State v. Nelson

• Decision Date: 27 February 2017
• Docket Number: Docket No. 44177
• Citation: 161 Idaho 692,390 P.3d 418
• Court: Idaho Supreme Court
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Jamie Lee NELSON aka Rinehart, Defendant-Appellant.

161 Idaho 692

390 P.3d 418

STATE of Idaho, Plaintiff-Respondent,

v.Jamie Lee NELSON aka Rinehart, Defendant-Appellant.

Docket No. 44177

Supreme Court of Idaho, Boise, December 2016 Term.

Filed: February 27, 2017

Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Brian R. Dickson, Deputy State Appellate Public Defender argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

BURDICK, Chief Justice

Jamie Nelson appeals the Ada County district court's award of restitution entered under Idaho Code section 37-2732(k). The Idaho Court of Appeals vacated the restitution award, and we granted the State's timely petition for review. Because we conclude the State failed to support its request for restitution with sufficient evidence, we vacate the restitution award.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2012, Nelson and her husband were charged with (1) possession of a controlled substance and paraphernalia; and (2) injury to child. They stood trial together. The first trial ended in a mistrial after the State presented evidence the district court had ordered inadmissible. A second trial was held in September 2012, and Nelson and her husband were both convicted of the drug-related charges but acquitted of the injury to child charges.

At Nelson's sentencing hearing, the State sought to recoup its prosecution costs under Idaho Code section 37-2732(k) and requested $4,746. That amount reflects 33.9 hours of work billed at $140 per hour. Although a restitution hearing was never held, the district court awarded $2,535 under Idaho Code section 37-2732(k). The award reflects 39 hours¹ of work billed at $65 per hour. The district court declined to base the award on the State's request for $140 per hour, reasoning instead that $65 per hour was reasonable. Nelson appealed, and the State conceded it had not presented sufficient evidence to support the restitution award. State v. Nelson , No. 40493, 2014 WL 708467, at *3–4 (Ct. App. Feb. 21, 2014). The Court of Appeals vacated the award and remanded the case for a restitution hearing. Id.

On remand, the district court held a restitution hearing and permitted the parties to submit written arguments. The State submitted an unsworn written statement, entitled "Statement of Costs and Request for Restitution in a Drug Case" (Statement of Costs), as evidence of its prosecution costs.² Again, the State requested $4,746. Nelson objected that the State's award (1) would punish her for exercising her Sixth Amendment rights to stand trial and present a defense under the U.S. Constitution; (2) did not demonstrate that costs for the mistrial were excluded; (3) did not delineate costs incurred to prosecute Nelson's husband; (4) did not demonstrate that the State's costs incurred on acquitted injury to child charges were excluded; and (5) was excessive because it did not accurately reflect the prosecutor's rate of pay.

At the restitution hearing, the district court noted that the Statement of Costs was "not sworn." Even so, the district court rejected Nelson's arguments and awarded $4,746 to the State. The district court assessed the award jointly and severally against Nelson and her husband. Nelson filed another appeal.

On its second review of the award, the Court of Appeals vacated the award. Again, the Court of Appeals held that insufficient evidence supported the award. The Court of Appeals faulted the district court for doing essentially the same thing it did before the first appeal—basing the award on unsworn representations. Thus, the Court of Appeals declined to remand the case because the State "already had an additional opportunity to provide substantial and competent evidence as support for the restitution award." Id. The Court of Appeals declined to reach Nelson's constitutional and vindictive sentencing arguments, finding the evidentiary issue dispositive. We granted the State's timely petition for review.

II. STANDARD OF REVIEW

When addressing a petition for review, this Court will give "serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court." State v. Schall , 157 Idaho 488, 491, 337 P.3d 647, 650 (2014).

III. DISCUSSION

This appeal brings to light Idaho Code section 37-2732(k). That statute permits the State to recoup its prosecution costs as restitution, providing as follows:

Upon conviction of a felony or misdemeanor violation under this chapter or upon conviction of a felony pursuant to the "racketeering act," section 18-7804, Idaho Code, or the money laundering and illegal investment provisions of section 18-8201, Idaho Code, the court may order restitution for costs incurred by law enforcement agencies in investigating the violation. Law enforcement agencies shall include, but not be limited to, the Idaho state police, county and city law enforcement agencies, the office of the attorney general and county and city prosecuting attorney offices. Costs shall include, but not be limited to, those incurred for the purchase of evidence, travel and per diem for law enforcement officers and witnesses throughout the course of the investigation, hearings and trials, and any other investigative or prosecution expenses actually incurred, including regular salaries of employees. In the case of reimbursement to the Idaho state police, those moneys shall be paid to the Idaho state police for deposit into the drug and driving while under the influence enforcement donation fund created in section 57-816, Idaho Code. In the case of reimbursement to the office of the attorney general, those moneys shall be paid to the general fund. A conviction for the purposes of this section means that the person has pled guilty or has been found guilty, notwithstanding the form of the judgment(s) or withheld judgment(s).

I.C. § 37-2732(k).

In this appeal, we focus on how "the court may order restitution" to the State for prosecution expenses "actually incurred ." See id. (emphasis added). Thus, restitution under section 37-2732(k) is discretionary. To determine whether the district court abused its discretion, this Court evaluates whether the district court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion and consistently with relevant legal standards; and (3) reached its decision by an exercise of reason. Swallow v. Emergency Med. of Idaho, P.A. , 138 Idaho 589, 592, 67 P.3d 68, 71 (2003). The second and third requirements of the inquiry outlined above require the district court to "base the amount of restitution upon the preponderance of evidence submitted by the prosecutor, defendant, victim, or presentence investigator." State v. Weaver , 158 Idaho 167, 170, 345 P.3d 226, 229 (Ct. App. 2014) (citation omitted). What amount of restitution to award is a question of fact for the district court, "whose findings will not be disturbed if supported by substantial evidence." Id.

Here, the sole "evidence" supporting the restitution award is a one-paragraph form, the Statement of Costs. The Statement of Costs is problematic for several reasons. First, the Statement of Costs is a boilerplate, fill-in-the-blank-style form the State has used in other cases. See State v. Cunningham , 161 Idaho 698, 700, 390 P.3d 424, 426–27, 2017 WL 750590 (Idaho 2017). The Statement of Costs merely identifies the defendant, the case number, and the prosecutor. It then states the total number of attorney hours, the hourly rate, and computes the sum total of the request. It does not contain itemized time entries explaining the tasks performed or the expenditures made in the particular case. Nor does the Statement of Costs state that restitution was sought only for expenses actually incurred in prosecuting the charge resulting in Nelson's conviction, not those resulting in a mistrial, acquittal, or Nelson's husband's conviction. Although it is signed, the signature does not purport to certify it as correct.

The Court of Appeals concluded the Statement of Costs did not constitute evidence. The Court of Appeals elaborated as follows:

In a general sense, "evidence" is something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact. BLACK'S LAW DICTIONARY 595 (8th ed. 2004). The district court's restitution decision and our review, however, must be based upon substantial and competent evidence in the record. Unsworn oral or written representations, even those of an officer of the court, are not evidence. See Zepeda v. State , 152 Idaho 710, 716, 274 P.3d 11, 17 (Ct. App. 2012) ; State v. Gerardo , 147 Idaho 22, 26, 205 P.3d 671, 675 (Ct. App. 2009). While the State's Statement of Costs and Request for Restitution in a Drug Case and Motion for Restitution Closing Argument were signed, they were unsworn, and therefore do not constitute evidence. The very purpose of an evidentiary hearing is to present evidence. Since the State here failed to present evidence, there can be no award of restitution. Thus, the district court abused its discretion in awarding restitution.

The State cites us to State v. Weaver , 158 Idaho 167, 345 P.3d 226 (Ct. App. 2014), contending the district court did not err. In Weaver , the State sought $300 in restitution under section 37-2732(k). Id. at 170, 345 P.3d at 229. The State filed a "written accounting of the time spent prosecuting [the defendant], which was broken into categories comprised of one or more tenths of an hour that totaled four hours at an hourly rate of $75. This accounting was signed by the prosecutor assigned to [the] case certifying that the accounting was correct." Id. The district court determined that $75 was a reasonable hourly rate within the legal community, and the parties did not dispute that finding. Id. at 170 n.1, 345 P.3d at 229 n.1. Rather, the defendant "only specifically challenged the time claimed for [the] first...