State v. Lucas, No. 23903

CourtSupreme Court of West Virginia
Writing for the CourtSTARCHER
Citation201 W.Va. 271,496 S.E.2d 221
Decision Date20 November 1997
Docket NumberNo. 23903
PartiesSTATE of West Virginia, Plaintiff below, Appellee, v. Gary Michael LUCAS, Defendant below, Appellant.

Page 221

496 S.E.2d 221
201 W.Va. 271
STATE of West Virginia, Plaintiff below, Appellee,
v.
Gary Michael LUCAS, Defendant below, Appellant.
No. 23903.
Supreme Court of Appeals of
West Virginia.
Submitted Sept. 17, 1997.
Decided Nov. 20, 1997.

Page 223

[201 W.Va. 273] Syllabus by the Court

1. 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.

2. 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.

3. 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.

4. For purposes of determining whether or what amount of restitution may be entered as a judgment against a defendant at the time of a criminal defendant's sentencing pursuant to W.Va.Code, 61-11A-4(a) [1984], the indigency of a defendant or the current ability or inability of a defendant to pay a given amount of restitution is not necessarily determinative or controlling as to the practicality of an award of restitution. If the court determines that there is a reasonable possibility that a defendant may be able to pay an amount of restitution, the court, upon consideration and weighing of all pertinent circumstances, is permitted but not required

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[201 W.Va. 274] to determine that an award of restitution in such an amount is practical.

5. When a court is determining the practicality of an award of restitution, a finding that there is a reasonable possibility of a defendant's payment of a restitution award must not be based solely on chance; there must be some concrete evidence specific to a defendant showing that the defendant has assets, earning potential or other present or potential resources, or similar grounds upon which the court may conclude that there is a reasonable chance that the defendant may be able to pay the restitution amount in question.

6. When restitution is ordered at a criminal defendant's sentencing pursuant to the provisions of W.Va.Code, 61-11A-4(a) [1984], the circuit court is not required to spread its findings and conclusions on the record in every case in which full restitution is ordered. In cases where full restitution is ordered and where noncompliance with the restitution order will not in itself yield a potential penalty, the decision whether to make findings and assign reasons is committed to the sound discretion of the court. If the record contains sufficient data for the Supreme Court of Appeals to review the basis of the circuit court's order, the court need not assign specific reasons for its decision to order full restitution. However, if the record is insufficient, if potential penalties will be triggered by the defendant's failure to pay the restitution which has been ordered, or if less than full restitution is ordered, the circuit court must make appropriate findings and conclusions regarding the matters which it has considered, including but not limited to the losses sustained by any victims, the financial resources and earning ability of the defendant and the defendant's dependents, and the tailoring of the amount of restitution which a defendant must pay to the defendant's means and circumstances.

7. To facilitate appellate review and maximize the likelihood of well-reasoned decision-making in all cases when restitution is ordered pursuant to W.Va.Code, 61-11A-1 et seq. and particularly when large sums are involved, a circuit court is well advised to exercise its discretion and make full findings and conclusions on the record regarding restitution, even when such findings are not required.

8. Where a criminal defendant intends to and does obtain money or other benefit from an insurance company by committing a criminal act of arson, the insurance company is a direct victim of the crime and is eligible for restitution under the provisions of W.Va.Code, 61-11A-4(a) [1984].

William C. Meyer, II, Public Defender Services, Princeton, for Appellant.

Darrell V. McGraw, Jr., Molly M. McGinley, Assistant Attorney General, for Appellee.

STARCHER, Justice:

The appellant, Gary Michael Lucas, was convicted of arson in the Circuit Court of Mercer County for burning down his Bluewell, West Virginia IGA grocery store. At the appellant's sentencing, the circuit court entered a restitution judgment order against the appellant on behalf of Aetna Casualty Company for $1,430,000.00 in insurance proceeds that Aetna paid as a result of the fire.

The appellant contends that the court's restitution order was improper because the appellant cannot repay such a large sum. The appellant also argues that Aetna is not a "victim" under our victim protection statute.

Because the circuit court's entry of a restitution judgment order does not in itself mean that the appellant will be penalized if he is unable to repay the amount of restitution established in the order--and because the insurance company was the victim in this case--we affirm the circuit court's order.

I.

Facts and Background

In the fall of 1992, the appellant, Gary Michael Lucas, bought an IGA grocery store in Bluewell, West Virginia from Mr. William Warden, who financed the purchase. In compliance with the purchase agreement, the appellant insured the grocery store with the Aetna Casualty Company ("Aetna"). The appellant had previously owned and operated

Page 225

[201 W.Va. 275] several grocery stores. His family had been in the grocery business for 40 years. The appellant said at trial that during 1993 he personally made about $120,000.00 from the Bluewell IGA business.

On July 3, 1994, the appellant's grocery store was destroyed by fire. Aetna subsequently paid out $1,430,000.00 in fire insurance proceeds. Most of the proceeds were applied to discharge the appellant's debt to Mr. Warden and other debts related to the business. The appellant stated at his trial that his "net" from the fire insurance proceeds was about $200,000.00.

On November 1, 1995, the appellant was convicted of first degree arson, a violation of W.Va.Code, 61-3-1 [1935]. 1 The prosecution's position at the appellant's sentencing was that the appellant, as part of his sentence, should be ordered to pay to Aetna as victim restitution the full amount of the financial injury which the appellant had caused to Aetna. An attorney for Aetna addressed the court at the sentencing hearing, verifying the amount paid by Aetna. The appellant told the court at his sentencing that he was indigent, and that his wife was working at the Huntington Mall.

The circuit judge denied probation and sentenced the appellant to a two to 20 year term of incarceration, to run consecutively with a sentence that the appellant had received for violating federal drug laws. In sentencing the appellant, the circuit judge entered judgment against the appellant and on behalf of Aetna in the amount of $1,430,000.00 in restitution. The judge also ordered the appellant to sign over to Aetna a $121,000.00 certificate of deposit in the appellant's name which federal authorities were holding. 2

At the sentencing hearing, the circuit court engaged in a dialogue with the appellant's counsel about the propriety of the amount of the restitution judgment order, and about whether ordering the appellant to sign over the certificate of deposit would allow Aetna to have a "double recovery." 3

Page 226

[201 W.Va. 276] In this dialogue, the court stated that if the appellant was indeed indigent, he could not be penalized for failure to pay the amount of restitution established in the judgment order. The judge also stated that the appellant was free to make further motions challenging the amount of the restitution order and/or the requirement of signing over the certificate of deposit. No such motions appear in the record.

The appellant appealed his conviction and his sentence, including the portion of the sentencing order entering judgment for Aetna for $1,430,000.00. We granted the petition for appeal, but only on the issue of the restitution ordered by the circuit court.

II.

Discussion

A.

Standard of Review

The Victim Protection Act of 1984 ("the Act"), W.Va.Code, 61-11A-1 through -8 codifies the principal statutory law of this state governing court-ordered restitution by a person convicted of a crime. 4 In the instant case, the circuit court entered a restitution judgment order against the appellant at the time of the appellant's sentencing. This action by the court is authorized by W.Va.Code, 61-11A-4(a) [1984], which states that a circuit court,

... when sentencing a defendant convicted of a felony or misdemeanor causing physical, psychological or economic injury or loss to a victim, shall order, in addition to or in lieu of any other penalty authorized by law, that the defendant make...

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317 practice notes
  • Carl N. v. Ballard, No. 13-0569
    • United States
    • Supreme Court of West Virginia
    • April 25, 2014
    ...and not based on an impermissible factor. State ex rel. Massey v. Hun, 197 W. Va. 729, 478 S.E.2d 579 (1996). See also State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). The Petitioner does not dispute that he received the statutory sentences. The record is plain that the Petitioner is ......
  • State Va. v. Eilola, No. 35140.
    • United States
    • Supreme Court of West Virginia
    • November 18, 2010
    ...abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus Point 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). 3. “In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under R......
  • State Of West Va. v. Eilola, No. 35140
    • United States
    • Supreme Court of West Virginia
    • March 10, 2010
    ...abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus Point 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). 3. “In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under ......
  • State v. Gibbs, No. 16-0044
    • United States
    • Supreme Court of West Virginia
    • March 9, 2017
    ...a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syl. Pt. 1, State v. Lucas , 201 W.Va. 271, 496 S.E.2d 221 (1997). We begin our analysis by acknowledging the broad discretion given to trial courts under West Virginia Code § 61-2-1......
  • Request a trial to view additional results
320 cases
  • Carl N. v. Ballard, No. 13-0569
    • United States
    • Supreme Court of West Virginia
    • April 25, 2014
    ...and not based on an impermissible factor. State ex rel. Massey v. Hun, 197 W. Va. 729, 478 S.E.2d 579 (1996). See also State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). The Petitioner does not dispute that he received the statutory sentences. The record is plain that the Petitioner is ......
  • State Va. v. Eilola, No. 35140.
    • United States
    • Supreme Court of West Virginia
    • November 18, 2010
    ...abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus Point 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). 3. “In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under R......
  • State Of West Va. v. Eilola, No. 35140
    • United States
    • Supreme Court of West Virginia
    • March 10, 2010
    ...abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus Point 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). 3. “In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under ......
  • State v. Gibbs, No. 16-0044
    • United States
    • Supreme Court of West Virginia
    • March 9, 2017
    ...a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syl. Pt. 1, State v. Lucas , 201 W.Va. 271, 496 S.E.2d 221 (1997). We begin our analysis by acknowledging the broad discretion given to trial courts under West Virginia Code § 61-2-1......
  • Request a trial to view additional results

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