McCullough v. Com., Record No. 1564-01-1.

• Decision Date: 27 August 2002
• Docket Number: Record No. 1564-01-1.
• Citation: 38 Va. App. 811,568 S.E.2d 449
• Parties: Sue Ann McCULLOUGH v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

568 S.E.2d 449

38 Va. App. 811

Sue Ann McCULLOUGH v. COMMONWEALTH of Virginia.

Record No. 1564-01-1.

Court of Appeals of Virginia, Chesapeake.

August 27, 2002.

Christopher P. Reagan, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and ANNUNZIATA, J., and OVERTON, Senior Judge. ANNUNZIATA, Judge.

At a bench trial, Sue Ann McCullough was convicted of two counts of misdemeanor welfare fraud and sentenced to twelve months incarceration, all suspended. In addition, pursuant to Code § 19.2-305(B), the trial court ordered McCullough to make restitution in the amount of $5,054.07 as a condition of her probation. McCullough appeals the trial court's`imposition`of this condition. For the reasons that follow, we affirm the trial court's decision.

Background

A grand jury indicted McCullough for welfare fraud in excess of $2000, a felony. At trial, the Commonwealth proved beyond a reasonable doubt that Sue Ann McCullough committed welfare fraud against the Suffolk Department of Social Services. However, the Commonwealth failed to prove beyond a reasonable doubt the amount by which McCullough was overpaid as a result of her fraudulent conduct. She was accordingly convicted only of two counts of petit larceny, in violation of Code § 18.2-96, which defines "petit larceny" as the "commi[ssion] of simple larceny not from the person of another of goods and chattels of the value of less than $200." Code § 18.2-96. Notwithstanding the failure of proof`during the guilt phase of the trial regarding the amount by which the Department was defrauded, the trial court at sentencing ordered restitution in the amount of $5,054.07, noting`a different burden of proof applied to the determination of restitutions amounts and`holding that the Commonwealth proved the damages sustained by the agency by a preponderance of the evidence. The parties do not dispute these facts.

Analysis

McCullough contends that by ordering restitution in an amount greater than that proved in the guilt phase of the trial, the trial court erred as a matter of law. This question is one of first impression in Virginia. For the reasons that follow, we hold that the trial court did not err in the imposition of restitution in an amount greater than that proved in the guilt phase of the trial and affirm the decision of the trial court.

The trial court conditioned McCullough's probation on payment of restitution to the agency in the amount of $5,054.07 pursuant to Code § 19.2-305(B), which provides, in pertinent part:

A defendant placed on probation following conviction may be required to make at least partial restitution or reparation to the aggrieved party or parties for damages or loss caused by the offense for which the conviction was had.

In addition, Code § 19.2-305.1(A1) provides that one convicted of a crime "shall make at least partial restitution for any property damage or loss caused by the crime .." Under these statutes, the trial court has "`wide latitude' and much `discretion to [apply the] remedial tool [of restitution] in the rehabilitation of criminals' ...." Deal v. Commonwealth, 15 Va.App. 157, 160, 421 S.E.2d 897, 899 (1992) (quoting Nuckoles v. Commonwealth, 12 Va.App. 1083, 1085-85, 407 S.E.2d 355, 356 (1991)). As such, the statutory provisions are to be liberally construed. Id.; Bazemore v. Commonwealth, 25 Va.App. 466, 468, 489 S.E.2d 254, 255 (1997).

The statutory scheme for ordering restitution was established by the Virginia legislature as a conjunct of suspended sentences. Its purpose is to help make the victim of a crime whole. See generally, Alger v. Commonwealth, 19 Va.App. 252, 450 S.E.2d 765 (1994); see also Russnak v. Commonwealth, 10 Va.App. 317, 322, 392 S.E.2d 491, 493 (1990).¹ Although historically denominated a criminal penalty,² restitution under Virginia law may be more accurately characterized as quasi-civil in nature. Restitution is a monetary amount that reflects the "damages" or "loss" caused by the crime. Code § 19.2-305(B). Part of the sentencing phase of trial, the amount is determined following conviction and is a matter resting within the sole province of the sentencing judge. See Code § 19.2-305.1(C) ("At the time of sentencing, the court, in its discretion, shall determine the amount to be repaid by the defendant and the terms and conditions thereof."); Frazier v. Commonwealth, 20 Va.App. 719, 721-22, 460 S.E.2d 608, 609 (1995) (noting that restitution "is a well established sentencing component .. ."). It is based on facts proved either at the trial of the offense or at the sentencing hearing, where both the defendant and the Commonwealth have an opportunity to present relevant evidence on the issue. Cf. Deal, 15 Va.App. at 159-61,421 S.E.2d at 898-900 (considering evidence from both the offense trial and the sentencing hearing to determine whether the imposed amount of restitution was reasonable). Clearly, then, the amount of restitution that may be imposed as a condition of probation is not an element of the offense that must be proved during the guilt phase of the trial, and its determination may properly be viewed as distinct from the determination of guilt. See Code § 19.2-295.1 (mandating separate proceedings for conviction and sentencing of felonies); Deal, 15 Va.App. at 160,421 S.E.2d at 899 ("Following conviction in a criminal proceeding, trial courts are specifically vested with the authority to suspend the sentence in whole or part, suspend [its] imposition and ." place the accused on probation, all under such conditions as the court shall determine. Among such conditions, restitution for `damages or loss' caused by the offense is expressly recognized and approved in several statutes." (internal quotations omitted)).

In addition to the principles enunciated above, different rules of procedure apply, further confirming that restitution is to be treated as distinct and separate from the trial and conviction for the offense. Such rules do not and need not mirror those required for conviction. See Hollis v. Smith, 571 F.2d 685,...