Smith v. State

• Decision Date: 05 October 2012
• Docket Number: No. S–12–0041.,S–12–0041.
• Parties: Timothy J. SMITH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

286 P.3d 429

2012 WY 130

Timothy J. SMITH, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–12–0041.

Supreme Court of Wyoming.

Oct. 5, 2012.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General.

Before KITE, C.J., and GOLDEN,^*HILL, VOIGT, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] The appellant, Timothy J. Smith, entered a plea of “no contest” to one misdemeanor count of reckless endangerment. He was sentenced to one year in jail and was ordered to pay restitution to the two victims of his crime. On appeal, he claims that the district court abused its discretion when it ordered that he pay a total of $335,387.26 in restitution, and that it acted unlawfully when it ordered that the appellant make a “bona fide effort” to pay the restitution within five years. We affirm the district court's order regarding the amount of restitution, but find that it did not have the authority to impose a deadline on when the restitution must be paid.

ISSUES

[¶ 2] 1. Did the district court abuse its discretion when it ordered that the appellant pay $335,387.26 in restitution?

2. Did the district court have the authority to require the appellant to make a “bona fide effort” to have the total restitution paid within a five-year period?

FACTS

[¶ 3] The appellant was arrested and charged with one count of aggravated assault and battery after it was reported that he intentionally struck the victim with his vehicle, which in turn pinned the victim between the appellant's truck and another vehicle. The appellant then left the scene of the accident. The victim was taken to a hospital by life flight for treatment of serious injuries to his legs.

[¶ 4] Eventually, the State and the appellant came to an agreement that the State would amend the charge from aggravated assault and battery to reckless endangering (a misdemeanor), that the appellant would enter a plea of “no contest” to the charge, and that the appellant and the State would recommend the imposition of the maximum sentence of one year in jail.¹ However, the appellant was free to argue that the sentence be suspended in favor of probation. The parties also agreed that the amount of damages for victim restitution would be determined at a later time. The district court accepted the plea agreement and, after the appellant entered his “no contest” plea, sentenced the appellant to one year in jail. Eight months later, the district court held a restitution hearing wherein the appellant was ordered to pay a total of $335,387.26 in restitution to the two victims—one victim who sustained serious bodily injuries and one who sustained damage to his vehicle.

DISCUSSION

Did the district court abuse its discretion when it ordered that the appellant pay $335,387.26 in restitution?

[¶ 5] The appellant claims that the district court's decision to order him to pay over $335,000 in restitution was unreasonable when one considers his familial responsibilities and economic conditions.² This Court reviews a challenge to the amount of restitution set by the district court for an abuse of discretion. Penner v. State, 2003 WY 143, ¶ 7, 78 P.3d 1045, 1047 (Wyo.2003). “ ‘Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.’ ” Id. (quoting Brock v. State, 967 P.2d 26, 27 (Wyo.1998)).

[¶ 6] The State argues that the appellant waived appellate review of the restitution amount because he agreed to pay restitution pursuant to the plea agreement and he did not object to the final amount of restitution set by the district court. In Merkison v. State, 996 P.2d 1138 (Wyo.2000), this Court explained that “[c]hallenges 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[.]” Id. at 1141. Here, the appellant entered into a plea agreement wherein it was agreed that restitution would be determined. Further, the appellant did not object to the final amount of restitution ordered by the district court.³ Therefore, we agree that the appellant waived his right to challenge the factual basis of the restitution order.

[¶ 7] Beyond that waiver, we find that the record adequately supports the district court's restitution order. While the appellant argues that the district court's order was unreasonable because it did not take into account how much money the appellant actually makes and his other financial obligations, the statutes regarding restitution do not require the district court to make findings in that regard. In fact, the restitution statutes require the district court “to order a defendant to pay restitution to each victim unless the court specifically finds that the defendant has no ability to pay and no reasonable possibility exists that he will have an ability to pay.” Solis v. State, 2010 WY 165, ¶ 8, 245 P.3d 323, 325 (Wyo.2010) (emphasis added); see alsoWyo. Stat. Ann. §§ 7–9–102 and 7–9–103(c) (LexisNexis 2011).

[¶ 8] This Court has interpreted that statute to mean that the district court is “under no obligation to make a specific finding that there is an ability to pay restitution.” Whitten v. State, 2005 WY 55, ¶ 13, 110 P.3d 892, 896 (Wyo.2005). Instead, the district court must order restitution, and only if it finds that restitution should not be ordered must the district court explain why the defendant is unable to pay restitution. Id. Here, the district court determined that it could not find that the appellant would be unable to pay the restitution over time. Since the district court ordered restitution and did not find the appellant unable to pay, it was not required to make any factual findings regarding the appellant's ability to pay the restitution.

[¶ 9] The appellant directed this Court to several federal cases that hold that a restitution order must be consistent with a defendant's ability to pay. However, these cases are unpersuasive, primarily because the applicable federal statute at the time those opinions were published specifically required the federal courts to consider “the financial resources of the defendant [and] the financial needs and earning ability of the defendant and the defendant's dependents[.]” See18 U.S.C. 3664(a) (1995). Wyoming's statute is fundamentally different, requiring the district court to order restitution unless it finds that the appellant is unable to pay. SeeWyo. Stat. Ann. §§ 7–9–102 and 7–9–103(c).

[¶ 10] The appellant's federal authority is also unpersuasive because it is based upon the federal restitution statutes in effect before Congress passed the Mandatory Victims' Restitution Act of 1996. In that act, Congress mandated that restitution is required for certain offenses, including crimes of violence, crimes against property, or crimes involving an identifiable victim. 18 U.S.C.A. § 3663A(c)(1) (West Supp.2012). Further, the courts are required to order full restitution without giving any consideration to the economic circumstances of the defendant. 18 U.S.C.A. § 3664(f)(1)(A) (West 2000). If a defendant willfully fails to pay his restitution, he may be charged with a misdemeanor and punished with one year in prison or a fine of twice the amount of the unpaid balance of the restitution. 18 U.S.C.A. § 3615 (West 2000). Therefore, in many respects, Wyoming district courts are afforded more discretion to consider a defendant's economic circumstances when considering restitution. In Wyoming, a district court has the authority to find a defendant unable to pay the restitution, whereas a federal court must order restitution no matter the economic circumstances.

[¶ 11] Here, the victims presented verifiable evidence consisting of bills from medical providers and vehicle repair shops and victim testimony of the damages they had suffered due to the appellant's criminal conduct. ⁴See Glover v. State, 2007 WY 169, ¶ 11, 169 P.3d 553, 557 (Wyo.2007) (testimony from a victim's advocate reciting the victim's medical bills afforded a reasonable basis for the restitution order). The district court properly exercised its discretion in finding that the appellant was not unable to pay the restitution over time. The record shows that the appellant is young and apparently capable, as he was granted permission by the district court to participate in a work release program while serving his sentence in the county jail. At the time the appellant requested permission to participate in the work release program, his potential employer was willing to let the appellant work ten-to-twelve-hour shifts at a minimum of $10 per hour. We find that the district court did not abuse its discretion when it concluded that the appellant was not unable to pay restitution over time to the victims.

Did the district court have the authority to require the appellant to make a “bona fide effort” to have the total restitution paid within a five-year period?

[¶ 12] When the district court imposed restitution, it ordered that “a bonafide [sic] effort be made by [the appellant] to retire the restitution within five (5) years from November 22, 2011[.]” The appellant claims that the restitution statutes do not give the district court the authority to require the restitution be paid within a certain amount of time. The State argues that Wyo. Stat. Ann. § 7–9–104 (LexisNexis 2011) gives the district court the authority to establish a payment plan regarding restitution. We review challenges to the district court's...