Opinion
Court of Appeals No. A-12353 No. 6694
08-22-2018
KENDRA ASHLEY BEANS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Barber, Barber Legal Services, under contract with the Alaska Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4SM-14-090 CR
MEMORANDUM OPINION
Appeal from the District Court, Fourth Judicial District, Saint Mary's, Nathaniel Peters, Judge. Appearances: Michael Barber, Barber Legal Services, under contract with the Alaska Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. Judge MANNHEIMER.
Early one Saturday morning in July 2014, Kendra Ashley Beans drove through the village of Pilot Station while she was intoxicated. Beans ran into a utility pole, knocking out the electrical power to the entire village.
The Alaska Village Electric Cooperative quickly dispatched three workers to repair the damage and restore power to the village. As it happened, one of these employees was already in Pilot Station, but the other two employees had to be flown in from Emmonak. The three employees worked through the night to replace the utility pole and restore the electrical power to the village. Between them, these three employees spent a total of 77 hours — including 56 hours of overtime — repairing the damage and restoring the power.
After Beans pleaded guilty to driving under the influence, the State asked the district court to award restitution to the Electric Cooperative for the expenses it incurred in restoring power to Pilot Station. After hearing evidence regarding the Cooperative's damages, the district court ordered Beans to pay restitution to the Cooperative in the amount of $11,950.68.
In this appeal, Beans contends that this restitution award exceeds the Electric Cooperative's actual loss arising from Beans's criminal conduct.
The Cooperative's claim for restitution was broken down into several components: labor, materials, equipment rental, and pole replacement. Beans's attorney conceded that it was appropriate to require Beans to cover many of these expenses, but the defense attorney objected to the itemized expense for "direct labor" in the amount of $2,760, as well as the itemized expense of $5,845 that the Cooperative attributed to its "overhead".
The defense attorney argued that it was unfair to make Beans pay the wages of the three employees, because the Cooperative would have had to pay these wages in any event. The defense attorney also argued that the expense attributed to "overhead" likewise represented the Cooperative's normal costs of doing business, rather than extraordinary expenses that could be attributed to Beans's actions.
The district court rejected the defense attorney's arguments and ordered Beans to pay restitution in the full amount requested by the Electric Cooperative. Beans now appeals, renewing her arguments that it is improper to make her pay restitution for the Cooperative's normal costs of hiring workers and conducting its business.
With respect to the "direct labor" costs, we agree with Beans that she should not have to pay for the three employees' normal wages. The Cooperative's representative testified that, even if Beans had not run into the utility pole, the three employees would have worked normal hours.
We therefore reverse the portion of the restitution award attributable to the three employees' 21 hours of normal work.
But with respect to the 56 hours of overtime, the representative from the Cooperative testified that the three employees were asked to work overtime because of the electrical emergency (the total shutdown of power to the village of Pilot Station) and the public safety danger (the leaning utility pole) created by Beans's actions. Thus, the district court could reasonably conclude that these overtime hours were attributable to Beans's actions, and that it was therefore proper for the court to order Beans to reimburse the Cooperative for these 56 hours of overtime.
We now turn to the expense item for "overhead". The representative from the Cooperative testified that this expense item was intended to represent all of the ancillary costs of employing the three workers: payroll taxes, employee insurance, the employees' accrual of annual leave, and their other non-wage benefits. It also included the cost of the two employees' travel from Emmonak to Pilot Station.
The employees' travel costs could be tied to a specific dollar amount. But with respect to the taxes and benefits, the Cooperative did not offer exact dollar amounts. Instead, the representative from the Cooperative acknowledged that this calculation was based on an estimate: according to the representative, the Cooperative used a rule of thumb that the indirect cost of an employee in taxes and benefits equaled approximately 210 percent of the direct cost of the employee's labor (i.e., the employee's wages).
We have already concluded that Beans should not be required to reimburse the Electric Cooperative for the employees' 21 hours of normal labor, but only for the employees' 56 hours of overtime. This being so, the expense item for "overhead" must be apportioned between the expenses attributable to the employees' normal hours and the expenses attributable to the employees' overtime hours.
We assume that the Cooperative's payroll taxes went up by a calculable amount because of the overtime wages. But the existing record does not explain whether the 56 overtime hours caused the Cooperative to incur increased costs in the form of employee benefits (insurance, accrual of annual leave, and the like), over and above what these benefits would have cost the Cooperative if the three employees had worked only normal hours.
For these reasons, we vacate some portions of the restitution award attributable to "overhead". We affirm the portion of the "overhead" expense arising from the employees' travel expenses. But with respect to taxes and benefits, the district court must determine which "overhead" expenses are attributable to the employees' 56 overtime hours, as opposed to the employees' 21 normal hours. For this purpose, the district court is authorized to re-open the proceedings and accept supplemental evidence.
Accordingly, we REMAND Beans's case to the district court for re-assessment of the restitution award as explained in this opinion. Within 90 days, the district court shall conduct whatever supplemental proceedings it deems appropriate and shall issue an amended restitution order.
If Beans wishes to challenge this amended restitution order, she shall have 30 days to file a memorandum explaining her objections to the amended order. The State shall then have 30 days to file a memorandum in response. After receiving the district court's amended restitution order and the parties' memoranda, we shall resume our consideration of this case.
If Beans does not wish to challenge the amended restitution order, she shall promptly notify this Court.