Opinion
A-13212
11-17-2021
KAYLA ANN FORSLAND, Appellant, v. STATE OF ALASKA, Appellee.
Jane B. Martinez, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniffen Jr., Attorney General Designate, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Trial Court No. 4FA-17-00243 CR Michael A. MacDonald, Judge.
Appearances:
Jane B. Martinez, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Attorney General Designate, Juneau, for the Appellee.
Before: Allard, Chief Judge, Wollenberg, Judge, and Mannheimer, Senior Judge.[*]
MEMORANDUM OPINION
MANNHEIMER. JUDGE
Kayla Ann Forsland challenges the amount of restitution imposed on her by the superior court. The court ordered Forsland to pay slightly less than $81,000 in restitution after she pleaded guilty to second-degree theft in connection with a residential burglary that was physically committed by her domestic partner, Shanon Stowell, and other accomplices. This burglary involved the theft of a safe and all its contents, plus the theft of many additional items of property.
In this appeal, Forsland contends that she should not have been ordered to pay any restitution. Forsland argues that she is only responsible for the theft of a few of the gold coins from the safe, because these are the only items that she personally fenced (by selling them to a gold dealer). And based on Forsland's assertion that her only crime was the theft of these few gold coins, Forsland argues that her restitution for this crime should be zero, since the coins had already been recovered by the time the court held the restitution hearing, and since no one lost money as a result of the theft of these few coins.
When Forsland's attorney made this argument to the superior court, the court rejected the defense attorney's narrow interpretation of the theft charge to which Forsland pleaded guilty. The superior court ruled that Forsland's theft charge included all of the property in the safe, as well as the other property stolen from the victims' residence, and the court further found that the evidentiary record supported this broader charge.
As we explain in this opinion, the record supports the superior court's ruling. We therefore affirm the superior court's restitution order.
Underlying facts and procedural history
In January 2017, Forsland's domestic partner (and the father of her children), Shanon Stowell, committed a residential burglary with several other men. Among the items stolen during this burglary was a safe that was kept in the victims' detached garage. This safe contained gold coins, silver coins, jewelry, $5,000 in cash, and other valuables. The burglars also stole seventeen firearms and two gun safes, as well as tools, men's outdoor clothing and equipment, purses, accessories, knives, bottles of wine, and several items of home electronics.
With particular regard to the safe that was kept in the victims' garage, Stowell and a friend of his, Johnie Flecher, removed this safe from the victims' residence and transported it to the garage of the house where Stowell and Forsland lived. As Forsland later told the police, Stowell and his friend Flecher engaged in an hours-long effort to open the safe - occasionally coming into the house to chat about their progress and to warm themselves. The safe was eventually opened, and its contents were distributed to several people.
Eleven days later, Forsland went to a Fairbanks business, Gold Buyers of Alaska, and sold several gold coins that had come from the stolen safe. The owner of the gold shop (who suspected that something was amiss) immediately notified the State Troopers, and Forsland and Stowell were apprehended outside the shop.
Forsland was indicted on four charges stemming from this residential burglary and theft. In Count I of the indictment, Forsland was charged with first-degree theft (i.e., theft of property worth $25,000 or more). Count II charged Forsland with being an accomplice to the first-degree burglary of the victims' dwelling. In Count III, Forsland was charged with being an accomplice to a separate second-degree burglary of the victims' detached garage. And Count IV charged Forsland with second-degree theft, based on the fact that the property stolen during the burglary included more than a dozen firearms.
For purposes of Forsland's present appeal, the most significant component of these charges was Count I, the first-degree theft charge, because Forsland eventually pleaded guilty to a reduced version of this charge:
[The Grand Jury charges that] on or about January 22, 2017, ... Kayla Ann Forsland, acting as a principal or accomplice, committed the crime of theft and the value of the property ... was $25,000 or more; to wit, approximately $75,000 in gold and silver coins, jewelry, and other items ... taken from the residence and garage of [the victims].
The wording of this charge is significant because, as can be seen, Forsland's theft was alleged to have encompassed several types of property - gold coins, silver coins, jewelry, and "other items" - and this stolen property was alleged to have come both from the victims' house and the victims' detached garage (where the safe was kept).
About three months after Forsland's arrest, Forsland's attorney and the prosecutor announced that they had reached a plea agreement. Under the terms of this agreement (as it was described to the court), Count I of the indictment - Forsland's first-degree theft charge - would be reduced to second-degree theft (i.e., a theft of between $1,000 and $25,000), and the other three charges would be dismissed. Forsland would receive a sentence of 18 months' imprisonment, all suspended, for this second-degree theft conviction.
AS 11.46.100 (the general definition of theft) and former AS 11.46.130(1) (version of 2017) (declaring that theft of property valued at between $1,000 and $25,000 is second-degree theft).
For her part, Forsland agreed to give a formal statement to the authorities detailing her knowledge of the burglary and theft (including the later efforts to dispose of the stolen property), and she agreed to testify truthfully against her co-defendants if those co-defendants went to trial.
Neither the prosecutor nor Forsland's attorney mentioned the issue of restitution when they announced their proposed plea bargain.
Because of Forsland's agreement to assist the State in the prosecution of her co-defendants, her actual entry of plea and sentencing were postponed until such time as the co-defendants' cases were resolved.
Ten months later, Forsland appeared in court for what was to be the formal entry of her guilty plea. The parties again described the basic terms of the plea agreement to the court-only this time, the issue of restitution was explicitly addressed. Forsland would plead guilty to a single reduced charge of second-degree theft, she would receive an 18-month sentence, all suspended, with five years of probation, and she would pay restitution.
Forsland's attorney then added that the second-degree theft charge against Forsland would be based on the theory that Forsland committed theft "by receiving". This form of theft, as defined in AS 11.46.190, consists of either buying, receiving, retaining, concealing, or disposing of stolen property with reckless disregard that the property was stolen.
In addition, Forsland's attorney told the court that he and the prosecutor had agreed to delay the restitution hearing in Forsland's case until the prosecutor had an opportunity to speak to the victims of the burglary and find out what items of property had already been recovered from Shanon Stowell and the other accomplices to the burglary and theft.
The prosecutor then explained to the court that, when she formulated the plea bargain, she decided not to insist that Forsland pay a fine because the State was "going to be asking for a significant amount of restitution". The prosecutor reasoned that "asking for a fine on top of a significant amount of restitution [was] counterproductive."
At this point in the hearing, the judge indicated that he was thinking about rejecting the proposed plea agreement as too lenient, see Alaska Criminal Rule 11 (e)(3), and he asked the prosecutor to respond to the concerns raised by the burglary victims in a letter to the court. Specifically, the judge asked the prosecutor to respond to the victims' contention that the proposed plea bargain was unacceptable because "the co-defendants were all enjoying the [proceeds] of their thefts and [were] still in possession of [much of the stolen] property", and because, under the proposed plea agreement, "they're not being compelled to disgorge the profits [of their crime]."
In response, the prosecutor assured the judge that the State had been diligently trying to locate and recover the victims' stolen property, but these efforts had been only partially successful - primarily because Forsland, Stowell, and the other people involved in the burglary and theft were either unable or unwilling to tell the authorities where most of the stolen property was. Because of this, the prosecutor decided that the only workable course of action was to require restitution as part of the plea bargain:
Prosecutor. And the only [workable] path ... is that they have to pay restitution ... . [And] they will be on supervised probation, so that hopefully a probation officer will help come up with a payment plan - so if they are working, [or] if they are getting [Permanent Fund dividends] or tax [refunds], ... those will go to restitution.
The judge then asked Forsland's attorney to address the victims' complaints about the proposed plea bargain. In response, Forsland's attorney told the court that he thought the victims were exaggerating the total amount of their loss from the burglary - and he told the judge that this was a primary reason why the court needed to hold a restitution hearing.
During his colloquy with the judge, the defense attorney mentioned the fact that Forsland had sold a few gold coins to a gold buyer, and that these coins had already been recovered. But the defense attorney did not suggest that this was the limit of Forsland's restitution obligation. Rather, the defense attorney argued that the recovery of these gold coins was just an illustration of why the court needed to conduct a careful inquiry into the true extent of the victims' loss before the court set the amount of Forsland's restitution:
Defense Attorney: My client [went] into an establishment and [sold] $1,800 worth of [gold] coins. Those coins were recovered by the State. ... [In addition, ] the State confiscated some [other stolen] coins in a glove case that [Shanon] Stowell and my client [had] in the car (indiscernible). So as far as (indiscernible) goes, [the victims] said they recovered [only] five percent of [property worth a total of] $90,000. [But] just from looking at the discovery and what's in evidence, I don't think that's accurate. I think that's an exaggeration. [Many] more of the [stolen] coins were recovered. [And] I'm aware, through discovery, that one weapon [stolen from the victims] was recovered [when the authorities arrested] Johnie Flecher.
So... we're asking for a restitution hearing-because, one, I don't know how many coins have been recovered, and [two], ... I doubt that the victims (indiscernible).
A few minutes later, Forsland's attorney argued that a restitution hearing was also necessary for a different reason: According to the defense attorney, the victims were exaggerating the amount of their loss based on the sentimental value of the stolen property rather than its commercial value:
Defense Attorney: Judge, there's another... factor [to be considered]. ... [The claim for] $90,000 restitution is not -some of it's based on the [victims'] feelings of sentimental value, collector's value, and incomplete inventory. So part of the reason [for] the restitution hearing [is] I want to be there, I want to make sure that - [the claim of loss] in this case has gone from $20,000 of value to [nearly] a hundred thousand. [And the victims' claim]... indicates that... many of the items are [being evaluated based on] sentimental value. So I'm not -I think there's a valid reason to have a full restitution hearing[.]
Again, this was not the kind of argument one would expect from an attorney who thought that, under the proposed plea agreement, Forsland's restitution obligation was limited to the few gold coins that she sold to Gold Buyers of Alaska.
The superior court ultimately decided to delay Forsland's entry of plea for one week, because (at that point) it remained unclear whether the charges against Forsland's co-defendant, Shanon Stowell, would be resolved with a plea agreement or whether Stowell would go to trial.
One week later, on March 21, 2018, Forsland returned to court and entered her guilty plea to the reduced charge of second-degree theft. The wording of this reduced charge continued to allege that Forsland committed theft of all the different types of property that were listed in the original first-degree theft charge - i.e., gold coins, silver coins, jewelry, and unspecified other items. The reduced charge also continued to allege that Forsland's theft included property both from the victims' garage (where the safe was kept) and from the victims' residence. In other words, the amended charge still alleged that Forsland's crime involved all of the property that was taken during the burglary:
[The Grand Jury charges that] on or about January 22, 2017, ... Kayla Ann Forsland, acting as a principal or accomplice, committed the crime of theft and the value of the property... was $1,000 but less than $25,000, to wit, ... more than $ 1000 in gold and silver coins, jewelry, and other items ... taken from the residence and garage of [the victims].
Forsland pleaded guilty to this charge, and the judge found that there was an adequate factual basis for Forsland's plea. (Under Alaska Criminal Rule 11(f), a judge cannot accept a guilty plea without making this finding.) The judge then imposed the agreed-upon sentence of 18 months' imprisonment, all suspended, with probation for 5 years, and with restitution in an amount to be determined at a future hearing.
Forsland's restitution hearing began one month later. Six days before the restitution hearing began, Forsland's attorney filed a pleading ("Memorandum Regarding Restitution") in which he argued, for the first time, that the court had no authority to order Forsland to pay restitution.
The defense attorney's argument had two parts. First, the defense attorney argued that because Forsland pleaded guilty to theft under a "theft by receiving" theory, and because, in the absence of a special agreement, a criminal defendant can only be ordered to pay restitution for the losses occasioned by the crime(s) the defendant has been convicted of, Forsland could only be ordered to pay restitution for the losses occasioned by her theft by receiving.
The second part of the defense attorney's argument was that Forsland's theft by receiving charge was quite narrow in scope - that it did not cover all of the property stolen during the burglary, but rather covered only the few gold coins that Forsland sold to Gold Buyers of Alaska. The defense attorney noted that these gold coins were quickly recovered by the authorities - and, because Forsland was arrested shortly after she sold these stolen coins, she never had a chance to cash the $ 1, 800 check that she received from the gold dealer for the coins. Thus, the defense attorney argued, the amount of restitution authorized in Forsland's case was zero.
After the defense attorney repeated this argument at the restitution hearing itself, the superior court ruled on - and rejected - the defense attorney's contention that the amount of restitution should be zero.
The court agreed with the defense attorney that Forsland's restitution obligation was limited to the losses attributable to her crime of theft by receiving. But the court disagreed with the defense attorney's contention that Forsland's theft by receiving encompassed only the few gold coins that she sold to the gold buyer. Instead, the court found that Forsland was complicit in both the burglary and the ensuing theft of property from the victims' residence - that she abetted both of these crimes, and that her theft by receiving charge therefore covered all of the property taken from the residence during the burglary.
As we have already explained, under Alaska law, the form of theft defined as "theft by receiving" encompasses several different types of conduct involving stolen property - not just disposing of stolen property, but also receiving it, retaining it, or concealing it. AS 11.46.190(a).
The superior court found that, while Forsland may have personally "disposed" of several of the stolen gold coins (by selling them to the gold buyer) eleven days after the burglary and the initial theft, Forsland had already committed the crime of theft by receiving with respect to all of the property taken from the residence. Based on this finding, the superior court concluded that Forsland could properly be ordered to pay restitution for all the losses stemming from the theft of property that occurred during the burglary.
See Fee v. State, 656 P.2d 1202, 1205 (Alaska App. 1982) (holding that even when the actual losses attributable to a defendant's crime exceed the maximum loss or damage specified in the definition of the offense that the defendant was found guilty of, a sentencing court can impose restitution for the entire amount).
At the conclusion of the restitution proceedings, the court ordered Forsland to pay slightly less than $81,000 in restitution. Forsland owes this money jointly and severally with her domestic partner, Shanon Stowell, and his accomplice in the burglary and theft, Johnie Flecher.
Why we affirm the superior court's restitution order
At the outset, it is important to note that Forsland is not claiming that her plea bargain should be set aside. She does not argue that she misunderstood the terms of the agreement when she entered her plea, or that there was no meeting of the minds regarding the terms of her sentence. Forsland concedes that, under the plea agreement, she is obligated to pay restitution for all losses stemming from her crime of theft by receiving. However, Forsland argues that, as a factual matter, her crime of theft by receiving covered only the stolen property that she personally disposed of- the few gold coins that she sold to Gold Buyers of Alaska eleven days after the burglary - and that, since those coins were recovered without any loss, she owed nothing in restitution.
But as we have already explained, the superior court found that Forsland pleaded guilty to a much broader theft, and the wording of Forsland's theft by receiving charge corroborates the superior court's finding.
Specifically, Forsland pleaded guilty to a charge which alleged that she committed the theft of gold coins, silver coins, j ewelry, and other unspecified items taken from both the victims' house and their detached garage. When Forsland pleaded guilty to this charge, she admitted that her act of theft covered all of this stolen property, not just the few gold coins that she sold to Gold Buyers of Alaska.
The superior court further found that there was an adequate factual basis to support this broader charge, because Forsland abetted the burglary and the ensuing theft of all the property that was taken from the victims' residence. The record supports the superior court's ruling on this matter. See this Court's decision in Andrew v. State, 237 P.3d 1027, 1032-1048 (Alaska App. 2010), where we discussed the broad range of conduct that can constitute an abetment of someone else's crime.
Accordingly, we uphold the superior court's ruling that Forsland's restitution obligation encompassed all of the losses attributable to the property taken during the burglary.
The superior court's restitution order is AFFIRMED.
[*]Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).