State v. Laroche

• Citation: 925 A.2d 885
• Decision Date: 14 June 2007
• Docket Number: No. 2005-274-C.A.,2005-274-C.A.
• Parties: STATE v. David LaROCHE.
• Court: United States State Supreme Court of Rhode Island

925 A.2d 885

STATE v. David LaROCHE.

No. 2005-274-C.A.

Supreme Court of Rhode Island.

June 14, 2007.

Lauren S. Zurier, Esq., Providence, for Plaintiff.

Edward J. Romano, Esq., Providence, for Defendant.

Present: WILLIAMS, C.J., and GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice SUTTELL, for the Court.

The defendant, David LaRoche, appeals from a Superior Court order denying his motion to correct an illegal sentence. The sentence at issue was imposed after he pled nolo contendere to a charge of perjury. The defendant challenges the court's authority to condition his sentence upon a consent order concerning the payment of a previously established restitution obligation. Perceiving no merit in the defendant's contentions, we affirm the order of the Superior Court and thereby affirm the sentence.

Facts¹ and Procedural History

In 1993, a Washington County jury convicted defendant of two counts of obtaining money by false pretenses and three counts of conspiracy to obtain money by false pretenses (criminal case number W1/91-347A) for several transactions in which defendant defrauded two Rhode Island credit unions for loans totaling over $4 million by using straw borrowers. The trial justice sentenced defendant to concurrent five-year terms of imprisonment for the false-pretenses counts, and suspended five-year sentences for the conspiracy counts. The suspended sentences carried five years of probation and ran consecutively to the false-pretenses counts. In addition, defendant was fined a total of $25,000 and ordered to make restitution for the money he falsely acquired. In 1998, after this Court affirmed defendant's conviction, see State v. LaRoche, 683 A.2d 989 (R.I.1996) (LaRoche I,) the Superior Court entered a consent order establishing his restitution obligation at $4,452,909.12, payable to the Rhode Island Depositors' Economic Protection Corporation (DEPCO), the successor in interest to the defrauded credit unions.

Almost two years after entering into the restitution agreement, defendant was accused of falsifying his assets and ability to make restitution. He subsequently was charged with two counts of perjury and one count of filing a false document. The defendant negotiated a plea agreement in which he pled nolo contendere to one count of perjury (criminal case number P2/00-2122A), acknowledging that he knowingly had executed an affidavit of financial condition containing false material declarations and later testified to the truth of the affidavit at a hearing to determine his ability to pay restitution. He received a ten-year suspended sentence, with ten years of probation, to run consecutively to the W1/91-347A sentence. In return, the state dismissed the two remaining counts, and the state agreed that it would neither object to nor recommend parole for defendant at his future parole hearing. In addition, as a condition of the sentence, defendant agreed to execute a consent order (2000 consent order) establishing a payment schedule for his restitution obligation in the W1/91-347A case.

This consent order, dated June 23, 2000, required defendant to make an initial $300,000 restitution payment by August 15, 2000, and subsequent payments of $100,000, or 25 percent of his after-tax income, whichever was greater, on or before July 1 of each succeeding year.² Although defendant complied with the consent order for a time, on November 15, 2002, the state commenced probation-revocation proceedings against him when he failed to make a scheduled payment. At the probation-revocation proceeding, the hearing justice determined that defendant had violated the terms of his probation and sentenced him to serve four of the five years of his suspended sentence in case number W1/91-347A.³ The suspended sentence associated with his perjury conviction, however, was not disturbed. Later, on December 2, 2004, defendant once again was determined to be a violator of his probation for failing to make another restitution payment. Accordingly, the court sentenced defendant to serve the final year of his W1/91-347A suspended sentence and two of the remaining ten years of his perjury sentence.

Thereafter, defendant filed a motion to correct what he contended was an illegal sentence in accordance with Rule 35 of the Superior Court Rules of Criminal Procedure. The basis for his motion concerned the court's authority to make the 2000 consent order a condition of his sentence for the perjury conviction. The defendant asserted that G.L.1956 §§ 12-28-5 and 12-28-5.1, promulgated as part of the Victim's Bill of Rights (VBOR), limited the Superior Court's authority to impose a restitution order to situations in which a victim suffers economic loss directly attributable to the conduct for which a defendant has been convicted. Because no economic loss resulted from his perjurious conduct, defendant contended, the court was not authorized under law to condition his sentence upon the payment of restitution related to his previous conviction for obtaining money under false pretenses. He also asserted that the illegality of the sentence did not dissipate simply because he voluntarily agreed to the consent order as a condition of his sentence.

The state, alternatively, argued that in accordance with G.L.1956 § 12-19-32, the court had specific authority to order restitution as part of defendant's criminal sentence for perjury, and it emphasized further that defendant voluntarily had agreed to enter into the 2000 consent order as a condition of his sentence. Moreover, the state observed that defendant's perjury conviction was directly related to the original case for which restitution was ordered.

At the conclusion of the hearing, the hearing justice ruled that the court's authority to order restitution was not limited solely to the perjury charge. The hearing justice also noted that the court would not endorse defendant's attempt to avoid the consequences of an agreement he entered into of his own accord. An order denying defendant's motion was entered on September 14, 2005, from which defendant now appeals.⁴

Standard of Review

When presented with questions of statutory interpretation this Court engages in a de novo review. State v. Oliveira, 882 A.2d 1097, 1110 (R.I.2005). As we have noted previously, "when the language of a statute is clear and unambiguous, [this Court] must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Id. (quoting Johnston v. Poulin, 844 A.2d 707, 711 (R.I.2004)). "Moreover, when we examine an unambiguous statute, `there is no room for statutory construction and we must apply the statute as written.'" Id. (quoting Johnston, 844 A.2d at 711). It is only when confronted with an unclear or ambiguous statutory provision that this Court will examine the statute in its entirety to discern the legislative intent and purpose behind the provision. Id.

Discussion

The defendant first contends that a restitution order in a criminal case is permissible only when the beneficiary of the order has sustained "monetary loss as a direct result of the criminal conduct for which the defendant is being sentenced." Consequently, defendant asserts, the Superior Court lacked authority to impose the 2000 consent order as a condition of his perjury sentence because the "economic loss contained in the restitution" obligation was not caused by defendant's mendacious conduct in committing the perjury. The state, however, maintains that defendant's argument misconstrues the interaction between the Victim's Bill of Rights and § 12-19-32.

Section 12-28-5 of the VBOR requires the court to enter a civil judgment against a defendant following final conviction of a felony after a trial by jury.⁵ The judgment conclusively establishes the defendant's liability to the victim for personal injury or loss of property incurred as "a direct and proximate cause of the felonious conduct of which the defendant has been convicted." Section 12-28-5(a). As we have recognized, the Legislature intended this statute as a "procedural mechanism or shortcut, whereby the liability of the defendant is established, yet damages must still be proven in an `appropriate judicial proceeding[.]'" Seddon v. Bonner, 755 A.2d 823, 826 (R.I.2000) (quoting § 12-28-5). Expanding on the contours of § 12-28-5, the Legislature subsequently enacted § 12-28-5.1,⁶ which provides for the automatic entry of a civil judgment in favor of a victim when the court orders "financial restitution to the victim of a crime of which the defendant has been convicted or to which the defendant has pleaded guilty or nolo contendere[.]" Section 12-28-5.1; see also Bandoni v. State, 715 A.2d 580, 594 (R.I.1998).

The defendant contends that §§ 12-28-5 and 12-28-5.1 limit the court's general authority to order restitution as part of a criminal sentence to the monetary loss directly resulting from the criminal conduct for which a defendant is being sentenced. In the instant appeal, he asserts that the nearly $4.5 million-restitution order, although an appropriate condition of his conviction for defrauding credit unions, was not in any way attributable to his perjurious conduct. Therefore, he avers, the court lacked authority to condition defendant's sentence upon his execution of the 2000 consent order, which merely provided for the payment of said restitution. We are not persuaded.

The plain language of § 12-19-32, provides in pertinent part: "[i]n addition to or in lieu of any non-mandatory sanction imposed as part of a sentence or as a condition of probation, a judge at the time of sentencing may order restitution which may be in the form of monetary payment or some type of community restitution." We perceive no limitation on the scope of a sentencing court's authority to order restitution prescribed by the VBOR, the express purpose of which is to ensure that all victims of crime are treated with respect and receive financial...