Whitten v. State

• Citation: 2005 WY 55,110 P.3d 892
• Decision Date: 02 May 2005
• Docket Number: No. 04-177.,04-177.
• Parties: James Thomas WHITTEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

110 P.3d 892

2005 WY 55

James Thomas WHITTEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-177.

Supreme Court of Wyoming.

May 2, 2005.

Representing Appellant: Appellant, pro se.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General.

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

BURKE, Justice.

[¶ 1] James Thomas Whitten challenges the district court's order denying his motion to correct an illegal sentence. We affirm.

ISSUE

[¶ 2] Mr. Whitten sets forth the following issue on appeal with which the State substantially agrees:

Did the district court judge [err] and abuse his discretion when he denied appellant's motion to correct an illegal sentence, and when he modified his original order for restitution?

FACTS

[¶ 3] Mr. Whitten pled guilty to one count of first degree arson and one count of third degree arson. He was sentenced on January 25, 2002, to concurrent prison terms and was ordered to pay $93,966.02 in restitution to State Farm Insurance Company (State Farm). The district court also ordered payment to the Wyoming Crime Victims' Compensation Fund, imposed a court automation fee, and ordered Mr. Whitten to pay public defender fees. He did not appeal the judgment and sentence. On May 12, 2004, Mr. Whitten filed a Motion to Correct an Illegal Sentence pursuant to W.R.Cr.P. 35(a). In his motion, Mr. Whitten challenged the restitution ordered by the court. Mr. Whitten alleged that the restitution order was illegal because the district court: (a) had not advised him of the possibility of restitution; (b) did not fix a reasonable amount of restitution; and (c) failed to make a finding regarding his ability to pay restitution. Mr. Whitten did not challenge any other aspect of his sentence.

[¶ 4] On May 24, 2004, the district court entered its Order on Motion to Correct Illegal Sentence. The district court denied the motion. The court did, however, modify the sentencing order and directed that the $93,966.02 in restitution be paid to the homeowner victim, rather than State Farm.

[¶ 5] We will set forth additional facts as necessary in our discussion of the errors asserted by Mr. Whitten.

STANDARD OF REVIEW

[¶ 6] W.R.Cr.P. 35(a) governs motions to correct an illegal sentence. "An illegal sentence is one which exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates constitutions or the law." Martinez v. State, 2002 WY 10, ¶ 9, 39 P.3d 394, ¶ 9 (Wyo.2002) (quoting Duran v. State, 949 P.2d 885, 887 (Wyo.1997)). We employ an abuse of discretion standard when evaluating a trial court's denial of a motion to correct an illegal sentence. Martinez, ¶ 7. The exercise of discretion in the context of a motion to correct an illegal sentence is limited to a determination by the trial court as to whether the sentence was legal or illegal. Mead v. State, 2 P.3d 564, 566 (Wyo.2000); Ramirez v. State, 800 P.2d 503, 504 (Wyo.1990). A challenge to the authority of a trial court to make a particular award of restitution is reviewed de novo. Merkison v. State, 996 P.2d 1138, 1141 (Wyo.2000). Whether the district court adequately advised Mr. Whitten of the consequences of his plea is a question of law we review de novo. Keller v. State, 723 P.2d 1244, 1246-47 (Wyo.1986); WERCS v. Capshaw, 2004 WY 86, ¶ 14, 94 P.3d 421, ¶ 14 (Wyo.2004); U.S. v. Gigot, 147 F.3d 1193, 1197 (10th Cir.1998).

DISCUSSION

[¶ 7] Mr. Whitten alleges several errors with respect to the district court's restitution order. He alleges that he was not properly advised of the amount of restitution prior to entry of his guilty plea. Mr. Whitten contends that the restitution order was illegal because the district court failed to make a specific finding that he had the ability to pay restitution. Additionally, Mr. Whitten claims that the district court abused its discretion in modifying the restitution order to require payment to the homeowner rather than the insurer.

Advisement of consequences.

[¶ 8] Mr. Whitten contends that the restitution order is illegal because the district court failed to advise him, prior to his guilty plea, of the maximum amount of restitution that could be imposed by the court. W.R.Cr.P. 11(b) provides in pertinent part:

(b) Advice to Defendant. Except for forfeitures on citations (Rule 3.1) and pleas entered under Rule 43(c)(2), before accepting a plea of guilty or nolo contendere to a felony or to a misdemeanor when the defendant is not represented by counsel, the court must address the defendant personally in open court and, unless the defendant has been previously advised by the court on the record and in the presence of counsel, inform the defendant of, and determine that the defendant understands, the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law and other sanctions which could attend a conviction including, when applicable, the general nature of any mandatory assessments (such as the surcharge for the Crime Victim Compensation Account), discretionary assessments (costs, attorney fees, restitution, etc.) and, in controlled substance offenses, the potential loss of entitlement to federal benefits. However:

(A) Disclosure of specific dollar amounts is not required;

(B) Failure to advise of assessments or possible entitlement forfeitures shall not invalidate a guilty plea, but assessments, the general nature of which were not disclosed to the defendant, may not be imposed upon the defendant unless the defendant is afforded an opportunity to withdraw the guilty plea; and

(C) If assessments or forfeitures are imposed without proper disclosure a request for relief shall be addressed to the trial court under Rule 35 before an appeal may be taken on that issue.

The purpose of the rule is to allow the judge to determine if the defendant entered the plea voluntarily and with an understanding of the consequences of his guilty plea. Restitution is a possible consequence of a guilty plea for which proper advisement must be given. Keller, 723 P.2d at 1246.

[¶ 9] Prior to acceptance of a guilty plea, the trial court must inform the defendant of the court's power to order restitution. Keller, 723 P.2d at 1247. However, the "exact amount or upper limit of restitution need not be specified at the time of the plea." Id.; see also W.R.Cr.P. 11(b)(1)(A). The exact amount of restitution and the proper victim entitled to receive restitution must be specified at the time of sentencing, not when the plea is accepted. Meerscheidt v. State, 931 P.2d 220, 227 (Wyo.1997). See also Wyo. Stat. Ann. § 7-9-103 (LexisNexis 2001).¹ [¶ 10] Prior to entry of the guilty plea, the district court provided a detailed advisement of rights to Mr. Whitten. The district court specifically addressed the potential consequences which Mr. Whitten faced if he pled guilty. The district court asked Mr. Whitten on several occasions if he understood his rights and the consequences of his guilty plea. Mr. Whitten consistently indicated his understanding. He declined all opportunities to ask questions concerning his rights or the consequences of his plea.

[¶ 11] With regard to restitution, the district court specifically advised Mr. Whitten that: "There are money losses here, obviously, and you may well be required to pay those as restitution." Mr. Whitten confirmed that he understood the advisement and had no questions. The district court properly advised Mr. Whitten prior to acceptance of his guilty plea of his potential restitution obligation.

Ability to pay.

[¶ 12] Mr. Whitten also contends that the district court erred by failing to make a specific finding that he had an ability to pay restitution. Such a finding is not required.

[¶ 13] A sentencing court is under no obligation to make a specific finding that there is an ability to pay restitution. The trial court must order payment of restitution unless it specifically finds that the defendant is unable to pay. Nixon v. State, 4 P.3d 864, 871 (Wyo.2000); Wyo. Stat. Ann. § 7-9-102 (LexisNexis 2001)²; Jones v. State, 2002 WY 35, ¶ 26, 41 P.3d 1247, ¶ 26 (Wyo.2002). If a court determines that restitution is not appropriate, it must provide support for such decision and enter specific findings in the record supporting its determination that a defendant is unable to pay restitution. Wyo. Stat. Ann. § 7-9-103(c) (LexisNexis 2001)³.

[¶ 14] Mr. Whitten also contends that the sentencing order is illegal because it fails to comply with W.R.Cr.P. 32(c)(2)(H) which states that a sentence shall "[i]nclude a finding as to whether the defendant is able to make restitution and if restitution is ordered fix the reasonable amount owed to each victim resulting from the defendant's criminal acts." The sentencing order entered states the amount of restitution but does not include a finding as to Mr. Whitten's ability to pay.

[¶ 15] Mr. Whitten provides no legal authority to support his contention that a sentencing order's omission of a finding regarding ability to pay requires reversal of a restitution order.⁴ As we previously discussed, the district court did not make a specific finding of inability to pay restitution as required by Wyo. Stat. Ann § 7-9-103(c). "[A] silent record, that is, one containing neither a finding of ability to pay nor a finding of inability to pay, supports an order requiring the payment of restitution." Jones, ¶ 26.

[¶ 16] Additionally, substantial evidence exists in the record to support a finding of an ability to pay restitution. Mr. Whitten claimed to own a mobile home. His employment history was relatively stable. He received a $30,000 per year salary at his last employment position in 2001. Mr. Whitten expressed his...