State v. Blake

Decision Date11 August 2017
Docket NumberNo. 2016-376,2016-376
Citation2017 VT 68
PartiesState of Vermont v. Randell Blake
CourtVermont Supreme Court

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Orleans Unit, Criminal Division

Howard E. Van Benthuysen, J.

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

Kevin A. Lumpkin and Justin A. Brown of Sheehey Furlong & Behm P.C., Burlington, for Amicus Curiae Safeco Insurance Company.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. EATON, J. In December 2009, defendant Randell Blake was convicted of filing a false insurance claim in connection with a fire at his house that occurred on August 5, 2007. Subsequent to his criminal convictions, the trial court ordered defendant to pay restitution to his insurer, Safeco Insurance Company of America (Safeco), in the amount of $115,994.74. Defendant appeals the trial court's restitution order. He argues that the order should be vacated because a general release, signed by Safeco in a related civil case, relieved him of any duty to pay it restitution. He also argues that the order should be vacated because the trial court failed to make findings regarding his ability to pay restitution. We affirm in part and remand for further proceedings concerning defendant's ability to pay.

¶ 2. Prior to his convictions and as a result of the fire, Safeco made several payments under the terms of defendant's homeowner's insurance policy. Safeco advanced $2000 to defendant in August 2007 as temporary living expenses, paid $78,494.74 in November 2007 to satisfy a mortgage loan on defendant's house, and paid $5500 in October 2009 for the demolition and debris removal. The fourth and final payment was $30,000 to an additional insured. Safeco issued this payment to the additional insured in January 2010, after defendant was convicted. In total, Safeco paid $115,994.74 in connection with the fire.

¶ 3. In 2008, after Safeco had issued several insurance payments, defendant initiated a civil suit against Safeco seeking additional insurance payments from the fire loss and Safeco counterclaimed. The parties resolved the civil suit in 2010 by exchanging mutual releases. The general release that Safeco signed states in relevant part that Safeco releases defendant from "any and all manner of action and actions, cause and causes of action, suits, damages, judgments, executions, claims for personal injuries, property damage and demands whatsoever" that Safeco "can, shall, or may have against [defendant]." The release references those "issues and claims for relief which were asserted or could have been asserted (1) pertaining to [defendant's] Safeco Homeowners Policy . . . and (2) in a civil action instituted by the undersigned styled Blake v. Safeco Insurance Co. of Am. and Kimiko Fitz."

¶ 4. In 2014, at the conclusion of a separate criminal proceeding involving defendant's co-defendant, the criminal division ordered defendant's co-defendant to pay $115,994.74 in restitution, representing the total loss to Safeco and the amount upon which the State and defendant's co-defendant agreed. The State then pursued a restitution claim against defendant. Defendant contested the State's claim for restitution, arguing he did not owe restitution to Safecoin light of the exchanged releases.1 After initially granting defendant's motion to dismiss the restitution claim, the court suspended the order and the parties filed additional briefing.

¶ 5. On April 8, 2016, the trial court issued an order denying defendant's motion to strike Safeco's right to restitution, noting its statutory duty to consider restitution. While recognizing that the purpose of restitution is not to punish the defendant, the court distinguished civil remedies from restitution and emphasized the rehabilitative purpose of restitution. It also noted that the victim is not a party to the prosecution and that the Legislature contemplated a victim's independent right to recover damages through a civil suit. The court reasoned that due to these factors, and viewing restitution "in the context of criminal prosecution," a victim cannot waive nor extinguish his or her right to restitution by a release in a related civil case. The court cited decisions from other jurisdictions that supported its decision and reasoning.

¶ 6. The trial court held a restitution hearing on September 28, 2016 and issued a restitution order in the total amount of $115,734.74, deducting the small amount that defendant's co-defendant had already paid. The court left blank sections of the order regarding defendant's ability to pay and methods of payment. This appeal followed.

¶ 7. On appeal, defendant argues that we should vacate the trial court's restitution order for two reasons. First, he argues that Safeco's general release relieved him of any further liability, including restitution in this related criminal proceeding. Second, he argues that the trial court failed to determine his ability to pay. We begin with defendant's first argument, which requires us to interpret the scope of Vermont's restitution statute.

¶ 8. Typically, we review restitution orders for an abuse of discretion. State v. Gorton, 2014 VT 1, ¶ 8, 195 Vt. 460, 90 A.3d 901. When we review issues of law or engage in statutoryinterpretation, however, we do so de novo. Id. "In construing statutes, our goal is to effect the legislative intent." Holmberg v. Brent, 161 Vt. 153, 155, 636 A.2d 333, 335 (1993). To serve this goal, "we first look at the plain, ordinary meaning of the statute." State v. Eldredge, 2006 VT 80, ¶ 7, 180 Vt. 278, 910 A.2d 816. "If the plain language is clear and unambiguous, we enforce the statute according to its terms." Id. "We look also to other relevant or related statutes for guidance, because a proper interpretation must further the entire statutory scheme." Holmberg, 161 Vt. at 155, 636 A.2d at 335; see also In re Judy Ann's Inc., 143 Vt. 228, 231, 464 A.2d 752, 754 (1983) (explaining that "totality of legislative action on a subject" is relevant to discerning legislative intent).

¶ 9. We have also noted that "[i]n order to interpret [a] statute, we must determine its intent by analyzing not only its language, but also its purpose, effects and consequences." Estate of Frant v. Haystack Group, Inc., 162 Vt. 11, 14, 641 A.2d 765, 767 (1994). "To that end, laws relating to a particular subject 'should be construed together and in harmony if possible.' " Holmberg, 161 Vt. at 155, 636 A.2d at 335 (citation omitted). We will not interpret a single word or phrase in isolation from the entire statutory scheme. In re Judy Ann's, 143 Vt. at 231, 464 A.2d at 754. "Individual statutes . . . are to be construed with others in pari materia as parts of one system." Bud Crossman Plumbing & Heating v. Comm'r of Taxes, 142 Vt. 179, 185, 455 A.2d 799, 801 (1982) (emphasis in original).

¶ 10. In relevant part, 13 V.S.A. § 7043 provides:

(a)(1) Restitution shall be considered in every case in which a victim of a crime, as defined in subdivision 5301(4) of this title, has suffered a material loss.
(2) For the purposes of this section, "material loss" means uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.
. . .
(g)(1) When restitution is requested but not ordered, the Court shall set forth on the record its reasons for not ordering restitution.
. . .
(h) Restitution ordered under this section shall not preclude a person from pursuing an independent civil action for all claims not covered by the restitution order.

Neither party disputes that Safeco is a victim under this statute. Thus, our task is to determine whether a general release of civil claims such as the one that Safeco signed binds a criminal court in its duty to "consider" restitution. Defendant argues that the court fulfills its statutory duty to "consider" restitution if the court inquires into restitution and, upon learning of a release, finds any further claim to be barred. To determine what is meant by "consider" in the context of the statute, we must first look to the statute's plain language.

¶ 11. "Consider" is not defined in the statute. When this Court must determine the ordinary meaning of "relevant terms [that] are not defined in the statute . . . we may look to dictionary definitions." State v. Perrault, 2017 VT 67, ¶ 13, ___Vt. ___, ___ A.3d ___. "Consider," in general, means 'to think about carefully" or "to think of especially with regard to taking some action." Consider Merriam-Webster Online Dictionary, []. Although this definition implies that to "consider" requires the court to do more than give some thought to the matter of restitution, it does not answer the question of what "consider" means in the context of the restitution statute. However, the statute would lose significant meaning if a court were required to raise the theoretical possibility of restitution but could not impose restitution because a victim executed a release. See State v. Tierney, 138 Vt. 163, 165, 412 A.2d 298, 299 (1980) (explaining that we must interpret statutes so as to give effect to "every word, clause and sentence").

¶ 12. Specifically, the only limitation on the trial court's duty to "consider" restitution involves the decision whether to order a hearing, not whether to order restitution. Subsection (c)(1)states that "[u]nless the amount of restitution is agreed to by the parties at the...

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