil judgment for the amount of restitution" that can be enforced "through any procedure authorized by law for the enforcement of a civil judgment."11

Accordingly, we employ a test of...

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