State v. Dwight

• Decision Date: 27 July 2018
• Docket Number: No. 2017-075,2017-075
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Lucas Dwight

2018 VT 73

State of Vermont v. Lucas Dwight

No. 2017-075

Supreme Court of Vermont

March Term, 2018

July 27, 2018

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: JUD.Reporter@vermont.gov 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, Chittenden Unit, Criminal Division

James R. Crucitti, J.

James Pepper and David Tartter, Deputy State's Attorneys, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Matthews and Joshua O'Hara, Appellate Defenders, Montpelier, for Defendant-Appellant.

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

¶ 1. REIBER, C.J. Defendant Lucas Dwight appeals the trial court's restitution order requiring him to pay dental expenses resulting from defendant's conviction for simple assault. Defendant raises two main issues: (1) whether the court erred in awarding restitution for expenses that complainant's father paid on complainant's behalf; and (2) whether the ordered repayment schedule, which considered defendant's earning capacity, was impermissibly punitive. We affirm.

¶ 2. The following facts are undisputed. Connor Richards, a student at the University of Vermont, was assaulted in May 2016. He sustained substantial injury to his mouth, including losing four teeth. Defendant was charged with aggravated assault for the attack, which was later amended to simple assault pursuant to 13 V.S.A. § 1023(a)(1). In May 2016, defendant pled nolo contendere to the charge of simple assault. The court entered a judgment of guilty and sentenced defendant to four to twelve months, all suspended except for three days on work crew, and defendant was placed on probation for fifteen months. The probation conditions included anger-management counseling, no contact with complainant, and restitution as ordered by the court.

¶ 3. The court held two restitution hearings to determine the amount of restitution and defendant's ability to pay. See 13 V.S.A. § 7043(c) (requiring, when ordering restitution, court must hold hearing if parties contest restitution amount and make findings regarding restitution amount and defendant's ability to pay); 28 V.S.A. § 252(b)(6) (permitting court to order restitution as probation condition and requiring court to "fix the amount [of restitution] thereof, which shall not exceed an amount the defendant can or will be able to pay, and shall fix the manner of performance"). The court found that as of August 2016, the date of the first restitution hearing, complainant had incurred $21,441.15 in dental expenses due to the assault that were not covered by insurance or the State of Vermont Restitution Unit. Complainant's father paid for these expenses by credit card. Complainant's father "told his son that he would be required to make a choice—have his severely damaged teeth and gums repaired, or go to school." Complainant has taken out a $28,000 loan for school expenses, an expense previously paid for by his parents. The court ordered defendant to pay $21,441.15 in restitution to complainant.

¶ 4. In assessing defendant's ability to pay, the court found that as of February 2017, the date of the second restitution hearing, defendant was a high school graduate with no college or trade school education. Defendant worked seasonally, mowing lawns in summer and snowplowing in winter. A paystub dated November 18, 2016, showed he earned $14.00 per hour, worked 35.25 hours per week, and earned a gross income of $493.50 per week, and his year-to-date earnings were $10,785.25. Defendant reported his monthly income was $1,012.00, and his monthly expenses were $1,155.00. The court noted that defendant "appears to be a very fit and healthy young individual" and that "defendant offered no reason why" he could not work fortyhours per week. The court calculated that if defendant worked forty hours per week at $14.00 per hour, he would earn $2,424.00 per month. If he earned the weekly wage on his paystub every week, he would earn $2,136.00 per month. The court concluded that defendant "should be required to work a standard work week in order to make the restitution amount meaningful," and "[g]iven the number of hours worked per week by the defendant and the absence of any reason for not working a standard work week, . . . the defendant is earning less than he could through reasonable effort." Relying on this calculation of defendant's earning potential, the court ordered defendant to pay $500 by March 1, 2017, $200 by April 1, 2017, and $200 by May 1, 2017. Starting June 1, 2017, defendant was required to pay $300 per month. Defendant timely appealed.

¶ 5. On appeal, defendant argues that because complainant's father paid the dental expenses, the loss was father's, not complainant's, placing it outside the reach of the restitution statute. He also argues that the purpose of restitution is to compensate the victim, rather than to punish the defendant, and the restitution payment schedule was unnecessarily and impermissibly punitive.

¶ 6. An order to pay restitution as a condition of probation falls within the sentencing discretion of the court. State v. Hughes, 2010 VT 72, ¶ 8, 188 Vt. 595, 5 A.3d 926 (mem.) (citing 28 V.S.A. § 252 and "noting that conditions of probation, including award and amount of restitution, lie within discretion of trial court"). Accordingly, "[w]e review restitution orders for an abuse of discretion." State v. Gorton, 2014 VT 1, ¶ 8, 195 Vt. 460, 90 A.3d 901. We will uphold the trial court's order unless "the trial court has withheld its discretion entirely or . . . it was exercised for clearly untenable reasons or to a clearly untenable extent." Unifund CCR Partners v. Zimmer, 2016 VT 33, ¶ 15, 201 Vt. 474, 144 A.3d 1045 (quotation omitted). To the extent the court's order relies on statutory interpretation or a question of law, we review the matter de novo. State v. Blake, 2017 VT 68, ¶ 8, ___ Vt. ___, 174 A.3d 126 ("When we review issues of law or engage in statutory interpretation" involved in restitution orders, "we do so de novo.").

I. Expenses Paid by Father

¶ 7. Our first question is whether the court erred in ordering defendant to pay restitution to complainant for the dental expenses when complainant's father, not complainant, paid the expenses. This is a question of law that we review de novo. Id.

¶ 8. The restitution statute requires the court to consider restitution "in every case in which a victim of a crime . . . has suffered a material loss." 13 V.S.A. § 7043(a)(1). This statute is narrowly drawn. State v. Stewart, 2017 VT 82, ¶ 7, ___ Vt. ___, 176 A.3d 1120. "Victim" is defined as "a person who sustains physical, emotional, or financial injury or death as a direct result of the commission or attempted commission of a crime." 13 V.S.A. § 5301(4). The "direct result" requirement means that restitution is only available for "direct victims of crime." State v. Thomas, 2010 VT 107, ¶ 17, 189 Vt. 106, 14 A.3d 961 ("The Legislature's use of the words 'direct result' indicates that it intended to provide restitution only to direct victims of crime."). "Material loss" refers to "uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses." 13 V.S.A. § 7043(a)(2). "[T]here must be a direct link between the crime and the restitution." State v. LaFlam, 2008 VT 108, ¶ 11, 184 Vt. 629, 965 A.2d 519 (mem.) (quotation omitted); see also State v. Baker, 2017 VT 91, ¶¶ 12, 14, ___ Vt. ___, 177 A.3d 1093 (explaining restitution statute requires criminal act to be proximate cause of material losses).

¶ 9. There is no question that if complainant had paid the dental expenses directly, such as through a bank account or by a credit card in his name, then the expenses would qualify for restitution under the statute.¹ The dental expenses were incurred by the direct victim of the crime; they were proximately caused by defendant's criminal act; and the expenses meet the statutorydefinition of a material loss. See 13 V.S.A. § 7043(a)(2) (defining material loss); cf. Stewart, 2017 VT 82, ¶ 6 (stating bank that reimbursed account holder for fraudulent check was "direct victim" of crime of embezzlement because it was "harmed financially as a direct result of defendant's crime"); Baker, 2017 VT 91, ¶ 20 (holding that negligent operation of car could proximately cause car damages, but did not proximately cause lost wages due to car co-owner's decision to leave work to help family deal with car accident); State v. Kenvin, 2011 VT 123, ¶ 13, 191 Vt. 30, 38 A.3d 26, overruled on other grounds by State v. Aubuchon, 2014 VT 12, 195 Vt. 571, 90 A.3d 914 (stating decedent was "sole victim of defendant's crime" of negligently operating vehicle, so decedent's medical expenses qualified for restitution, but family members' travel expenses for decedent's funeral did not).

¶ 10. The question is whether the fact that father paid for the expenses, rather than complainant, renders the dental expenses ineligible for restitution. It does not. The loss incurred was complainant's loss, not father's. Complainant incurred the dental expenses, and uninsured medical expenses constitute material losses without regard to who paid them or whether they have been paid at all. 13 V.S.A. § 7043(a)(2) (defining "material loss" to mean "uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses"). The court did not err in ordering defendant to pay restitution for complainant's dental expenses.

II. Repayment Schedule

¶ 11. Next we address the repayment schedule. First, we review whether it was within the court's discretion to consider defendant's future...