State v. Weeks
| Decision Date | 08 October 2002 |
| Docket Number | No. 20001049.,20001049. |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Lance Michael WEEKS, Defendant and Petitioner. |
| Court | Utah Supreme Court |
Mark L. Shurtleff, Att'y. Gen., Karen A. Klucznik, Asst. Att'y. Gen., Salt Lake City, for plaintiff.
Linda M. Jones, Scott C. Williams, Salt Lake City, for defendant.
On Certiorari to the Utah Court of Appeals
¶ 1 This appeal concerns the imposition of a restitution award. At a sentencing hearing, the district court ordered that the defendant, Lance Weeks, pay restitution in the amount of $9,104.35. Although Weeks did not object to the restitution amount at that time, he later challenged the amount on the ground that no evidence justified the decision. The district court subsequently upheld its restitution ruling, and Weeks appealed to the Utah Court of Appeals. The Utah Court of Appeals affirmed, reasoning that (1) Weeks had waived his right to challenge the sentencing court's restitution award by failing to object to the restitution decision prior to the conclusion of the sentencing hearing, (2) his waiver of this right was not resuscitated by the sentencing court's post-sentencing actions, and (3) the sentencing court had not committed plain error by failing to make a written finding as to each of the factors listed in subsection 76-3-201(8) of the Utah Code.
¶ 2 On certiorari, Weeks claims the sentencing court erred in four respects. First, he asserts that subsection 76-3-201(4)(e)1 of the Utah Code does not require that a request for a restitution hearing originate prior to the conclusion of the sentencing hearing. Second, he contends that even if that subsection requires such a request, the sentencing court resuscitated the issue through its post-sentencing actions. Third, he alleges that he did not receive a full hearing on restitution because the sentencing court based its restitution decision on evidence that lacked an evidentiary foundation. Finally, he contends that the sentencing court committed plain error when it failed to make written findings regarding each of the factors listed in subsection 76-3-201(8) of the Utah Code.
¶ 3 We conclude that Weeks did receive a full hearing for restitution purposes. We further conclude that Weeks waived his right to challenge the sentencing court's failure to reference on the record each factor listed in subsection 76-3-201(8), and the court's failure to do so did not constitute plain error. We therefore affirm.
¶ 4 On July 6, 1999, Weeks pleaded guilty to five third-degree felonies and two Class A misdemeanors. On September 10, 1999, the district court sentenced Weeks on three of those convictions (two third-degree felonies and one Class A misdemeanor) to an indeterminate period of incarceration ranging from one to five years, and ordered that he pay restitution in the amount of $9,104.35.2 Weeks did not object to the restitution amount at that time.
¶ 5 Eleven days later, Weeks requested that the district court "schedule a [r]estitution hearing." The district court complied with this request and notified the parties with a document entitled "NOTICE OF RESTITUTION HEARING." At this restitution hearing, Weeks asked for clarification as to how the restitution amount was calculated. The district court responded that the restitution amount had been derived from a presentence investigation report (the "presentence report").
¶ 6 After receiving this explanation, Weeks argued that the restitution amount ordered by the district court did not appear to be supported by any evidence because the figures cited in the presentence report lacked an evidentiary foundation. The State countered that "even if [the figures included in the report were] estimates, they [were] probably only pennies off or probably short." The district court subsequently upheld the restitution amount, ruling from the bench that "[g]iven what I have reviewed, that being the presentence report, as well as the orders in the matter, as well as now having heard arguments of counsel, I[am] persuaded that ... the numbers I have ordered as restitution [are] fair and reasonable." It later entered a written order reaffirming its decision, noting that it had "heard evidence and arguments of counsel."
¶ 7 Weeks appealed to the Utah Court of Appeals, contending that he was entitled to— but did not receive—a "full hearing" under subsection 76-3-201(4)(e)3 of the Utah Code and that the sentencing court committed plain error by not complying with the requirements of subsections 76-3-201(4)(d)(i)4 and (8)5 of the Utah Code. State v. Weeks, 2000 UT App 273, ¶ 6, 12 P.3d 110. In a split decision, the court of appeals rejected both arguments. It reasoned (1) that Weeks had waived his right to a restitution hearing by failing to object to the amount of restitution at his sentencing hearing, (2) that his waiver of this right was not subsequently resuscitated by the sentencing court at the post-sentencing hearing because the court did not receive evidence at that time, id. at ¶¶ 10-12, and (3) that the sentencing court had not committed plain error by failing to make a written finding for each factor listed in subsection 76-3-201(8) because that section merely identifies the factors that must be considered by the court and subsection 76-3-201(4)(d)(i) demands only that the court "make the reasons for its decision part of the record,"6id. at ¶¶ 15-17.
¶ 8 Weeks then petitioned this court for a writ of certiorari, which we granted. We have jurisdiction pursuant to subsection 78-2-3(a) of the Utah Code.
¶ 9 On certiorari, Weeks claims the court of appeals erred in four respects. First, he asserts that subsection 76-3-201(4)(e) does not require that a request for a restitution hearing originate prior to the conclusion of sentencing. Second, he contends that even if subsection 76-3-201(4)(e) requires that a request for a restitution hearing be made before the sentencing hearing ends, the sentencing court resuscitated the issue by its post-sentencing actions. Third, he claims that he did not receive a full hearing within the meaning of subsection 76-3-201(4)(e) because the sentencing court based its restitution decision on evidence that lacked an evidentiary foundation. Finally, he alleges that the sentencing court committed plain error when it failed to make written findings regarding each of the factors listed in subsection 76-3-201(8) of the Utah Code.
¶ 10 Three separate principles govern the standard of review applicable to this case. First, in exercising our certiorari jurisdiction, we review the court of appeals' decision, not the opinion of the sentencing court. See Butterfield v. Okubo, 831 P.2d 97, 101 n. 2 (Utah 1992)
. Second, we afford the court of appeals' ruling no deference and review for correctness. See Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 11, 48 P.3d 968. Finally, we may affirm the court of appeals' decision on any legal ground or theory supported by the record. See Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225.
¶ 11 Weeks first argues that the court of appeals incorrectly concluded that subsection 76-3-201(4)(e) requires a defendant to request a restitution hearing prior to the conclusion of sentencing; alternatively, he claims that the court of appeals erred in finding the sentencing court did not resuscitate his right to such a hearing by its post-sentencing actions. We do not reach the merits of either contention, however, because, even if the court of appeals did err in deciding those questions, we conclude that alternative grounds exist for affirming the court of appeals' decision. Accordingly, for purposes of this appeal, we assume that Weeks either timely requested a restitution hearing or that the sentencing court subsequently resuscitated his right to such a hearing.
¶ 12 We thus turn to the question of whether the sentencing court provided Weeks with a full hearing within the meaning of subsection 76-3-201(4)(e) of the Utah Code. In relevant part, that subsection declares that "[i]f the defendant objects to the imposition, amount, or distribution of the restitution, the court shall at the time of sentencing allow the defendant a full hearing on the issue." Utah Code Ann. § 76-3-201(4)(e) (1999) (emphasis added).
¶ 13 Relying on this subsection, Weeks contends that the sentencing court denied him a full hearing because the presentence report it relied on as the basis for ordering restitution lacked an evidentiary foundation. Put differently, he argues that no evidence was introduced at the restitution hearing on which the sentencing court could justify its conclusion. He further asserts that this lack of evidentiary support violates the due process clauses of both the United States Constitution and the Utah Constitution. We disagree.
¶ 14 To begin with, contrary to the court of appeals' opinion, some evidence was presented at the restitution hearing. Indeed, the State pointed to the statements in the presentence report at the restitution hearing as a basis for the restitution amount. Moreover, the sentencing court stated at the restitution hearing that it had "reviewed ... the presentence report" and relied on it to determine the $9,104.35 restitution figure. Finally, in its written order regarding the restitution hearing, the sentencing court noted that it had "heard evidence." Accordingly, the presentence report was indisputably presented as proof at the restitution hearing to support the sentencing court's restitution award.
¶ 15 The presentence report recommended restitution in the amount of $9,104.35. This figure was based on statements made by the two victims, several police reports, and records supplied by an automobile insurance company.7 Although the...
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