Opinion
Court of Appeals No. A-12535 No. 6810
07-24-2019
KENG HER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Evan Chyun, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Timothy W. Terrell, 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. 3AN-13-10564 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Evan Chyun, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
Following a jury trial, Keng Her was convicted of first-degree assault and first-degree misconduct involving a weapon in connection with an incident in which he shot Mark Harms. As part of his sentence, Her was ordered to pay restitution to the Violent Crimes Compensation Board for reimbursement of Harms's medical expenses. In this appeal, Her contests the restitution awarded by the superior court on three bases.
Her filed a separate appeal challenging his convictions and sentence. See Her v. State, 2018 WL 4492835 (Alaska App. Sept. 19, 2018) (unpublished).
First, Her argues that he was prejudiced when the State filed the proposed restitution judgment fifteen days after the normal deadline. Second, Her argues that the superior court applied the wrong standard of proof when it determined the amount of restitution he owed. Lastly, Her argues that the determination of a proper amount of restitution in a criminal case necessarily rests on facts that, under the Sixth Amendment as construed in Apprendi v. New Jersey, must be found by a jury beyond a reasonable doubt.
Apprendi v. New Jersey, 530 U.S. 466 (2000).
For the reasons explained in this opinion, we reject Her's claims, and we affirm the judgment of the superior court.
Background facts regarding the restitution judgment
Her was sentenced on December 11, 2014. As part of Her's sentence, the court ordered Her to pay restitution, and, pursuant to Alaska Criminal Rule 32.6(c)(2), the court gave the State ninety days to submit a proposed restitution judgment. Thus, the State's deadline for submitting the proposed restitution judgment was March 11, 2015.
Alaska Criminal Rule 32.6(c)(2) provides in relevant part: "If the amount of restitution and the names of the victims or other persons seeking restitution are not known at the time of sentencing, the prosecutor shall file and serve within 90 days after sentencing a proposed judgment for restitution[.]"
On March 26, 2015 — i. e., fifteen days after the March 11 deadline — the State filed a proposed restitution judgment. The State sought restitution of $19,587.26 to the Violent Crimes Compensation Board for amounts that the Board had paid for Harms's medical bills. In support of this claim, the State provided a "Claim Payment Summary" from the Violent Crimes Compensation Board listing Harms's medical expenses.
The State also sought $10,500 in restitution to Harms. In support of this second claim, the State provided an email from an attorney at the Alaska Office of Victims' Rights stating that (1) Harms had lost wages of $3,000 per month for three months (for a total of $9,000); and (2) Harms's mother had sent Harms $500 per month for three months to help him pay bills (for a total of $1,500).
Her's attorney did not immediately oppose the court's consideration of the State's late filing, but he reserved the right to later contest the amount of the State's request and to object to the State's delay in filing if, after investigation, he determined that Her was prejudiced by the delay.
Her's attorney later filed objections to the State's proposed judgment. The attorney made several claims. First, he argued that Her was prejudiced by the State's late filing, and he argued that the superior court should reduce the requested restitution amount to account for this prejudice. Second, he argued that the restitution statute, AS 12.55.045, violated the federal and state constitutions because it deprived him of his right to a jury trial under Apprendi. Third, Her's attorney specifically challenged the proposed $10,500 judgment for non-medical expenses. The attorney argued, inter alia, that the two-line email supporting Harms's $10,500 request for lost wages and payments from his mother did not constitute the "credible evidence" required by the restitution statute.
Alaska Statute 12.55.045(a) provides that "[t]he court shall, when presented with credible evidence, unless the victim or other person expressly declines restitution, order a defendant convicted of an offense to make restitution as provided in this section[.]"
The superior court rejected Her's request for a reduction in restitution. The court also rejected Her's Sixth Amendment challenge to the restitution statute. The court then ordered an evidentiary hearing to determine the amount of restitution owed. At that hearing, Her's attorney explicitly stated that he was not contesting the amount owed to the Violent Crimes Compensation Board for reimbursement of Harms's medical expenses, and the court imposed $19,587.26 in restitution for these expenses. However, the court declined to order any additional restitution — either for Harms's lost wages or for the payments made by Harms's mother.
This appeal followed.
Her's argument that he was prejudiced by the State's late filing
In the superior court, Her's attorney argued that Her was prejudiced by the State's fifteen-day delay in filing its proposed restitution judgment. In particular, Her's attorney contended that Her had purchased $440.86 worth of goods from the prison commissary between the State's deadline for filing a proposed restitution judgment and the date he had notice of the State's late filing. In support of his objection, Her's attorney submitted a copy of Her's inmate account showing the money Her had spent during this period.
Her's attorney argued that, had Her known "that he was going to be asked to pay over $30,000," he would not have spent this $440.86. The attorney therefore asked the court to deduct $440.86 from the total restitution judgment. The court declined to do so, finding that Her was on notice that he would owe restitution and that the State's delay of fifteen days was the result of "excusable neglect." The court concluded that Her had not suffered any cognizable prejudice sufficient to require an offset of the restitution amount.
On appeal, Her does not contest the trial court's ruling that the State's delay was due to excusable neglect or its decision to accept the State's late-filed request for restitution. Rather, Her argues that the superior court erred in failing to reduce the restitution by $440 on account of the State's delay.
In his appellate brief, Her states that he previously miscalculated the total amount by $0.15, and the requested reduction is actually $440.71 (rather than $440.86).
As Her points out, in O'Dell v. State, we noted that a defendant could potentially show prejudice arising from a late request for restitution if "he disposed of his income or assets in detrimental reliance on the fact that the State had apparently decided not to press for restitution." But the account statement submitted by Her showed only that Her had spent the money. The account statement shed no light on whether Her made the purchases in detrimental reliance on the fact that the State had not filed a restitution request. We note that Her's account statement shows that he made two purchases from the commissary (totaling $101.86) in the days before the State's deadline for submitting a proposed restitution judgment, and that he made additional purchases of $53.22 after he says he received the late notice. And the account statement gives little indication of what Her purchased, either before or after the deadline.
O'Dell v. State, 366 P.3d 555, 559 (Alaska App. 2016).
But even assuming that Her spent the money in detrimental reliance on the State's failure to file its restitution request by the deadline, Her fails to establish that the remedy under these circumstances would be a reduction in the total restitution owed. The State's delay was short and the amount of money that Her spent was relatively small compared to the size of the restitution judgment. Moreover, the type of restitution ultimately ordered — i.e., compensation for medical bills — was readily ascertainable given the injuries Harms suffered from the shooting.
Both prior to and at the sentencing hearing, the nature and anticipated amount of restitution was made known to Her: The presentence report stated that the Violent Crimes Compensation Board had paid for Harms's medical bills, which Harms reported to be over $20,000. And at sentencing, the victims' rights representative appearing on Harms's behalf also reported that Harms's medical bills had been close to $20,000.
It might have been appropriate for the court to adjust Her's payment schedule. But we cannot find that the superior court abused its discretion in declining to reduce the total amount of restitution owed.
See Osborne v. State, 2014 WL 3408410, at *2-3 (Alaska App. July 9, 2014) (unpublished) (applying the abuse of discretion standard to a court's decision to accept the State's late-filed restitution proposal).
Her's argument regarding the sufficiency of the State's proof
In the superior court, Her challenged the sufficiency of the evidence to support Harms's $10,500 restitution request for lost wages and payments from his mother, as well as the standard of proof applied by the court. Her renews this argument on appeal.
But Her's claim is moot for two reasons. First, the standard of proof that the superior court applied — the preponderance of the evidence standard — is actually higher than the standard of proof that Her argues applies. (It is unclear why Her is arguing that the restitution statute requires findings by less than a preponderance of the evidence, or why Her believes he would be entitled to relief given the trial court's application of the higher standard.)
But second, and more importantly, the superior court did not award the contested restitution for lost wages and payments from Harms's mother.
We therefore decline to further address this claim.
Her's argument that the restitution statute violates his constitutional right to a jury trial
Finally, Her renews his argument that the restitution statute, AS 12.55.045, violates the Sixth Amendment's jury trial guarantee to the extent that the statute allows the sentencing judge to determine the amount of restitution. Her argues that, under the United States Supreme Court's decisions in Apprendi v. New Jersey and Blakely v. Washington, when the determination of the amount of restitution a victim is owed rests on factual findings, those findings must be made by a jury and must be proved beyond a reasonable doubt. Because the judge, rather than a jury, determined the amount of restitution in Her's case, Her claims that his entire restitution judgment is unlawful.
Under the Sixth Amendment to the United States Constitution, a criminal defendant is entitled to a trial "by an impartial jury."
(Her mentions the Alaska Constitution in his briefing, but he does not make a separate argument that judicial fact-finding in the restitution context violates the state constitution. We therefore only address his argument under the federal constitution.)
See Shorty v. State, 214 P.3d 374, 379 (Alaska App. 2009) ("[W]hen a party claims that our state constitution should be interpreted differently than its federal counterpart, the party must point this court to something in the text, context, or history of the Alaska Constitution which justifies this divergent interpretation.") (internal quotations omitted).
In Apprendi v. New Jersey, the Supreme Court held that, under the Sixth Amendment, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Four years later, in Blakely v. Washington, the Court extended this rule to presumptive sentencing, holding that the phrase "statutory maximum" for purposes of Apprendi is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In particular, any fact that "necessarily forms a constituent part of a new offense" or "alters the prescribed range of sentences to which a criminal defendant is exposed" must be found beyond a reasonable doubt by a jury. Alleyne v. United States, 570 U.S. 99, 111-12, 114-15 (2013).
Blakely v. Washington, 542 U.S. 296, 303 (2004) (emphasis removed).
In Alaska, however, restitution is a potential component of any sentence. Any criminal conviction authorizes the court to impose restitution for a victim's losses; there is no statutory maximum or limit on the judge's discretion.
Moreover, Alaska treats restitution as a "hybrid remedy," constituting both civil compensation and criminal punishment. While there are undoubtedly punitive aspects to restitution, it also serves a remedial purpose: compensating a victim for the loss incurred.
Ortiz v. State, 173 P.3d 430, 432-33 (Alaska App. 2007).
See, e.g., AS 12.55.051(a) (authorizing imprisonment for willful non-payment of restitution).
Largely for these reasons, nearly every federal circuit court and numerous state courts have rejected the argument that Apprendi applies to restitution awards in criminal cases.
See, e.g., United States v. Churn, 800 F.3d 768, 780-83 (6th Cir. 2015); United States v. Burns, 800 F.3d 1258, 1261-62 (10th Cir. 2015); United States v. Bengis, 783 F.3d 407, 411-13 (2d Cir. 2015); United States v. Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014); United States v. Green, 722 F.3d 1146, 1149-51 (9th Cir. 2013); United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012); United States v. Milkiewicz, 470 F.3d 390, 402-04 (1st Cir. 2006); Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006); United States v. Leahy, 438 F.3d 328, 335-38 (3d Cir. 2006); United States v. Carruth, 418 F.3d 900, 904 (8th Cir. 2005); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005).
See, e.g., State v. Leon, 381 P.3d 286, 289-90 (Ariz. App. 2016); People v. Wall, 404 P.3d 1209, 1228 (Cal. 2017); State v. Foumai, 2018 WL 495679, at *4 (Haw. App. Jan. 22, 2018) (unpublished); Smith v. State, 990 N.E.2d 517, 520-22 (Ind. App. 2013); State v. Huff, 336 P.3d 897, 901 (Kan. App. 2014); Commonwealth v. Denehy, 2 N.E.3d 161, 173-75 (Mass. 2014); People v. Corbin, 880 N.W.2d 2, 13-14 (Mich. App. 2015); State v. Rey, 905 N.W.2d 490, 496-97 (Minn. 2018); State v. Clapper, 732 N.W.2d 657, 662-64 (Neb. 2007); State v. Martinez, 920 A.2d 715, 720-22 (N.J. Super. App. 2007); People v. Horne, 767 N.E.2d 132, 138-39 (N.Y. 2002); State v. Deslaurier, 371 P.3d 505, 508-09 (Or. App. 2016); State v. Kinneman, 119 P.3d 350, 353-56 (Wash. 2005).
At the same time, several commentators believe that the Supreme Court will eventually extend its Sixth Amendment jurisprudence to include restitution. Professor LaFave has opined, "If a judge is prohibited from imposing any restitution at all without first finding some loss, or, if a judge must impose restitution upon finding loss, a defendant under Apprendi and Alleyne should have the right to insist that the government prove that loss beyond a reasonable doubt to a jury." Indeed, in a recent dissent from a denial of certiorari, Justice Gorsuch, joined by Justice Sotomayor, appeared to agree with this position: "[J]ust as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order."
See, e.g., 6 Wayne R. LaFave et al., Criminal Procedure § 26.6(c), at 1073-74 & n.65 (4th ed. 2015) (opining on, and collecting other commentary addressing, the issue); see also Green, 722 F.3d at 1149-51 (noting that the United States Supreme Court's decision in Southern Union Co. v. United States, 567 U.S. 343 (2012) — which applied the rule of Apprendi to the imposition of criminal fines — "provides reason to believe Apprendi might apply to restitution" but concluding that circuit precedent rejecting Apprendi's application to restitution is not "clearly irreconcilable" with Southern Union); Leahy, 438 F.3d at 348 (3rd Cir. 2006) (McKee, J., dissenting in relevant part) (opining that the court is "not at liberty to rationalize a distinction between punishment in the form of incarceration on the one hand, and punishment in the form of restitution on the other," and concluding that, because a finding of loss "necessarily is a condition precedent to an order of restitution," such a finding has to be made by a jury under the Sixth Amendment).
LaFave, Criminal Procedure § 26.6(c), at 1073 (emphasis in original) (discussing the applicability to restitution claims of Apprendi and Alleyne — which held that the rule of Apprendi applies to any fact that increases a mandatory minimum sentence).
Hester v. United States, 139 S.Ct. 509, 509-11 (2019) (Gorsuch, J., dissenting from the denial of certiorari). Justice Gorsuch also noted that, to the extent restitution was beyond the purview of the Sixth Amendment's right to a jury trial in criminal prosecutions, then the Seventh Amendment's right to a jury trial in civil cases would seemingly be implicated. Id. at 511.
We need not decide this issue here, because even assuming that the Sixth Amendment right to a jury trial applies to the determination of the proper amount of restitution, the absence of a jury trial in this case is harmless beyond a reasonable doubt.
In Washington v. Recuenco, the United States Supreme Court held that a Blakely error does not constitute structural error — that is, the error does not entitle a defendant to automatic reversal. Rather, the error is subject to "harmless error" review. We have repeatedly applied this principle to situations in which the superior court failed to submit an aggravating factor to a jury for consideration, but the evidence underlying the aggravator was undisputed. For instance, in Lockuk v. State, we held that, given the defendant's failure to dispute the underlying factual basis for the applicable aggravating factors, there was no reasonable possibility that a jury would have found in Lockuk's favor on the aggravators, and thus the error in failing to submit the aggravators to a jury was harmless beyond a reasonable doubt.
Washington v. Recuenco, 548 U.S. 212, 218-19 (2006).
Lockuk v. State, 153 P.3d 1012, 1017 (Alaska App. 2007); see also Tyler v. State, 133 P.3d 686, 689 (Alaska App. 2006); Snelling v. State, 123 P.3d 1096, 1099 (Alaska App. 2005); Milligrock v. State, 118 P.3d 11, 16-17 (Alaska App. 2005).
In the present case, the court only ordered Her to pay the $19,587.26 sought by the Violent Crimes Compensation Board. The State submitted a "Claim Payment Summary" from the Violent Crimes Compensation Board listing Harms's medical expenses. This document showed that the total amount paid was $19,587.26. Then, at the restitution hearing, the prosecutor announced that a representative from the Violent Crimes Compensation Board was available to testify about the exhibit and the listed expenses.
In response, Her's attorney expressly told the court that Her did not dispute the amounts that the Board had paid to doctors for Harms's medical care, and that no testimony on this point was necessary. We therefore conclude that any infirmity in failing to submit the question of restitution to a jury is harmless beyond a reasonable doubt in Her's case.
Conclusion
The judgment of the superior court is AFFIRMED.