State v. Cabrera

• Decision Date: 07 June 2007
• Docket Number: No. 20050963-CA.,20050963-CA.
• Citation: 163 P.3d 707,2007 UT App 194
• Parties: STATE of Utah, Plaintiff and Appellee, v. Nicholas Joshua CABRERA, Defendant and Appellant.
• Court: Utah Court of Appeals

163 P.3d 707

2007 UT App 194

STATE of Utah, Plaintiff and Appellee, v. Nicholas Joshua CABRERA, Defendant and Appellant.

No. 20050963-CA.

Court of Appeals of Utah.

June 7, 2007.

Edward K. Brass, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General, and Brett J. Delporto, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges BENCH, GREENWOOD, and THORNE.

OPINION

BENCH, Presiding Judge:

¶ 1 Defendant Nicholas Joshua Cabrera pleaded guilty to two counts of class A misdemeanor Driving Under the Influence (DUI) with injuries. See Utah Code Ann. §§ 41-6a-502, 41-6a-503(1)(b)(i) (2005). He now appeals the part of his sentence requiring him to pay restitution to Rebecca Mecham (the Victim). In this decision, we conclude that court-ordered restitution, imposed as part of a criminal sentence, is not automatically discharged through bankruptcy proceedings. Further, we hold that a defendant's right to counsel at sentencing extends to restitution hearings when the imposition of restitution is a condition of probation and part of a sentence that includes actual or suspended jail time. We therefore affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

¶ 2 Defendant was driving a vehicle that struck the Victim's vehicle, injuring the Victim and her daughter. Defendant's blood-alcohol level was .16, twice the legal limit. In exchange for the dismissal of other charges arising out of the accident, Defendant agreed to plead guilty to two counts of class A misdemeanor DUI with injuries. In the plea agreement, Defendant admitted to "operat[ing] a motor vehicle after having consumed alcohol to a degree that [he] could not safely do so, injuring two people." At sentencing, the trial court suspended the majority of the jail time Defendant was facing, but required him to serve sixty days in jail and placed him on probation for thirty-six months. The conditions of probation included a requirement that Defendant pay restitution, the final amount of which was to be determined at a later hearing. During all phases of the proceedings, except at the final restitution hearing, Defendant was represented by a private attorney.

¶ 3 After serving his sixty-day jail sentence, Defendant filed a memorandum with the trial court arguing against the restitution order, claiming that his debts, including any arising from the car accident, were discharged through federal bankruptcy proceedings conducted sometime after the accident but before the charges were filed and restitution was ordered. Initially, the trial court rejected Defendant's claims that the restitution order was discharged in bankruptcy, but later reversed itself when Defendant notified the court of a federal bankruptcy court ruling. That bankruptcy court ruling was later reversed by the United States District Court in In re Troff, 329 B.R. 85 (D.Utah 2005).

¶ 4 The State subsequently filed a motion to reconsider the trial court's decision that the restitution had been discharged, and the trial court set a date for a hearing on the matter. At that hearing, Defendant informed the court that he had filed a memorandum in opposition to the motion to reconsider only a couple of days prior to the hearing. The matter was rescheduled for "further review and possible evidentiary hearing" because the court had not yet reviewed Defendant's lengthy memorandum. In the interim, defense counsel withdrew and Defendant subsequently appeared at the rescheduled hearing without counsel. At the rescheduled hearing, the trial court continued the matter again because Defendant was not represented by counsel. In deciding to continue the matter, the trial court noted the fact that Defendant had recently retained counsel who could not be present. The trial court warned Defendant that the next hearing would go forward even if Defendant appeared without counsel and advised Defendant to inform the court of any problems he had in obtaining counsel so that the appointment of counsel could be considered.

¶ 5 Defendant appeared at the final restitution hearing again without counsel and without having informed the court that he had been unable to obtain counsel due to monetary concerns. The court upheld its warning that no continuances would be granted, ruled that the restitution order was not discharged in bankruptcy, and allowed both parties to present evidence on the issue of the amount of restitution Defendant would be required to pay. Defendant now appeals the restitution order.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Defendant claims that the trial court erred by ruling that Defendant's restitution order was not dischargeable through federal bankruptcy. "We will not disturb a trial court's order of restitution unless the `trial court exceeds the authority prescribed by law or abuses its discretion.'" State v. Robinson, 860 P.2d 979, 980-81 (Utah Ct. App.1993) (quoting State v. Twitchell, 832 P.2d 866, 868 (Utah Ct.App.1992)).

¶ 7 Defendant also argues that the trial court violated his Sixth Amendment right to counsel by going forward with the restitution hearing despite his lack of counsel. Whether Defendant had the right to counsel is a constitutional issue and a question of law, which we review for correctness. See State v. Curry, 2006 UT App 390, ¶ 5, 147 P.3d 483. Whether a defendant "voluntarily, knowingly, and intelligently waived [the] right to counsel is a mixed question of law and fact. While we review questions of law for correctness, a trial court's factual findings may be reversed on appeal only if they are clearly erroneous." State v. Pedockie, 2006 UT 28, ¶ 23, 137 P.3d 716.

ANALYSIS

I. Dischargeability of Restitution

¶ 8 Defendant's primary argument on appeal is that the trial court's imposition of restitution was in error because Defendant's debts, including those arising from the car accident, were discharged through federal bankruptcy.¹ He asks the court to hold that the restitution order is invalid as violative of federal bankruptcy law and to reverse the trial court's order. The federal bankruptcy statute states, in pertinent part, that bankruptcy does not discharge an individual's debts "to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss." 11 U.S.C. § 523(a)(7) (2000). The United States Supreme Court has interpreted section 523(a)(7) of the United States Code as "preserv[ing] from discharge any condition a state criminal court imposes as part of a criminal sentence." Kelly v. Robinson, 479 U.S. 36, 50, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986); see also 11 U.S.C. § 523(a)(7). In reasoning that state restitution orders are exempted from bankruptcy discharge, the Supreme Court noted that restitution benefits the state by furthering the goals of criminal punishment and rehabilitation. See Kelly, 479 U.S. at 51-53, 107 S.Ct. 353 (stating that although monies collected through restitution are forwarded to victims, restitution is imposed based on factors tailored to individual defendants, not victims, so society as a whole receives the benefits associated with punishing and rehabilitating criminal behavior).

¶ 9 Neither party disputes the fact that the trial court ordered restitution in the instant case as a condition of Defendant's criminal sentence arising from the drunk driving incident. Because the United States Supreme Court has held that the conditions a state court imposes at sentencing are exempted from discharge, the trial court's decision to order restitution is well within the court's discretion and does not contravene federal bankruptcy law.

II. Right to Counsel

¶ 10 Because we hold that federal bankruptcy law does not invalidate the trial court's restitution order, we must discuss Defendant's secondary argument regarding a new restitution hearing. Defendant claims that the trial court violated his Sixth Amendment right to counsel by conducting the restitution hearing without the presence of defense counsel. Whether a defendant has a constitutional right to counsel at a restitution hearing is a question of first impression in Utah. We will answer the question by considering the nature of restitution hearings and evaluating whether they fall under the category of judicial proceedings at which criminal defendants have the right to counsel.

¶ 11 "`Under both the United States Constitution and the Utah Constitution,'" criminal defendants have "`the right to the assistance of counsel at all critical stages of [their] criminal proceeding[s].'" State v. Curry, 2006 UT App 390, ¶ 6, 147 P.3d 483 (quoting Wagstaff v. Barnes, 802 P.2d 774, 778 (Utah Ct.App.1990)). "The accused's right to the assistance of counsel during the critical stages of a criminal proceeding has long been recognized as a fundamental constitutional right," Wagstaff, 802 P.2d at 776-77, and it attaches when the defendant is subject to actual or suspended jail time. See State v. Von Ferguson, 2007 UT 1, ¶ 18, petition for cert. filed, 75 U.S.L.W. 3540, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (U.S. Apr. 2, 2007) (No.06-1327). Utah courts, in line with the United States Supreme Court, regard sentencing as a critical stage of criminal proceedings "at which a defendant is entitled to the effective assistance of counsel." State v. Casarez, 656 P.2d 1005, 1007 (Utah 1982); see also Mempa v. Rhay, 389 U.S. 128, 134, 137, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). "`The right to counsel at sentencing must, therefore, be treated like the right to counsel at other stages of adjudication.'" Kuehnert v. Turner, 28 Utah 2d 150, 499 P.2d 839, 841 (1972) (quoting McConnell v. Rhay, 393 U.S. 2, 4, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968)). Further, the Utah Supreme Court has expressly recognized that restitution hearings are a part of "sentencing proceedings." State v. Weeks, 2002 UT 98, ¶ 16, 61 P.3d 1000.

¶ 12 Here, neither party denies that Defendant's right to couns...