Kahlsdorf v. State, No. 90-162

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before THOMAS, CARDINE, MACY and GOLDEN, JJ., and TAYLOR; CARDINE; GOLDEN, Justice, dissenting, with whom MACY
• Citation: 823 P.2d 1184
• Parties: Ann KAHLSDORF, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Decision Date: 31 December 1991
• Docket Number: No. 90-162

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823 P.2d 1184 Ann KAHLSDORF, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff). No. 90-162. Supreme Court of Wyoming. Dec. 31, 1991.

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Leonard D. Munker, State Public Defender, Steven E. Weerts, Senior Asst. Public Defender, and Donald K. Slaughter, Legal Intern (argued), for appellant.

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Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Karen A. Byrne, Senior Asst. Atty. Gen., Theodore E. Lauer, Director, Prosecution Assistance Program, and Lawrence Saunders, Student Intern (argued), for appellee.

Before THOMAS, CARDINE, MACY and GOLDEN, JJ., and TAYLOR, District Judge.

CARDINE, Justice.

Ann Kahlsdorf appeals from an order sentencing her to one to ten years in prison for larceny by bailee under W.S. 6-3-402(b) and (c)(i) (1984 Cum.Supp.). This sentence was imposed after her probation was revoked for failure to file monthly probation reports and willful failure to pay ordered restitution.

We affirm.

Appellant raises the following issues:

"I. Whether it was proper for the trial court to extend appellant's probation in violation of Wyoming Statute 7-13-203 (1977) and King v. State, 720 P.2d 465 (Wyo.1986).

"II. Whether restitution was improperly ordered.

"III. Whether, when the trial court revoked appellant's probation for failure to pay restitution, its action violated the United States Supreme Court's decision in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).

"IV. Whether appellant's right to speedy sentencing was violated."

FACTS

Appellant's protracted journey through the justice delivery system began on August 20, 1984. On that day, she confessed to her supervisor that she had embezzled large sums of money while working as a bookkeeper for Pengo Wireline. Mrs. Kahlsdorf had taken checks entrusted to her by the company, endorsed them with her supervisor's signature and her own, cashed them, and kept the money.

At first, Mrs. Kahlsdorf had used the money to pay off old medical bills and to help her family get out of debt. But before long she began to purchase expensive consumer goods: a $1200.00 sewing machine, two television sets, an exercise bicycle, down payment on a car, trips to Jackson, Yellowstone and California, and other items. In all, Mrs. Kahlsdorf admitted to embezzling $51,000.00 before her conscience finally drove her to confess. According to her calculations, she was able to return unspent $6,315.96. This left Pengo Wireline, or more precisely the bank's insurance company, with a net loss which appellant estimated at $44,684.04.

The State elected to charge appellant with larceny of a single one of the larger checks, amounting to $18,090.00. She was charged with violating W.S. 6-3-402(b) and (c)(i) (1984 Cum.Supp.):

"(b) A bailee, a public servant as defined by W.S. 6-5-101(a)(vi) or any person entrusted with the control, care or custody of any money or other property who, with intent to steal or to deprive the owner of the property, converts the property to his own or another's use is guilty of larceny.

"(c) Except as provided by subsection (e) of this section, larceny is:

"(i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of the property is five hundred dollars ($500.00) or more."

Appellant pled guilty to the charge of larceny by bailee. Because of her "exemplary conduct" in cooperating with the authorities, her lack of a prior record, and other factors, the prosecutor agreed with appellant counsel's recommendation of supervised probation. As a condition of her probation, he requested that she be ordered to make monthly restitution payments for the money she had embezzled.

Two procedural difficulties cropped up at the sentencing hearing, at which the trial court ordered probation for Mrs. Kahlsdorf. First, the parties could not, and did not, agree on the amount of restitution due, and so the court left the amount open. Second, the trial court did not state under

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which statute, W.S. 7-13-301 or 7-13-203, it was "suspending and delaying" the judgement and sentence of the court and imposing probation. Instead, the trial court cited both statutes in its written order, and "7-13-203 and 7-13-302 [sic]" in its oral ruling.

After the trial court handed down its sentence, the department of probation prepared a restitution plan. The plan stated that Mrs. Kahlsdorf had embezzled a total of $48,289.35. She would repay this at the rate of $412.72 per month for 116 months and make a final payment of $413.83 in the 117th month. The payments would begin in July 1985. Mrs. Kahlsdorf signed the agreement, as did the trial judge and the prosecutor.

Barely six months later, on January 15, 1986, the clerk of court received a letter from Mrs. Kahlsdorf containing the September, October and November, 1985 payments and promising to remit December's payment "in two weeks." On February 18, 1988, the prosecutor moved for, and the court granted, an order to show cause why appellant should not be brought before the court for failure to make her restitution payments.

In response, appellant wrote the court a letter detailing her difficulties in making restitution payments. Appellant stated she planned to mail her federal and state income tax refunds of about $800.00 to the court. (She never did so.) She also promised to try to send $700.00 per month toward restitution.

The court held a hearing on the State's motion on March 23, 1988. Appellant did not appear. The court determined that her letter had "shown cause," and it did not hold her in contempt for failure to make payments. The prosecutor stated that he did not know, based on the documentation he had at that point, whether her failure to make restitution payments was willful.

No further action was taken until August 8, 1988, when after further missed payments the prosecutor again moved for an order to show cause. When appellant did not appear at the hearing, the prosecutor moved for revocation of probation, and the court issued a bench warrant for her arrest. Appellant returned to Wyoming for a probation revocation hearing, which took place on December 1, 1988.

At the hearing, appellant presented information concerning her financial condition and her alleged inability to pay restitution. It was established that she had paid a total of $3,858.00 in restitution since 1985. The court found that Mrs. Kahlsdorf had willfully failed to pay restitution. It revoked the probation that had been previously ordered and imposed a suspended sentence on Mrs. Kahlsdorf. Appellant was ordered to pay $320.00 per month towards restitution and to make monthly reports to her probation officer. The court sent Mrs. Kahlsdorf back to California with the admonition that she had "one foot in the grave and the other one on a banana peel."

On January 23, 1989, Mrs. Kahlsdorf filed her first and only monthly probation report under the court's new order. The State filed an Amended Motion for Revocation of Probation and Issuance of Bench Warrant on May 22, 1989. This motion charged that Mrs. Kahlsdorf had missed her December 1988, and February, April and May, 1989 restitution payments and had filed no monthly reports since January 1989.

No hearing was held on this motion until a year later, when Mrs. Kahlsdorf was brought into court on May 23, 1990. On May 30, 1990, the trial court held a probation revocation hearing. Appellant's probation officer testified as to delinquent notices she had sent to appellant and to the fact that she had only received two payments from appellant and only one monthly report.

The trial court revoked Mrs. Kahlsdorf's probation for failure to file reports and willful failure to pay restitution. It sentenced her to one to ten years in the penitentiary. Appellant took timely appeal from this order.

DISCUSSION

Standard of Review

The decision to revoke probation lies within the sound discretion of the trial

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court. We will not disturb the court's decision absent a clear showing of abuse of that discretion. Lower v. State, 786 P.2d 346, 351 (Wyo.1990); Chapman v. State, 728 P.2d 631, 634 (Wyo.1986).

Probation Greater than Allowable Maximum

Appellant makes two arguments concerning the length of her probation. The first is that the initial order placing her on probation for ten years was in excess of the court's jurisdiction under W.S. 7-13-203 (Dec.1977 Repl.). The second is that the subsequent order revoking her first probation after she had already served nearly three years and seven months and placing her on probation for another ten years caused her overall probation time improperly to exceed the maximum allowable term for the offense. We will deal with each of these arguments separately.

In order to properly discuss appellant's first contention, we must determine whether appellant was placed on probation under W.S. 7-13-203 (Dec.1977 Repl.) or W.S. 7-13-301 (Dec.1977 Repl.). The trial court cited both statutes in its order imposing probation. However, probation must clearly fall under either one provision or the other. These two provisions contain different language and were designed to serve different functions.

Wyoming Statute 7-13-203 (Dec.1977 Repl.), or "old 203," was a provision for "first offender status." The current version of this statute, which differs in some respects from "old 203," is found at W.S. 7-13-301 (June 1987 Repl.). (For a detailed discussion of how "old 203" became the current 7-13-301, and how "old 301" became the current 7-13-302, see Billis v. State, 800 P.2d 401, 410-12 (Wyo.1990).) "Old 203" provided as follows:

"If any person is found guilty of or pleads guilty to any felony except murder, sexual assault in the first or second degree or arson of a dwelling house or other human habitation in the actual occupancy of a human being, the court shall ascertain whether the offense of which the accused...