State v. Bagent

• Citation: 798 S.E.2d 862
• Decision Date: 10 April 2017
• Docket Number: No. 16-0051,16-0051
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Respondent v. Charity Nicole BAGENT, Defendant Below, Petitioner

798 S.E.2d 862

STATE of West Virginia, Respondent

v.Charity Nicole BAGENT, Defendant Below, Petitioner

No. 16-0051

Supreme Court of Appeals of West Virginia.

Submitted: January 25, 2017

Filed: April 10, 2017

David Skillman, Esq., Bottner & Skillman, Charles Town, West Virginia, Attorney for Petitioner

Brandon C. H. Sims, Esq., Assistant Prosecutor, Charles Town, West Virginia, Attorney for Respondent

Workman, Justice:

This is an appeal by Charity Nicole Bagent (hereinafter "the Petitioner") from a restitution order entered by the Circuit Court of Jefferson County. Subsequent to her conviction for receiving or transferring stolen property, daytime burglary, and conspiracy to transfer or receive stolen property, the circuit court entered an order indicating that the Petitioner was jointly and severally liable, with two co-defendants, for restitution in the amount of $46,592.00. The Petitioner appeals the circuit court's determination of restitution, arguing the circuit court erred by ordering restitution for the victim's lost earnings, rather than solely out-of-pocket expenses. She further contends the circuit court erred by failing to adequately consider her limited financial resources. Upon thorough evaluation of the facts, arguments of counsel, and applicable precedent, this Court affirms, in part; vacates, in part; and remands with directions.

I. Factual and Procedural History

On April 10, 2014, the Petitioner and four other individuals stole forty-two iron tractor weights belonging to Mr. Ralph Moler. Mr. Moler had used the tractor weights in his farming business. The Petitioner subsequently pled guilty to receiving or transferring stolen property, daytime burglary, and conspiracy to transfer or receive stolen property. She was sentenced to concurrent sentences of not less than one nor more than ten years for the first two offenses and not less than one nor more than five years for the third offense, to be served consecutively to the concurrent one to ten year sentences. Pursuant to the plea agreement, all three sentences were suspended, and the Petitioner was placed on supervised probation for five years. The plea agreement also contained a provision requiring the Petitioner to "pay full restitution in an amount to be determined by the Probation Department." Moreover, the plea agreement reflected the State's concomitant dismissal of two felony charges and one misdemeanor charge against the Petitioner, as well as her agreement to cooperate in the prosecution of her co-defendants.

The Petitioner was sentenced on October 19, 2015, and required to pay $46,592.00 in restitution to the victim. Based upon the Petitioner's objection to the amount of restitution determined by the circuit court, a restitution hearing was held on November 30, 2015. The victim, Mr. Moler, testified that the theft of the tractor weights prevented him from planting fields for approximately two weeks, while he waited for insurance proceeds and the purchase of new weights. He further testified that he had lost profits of $46,592.00, based upon the acres not planted, the dollar amount lost per acre not planted, and the total planting days lost attributable to the theft.¹

The Petitioner also testified at the restitution hearing. She explained her financial status as an unemployed twenty-four-year old woman with a ninth grade education and three children by two different fathers. According to the Petitioner, she does not receive any child support from either father. She testified that she has a drug addiction and is entirely reliant on her mother and public assistance for support.

The circuit court entered a restitution order on December 20, 2015, making the Petitioner liable for $46,592.00 in losses to the victim. This appeal followed.

II. Standard of Review

This Court has enunciated the following applicable standard of review: "The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syl. Pt. 1, State v. Lucas , 201 W.Va. 271, 496 S.E.2d 221 (1997) ; see also Syl. Pt. 1, State v. McGill , 230 W.Va. 85, 736 S.E.2d 85 (2012), State v. Head , 198 W.Va. 298, 301, 480 S.E.2d 507, 510 (1996). We are also mindful of this Court's standard for reviewing issues involving statutory interpretation. In syllabus point one of Chrystal R.M. v. Charlie A.L. , 194 W.Va. 138, 459 S.E.2d 415 (1995), this Court held: "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." With those standards as guidance, we proceed to an evaluation of this matter.

III. Discussion

The Petitioner appeals the restitution decision and advances two arguments in support of her position. First, she contends the circuit court erred in ordering restitution where the reimbursement sought by the victim is for a type of loss not specifically mentioned in West Virginia Code § 61-11A-4 (2014). Second, she contends the circuit court erred in failing to consider her financial resources and her alleged inability to pay the ordered restitution.

A. Statutory Authority

We first address the Petitioner's contention that the applicable statute does not contemplate restitution for the type of injury the victim sustained in this case. She maintains the statute's reference to "income lost by the victim" is encompassed exclusively within its reference to crimes causing "bodily injury."² She consequently argues the statute does not contemplate reimbursement for "income lost" where, as in the present case, there is no bodily injury to the victim.³ This Court has previously observed that determinations of appropriate restitution are "governed by the West Virginia Victim Protection Act of 1984, West Virginia Code §§ 61-11A-1 through -8 (1984) (Repl. Vol. 2000), which codifies the statutory law of this state regarding court-ordered restitution by an individual convicted of a crime." State v. Cummings , 214 W.Va. 317, 320, 589 S.E.2d 48, 51 (2003).

The Victim Protection Act provides very explicit explanations of its purpose and goals, as this Court recognized in State v. Rebecca F ., 233 W.Va. 354, 758 S.E.2d 558 (2014).

W.Va. Code § 61-11A-1 of the Victim Protection Act provides an extensive statement of the Legislature's intention "to enhance and protect the necessary role of crime victims and witnesses in the criminal justice process and to ensure that the state and local governments do all that is possible within the limits of available resources to assist victims and witnesses of crime [.]"⁴

233 W.Va. at 359, 758 S.E.2d at 563 (footnote added).

Consistent with the recognized objectives of the statutory scheme, this Court has acknowledged a presumption in favor of full restitution to victims. In syllabus point three of State v. Lucas , 201 W.Va. 271, 496 S.E.2d 221 (1997), this Court explained:

Under W.Va. Code, 61-11A-1 through -8 and the principles established in our criminal sentencing jurisprudence, the circuit court's discretion in addressing the issue of restitution to crime victims at the time of a criminal defendant's sentencing is to be guided by a presumption in favor of an award of full restitution to victims , unless the circuit court determines by a preponderance of the evidence that full restitution is impractical, after consideration of all of the pertinent circumstances, including the losses of any victims, the financial circumstances of the defendant and the defendant's family, the rehabilitative consequences to the defendant and any victims, and such other factors as the court may consider.

Id . at 273, 496 S.E.2d at 223 (emphasis supplied). In Lucas , this Court approved a restitution order requiring the defendant pay $1.43 million, based upon insurance proceeds an insurer paid as result of the defendant's arson. Id . at 274, 496 S.E.2d at 224.

Similarly, in State v. Whetzel , 200 W.Va. 45, 488 S.E.2d 45 (1997), this Court focused upon the purpose of the restitution statute's design, "predicat [ing] an award of restitution upon a defendant's conviction of a felony or misdemeanor and upon the 'physical, psychological or economic injury or loss to the victim.' " Id . at 48, 488 S.E.2d at 48.

[T]he clear intention of the Legislature in enacting W. Va.Code § 61-11A-4(a) was to enable trial courts to require convicted criminals to pay all losses sustained by victims in the commission of the crime giving rise to the conviction . Any other interpretation would run counter to the legislative intent that 'all that is possible' be done, an intent set forth in W. Va. Code § 61-11A-1(b).

200 W.Va. at 48, 488 S.E.2d at 48. (emphasis supplied).

West Virginia Code § 61-11A-4⁵ provides definitive authority to order restitution under certain circumstances in which a defendant has committed a crime causing economic injury or loss to the victim. The particular component of victim injury present in the case sub judice is loss of earning power due to the items stolen rather than any physical impairment to the victim; that type of loss is not directly addressed in the statute. This Court finds, however, that restitution for such loss is within the broad mandate of the statute and consistent with legislative pronouncements regarding the intent of the Victim Protection Act. Encountering another type of victim harm, specifically identity theft, this Court held as follows in syllabus point three of Rebecca F .:

W.Va. Code § 61-11A-4(a) [2006] contained in the Victim Protection Act of 1984, W.Va. Code § 61-11A-1 et seq. [1984], requires a circuit court, absent a finding of impracticality, to order a defendant convicted of a felony or misdemeanor causing psychological or economic injury or loss to a victim, to make restitution to the victim of the offense. W.Va. Code § 61-11A-4does not contain specific factors a circuit court

...