State v. Cummings

• Decision Date: 10 October 2003
• Docket Number: No. 30911.,30911.
• Citation: 214 W.Va. 317,589 S.E.2d 48
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Gary Brian CUMMINGS, Defendant Below, Appellant.

589 S.E.2d 48

214 W.Va. 317

STATE of West Virginia, Plaintiff Below, Appellee, v. Gary Brian CUMMINGS, Defendant Below, Appellant.

No. 30911.

Supreme Court of Appeals of West Virginia.

Submitted September 9, 2003.

Decided October 10, 2003.

Concurring Opinion of Justice Davis October 14, 2003.

Darrell V. McGraw, Jr., Attorney General, Jon R. Blevins, Assistant Attorney General, Charleston, West Virginia, Attorneys for the Appellee.

Frances C. Whiteman, Whiteman Burdette, PLLC, Fairmont, West Virginia, Attorney for the Appellant.

PER CURIAM:

This is an appeal by Gary Brian Cummings (hereinafter "Appellant") from a December 13, 2001, order of the Circuit Court of Marion County denying the Appellant's motion for reconsideration of a restitution order. The restitution order had been entered pursuant to the Appellant's plea of nolo contendere to one count of fraudulent schemes, one count of embezzlement, one count of forgery, and one count of uttering. The Appellant contends that the lower court erred by ordering him to pay restitution in an amount unjustified by the statute governing restitution, West Virginia Code § 61-11A-4 (1984) (Repl. Vol.2000). After thorough examination of the record and arguments of counsel, we reverse the restitution order entered by the lower court and remand for the entry of an order consistent with this opinion.

I. Factual and Procedural History

The Appellant was employed by Dr. Patrick C. Bonasso (hereinafter "victim") as an office manager, with duties including the daily operation of the office and financial affairs of Dr. Bonasso's medical business, WomanCare, Inc. During his tenure with Dr. Bonasso, the Appellant embezzled from the medical business by stealing cash, forging checks, improperly using the company credit card, retaining the proceeds from the sale of a storage building, and granting himself an unauthorized raise. The Appellant ultimately confessed to Dr. Bonasso and was indicted for twenty-two counts of forgery, twenty-two counts of uttering, one count of embezzlement, and one count of fraudulent schemes.

On April 24, 2000, the Appellant entered into a plea agreement in which he pled nolo contendere to one count of fraudulent schemes, one count of embezzlement, one count of forgery, and one count of uttering. The Appellant further agreed to "make restitution to the victims ... upon the submission of an Affidavit of Loss and a Restitution Hearing" and agreed to "make restitution in the amount to be determined at a Restitution Hearing." Restitution hearings were conducted on July 13, 2001, September 19, 2001, and October 15, 2001. Substantial expert and factual testimony was presented by the State and the defense regarding the losses incurred by Dr. Bonasso and WomanCare, Inc. The defense did not present any evidence regarding the Appellant's financial resources.

Subsequent to a November 5, 2001, hearing, the lower court determined that the evidence supported a finding that restitution of $48,778.98 was appropriate. The following items were included: $20,776.86 for checks written by the Appellant to himself which had not been authorized by the victim; $7,013.49 for the victim's cash receipts not deposited by the Appellant; $2,339.65 for interest paid by the victim on a line of credit, an amount which would not have been necessary had the Appellant not engaged in criminal activity; $1,500.00 for money received and retained by the Appellant for the sale of the victim's utility building; $12,000.00 for income the victim lost as a result of his court appearances; $5,000.00 for accounting fees in ascertaining financial losses; $149.00 for costs charged by the bank for recreation of deposit slips. The Appellant's request for reconsideration of the lower court's restitution order was denied, and this appeal followed.

II. Standard of Review

The standard of review applicable to the case sub judice was explained as follows in syllabus point one of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997):

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.

III. Discussion

A. State Concedes Error

Prior to a discussion of the controverted issues in this case, we observe initially that the State concedes that the lower court erred in assessing attorney and expert witness fees to the Appellant and in failing to make findings of fact regarding the Appellant's ability to pay restitution. The State having conceded error on these issues, we reverse the determination of the lower court and remand this matter for further evaluation consistent with this opinion.

B. Items Included in Restitution Order

The primary remaining issue for this Court's resolution is whether the lower court erred in awarding restitution based upon matters not specifically referenced in the indictment. Examination of this matter is 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. In this instance, the Appellant maintains that the following items were wrongly included in the restitution order: cash allegedly taken by the Appellant from Dr. Bonasso's office; interest paid on Dr. Bonasso's line of credit due to cash flow problems created by the Appellant's crimes; cash received by the Appellant for the sale of an outbuilding; and additional checks allegedly written by the Appellant.

The Appellant agreed to pay restitution as part of the plea agreement between the Appellant and the State. In syllabus point two of Lucas, this Court examined the parameters of a restitution order, explaining as follows:

Read in pari materia, the provisions of W.Va.Code, 61-11A-1 [1984], W.Va.Code, 61-11A-4(a) [1984], W.Va.Code, 61-11A-4(d) [1984], W.Va.Code, 61-11A-5(a) [1984] and W.Va.Code, 61-11A-5(d) [1984], establish that at the time of a convicted criminal defendant's sentencing, a circuit court should ordinarily order the defendant to make full restitution to any victims of the crime who have suffered injuries, as defined and permitted by the statute, unless the court determines that ordering such full restitution is impractical.

201 W.Va. at 273, 496 S.E.2d at 223 (1997). Syllabus point three of Lucas continued:

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.

In State v. Whetzel, 200 W.Va. 45, 488 S.E.2d 45 (1997), this Court observed that the West Virginia restitution statute "predicates 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.'" 200 W.Va. at 48, 488 S.E.2d at 48. The Whetzel Court further explained that

the 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).

Id. (emphasis supplied). In Whetzel, this Court discussed Hebert v. State, 600 So.2d 1293 (Fla.Dist.Ct.App.1992), with approval, explaining as follows:

Similarly, in Hebert v. State, 600 So.2d 1293 (Fla.Dist.Ct.App.1992), the Florida court dealt with the question of how much restitution was payable by defendants who were charged with grand theft, but plead guilty to petit theft. Petit theft was the crime of theft of items having a value of $300.00 or less. The court subsequently required the defendants to pay restitution in the amount of $2,530.00. On appeal the defendants claimed that the trial court legally could require them to pay no more than $300.00 in restitution. The court of appeal rejected that claim. The court noted that the Florida restitution statute was a separate statute from the statute defining the criminal offense and indicated that the restitution statute, which dictated loss caused by the crime, rather than the law dictating the degree of the crime, should determine the level of restitution.

Id. at 47, 488 S.E.2d at 47 (emphasis supplied). Following its discussion of the Hebert reasoning, the Whetzel Court continued:

As previously indicated, other jurisdictions have recognized that their statutes establishing or defining criminal offenses are distinct from their restitution statutes. They have also recognized that the fact that a criminal has been convicted of a particular offense defined in a particular statute does not govern the question of restitution. Rather, the separate restitution statute governs the restitution question. As are the situations involved in the foreign jurisdictions cited, West Virginia's restitution statute is separate from the statutes establishing various offenses.

Id. at 48, 488 S.E.2d at 48 (emphasis supplied).¹

Other jurisdictions evaluating this issue have typically concluded that "a defendant may be ordered to pay restitution only for an offense that he has admitted, upon which he has been found...