State v. Foeller
| Decision Date | 23 June 2021 |
| Docket Number | Docket No. 47777 |
| Citation | 168 Idaho 884,489 P.3d 795 |
| Court | Idaho Supreme Court |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Melissa Kay FOELLER, Defendant-Appellant. |
Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant. Kimberly Coster argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Andrew Wake argued.
Melissa Kay Foeller ("Foeller") appeals a district court's order of restitution following her guilty pleas to two counts of grand theft and one count of tax evasion. She signed a plea agreement that stipulated she would pay restitution, as determined by the district court, in accordance with Idaho Code section 19-5304. On appeal, Foeller argues that the district court erred in ordering her to pay $535,952.87 in restitution to Travelers Casualty, her employer's insurer, because the court failed to adequately consider her foreseeable ability to pay that amount. Additionally, Foeller argues the district court abused its discretion in ordering her to pay $48,775 as restitution for back taxes to the Idaho State Tax Commission ("Tax Commission"). Foeller asserts the restitution amount was impermissibly speculative because it was based on an estimate of her back taxes. Foeller also claims that taxes owed to the State of Idaho are future revenue, not compensable as an economic loss under section 19-5304(1)(a).
Foeller worked as a payroll accountant at Silverwood Theme Park ("Silverwood") for just under ten years. In 2019, she pleaded guilty to embezzling $528,611.11 between December 2013 and July 2017. A police investigation revealed Foeller, along with Silverwood's chief financial officer, Christopher Wyatt, began embezzling funds soon after her employment began in 2008, but she could only be charged for funds stolen during the previous five years. Foeller said she spent roughly 90 percent of the money to pay for her gambling addiction, mostly at a nearby casino.
The State initially charged Foeller with five counts of grand theft, one for each year she was charged with taking money from Silverwood. A Tax Commission employee read a media account of Foeller's case and suggested that the Commission look into Foeller's taxes. The inquiry revealed that, although Foeller had filed a 2013 tax return, she did not report the embezzled funds as income. Additionally, it was discovered that Foeller did not file any tax returns at all for the years 2014 through 2017. As a result of the tax investigation, the State amended Foeller's indictment, combining the grand theft charges into two counts (one for the period December 2013 to December 2015; one for the period January 2016 to July 2017) and adding a charge for tax evasion.
Foeller accepted a pre-trial plea agreement by which she agreed to plead guilty to the two charges of grand theft and one charge of tax evasion. Pursuant to the plea agreement, Foeller also agreed to pay restitution "[i]f applicable per statute." The district court imposed a unified sentence of fourteen years with three years fixed for each of the grand theft charges, and a unified sentence of five years with three years fixed on the tax evasion charge, with all three sentences to run concurrently. The State then filed a request for restitution in the following amounts: $535,952.87 to Travelers Casualty, the insurer that had covered Silverwood's embezzlement losses; $10,000 to Silverwood for the amount of its insurance deductible; and $48,775 to the Tax Commission based on the estimated amount Foeller had failed to pay in taxes, including on the embezzled funds, during the five years at issue.
At a subsequent restitution hearing, the parties stipulated to reduce Foeller's share of the restitution owed to Silverwood by $5,000, with Christopher Wyatt paying the remaining $5,000. However, Foeller objected to the remaining restitution sought by the State. Although she did not challenge the accuracy of the amount Travelers Casualty was requesting, Foeller argued she should not be ordered to pay the full $535,952.87 because it was not foreseeable that she would ever be able to repay such a significant amount. Specifically, Foeller claimed she would be unable to pay the full restitution amount in the future because she was financially indigent, lacked other financial resources, might be getting divorced, would not be able to work as an accountant upon her release, and had a documented disability for various mental health disorders. Further, she averred that the interest which would accrue during her three-year incarceration would be "astronomical."
Foeller also objected to the $48,777 the State requested in restitution to the Tax Commission. First, she claimed that taxes do not satisfy the definition of "economic loss" under Idaho Code section 19-5304 because taxes are revenue and not an out-of-pocket expense. Second, she asserted that the requested amount due to the Tax Commission was based on an estimate rather than a tax assessment and, therefore, was impermissibly speculative.
The district court ruled from the bench, ordering the full amount of restitution requested by the State and ordering that interest begin to accrue from the date of the order. Regarding Foeller's future ability to pay restitution to Travelers Casualty, the district court stated, "because the defendant is not going to be incarcerated forever, the defendant does have the ability to earn money and does have the ability to pay some of this back at some point." The district court entered the restitution order, and Foeller timely appealed.
This Court reviews a district court's restitution order for an abuse of discretion, asking whether the trial court "(1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason." State v. Garcia , 166 Idaho 661, 681, 462 P.3d 1125, 1145 (2020) (quoting Lunneborg v. My Fun Life , 163 Idaho 856, 863, 421 P.3d 187, 194 (2018) ).
Foeller claims that the district court abused its discretion in ordering her to pay Travelers Casualty, her employer's insurer, $535,952.87 in restitution because it did not adequately consider her foreseeable ability to pay that amount in the future. The State responds by first asserting that this issue was not preserved because Foeller signed a plea agreement, which waived any issue regarding restitution except whether the award covers an "economic loss" under the statute. Second, the State contends that the district court adequately considered Foeller's ability to pay the restitution amount and that the district court's determination is supported by substantial evidence in the record.
This Court analyzes the terms of a plea agreement as it would a contract; in so doing, it looks to the contractual terms of a plea agreement. State v. Jafek , 141 Idaho 71, 73, 106 P.3d 397, 399 (2005). "Interpretation of an unambiguous document is a question of law, reviewed de novo." State v. Claxton , 128 Idaho 782, 785, 918 P.2d 1227, 1230 (Ct. App. 1996). In general, "[a]n unambiguous contract will be given its plain meaning."
Credit Suisse AG v. Teufel Nursery, Inc. , 156 Idaho 189, 196, 321 P.3d 739, 746 (2014) (quoting Bakker v. Thunder Spring–Wareham, LLC, 141 Idaho 185, 190, 108 P.3d 332, 337 (2005) ). This Court must consider contractual terms that are expressly provided in the plea agreement, as well as those contractual terms that are implied. State v. Doe , 138 Idaho 409, 410–11, 64 P.3d 335, 336–37 (Ct. App. 2003).
Foeller signed a plea agreement in which she agreed to "[p]ay restitution/reimbursement: If applicable per statute: for all charges, even those dismissed." Idaho Code section 19-5304(2) provides in part, "[u]nless the court determines that an order of restitution would be inappropriate or undesirable, it shall order a defendant found guilty of any crime which results in an economic loss to the victim to make restitution to the victim." Section 19-5304(7) articulates the requirements for considering whether restitution would be appropriate or desirable:
The court, in determining whether to order restitution and the amount of such restitution, shall consider the amount of economic loss sustained by the victim as a result of the offense, the financial resources, needs and earning ability of the defendant, and such other factors as the court deems appropriate. The immediate inability to pay restitution by a defendant shall not be, in and of itself, a reason to not order restitution.
(Emphasis added). According to the State, the contractual terms of Foeller's plea agreement that she pay any reimbursement "per statute" only allow her to appeal reimbursement that does not qualify as an "economic loss" under section 19-5304(1)(a). We disagree.
The most objective, plain reading of the term "per statute" in the plea agreement would be that the district court "shall consider" the statutory factors for assessing restitution. In other words, the reference to "per statute" unambiguously means that any restitution awarded must comply with the statute for restitution: section 19-5304. Foeller's plea agreement did not waive her right to appeal whether the district court adequately considered these factors and how they inform Foeller's ability to pay the restitution amount. Thus, the issue is properly before this Court on appeal.
Foeller argues the district court abused its discretion when it order her to...
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