Merkison v. State

• Citation: 996 P.2d 1138
• Decision Date: 17 February 2000
• Docket Number: No. 98-102.,98-102.
• Parties: Benjamin MERKISON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

996 P.2d 1138

Benjamin MERKISON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 98-102.

Supreme Court of Wyoming.

February 17, 2000.

Representing Appellant: Sylvia Lee Hackl, State Public Defender, Donna D. Domonkos, Assistant Public Defender; Diane Courselle, Wyoming Defender Aid Program; and Anthony M. Reyes, Student Intern. Argument by Mr. Reyes.

Representing Appellee: Gay V. Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Jenifer E. Scoggin, Student Intern. Argument by Ms. Scoggin.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

HILL, Justice.

Benjamin Merkison (Appellant) appeals from that portion of his sentence imposing restitution to the Division of Criminal Investigation (DCI).

We affirm.

ISSUES

Appellant presents a single issue for our review:

Whether the trial court erred when it awarded restitution to the Division of Criminal Investigation of funds voluntarily expended making undercover drug buys[.]

The State presents its position in the form of three issues:

I. May Appellant challenge the district court's restitution order after he has signed an agreement to pay restitution and has made the payments, without objection, or after he has served his prison sentence and been discharged from parole?

II. Was the Division of Criminal Investigation a "victim" within the meaning of Wyo. Stat. § 7-9-101, so that the district court properly ordered restitution of the "buy money" paid to purchase methamphetamine?

III. Did the district court properly order Appellant to pay restitution in the amount of $100.00?

DISCUSSION

Appellant was convicted of conspiracy to deliver a controlled substance, methamphetamine, in violation of Wyo. Stat.1977, as amended, §§ 35-7-1031(a)(i) and 35-7-1042. During the trial, there was testimony from an undercover DCI agent that he had purchased $100.00 of methamphetamine from Appellant. Appellant's presentence investigation report contained a statement under the Restitution and Costs section wherein DCI requested restitution for $100.00 in an apparent bid to recoup the costs of its drug purchase. At sentencing, while Appellant objected to various aspects of the presentence investigation report, he did not raise any objection to the DCI request. The trial court ordered that Appellant pay $100.00 in restitution to DCI as part of his sentence.

Appellant subsequently signed a "Payment Agreement" wherein he agreed to pay costs that were assessed against him as part of his sentencing, including the $100.00 restitution. On May 5, and June 9, 1997, Appellant made two payments to the clerk of the district court totaling $200.00 with a portion of it specifically designated as restitution.

On appeal from his conviction, Appellant has contested only that portion of his sentence which required him to pay restitution to DCI. Appellant contends that DCI was not "damaged," nor was it a "victim," as those terms are used in the Wyoming statutes authorizing restitution. Appellant also challenges the sufficiency of the evidence supporting the amount of restitution ordered.

The State initially counters Appellant's claim by arguing that he is procedurally barred from attacking the restitution order since he failed to object to the restitution at sentencing. In the alternative, the State maintains this Court no longer has jurisdiction over the issue since Appellant has served his sentence and been discharged from parole. The State goes on to argue that DCI is a "victim" who has suffered "pecuniary damage" under the restitution statutes, and that the amount ordered is supported by sufficient evidence.

Jurisdiction

As an initial matter, we must address the State's contention that we do not have jurisdiction over this appeal since Appellant has served his sentence and been discharged from parole. The basis for the State's argument is our decision in Brunsvold v. State, 864 P.2d 34 (Wyo.1993). In Brunsvold, the defendant challenged the legality of a restitution order. 864 P.2d at 36. Two days prior to the district court's determination of his motion, Brunsvold was discharged from probation. Id. The district court initially granted Brunsvold's motion but then subsequently rescinded its order, and Brunsvold appealed. Id. On appeal we held that Brunsvold's discharge from probation terminated the district court's jurisdiction over him. 864 P.2d at 37. In this case, the State argues that since Appellant has served his sentence and been discharged from parole, this Court no longer has jurisdiction over him pursuant to our decision in Brunsvold.

The State's reliance upon Brunsvold in this instance is misplaced. In Brunsvold the key to our ruling was that the trial court no longer had jurisdiction over the defendant when it ruled on his motion challenging the legality of the restitution because he had been discharged from probation. 864 P.2d at 37. In this case, there is no question that the trial court had jurisdiction when it entered its sentence against Appellant imposing restitution. What the State is really challenging, then, is the appellate jurisdiction of this Court. Procedurally, this case is before us upon Appellant's initial appeal from his conviction and sentence. Wyoming law is clear on this point:

In Wyoming, every defendant in a criminal case is entitled to an initial appeal as a matter of right.

Smith v. State, 902 P.2d 1271, 1284 (Wyo.1995); Farbotnik v. State, 850 P.2d 594, 599 (Wyo.1993). Since the district court had jurisdiction to impose sentence on Appellant and this is his initial appeal, this Court clearly has appellate jurisdiction over the matter.

Restitution

The provisions of the restitution statutes relevant to this appeal are set out in Wyo. Stat. Ann. § 7-9-101(a)(iii) and (v) (LEXIS 1999), which provides:

(iii) "Pecuniary damage" means 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 ....

(v) "Victim" means a person who has suffered pecuniary damage as a result of a defendant's criminal activities.

We addressed these provisions in Meerscheidt v. State, 931 P.2d 220 (Wyo.1997). In that case, the defendants had entered into plea agreements which included paying restitution to the victims. On appeal, the defendants raised four challenges to the restitution order of the trial court. Two dealt with factual issues relating to the amount of damages. The first concerned the amount of restitution awarded for damages to one of the victims' dining room table. 931 P.2d at 224-226. We concluded that the defendants had waived their rights to challenge the amount of damages to the table by agreeing to pay pursuant to their plea agreements and by failing to object to the amount. 931 P.2d at 226. We went on to note that the amount was, in any event, supported by the facts in the record. Id. The second factual issue dealt with moving expenses the victims would incur for moving from Cheyenne because of the defendants' attacks on their families. 931 P.2d at 227. That part of the order was reversed because the trial court had failed to specify a certain amount, as required by Wyo. Stat. Ann. § 7-9-103(a) (LEXIS 1999), and the matter was remanded for a determination of a certain amount, if any, which should be awarded. Id.

The other two challenges mounted by the defendants in Meerscheidt related to the authority of the trial court to order certain aspects of the restitution under the statutes. Despite the existence of the plea agreements and the failure to object by the defendants, we proceeded to analyze these issues under a de novo statutory language review. The first issue concerned an award of $24,000.00 to the victims for loss of enjoyment of life. 931 P.2d at 223-224. We concluded that under the definition of "pecuniary damages" the trial court erred in making an award for restitution for loss of enjoyment of life and vacated that aspect of the order. Id. The second issue concerned whether certain insurance companies were victims under the restitution statute. 931 P.2d at 226-227. After noting that insurance companies can be victims under the statute if the insurer has no right of subrogation, we reversed and remanded the trial court's order that the insurance companies be awarded restitution because there was no evidence in the record regarding their subrogation rights, and, hence, the entire restitution amount should go to the victims of the crime. Id.

The distinction between whether a defendant is making a factual challenge to an order of restitution or whether he is challenging the authority of the trial court to make a particular award of restitution is an important one. 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, as occurred in Meerscheidt. See also Aldridge v. State, 956 P.2d 341, 343 (Wyo.1998)

. Outside the context of a plea agreement, the failure to object to a factual determination in the awarding of restitution results in an appellate review for plain error. See Gayler v. State, 957 P.2d 855, 857 (Wyo.1998). In contrast, a challenge by a defendant to the authority of a trial court to make a particular award of restitution is reviewed on appeal under a de novo statutory interpretation standard whether or not the defendant objected or entered into a plea agreement. Meerscheidt, 931 P.2d at 223-224, 226-227. While not explicit in our decision in Meerscheidt, the reason for conducting a de novo review under such circumstances is...