Igbinovia v. State
| Decision Date | 25 May 1995 |
| Docket Number | 24312 and 24202,Nos. 24071,s. 24071 |
| Citation | 895 P.2d 1304,111 Nev. 699 |
| Parties | Enoma Uyg IGBINOVIA, Appellant, v. The STATE of Nevada, Respondent. Leroy Roosevelt MACK, Appellant, v. The STATE of Nevada, Respondent. Michael Vern MENZELLI, Jr., Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Morgan D. Harris, Public Defender, and Howard S. Brooks, Deputy Public Defender, Clark County, for appellants.
Frankie Sue Del Papa, Atty. Gen., Carson City, and Stewart L. Bell, Dist. Atty., and James Tufteland, Deputy Dist. Atty., Clark County, for respondents.
These consolidated appeals require us to decide whether district court judges possess the statutory authority to order a person convicted of violating the narcotics laws of this state to reimburse the arresting authorities for the outlay of "buy money," the funds expended by police departments to obtain conclusive evidence of an offender's guilt, either by imposing the requirement as part of the sentence or as a condition of probation.
We hold that the restitution portion of the sentencing statute does not accord the authority to order restitution of "buy money," but that the broader language of the statute allowing for restitution as a condition of probation does accord such authority. We therefore vacate the restitution portion of the sentence imposed upon appellant Enoma Uyg Igbinovia (Igbinovia) and let stand the restitution probation conditions imposed upon appellants Leroy Roosevelt Mack (Mack) and Michael Vern Menzelli, Jr. (Menzelli).
On July 18, 1992, an undercover narcotics officer of the Las Vegas Metropolitan Police Department (Metro) purchased one- eighth of an ounce of marijuana from Igbinovia for $25. The next day Igbinovia sold the same officer $40 worth of marijuana, and on September 3, 1992, Igbinovia and a co-defendant sold one-quarter of an ounce of cocaine to an undercover Metro officer for $350. Igbinovia was charged with three counts of sale of a controlled substance, and one count of trafficking a controlled substance.
Pursuant to a plea bargain, Igbinovia pleaded guilty to one count of possession of a controlled substance with intent to sell. Igbinovia was thereafter convicted on the single count to which he pleaded guilty. The Department of Parole and Probation, in a pre-sentence report, recommended that Igbinovia be "held accountable" for the $65 spent to purchase the marijuana and one-half of the $350 spent to purchase the cocaine. The department stated that, "Therefore, total restitution owed by the defendant would be $240." The district court judge sentenced Igbinovia to a prison term, and required, as part of his sentence, that he pay $240 in restitution to Metro.
On March 9, 1992, appellant Mack sold 5.3 grams of cocaine to an undercover officer of the North Las Vegas Police Department (the department). He was charged by information with trafficking a controlled substance. Mack pleaded guilty to the lesser charge of possession of a controlled substance with intent to sell, and was sentenced to three years in prison. The judge suspended the sentence in its entirety and placed Mack on probation "for an indeterminate period of time not to exceed five (5) years," with special conditions, including the requirement that Mack pay $400 in restitution to the department.
On August 30, 1990, detective Jimmy Vaccaro (Vaccaro) went to appellant Menzelli's home, where Vaccaro and Menzelli waited until a third man, Ricardo, arrived. Ricardo produced cocaine from his pocket and handed it to Menzelli, whereupon Menzelli turned it over to Vaccaro. Vaccaro asked Ricardo how much he wanted for the cocaine, and Ricardo answered, "Whatever you and Mike [Menzelli] have worked out." Vaccaro then paid $340 to Menzelli, who handed the money to Ricardo. Vaccaro left the premises without arresting either man. Menzelli was arrested later and charged with trafficking a controlled substance.
Menzelli pleaded guilty to a reduced charge of possession of a controlled substance, and was sentenced to three years in prison. The district court judge suspended the sentence in its entirety and placed Menzelli on probation "for an indeterminate period not to exceed four (4) years." As one of several special conditions of probation, Menzelli was ordered to pay $170 restitution during the first year of probation, representing one-half of the "buy money" spent to purchase the cocaine. Each of the appellants now contest the restitution orders.
We first address appellant Igbinovia's claim--that the district judge who sentenced him lacked statutory authority to order him, as a part of his sentence, to pay restitution to Metro for the money Metro expended in buying marijuana and cocaine from him. The statutory basis in Nevada for ordering restitution as part of a sentence is NRS 176.033, which provides, in relevant part:
Sentence of imprisonment required or permitted by statute; Definite period; restitution; modification of sentence.
1. If a sentence of imprisonment is required or permitted by statute, the court shall:
(a) Sentence the defendant to imprisonment for a definite period of time ...; and
(b) If restitution is appropriate, set an amount of restitution for each victim of the offense and for expenses related to extradition....
(Emphasis added.) The precise question, then, is whether Metro is a "victim" within the meaning of NRS 176.033.
The legislature did not define "victim" in NRS 176.033 or elsewhere in the statutory scheme within which the provision falls. The legislature has defined "victim" in a wholly separate provision of the Nevada Revised Statutes. See NRS 213.005. That statute provides, in relevant part:
As used in NRS 213.010 to 213.100 [], inclusive, unless the context otherwise requires:
2. "Victim" includes:
(a) A person against whom a crime has been committed;
(b) A person who has been injured or killed as a direct result of the commission of a crime; or (c) The surviving spouse, parents or children of such a person.
In enacting NRS 176.033, the legislature did not cross-reference the definition of "victim" found in NRS 213.005, although it could have; 1 as a result, the legislature did not incorporate the definition into the sentencing statute. We are therefore left to interpret the word "victim" within the policy of the sentencing statute and to discern whether the legislature envisioned that police departments which expend money to obtain evidence are "victims" within the meaning of the sentencing statute.
We find it useful to look to other state court decisions that have directly considered this issue. The overwhelming number of these courts have determined that police departments are not "victims" within the meaning of sentencing statutes allowing restitution to "victims of the offense" for which a defendant has been convicted. See, e.g., People v. Chaney, 188 Ill.App.3d 334, 135 Ill.Dec. 733, 734, 544 N.E.2d 90, 91 (1989); People v. Evans, 122 Ill.App.3d 733, 78 Ill.Dec. 50, 55, 461 N.E.2d 634, 639 (1984); People v. Woods, 177 A.D.2d 731, 576 N.Y.S.2d 611, 612 (1991) (); People v. Rowe, 152 A.D.2d 907, 544 N.Y.S.2d 97, 98-99 (1989) (same); State v. Evans, 181 Wis.2d 978, 512 N.W.2d 259, 261 (Ct.App.1994); see also U.S. v. Meacham, 27 F.3d 214 (6th Cir.1994).
In Chaney, 135 Ill.Dec. at 734, 544 N.E.2d at 91, the court noted that "where public money is expended in pursuit of solving crimes, the expenditure is part of the investigating agency's normal operating costs and the agency is not considered a 'victim' for purposes of restitution." In Evans (Wisconsin), 512 N.W.2d at 261, the Wisconsin Court of Appeals found that the state was not a "victim" under its sentencing statute and it distinguished and left intact its prior holding that restitution of "buy money" is only appropriate as a condition of probation unless and until the legislature specifically directs otherwise. The same court had earlier stated that State v. Connelly, 143 Wis.2d 500, 421 N.W.2d 859, 861 (Ct.App.1988) (emphasis added). Although the court acknowledged its earlier statement, it nevertheless held that the "victim" in an arranged drug buy is not the police department. 512 N.W. at 260-61.
In Evans (Illinois), 78 Ill.Dec. at 55, 461 N.E.2d at 639, the court held that the government will not be considered a "victim" to the extent that public monies--which represent a normal operating cost--are expended to collect evidence of crime. The court specifically stated:
While certainly we would be remiss were we to hold that unlawful delivery is a victimless crime, we would be blinking reality were we not to acknowledge that many, if not most, offenders are brought to justice through the efforts of undercover agents making buys with public monies. We will not, however, strain the commonly accepted understanding of the word "victim" so as to include the public drug enforcement agency ... in the case before us. Where public monies are expended in the pursuit of solving crimes, the expenditure is part of the investigating agency's normal operating costs. The governmental entity conducting an investigation is not therefore considered a "victim" to the extent that public monies are so expended.
Id. ().
In Meacham, 27 F.3d at 218, the court held that restitution may not be awarded as part of a sentence under the federal ...
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...agency could not be considered a victim for purposes of restitution pursuant to NRS 176.033. The Court looked to Igbinovia v. State, 111 Nev. 699, 895 P.2d 1304 (1995), in which it had recently held that a law enforcement agency that set up a drug sting was not a "victim" eligible to receiv......
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State v. Shears
...544 N.E.2d 90, 91 (1989) ; People v. Evans , 122 Ill.App.3d 733, 78 Ill.Dec. 50, 461 N.E.2d 634, 639 (1984) ; Igbinovia v. State , 111 Nev. 699, 895 P.2d 1304, 1308–09 (1995) ; State v. Evans , 181 Wis.2d 978, 512 N.W.2d 259, 261 (Ct. App. 1994). For example, in People v. Evans , the court ......
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