TPJ v. State

• Citation: 66 P.3d 710,2003 WY 49
• Parties: TPJ, a minor, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Decision Date: 16 April 2003
• Court: Wyoming Supreme Court

66 P.3d 710

2003 WY 49

TPJ, a minor, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. C-01-3.

Supreme Court of Wyoming.

April 16, 2003.

Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel, Representing Appellant.

Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, and Tari L. Elam, Student Intern, of the Prosecution Assistance Program, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

GOLDEN, Justice.

[¶ 1] The Juvenile Court of the Ninth Judicial District adjudicated TPJ, age 16, to be delinquent following his admission of committing numerous acts of burglary. Following the adjudication hearing, at a later restitution hearing the juvenile court ordered TPJ to pay a total of $1,964.59 as restitution to the victims of his delinquent acts of burglary. The restitution amount included $41.59 as the cost of a car alarm which one of TPJ's victims purchased and installed in her car after TPJ's burglary of her car and $300.72 as the cost of repair to a garage door allegedly damaged during TPJ's burglary of another victim's residence. TPJ challenged these particular costs at the restitution hearing and renews that challenge on appeal. As for the cost of the car alarm, TPJ asserts that it is not authorized under the statutory language "any damage or loss caused by the child's wrongful act." Wyo. Stat. Ann. § 14-6-247(a)(v) (LexisNexis 2001). As for the cost of the garage door repair, TPJ asserts that the State failed to prove by a preponderance of the evidence that he damaged the garage door.

[¶ 2] Although the State counters TPJ's challenge on its merits, it first contends that TPJ's notice of appeal is both defective and untimely filed. As we shall explain below, we hold that TPJ's appeal is neither defective nor untimely; the relevant statutory provision of the Juvenile Justice Act does not authorize an award of restitution for the cost of the car alarm purchased and installed by the victim of a delinquent act after the commission of that act; the State's evidentiary standard as to restitution under that relevant statutory provision is a preponderance standard; and, applying that evidentiary standard, the State's proof as to restitution for the garage door repair satisfied that standard. Consequently, we affirm the order of restitution with respect to the cost of the garage door repair and reverse the order of restitution with respect to the cost of the car alarm.

ISSUES

[¶ 3] TPJ presents the following issue for our review:

I. Did the district court abuse its discretion by ordering the appellant to pay restitution for a car alarm and alleged damage to a garage door?

The State contends that two issues are present in this appeal:

1. Does the defective and untimely notice of appeal deprive this court of jurisdiction to consider this appeal?

2. Did the juvenile court abuse its discretion in ordering appellant to pay restitution for the cost of a car alarm and for damage done to a garage door?

FACTS

[¶ 4] The initial hearing upon the specific allegations in the delinquency petition filed by the county and prosecuting attorney, as authorized by Wyo. Stat. Ann. § 14-6-226, was held March 29, 2001. TPJ admitted committing numerous acts of burglary, including those involving the Brent Galles residence, where a garage door was allegedly damaged, and a car owned by Barbara Smith, who later purchased a car alarm, and provided a factual basis to support his admissions. Following TPJ's admission, the juvenile court broached the subject of disposition.

[¶ 5] The State expressed hesitancy in proceeding in the initial hearing with disposition because it had "no idea what the restitutional figure is." The juvenile court then expressed the desire to proceed with disposition without having the restitution amounts, subject to TPJ's and his counsel's consent to proceed and subject to the State's supplying those amounts to TPJ and his counsel within twenty days. The juvenile court required TPJ and his counsel to make written objections, if any, within fifteen days after the State supplied the amounts to them. All agreed to the juvenile court's proposed procedure.

[¶ 6] The juvenile court then received the State's recommendation for disposition and comments about that recommendation from others present, including TPJ and his counsel. The juvenile probation coordinator, Teri Van Etten, who had prepared the dispositional report, TPJ's mother and grandmother, and TPJ's uncle were also present. Next, the juvenile court announced its disposition which included, among other matters, TPJ's placement at the Wyoming Boy's School for an indeterminate period of time.

[¶ 7] Before adjourning the hearing, the juvenile court instructed Ms. Van Etten to acquire and deliver the restitution information to the county attorney. Following the initial hearing, the juvenile court entered on April 2, 2001, the Order Following Initial Hearing, approved as to form by the county attorney, TPJ's counsel, and Ms. Van Etten, which order expressly included a provision addressing the court's requirement with respect to the restitution information.

[¶ 8] In April 2001, the county attorney timely provided TPJ's counsel with the required restitution information which included each victim's name and address, property lost or damaged and the amounts sought in restitution for each victim. TPJ's counsel timely objected in writing to certain items contained therein. Not until August 3, 2001, however, did the county attorney move in writing for a restitution hearing to resolve TPJ's objections. The juvenile court scheduled that hearing for August 22, 2001. The hearing took place as scheduled. At the hearing, the juvenile court took evidence and heard argument from counsel concerning Barbara Smith's purchase and installation of a car alarm and the estimated cost of Brent Galles' garage door repair.

[¶ 9] At the conclusion of the hearing, the juvenile court announced its decision, ordering TPJ to pay a total of $1,964.59 as restitution, which included the amounts of $41.59 as the cost of the car alarm and $300.72 as the cost of garage door repair. This appeal followed.

DISCUSSION

Standard of Review

[¶ 10] Our standard of review of restitution orders is limited to a search for procedural error or a clear abuse of discretion. Alcaraz v. State, 2002 WY 57, ¶ 5, 44 P.3d 68, ¶ 5 (Wyo.2002). We will not find an abuse of discretion if sufficient evidence shows a reasonable basis for estimating the loss. Id. "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Id.

[¶ 11] TPJ's first issue presents a question of statutory interpretation, and we look first to finding the answer in the language of these provisions. "Determining the lawmakers' intent is our primary focus when we interpret statutes. Initially, we make an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe together all parts of the statutes in pari materia, giving effect to each word, clause, and sentence so that no part will be inoperative or superfluous. We will not construe statutes in a manner which renders any portion meaningless or produces absurd results." In re WJH, 2001 WY 54, ¶ 7, 24 P.3d 1147, ¶ 7 (Wyo.2001).

[¶ 12] In considering his second issue, we see that in his reply brief, TPJ agrees with the State that in criminal cases we review whether the amount of restitution was proved by a preponderance of the evidence and that burden of proof should be applied in juvenile restitution cases. We agree and hold that is the burden of proof by which we review whether sufficient evidence proved the amount of damages to the garage door. See Renfro v. State, 785 P.2d 491, 493 (Wyo.1990)

.

[¶ 13] The State's issue that the appeal was untimely is a jurisdictional challenge. To invoke appellate jurisdiction, appeals must be filed no later than thirty days after the district court enters its final order. In re Interest of BW, 12 P.3d 675, 677 (Wyo.2000); W.R.A.P. 2.01. The timely filing of a notice of appeal is jurisdictional. Holmquist v. State, 902 P.2d 217 (Wyo.1995). "A late filing of an appeal results in an incurable jurisdictional defect, leaving this Court with no authority to resolve the case." Id. at 217-18.

The Appeal Is Neither Defective Nor Untimely

[¶ 14] The juvenile court's Order Following Restitutional Hearing was entered September 4, 2001. One week later, on September 11, 2001, TPJ's counsel filed a notice of appeal giving notice of the intention to appeal the "Judgment and Sentence of the Court rendered on the 22nd day of August, 2001, by the Honorable Nancy Guthrie, District Judge, Ninth Judicial District."

[¶ 15] Accompanying this notice was a copy of the juvenile court's order following the restitutional hearing referenced above. The appellate proceeding progressed in normal course, with the parties submitting the case to this Court on written briefs. As earlier mentioned, although the State in its brief counters on the merits TPJ's enumerated errors with respect to the restitution ordered for Smith's car alarm and Galles' garage door repair, the State first contends that TPJ's notice of appeal is defective and untimely filed. If the State's contentions are correct, the State reasons, then this Court lacks jurisdiction over this appeal.

[¶ 16] The State's contention that the notice of appeal is defective proceeds on two bases. First, focusing on the wording in the notice of appeal that references "the...