State v. Bakke
| Decision Date | 08 April 2020 |
| Docket Number | Docket No. 46426 |
| Citation | 481 P.3d 1197 |
| Court | Idaho Court of Appeals |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. David Roy BAKKE, Defendant-Appellant. |
Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jeff D. Nye, Deputy Attorney General, Boise, for respondent.
David Roy Bakke was convicted of grand theft and ordered to pay $2,549.83 in restitution. On appeal, Bakke argues the district court abused its discretion because its restitution order was not supported by substantial evidence. Additionally, Bakke contends the district court abused its discretion in denying his Idaho Criminal Rule 35 motion for reduction in sentence because it did not consider his evidence of good conduct while incarcerated. Because the district court's restitution order is supported by substantial evidence and the court adequately considered Bakke's good conduct while incarcerated when it denied his Rule 35 motion, we affirm.
Bakke rented a vehicle from Avis1 and signed a rental agreement that included its hourly, daily, and weekly rental rate. Although it was due to be returned to Avis the following day, Bakke did not return the vehicle. After several failed attempts to contact Bakke about returning the vehicle, Avis was eventually able to communicate with Bakke through text messaging to Bakke's cell phone. Avis repeatedly stated through these text messages that Bakke needed to return the vehicle. Bakke replied that he needed the vehicle for medical reasons and that Avis was evil, malicious, and harassing him about returning the vehicle.
About three weeks after the vehicle was due to be returned, Bakke texted Avis and stated he had called to extend the rental for a few weeks. Avis had no record of the call. Avis responded to the text message, indicating that extending the rental was not an option and Bakke needed to return the vehicle. Avis told Bakke that if he did not return the vehicle, it would be reported as stolen. Bakke stated that if he was arrested, Avis would not get any of the money owed. Bakke would not tell Avis when he planned to return the vehicle. Ultimately, Avis reported the vehicle as stolen.
Seventeen weeks and one day after Bakke rented the vehicle, a police officer in Nevada saw the vehicle, ran its license plates through the law enforcement system, and was alerted that the vehicle had been reported as stolen. The officer pulled the vehicle over and arrested Bakke, who was driving. After Bakke returned to Idaho, the State charged him with felony grand theft.
At trial, both the State and Bakke submitted a copy of the rental agreement as evidence, which was signed and initialed by Bakke. The rental agreement stated the rental term was for one day and, similarly, the estimated time and mileage charges reflected one day of rental. However, in addition, the agreement included the hourly, daily, and weekly charges for the vehicle. The specified weekly rental rate of the vehicle was $149.99, plus applicable taxes and fees. The State presented testimony that Bakke kept the vehicle for seventeen weeks and one day before the vehicle was returned to Avis following Bakke's arrest. Avis was only able to collect payment from Bakke's credit card for the first day Bakke possessed the vehicle.
At trial, the State also presented evidence indicating that Bakke knew Avis required and was actively seeking the immediate return of the vehicle. However, Bakke testified that he believed he was validly renting the vehicle for the weekly rate specified in the rental agreement for the entirety of the time he had the vehicle. Specifically, Bakke testified that he believed he could keep the vehicle for as long as he wanted at the weekly rate, which he wished to do because he had no other form of reliable transportation. Bakke testified Avis "gave me the best weekly rate that I had there ever" and Avis was "offering an excellent weekly rate, so I thought I'd indulge and try and get that weekly rate." Additionally, Bakke testified that he believed Avis was "authorized to take what they needed off my credit card to pay whatever weekly rate that I had been situated with," and he was willing to pay Avis what it was owed "in full."
The jury found Bakke guilty of grand theft, Idaho Code § 18-2403(1), and the district court sentenced Bakke to a unified sentence of three years, with one year determinate. At the sentencing hearing, the State sought $3,205.20 in restitution as compensation for Avis's economic loss as a result of Bakke's conduct. Because Bakke's counsel requested additional time to review the calculations underlying the State's figure, the district court reserved the issue and scheduled a restitution hearing. The day after the district court entered the judgment of conviction, Bakke filed an Idaho Criminal Rule 35 motion for reconsideration of sentence.
At the restitution hearing, Bakke's counsel advised the district court that he was no longer able to represent Bakke in the proceedings because Bakke filed a bar complaint against him. The court ordered Bakke be assigned conflict counsel and continued the hearing.
Subsequently, Bakke filed a pro se Rule 35 motion for reduction of sentence. Bakke raised several claims, including that he exhibited good conduct while incarcerated, completed programming, remained discipline free, and had various support systems to aid him upon release. The district court held a hearing to address Bakke's outstanding Rule 35 motion and the issue of restitution.
At the hearing, the district court acknowledged Bakke's pro se Rule 35 motion. Although the motion was untimely, the court stated it would consider the filings as supplemental documents in support of Bakke's timely, yet unresolved, previously filed Rule 35 motion. Bakke and his conflict counsel presented argument in support of the motion.
During the court's consideration of the issue of restitution at the hearing, the State amended its previous restitution request to $2,549.83, to represent the signed contractual rate of $149.99 per week for the seventeen weeks Bakke possessed the vehicle without rendering payment to Avis. The State did not introduce any new testimony or evidence at the hearing, instead relying only upon the signed rental agreement. Bakke objected to the figure as excessive. He argued it did not accurately reflect Avis's economic loss because the State had not provided evidence that Avis would have been able to rent the vehicle for every day of the seventeen-week period.
Subsequently, the district court issued an order denying Bakke's Rule 35 motion for reduction in sentence. The court listed the supporting documents that Bakke filed and stated, after consideration of the entirety of the record and arguments presented by both parties, the underlying facts of the case demonstrated the original sentence was appropriate.
Additionally, the district court entered an order of restitution, finding:
Economic loss, as defined in the statute, includes, but is not limited to, tangible losses such as the value of property taken [or take[n]], lost wages, and direct out-of-pocket losses or expenses. Defendant wrongfully retained the victim's vehicle for a full 17 weeks without paying for the use of the vehicle, depriving the victim of the economic benefits of the vehicle. The Court finds that the weekly charge for the vehicle, that Defendant has admitted that he agreed to pay, multiplied [by] the amount of time that Defendant wrongfully possessed the vehicle, is an entirely accurate reflection of the economic loss to the victim.
Accordingly, the court entered a restitution order for $2,549.83. Bakke timely appeals.
On appeal, Bakke alleges the district court abused its discretion when it entered a criminal restitution order for $2,549.83 because the amount was not supported by substantial evidence. Specifically, Bakke argues the State did not establish that Avis would have been able to rent the vehicle for every day of the seventeen-week period that it was in Bakke's possession. Additionally, Bakke asserts the court abused its discretion when it denied his Rule 35 motion because it did not consider the new information he provided regarding his good conduct while incarcerated.
Bakke argues when a defendant keeps rental property past its return date, the restitution order must reflect what the victim could have earned from having the property in its possession to rent to others, not what was owed under the contract. Therefore, Bakke contends the State did not establish that Avis suffered an actual economic loss of $2,549.83 as a result of Bakke's conduct because it did not provide evidence that Avis would have been able to rent the vehicle to others for every day within the seventeen-week period. In response, the State contends the market value of a stolen item is an appropriate basis for calculating economic loss under the restitution statute, and the State presented sufficient evidence that $2,549.83 represented the market value for renting the vehicle for the seventeen-week period, which Bakke had previously agreed to pay.
Idaho Code Section 19-5304(2) authorizes a sentencing court to order a defendant to pay restitution for economic loss to the victim of a crime. The decision of whether to order restitution, and in what amount, is within the discretion of a trial court, guided by consideration of the factors set forth in I.C. § 19-5304(7) and by the policy favoring full compensation to crime victims who suffer economic loss. State v. Richmond , 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct. App. 2002) ; State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct. App. 1989). Thus, we will not overturn an order of restitution unless an abuse of discretion is shown. Ri...
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Bakke v. State
...denied. Bakke appealed, and this Court affirmed the district court's order of restitution and denial of Bakke's Rule 35 motion. Id. at 233, 481 P.3d at 1204. filed a petition for post-conviction relief raising various claims, and the district court appointed Bakke counsel. Bakke filed an am......