Slusser v. Commonwealth

• Citation: 74 Va.App. 761,872 S.E.2d 223
• Decision Date: 10 May 2022
• Docket Number: Record No. 0772-21-3
• Parties: Kenny James SLUSSER v. COMMONWEALTH of Virginia
• Court: Court of Appeals of Virginia

74 Va.App. 761

872 S.E.2d 223

Kenny James SLUSSER

v.COMMONWEALTH of Virginia

Record No. 0772-21-3

Court of Appeals of Virginia, Lexington.

MAY 10, 2022

Devon J. Munro (Beverly M. Davis ; Munro Law P.C.; Davis, Davis & Davis Attorneys, on briefs), for appellant.

Stephen J. Sovinsky, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Humphreys, O'Brien and Raphael

OPINION BY JUDGE STUART A. RAPHAEL

Appellant Kenny James Slusser appeals a criminal-restitution order that directed him to pay $41,634.60 to the victim, Jonathan Hetherington, whose rental house was destroyed by fire. Because the record does not support that award, we vacate the restitution order and remand this case for a new restitution determination.

I. BACKGROUND ¹

In April 2020, Slusser set fire to the house he was renting from Hetherington. Photographs of the damage were introduced into evidence, showing that the house was "burned completely down." The record does not tell us how the fire started.

Slusser was indicted for arson of an unoccupied building belonging to Hetherington. Under Code § 18.2-77(B), arson is a Class 4 felony. Slusser entered an Alford² plea of guilty to destruction of property under Code § 18.2-137(B)(ii), a Class 6 felony. The Commonwealth and Slusser stipulated that Slusser would receive a sentence of five years in prison (with five years suspended) and fifty hours of community service. Slusser also agreed to "pay restitution, which amount shall be determined at a later date." The trial court accepted the plea agreement and scheduled the case for "restitution review."

At the restitution hearing, the Commonwealth called Hetherington to testify about the value of the house. The Montgomery County real-estate-tax assessment for 2019 showed a total assessed value of $89,500, with $26,900 for the 3.2-acre parcel of land and $62,600 for the "building and improvements value." The Commonwealth also introduced a letter to Hetherington from "State Farm" insurance.³ The letter described two different insurance benefits: an "estimate of repair as well as payment ... representing the actual cash value of repairs" in the amount of $121,652.66; and "Replacement Cost Benefits" of "the actual cost of repairs, or $94,503.60, whichever is less." The cryptic description of benefits—at the heart of this appeal—reads as follows:

Please find enclosed our estimate of repair as well as payment in the amount of $121,652.66, representing the actual cash value of repairs. This represents payment under Section I—Dwelling Coverage of your policy.

Please have the contractor of your choice review the estimate. Should you or your contractor have any questions concerning the estimate, please call us before any work is started.

To make a claim for the Replacement Cost Benefits of your policy, simply return the enclosed Explanation of Building Replacement Cost Benefits form to us, along with the bills for repairs. A payment will then be issued to you for the actual cost of repairs, or $94,503.60, whichever is less. At our option, an inspection of these repairs will be made.

Although the letter mentions the insurance policy, the Commonwealth did not introduce the policy itself into evidence.

Hetherington testified that State Farm paid him $121,652.66 for the first benefit. He said that the payment was for the loss of the house alone, not land value. Hetherington also testified that he did not apply for the second item—"Replacement Cost Benefits"—because he decided to sell the property without rebuilding the house. Selling the property netted him $55,000.

Even though Hetherington elected not to rebuild, he believed he was entitled to both benefits described in the State Farm letter. He described the second, "Replacement Cost Benefit[ ]" as the value "for the complete restoration of my home" and "the value to reconstruct." He also sought to recover the insurance deductible that he paid to State Farm: $2,131. Hetherington said he was not seeking any compensation for the land value of the 3.2-acre parcel.

The defense called Slusser's sister as a witness. She testified that Slusser had lived in the house since 2011 and that she had photographed it in 2018. The photographs were received into evidence, showing a run-down house with debris strewn about the yard. She took the pictures to show her siblings "how bad it looks [so] maybe they [could] help me clean it up some." She said that the house had no insulation and no heating or central air-conditioning. Slusser had to use his wood stove not only to cook but also to heat the premises.

Slusser's counsel offered no other evidence in defense. He did not argue that Slusser could not afford to pay the amount of restitution sought by the Commonwealth.

In their closing arguments, the Commonwealth and Slusser agreed that Hetherington had been paid the $121,652.66 and was not entitled to restitution for that amount. They also agreed that Hetherington was entitled to recover his deductible cost of $2,131. They disagreed, however, about whether the $94,503.60 Replacement Cost Benefits constituted damages to Hetherington that should be included in the restitution award. Slusser's counsel argued against including it, saying it was "replacement value cost," not "the fair market value of the building that was lost."

The trial court agreed with the Commonwealth that Hetherington was entitled to both State Farm benefits. The court said that the two sums, taken together, "in effect established the value of that property." The court did not explain, however, what it understood to be covered by either benefit. The court added the deductible amount ($2,131) to Hetherington's loss. But it deducted from the restitution obligation the $121,652.66 that Hetherington had already received from State Farm and the $55,000 that Hetherington received from selling the property. Summing those amounts, the court calculated a restitution figure of $41,634.60 to be paid to Hetherington. Here is the trial court's calculation, in table form:

Description	Restitution Valuation
First State Farm benefit	$121,652.66
Second State Farm benefit	$94,503.60
Deductible paid by Hetherington	$2,131.00
State Farm payment to Hetherington	-($121,652.66)
Proceeds from property sale	-($55,000.00)
TOTAL	$41,634.60

On appeal, Slusser argues that the trial court abused its discretion by combining the two insurance benefits. He reasons that Hetherington received ample compensation from the $121,652.66 State Farm payment, that the second benefit was for replacement value, not fair market value, and that the restitution amount should be only $2,131, Hetherington's out-of-pocket cost for the deductible. The Commonwealth, by contrast, defends the full amount of the award, arguing that the trial court did not abuse its discretion.

II. ANALYSIS

A. Virginia's sentencing laws confer broad discretion on the trial judge to impose restitution as a condition of a suspended sentence.

"A trial court has ‘wide latitude’ to make sentencing decisions such as the ordering of restitution, because ‘[t]he determination of sentencing lies within the sound discretion of the trial court.’ " Sigler v. Commonwealth , 61 Va. App. 674, 678, 739 S.E.2d 272 (2013) (first quoting Deal v. Commonwealth , 15 Va. App. 157, 160, 421 S.E.2d 897 (1992) ; then quoting Martin v. Commonwealth , 274 Va. 733, 735, 652 S.E.2d 109 (2007) ). Code § 19.2-303 provides that, "[a]fter conviction, ... the court may ... suspend the sentence in whole or part and in addition may place the defendant on probation under such conditions as the court shall determine." Such conditions often include restitution. When the Commonwealth seeks restitution, it must prove "the ‘damages’ or loss incurred by an aggrieved party as a result of the offense" by "a preponderance of the evidence." McCullough v. Commonwealth , 38 Va. App. 811, 816, 568 S.E.2d 449 (2002) ; Bazemore v. Commonwealth , 25 Va. App. 466, 468-69, 489 S.E.2d 254 (1997).

Restitution may "help make the victim of a crime whole." McCullough , 38 Va. App. at 815, 568 S.E.2d 449. Upon the victim's request, for instance, the restitution order must be docketed as a civil judgment in the victim's favor, and the victim's enforcement of that civil judgment is not subject to any statute of limitations. Code § 19.2-305.2(B).

But restitution may also serve "other purposes of sentencing, including deterrence, rehabilitation and retribution." McCullough , 38 Va. App. at 815 n.1, 568 S.E.2d 449 (citing Note, Victim Restitution in the Criminal Process: A Procedural Analysis , 97 Harv. L. Rev. 931, 937-41 (1984) ). In other words, criminal restitution "serves purposes that differ from (though they overlap with) the purposes of tort law." Paroline v. United States , 572 U.S. 434, 453, 134 S.Ct. 1710, 1724, 188 L.Ed.2d 714 (2014).

The rehabilitative purpose of criminal restitution, in particular, is reflected in the fact that the trial court may require, as a condition of a suspended sentence, that the defendant make "at least partial restitution or reparation to the aggrieved party or parties for damages or loss caused by the offense." McCullough , 38 Va. App. at 814, 568 S.E.2d 449 (emphasis added) (quoting Code § 19.2-305(B) ). That at-least-partial-restitution requirement appears multiple times in the Code. See also Code §§ 19.2-303, 19.2-305.1(A), (B). The Code mandates that only certain crimes require restitution of "the full amount of damages"—crimes involving damaging or destroying the Capitol or other State property in Capitol Square or assigned to the Capitol Police. Code § 19.2-305.1(B2) (emphasis added).

In awarding less-than-full restitution, the trial court may properly consider "the defendant's ability to pay." Ohree v. Commonwealth , 26 Va. App. 299, 311, 494 S.E.2d 484 (1998). The court may require the defendant to submit a restitution plan that "appears to be feasible to the court under the circumstances." Code § 19.2-305.1(A), (B) ; see also Code §...