Opinion
A-13973 7120
07-10-2024
DEREK ELLIOTT JENNINGS, Appellant, v. STATE OF ALASKA, Appellee.
Jay A. Hochberg, Attorney at Law, Honolulu, Hawai'i, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage (opening brief), and Isabella Blizard, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage (reply brief), for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Bethel, Trial Court No. 4BE-18-00842 CR Terrence P. Haas, Judge.
Jay A. Hochberg, Attorney at Law, Honolulu, Hawai'i, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage (opening brief), and Isabella Blizard, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage (reply brief), for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
TERRELL, JUDGE
Derek Elliott Jennings pleaded guilty, pursuant to a plea agreement, to a single count of possession of child pornography. Pursuant to the plea agreement, the State dismissed additional charges, which included allegations that Jennings had engaged in sexual contact with his daughter, J.J. However, as part of the plea agreement, Jennings stipulated to a statement of facts, which stated, in relevant part, that Jennings's wife had observed Jennings with his hand down J.J.'s pants and that Jennings admitted to touching J.J. on three separate occasions. In the written plea agreement, Jennings acknowledged that restitution would be ordered in an amount to be determined after sentencing.
AS 11.61.127.
The State later asked the superior court to order restitution for certain of J.J.'s medical expenses. The court refused to award restitution for some of these expenses, explaining that the evidence was insufficient to show that Jennings's conduct caused those medical expenses. It awarded restitution for the remainder of the expenses without explanation.
On appeal, Jennings argues that the superior court erred in entering the restitution award for J.J.'s medical expenses because these expenses related to charges that were dismissed, and the superior court did not make the findings that were necessary to award restitution for dismissed charges. Because we agree that the superior court did not make adequate findings to support the award of restitution for J.J.'s medical expenses, we remand this case for further proceedings.
See Kimbrell v. State, 666 P.2d 454, 455 (Alaska App. 1983).
Jennings also argues that after the superior court sustained his objection to the presentence report's factual summary, the court improperly redacted the report by drawing a single line through the text. The State concedes this issue, and we conclude that this concession is well-founded. On remand, the superior court must completely redact the objected-to facts.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
Background facts and proceedings
Jennings and the State stipulated to the following facts:
In September 2017, Ann Jennings reported to the police that she observed Derek Jennings in bed with their daughter, J.J. Ann noticed that J.J.'s pants were unbuttoned, and Jennings had his hand down J.J.'s pants. His hand appeared to be resting on J.J.'s buttocks. Ann took several pictures and provided them to the police.
During the course of the investigation, Jennings admitted to touching J.J. on three separate occasions. J.J. did not make any disclosures when she was interviewed at a Child Advocacy Center. The State did not acquire additional evidence of these incidents.
Jennings also admitted to taking videos of children at the school where he worked and to having an "extreme pornography addiction." Jennings stated that he viewed pornography with "prepubescent, small-breasted girls." Jennings told officers that he video recorded children at the school and masturbated to the images. Jennings also admitted to downloading "over a hundred" images depicting "child sexual exploitation." Jennings possessed an image depicting "the face of J.W., a local minor, transposed onto an image of a prepubescent child exposing her vagina and anus in a lewd manner." Jennings placed J.W.'s face onto the photo using Photoshop.
Based on this conduct, the State charged Jennings with one count of attempted second-degree sexual abuse of a minor and three counts of second-degree sexual abuse of a minor for the conduct involving J.J., and four counts of possession of child pornography depicting minors other than J.J. As we have explained, the parties reached a plea agreement. As required by the agreement, Jennings pleaded guilty to one count of possession of child pornography, and the State dismissed the other charges. The parties stipulated to the facts recited above, and Jennings agreed to pay restitution "in an amount to be determined after sentencing."
AS 11.41.436(a)(2) & AS 11.31.100, AS 11.41.436(a)(2), and AS 11.61.127, respectively.
AS 11.61.127.
The State later filed a proposed restitution judgment and submitted a spreadsheet of forty-six medical expenses that the State Medicaid office had paid for J.J.'s medical services, totaling $31,014.94. After Jennings filed a written objection to the restitution request, the superior court conducted an evidentiary hearing.
At the hearing, Ann Jennings testified that "months after" the incident J.J. began experiencing behavior problems, namely worsening "anger issues" and "mood swings." Ann stated that J.J. began behavioral health treatment more than a year after the incident, and received inpatient care for her behavioral health issues. Ann testified that it was not clear what those behavioral health issues were related to. She acknowledged that J.J. had anger issues before the incident, but stated that J.J.'s behavior had since worsened.
Shelly Mabry, an Alaska Department of Law, Human Services section employee, testified that she ordered and reviewed the medical expenses spreadsheet that the State had submitted. She explained that she received a list of all the expenses Medicaid paid for J.J.'s medical care and deleted those she concluded were unrelated to the criminal case. She determined which expenses were related to the criminal case based on the diagnostic codes, descriptions of the services provided, and the date of those services. Mabry explained each diagnostic code, including "examination and observation following alleged child rape," persistent mood disorder, disruptive mood, major depressive disorder, severe stress, post-traumatic stress disorder, conduct disorder, headache, inpatient service, and general examination.
After the testimony concluded, the court heard oral arguments from the attorneys and then ordered $11,427.94 in restitution. The court declined to order restitution for expenses related to J.J.'s headaches, her inpatient stay for post-traumatic stress disorder and child-onset conduct disorder, and a general examination, explaining that the evidence was insufficient to connect Jennings's conduct with those medical expenses. The court explained that the evidence before it permitted only "a speculative inference" that Jennings's conduct caused these losses. However, the court did not explain its reasoning for awarding restitution for the remainder of the medical expenses.
Jennings filed a motion for reconsideration in which he pointed out that the court had misconstrued his argument as only objecting to restitution for three specific things and not otherwise contesting the State's proposed restitution request. The superior court denied his reconsideration motion.
This appeal followed.
Why we conclude that the superior court's restitution order was erroneous
On appeal, Jennings claims that the superior court did not make the findings that are necessary in order to award restitution for dismissed counts. In particular, Jennings relies on Kimbrell v. State.
Kimbrell, 666 P.2d at 455.
In Kimbrell, we held that a court may order restitution for a dismissed charge when the court makes "specific findings" that "(1) the amount of loss suffered by an identifiable aggrieved party is certain; (2) the defendant admits, and there is no factual question as to whether, the defendant caused or was responsible for the aggrieved party's loss; and (3) the defendant consents, freely and voluntarily, to make full restitution."
Id. (quoting United States v. McLaughlin, 512 F.Supp. 907, 908 (D. Md. 1981)).
In this case, the superior court made specific findings satisfying the first and third Kimbrell requirements. It noted that "there is an identifiable sum that Medicaid has paid for J.J.'s medical care," and it found that Jennings consented to make full restitution in the plea agreement. Jennings does not challenge these findings on appeal. Instead, Jennings contends that the superior court erred because it did not make a specific finding that the challenged expenses were caused by his conduct.
As a general matter, the damages for which restitution is ordered must be caused by the criminal conduct for which the defendant was convicted unless the defendant agrees to be subject to a restitution order for uncharged or dismissed counts. Williams v. State, 542 P.3d 230, 235 & n.10 (Alaska App. 2023) (citing cases). In this case, the parties apparently understood the plea agreement to require Jennings to pay restitution for the conduct set out in the statement of facts underlying the dismissed charges of sexual abuse of J.J.
Notably, the superior court specifically found that the State had presented insufficient evidence to connect Jennings's conduct with the expenses related to J.J.'s headaches, her inpatient stay for post-traumatic stress disorder and child-onset conduct disorder, and a general examination. However, the superior court did not make any "specific findings" that Jennings's conduct caused the remainder of the medical expenses for which the court ordered restitution.
Kimbrell, 666 P.2d at 455.
The State argues that we should affirm the restitution award despite the absence of these findings. It contends that the superior court "could reasonably infer that Jennings's abuse of J.J. was a legal and proximate cause necessitating J.J.'s subsequent treatment and medical expenses" based on the timing of the treatment and the lack of previous need for treatment.
But the superior court's order seemingly reached the opposite conclusion. The court stated that, in order for it to enter a restitution award for J.J.'s medical expenses, the State was required to demonstrate that there was a "clear connection between [the medical expenses] and Mr. Jennings'[s] actions." The court determined, however, that "the only evidence presented is that Mr. Jennings has admitted to sexually assaulting J.J., and that some time later she required medical attention for headaches, mental health, and behavioral issues. At most, this allows the Court to draw a speculative inference, but does not rise to the level of establishing that there is 'no factual question' as to the causation of J.J.'s medical issues." In other words, the court determined that the evidence was insufficient to establish a clear connection between Jennings's conduct and J.J.'s medical treatment for "headaches, mental health, and behavioral issues."
Because the court's reasoning for refusing to award restitution for J.J.'s headaches, inpatient stay for post-traumatic stress disorder and child-onset conduct disorder, and general examination could apply with equal force to the remaining medical expenses related to mental health and behavioral issues, we conclude that a remand for further findings is required. On remand, the superior court should reconsider the challenged restitution awards and provide a clear explanation for any award it enters.
Peratrovich v. State, 903 P.2d 1071, 1078 (Alaska App. 1995) ("[A] restitution order must be based on substantial evidence of monetary loss or expense, not mere speculation.").
Why we conclude that the superior court must redact the presentence report
As part of the plea agreement, the parties agreed to a stipulated statement of facts. Prior to the sentencing hearing, the superior court ordered a full presentence report. The presentence report's factual summary differed from the parties' stipulated statement of facts. Jennings objected and asked the court to replace the presentence report's facts with the stipulated statement of facts.
At the sentencing hearing, the superior court granted Jennings's request. The court stated that it would strike the objected-to factual statements and attach the stipulated statement of facts to the presentence report. While the court drew a line through these statements, it did not otherwise redact the statements or attach the stipulated statement of facts.
Jennings requests that this Court remand for the superior court to "fully redact" the presentence report's statement of facts. The State concedes error, and we conclude that the concession is well-founded.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
We have held that striking through "certain assertions in the presentence report with a single line" is an improper redaction. Rather, "the court must black out or otherwise remove the assertion, so that it is no longer a legible part of the report."
Nicketa v. State, 2023 WL 5426750, at *7 (Alaska App. Aug. 23, 2023) (unpublished); Fancyboy v. State, 2021 WL 1997485, at *4 (Alaska App. May 19, 2021) (unpublished).
Packard v. State, 2014 WL 2526118, at *5 (Alaska App. May 21, 2014) (unpublished); Fancyboy, 2021 WL 1997485, at *4.
In this case, the superior court merely drew a line through the objected-to factual summary. These statements remain legible. Therefore, the superior court improperly redacted the presentence report, and remand is appropriate for the court to completely redact this information.
Conclusion
We VACATE the challenged restitution award related to the medical expenses and REMAND this case to the superior court for further proceedings consistent with the guidance provided by this decision. On remand, the superior court shall issue a new order within ninety days addressing the challenged restitution award and making the appropriate findings needed to support any restitution it orders. This ninety-day deadline can be extended for good cause and with notice to this Court. We retain jurisdiction.