Opinion
Court of Appeals No. A-10695 Trial Court No. 3AN-09-772 CR No. 5830
04-18-2012
MARY L. KETCHAM-ROSS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, and Rachel Levitt and Richard Allen, Public Advocates, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, David C. Stewart, Judge.
Appearances: Dan S. Bair, Assistant Public Advocate, and Rachel Levitt and Richard Allen, Public Advocates, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Mary L. Ketcham-Ross was convicted in a jury trial conducted by Superior Court Judge pro tempore David C. Stewart of two counts of second-degree theft. At sentencing, Judge Stewart imposed $64,924.05 in restitution. The restitution was for property taken from two burglaries. Judge Stewart found that Ketcham-Ross was jointly and severally liable with the defendants who were convicted of actually committing the burglaries. He concluded that, although there was no direct evidence that Ketcham-Ross was involved in entering any of the dwellings that were burglarized, she "was involved in the organization" of the defendants who had committed the burglaries and "certainly was involved in the distribution of the property."
On appeal, Ketcham-Ross argues that she was only convicted of receiving the stolen property, that all of the property she received was recovered from her, and that Judge Stewart therefore erred in awarding restitution. We conclude that Judge Stewart's findings are ambiguous. We therefore remand the case to the superior court to reconsider restitution.
Factual and procedural background
On December 31, 2008, the Wasilla home of Elizabeth and Phillip Quinn was burglarized. Two weeks later, on January 13, 2009, Kathryn and Mike Curry's Eagle River home was burglarized. Numerous items were taken from both houses.
On January 14, 2009, two Anchorage pawn shops contacted police, reporting attempts to pawn what seemed to be stolen jewelry. Officers soon responded to Cash America Pawn on Muldoon Road. They found several people, including Ketcham-Ross, inside the shop.
At the time the police arrived, Ketcham-Ross was inside the store, either pawning or attempting to pawn various pieces of jewelry. She was also wearing a large amount of jewelry and had additional jewelry in her purse. The officers spoke with Ketcham-Ross and took the jewelry in her possession, but they did not arrest her.
A grand jury indicted five defendants, including Ketcham-Ross, for multiple crimes in connection with the burglaries and the subsequent sale of some of the stolen property. Ketcham-Ross was indicted on two counts of second-degree theft by receiving, one count for each of the residences (Quinn and Curry) from which she was alleged to have received stolen property. Ketcham-Ross was convicted of both counts in a jury trial conducted by Judge Stewart.
In advance of sentencing, the State filed a sentencing memorandum. The State recommended both jail time and restitution. The State argued that Ketcham-Ross should be held jointly and severally liable with the burglars for the property taken in the Quinn and Curry burglaries. The State attached a proposed restitution judgment to this memorandum, which provided for restitution of $64,924.05, to be divided among the Currys, the Quinns, and their insurance companies.
Ketcham-Ross's attorney filed a sentencing memorandum arguing that the court should not impose restitution because all of the property in Ketcham-Ross's possession had already been recovered.
At sentencing, the State did not discuss restitution. Ketcham-Ross argued that she should not be ordered to pay restitution for the unrecovered property because she had only been convicted of theft by receiving, and there was no evidence that she had been involved in breaking into the residences.
After hearing from both attorneys, Judge Stewart announced his sentence. With regard to Ketcham-Ross's complicity in the underlying burglaries, he found:
Now, obviously, I discussed a little bit the circumstances of the case and that was reflected in the evidence presented in the — in court, as well. I mean, you were contacted at the pawn shop. I mean, we don't have direct evidence in the record that you were — we don't have
direct evidence in the case at this point — I mean, obviously, the victims feel you were in their house, but the way the record is, I don't have direct evidence that you were, and I can't make a finding based on direct evidence that you were in the house. But obviously, you were a part of that group of people, to the extent it was a group, at the end of the line, at the very least, when you folks are trying to pawn the items and obtain cash for the items that were stolen.
... And to the extent that you were involved in that group [that caused the burglaries], and I believe you were involved in that group, though I don't — like I said, I don't have direct evidence you were there. You should be held accountable for that impact.
....
I do conclude that Ms. Ketcham-Ross was involved in the organization of the defendants, such that she's responsible for restitution as well, even though she — there's no direct evidence that she may have been involved in that particular entry into their dwellings, she certainly was involved in the distribution of the property.
At the end of the hearing, Judge Stewart confirmed that he was going to sign the State's proposed restitution judgment. He stated that his decision was only preliminary and that Ketcham-Ross could file objections to the judgment. He indicated that the defense had two weeks to file objections to the restitution order. The State could then respond. He indicated he would hold a hearing on the issue if necessary.
Twelve days later, Ketcham-Ross's attorney filed a memorandum addressing the restitution award. She again stated her position that there was no evidence that Ketcham-Ross participated in the burglaries and pointed out that the court could award restitution only for losses attributable to the charged offenses. Ketcham- Ross did not request a hearing, and the State did not respond to the memorandum. No hearing was held. Judge Stewart let the prior restitution order remain in effect. This appeal followed.
On appeal, Ketcham-Ross first contends that Judge Stewart erred in not conducting a restitution hearing after she filed her post-sentencing restitution memorandum. But Ketcham-Ross never requested a hearing and, in her restitution memorandum, she merely restated the argument that she had already made at sentencing. Judge Stewart had already rejected this argument. We conclude that because Ketcham-Ross did not ask for a hearing and did not raise any issue which suggested that a hearing would be necessary, Judge Stewart did not commit plain error by not setting a hearing.
Ketcham-Ross next contends, as she did in the trial court, that there was no evidence connecting her to the burglaries. She contends that the property that formed the basis of her theft conviction was all property that had been recovered. She argues that, therefore, there was no basis for the restitution award.
The statute governing the permissible scope of restitution and the authority of a sentencing court is AS 12.55.100. This statute provides that a defendant "may be required ... to make restitution or reparation to the aggrieved parties for actual damages or loss caused by the crime for which conviction was had." Cases in the precise area presented by Ketcham-Ross's case — the relationship between theft-by-receiving charges and burglary charges — have repeatedly interpreted this statute to require an explicit finding of complicity in an underlying burglary before restitution can be required for anything other than the stolen goods a defendant received.
AS 12.55.100(a)(2).
E.g., Nelson v. State, 628 P.2d 884, 895 (Alaska 1981); Evans v. State, Mem. Op. & J. No. 5543, 2009 WL 3981560, at *1-2 (Alaska App. Nov. 18, 2009); Moffatt v. State, Mem. Op. & J. No. 3319, 1996 WL 33686481, at *1-2 (Alaska App. Jan. 3, 1996).
The jury instructions allowed the trial jury to convict Ketcham-Ross of theft if the jurors found that she obtained the property of another, or that she received, retained, concealed, or disposed of property that had been stolen. This language was broad enough to encompass several theories of liability.
If Ketcham-Ross was an accomplice to the burglaries — that is, if the State can prove that Ketcham-Ross, acting with intent to promote or facilitate the commission of the burglaries, solicited other people to commit those burglaries, or helped to plan or commit these offenses — then Ketcham-Ross could properly be held accountable for repaying the victims' losses with respect to all of the unrecovered property taken in the burglaries. Even if Ketcham-Ross was not an accomplice to the burglaries, if the State proved that she was part of a group effort to receive or conceal all of the fruits of these burglaries, then she could likewise be held responsible for the unrecovered property. On the other hand, if Ketcham-Ross's only provable connection to these crimes is that she received a portion of the stolen property, and that she tried to dispose of this portion, then the superior court erred in holding her responsible for the remainder of the property taken in the burglaries.
See AS 11.16.110(2).
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Judge Stewart's findings on these issues are ambiguous. We are unable to tell if he found a proper legal basis for holding Ketcham-Ross accountable for all of the property taken in the two burglaries. Similarly, if Judge Stewart did make such a finding, we cannot tell what evidence he relied on to reach this conclusion.
For these reasons, we must remand this case to the superior court to reconsider the award of restitution.
The superior court shall reconsider this matter and issue a new ruling within 90 days. (The superior court shall provide this Court with a copy of its ruling.)
If the superior court again orders Ketcham-Ross to make restitution for all of the unrecovered property, Ketcham-Ross shall have 30 days to file a supplemental memorandum addressing the superior court's ruling. The State shall then have 30 days to file a responsive memorandum.
When we have received the parties' supplemental memoranda, we will resume our consideration of this case.