State v. Gagne

• Decision Date: 17 January 2019
• Docket Number: Docket: Ken-18-152
• Citation: 199 A.3d 1179
• Parties: STATE of Maine v. Wendy L. GAGNE
• Court: Maine Supreme Court

199 A.3d 1179

STATE of Maine

v.Wendy L. GAGNE

Docket: Ken-18-152

Supreme Judicial Court of Maine.

Argued: November 6, 2018

Decided: January 17, 2019

Robert E. Sandy, Jr., Esq. (orally), Sherman & Sandy, Waterville, for appellant Wendy L. Gagne

Maeghan Maloney, District Attorney, and Paul Cavanaugh II, Dep. Dist. Atty. (orally), Office of the District Attorney, Augusta, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

ALEXANDER, J.

[¶1] Wendy L. Gagne appeals from an order to enforce payment of restitution entered by the Superior Court (Kennebec County, Stokes, J. ) following a hearing on a motion to enforce payment of a restitution obligation originally imposed as part of a 2003 sentence imposed by the court (Studstrup, J .). Because the motion court erred in imposing the burden on Gagne to prove the current balance of the court-ordered restitution for the victim's uncompensated losses—information more accessible to the State because it relates to or is available from the victim of the crime—we vacate and remand for a further hearing.

I. CASE HISTORY

[¶2] The relevant facts are drawn from the docket entries, the trial court's file and the record of the motion hearing.

[¶3] On October 10, 2002, Gagne waived indictment and was charged by information with theft by deception (Class B), 17-A M.R.S. § 354(1), (2)(A) (2017).¹ Maine Pulp and Paper Association (MPPA), Gagne's employer, was identified as the victim of the theft. Gagne initially pleaded not guilty, but on October 30, 2002, she changed her plea to guilty of the Class B theft, with the case continued for sentencing.

[¶4] Following her plea, but prior to sentencing, Gagne and her husband, as part of an effort to compensate MPPA for losses occasioned by the theft, granted mortgages to MPPA on properties they owned located in Augusta, Gardiner, and Pittston.

[¶5] Sentencing occurred on February 6, 2003. On Gagne's plea of guilty to theft by deception (Class B), the court sentenced Gagne to the Department of Corrections for a term of seven years, with all but thirty months suspended, to be followed by probation for a term of four years. As part of the judgment, Gagne was ordered to pay restitution in the amount of $400,000. Gagne's conditions of probation separately required that she pay a "maximum" amount of restitution of $400,000 for the benefit of MPPA.

[¶6] In March 2009, around the time when Gagne's term of probation would have been scheduled to end, the State filed a motion to revoke Gagne's probation because the ordered restitution had not been paid in full. Following a hearing on December 10, 2009, the court (Mills, J .) denied the motion. The facts related to the 2009 hearing are addressed in the 2017 motion court's findings, stated below. The record does not indicate that Gagne's term of probation was extended beyond its scheduled expiration.

[¶7] In June 2016, the State filed a motion to enforce payment of restitution. In January 2017, Gagne filed a motion to dismiss the motion to enforce. The grounds for the motion to dismiss were (1) res judicata based on the 2009 denial of the motion to revoke probation for nonpayment of restitution and (2) the early 2017 dissolution of MPPA. The motions were heard on April 28, 2017, and decided by an opinion (Stokes, J. ) dated May 4, 2017. In that decision, the court ordered Gagne to pay $200 per month beginning in May and indicated that a further hearing would be scheduled for June to determine the amount of any credit to be given to Gagne for any funds recovered by MPPA from insurance or foreclosure of the three mortgages given by Gagne and her husband.

[¶8] Gagne filed an appeal from the May 4, 2017, order. We dismissed that appeal as interlocutory because the order contained a footnote stating that the court had "scheduled a follow-up hearing" in case there was a "need to take additional evidence relevant to the issue of whether the victim has received compensation from a collateral source or has received any proceeds from the mortgaged real estate." After remand, however, the motion court indicated that its decision was final and that no further hearing would be scheduled. In April 2018, Gagne filed a timely notice of appeal from the motion court's final order. See 15 M.R.S. § 2115 (2017) ; M.R. App. P. 2A, 2B.

[¶9] The relevant facts are outlined in the following findings of fact stated by the motion court. These findings are supported by competent evidence in the record. See State v. Nisbet , 2018 ME 113, ¶ 9, 191 A.3d 359.

As part of the [2003] judgment and commitment the sentencing court ordered [Gagne] to make restitution in the amount of $400,000 for the benefit of the victim. As a condition of her probation, [Gagne] was ordered to pay restitution in the "maximum" amount of $400,000 for the benefit of the named victim.

In his letter to the sentencing court, [MPPA's attorney] requested restitution for his client in the amount of $367,400, which represented the claimed theft of $400,000 minus payments already made by [Gagne] to MPPA of $32,600. The State sought an identical amount of restitution. State's Exhibit 1 admitted at the hearing on April 28, 2017, reflects restitution payments made by [Gagne] while incarcerated and/or on probation totaling $15,317.39.

The court finds that the $400,000 restitution amount made part of [Gagne's] judgment and her probation, was intended to be a maximum amount before application of any cash payments made by [her] to the victim. Accordingly, the court further finds that [Gagne] has made cash payments totaling $47,917.39 ($32,600 + $15,317.39), leaving a balance of $352,082.61 prior to the application of any other credits to which [Gagne] may be entitled as discussed below.

In his letter to the sentencing court dated January 29, 2003, [MPPA's attorney] made reference to three (3) properties owned by [Gagne] in the central Maine area as to which [Gagne] (and apparently her husband) granted the victim mortgages. At the hearing on April 28, 2017, [Gagne] offered into evidence Defendant's Exhibits 1, 2 and 3 being recorded mortgage deeds on real estate in Pittston, Augusta and Gardiner, respectively, each dated January 31, 2003. [Gagne] testified that neither she nor her husband had any further ownership interest in these properties, and she had no knowledge or information about the properties at this time.

[Gagne] also raised the possibility that MPPA may have received an insurance settlement as a result of [Gagne's] employee theft, but no details of any such payment was provided to the court. During a hearing on the State's Motion to Revoke [Gagne's] Probation held on December 10, 2009 (Mills, J.), [Gagne] presented several letters her counsel had sent to [MPPA's attorney] in 2009 seeking information regarding any insurance payments and/or any proceeds obtained from the foreclosure of the 3 properties that were the subject of the mortgage deeds identified as Defendant's Exhibits 1, 2 and 3.... According to counsel for [Gagne], [MPPA's attorney] did not provide any information regarding insurance payments or any proceeds from the three parcels of real estate.

... [Gagne's] obligation to make restitution was part of the sentencing judgment, in addition to being a condition of her probation. See 17-A M.R.S. §§ 1326-A, 1326-F and 1329.

... [Gagne] argues[ ] there is no longer a victim for whose benefit restitution must be paid. The Maine Criminal Code does not appear to clearly address this issue. Nevertheless, the court concludes that the corporation's entitlement to restitution from [Gagne] is an asset of the corporation and the directors of the corporation, as liquidating trustees, have the authority to dispose of any undistributed property of the corporation. See 13-B M.R.S. §§ 1111(2) and 1104(1)(D) & (2).

....

... The court agrees that it is the State's initial burden of proving "the extent of the victim's loss." State v. Berube , 1997 ME 165, ¶ 19, 698 A.2d 509. On that issue, the State has satisfied its burden. In the court's view, it is [Gagne's] burden to present evidence that she should be credited with additional amounts that may have been subsequently paid to the victim from a collateral source or from the sale of the three parcels of mortgaged real estate. (Emphasis added.) [After this sentence, the court added a footnote stating that a "follow-up hearing" was set for June 30, 2017, "if there is a need to take additional evidence relevant to the issue of whether [MPPA] has received compensation from a collateral source or has received any proceeds from the mortgaged real estate."]

During her testimony on April 28, 2017, [Gagne] stated that based on her current income and financial resources she has the ability to pay $200 per month towards restitution.

Based upon the foregoing, the court finds that [Gagne] is in default of her obligation to make restitution and further finds that the default was not inexcusable. IT IS ORDERED, that [Gagne] shall pay restitution for the benefit of the victim as follows: up to the amount of $352,082.61 in payments of $200 per month beginning in May, 2017, to be paid to the Office of the District Attorney ....

[¶10] Gagne contends that the motion court's conclusion that she was in default of her obligation to pay restitution was error for four reasons: (1) the court's 2009 ruling denying the State's motion to revoke Gagne's probation stands as res judicata on the issue of default; (2) 17-A M.R.S. § 1326-F (2017) does not apply because it was not in effect when the offense was committed during the years of 1997-2002; (3) the restitution order is not enforceable because MPPA has been dissolved; and (4) the court was not presented with sufficient evidence to conclude that any amount of restitution remained unpaid and, if so, in what amount.

II. LEGAL ANALYSIS

[¶11] A court's factual findings are reviewed for clear error and the legal conclusions it derived from those findings are reviewed de...