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applying the abuse of discretion standard to a court's decision to accept the State's late-filed restitution proposal
Summary of this case from Keng Her v. StateOpinion
Court of Appeals No. A-11597 Trial Court No. 3AN-12-1554 CR No. 6071
07-09-2014
DEVIN LEE OSBORNE, Appellant, v. STATE OF ALASKA, Appellee.
Evan Chyun, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Regan L. Williams, Assistant District Attorney, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack Smith, Judge.
Appearances: Evan Chyun, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Regan L. Williams, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Devin Lee Osborne pleaded guilty under a plea agreement to first-degree burglary. As part of his plea agreement, Osborne agreed to pay full restitution to the victims of his offense. At the time of Osborne's sentencing, the amount of the victims' loss had not been determined, so the superior court gave the State ninety days to file a proposed restitution order.
The State did not file its proposed order until some seven months after that ninety-day deadline. Osborne objected to the late filing, arguing that he should be relieved of his obligation to pay restitution because the State did not file its proposed order within the required time period. The superior court rejected Osborne's claim and ordered him to pay the restitution. On appeal, Osborne argues that the superior court's decision was error.
For the reasons described below, we conclude that the superior court did not abuse its discretion by accepting the State's late-filed proposed order and requiring Osborne to pay restitution.
Facts and proceedings
Osborne was charged with first-degree burglary and four counts of theft after he and two accomplices broke into a home, stole a number of valuable items and jewelry, and sold some of the jewelry.
Osborne pleaded guilty to first-degree burglary. The plea agreement required Osborne to pay full restitution to the victims. If Osborne paid that restitution and complied with the other terms of the plea agreement, he would receive a suspended imposition of sentence.
At the change of plea and sentencing hearing, the superior court accepted Osborne's guilty plea, suspended the imposition of his sentence, and informed him that he would have to pay restitution "in an amount to be determined." The court ordered the State to file a proposed restitution order within ninety days.
Some seven months after that ninety-day deadline expired, the State filed a proposed restitution order for $20,213.25. Osborne ultimately did not dispute the amount of restitution, but because the State's proposal was submitted well past the filing deadline, Osborne argued that he should not be required to pay any restitution.
The superior court accepted the State's late-filed restitution proposal, reasoning that Criminal Rule 53 gave it discretion to exempt the State from the ninety-day filing deadline in the interest of justice. The court found that Osborne had agreed when he entered his plea to pay full restitution and that relieving him of that duty would breach the plea agreement and undermine the legislative policy favoring restitution to the victims of criminal offenses. The court also concluded that the State's delay was reasonable under the circumstances.
See AS 12.55.045(a)(1).
Osborne appeals.
Why we conclude that the State's untimely restitution proposal does not relieve Osborne of his obligation to pay restitution under the facts of this case
Osborne argues that the State was required under the plea agreement to file a proposed restitution order within ninety days and that the court abused its discretion by relaxing that deadline under Criminal Rule 53. Rule 53 provides that the criminal rules "may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice."
Osborne's plea agreement did not specify a date by which the State was to file its restitution proposal; the agreement only required Osborne to pay restitution "in an amount to be determined and as ordered by the court." But Alaska Criminal Rule 32.6(c)(2) requires that, when the amount of restitution is not known at sentencing, "the prosecutor shall file and serve within 90 days after sentencing a proposed judgment for restitution[.]" In addition, the superior court expressly told the State at the change of plea hearing that it was required to file the proposed order for restitution within ninety days. The State did not object to that deadline or argue that some other time frame for submitting the proposed restitution order had been incorporated into the parties' agreement.
The State nevertheless failed to file a proposed restitution order until seven months after the change of plea hearing. The superior court excused the State's late filing in the interest of justice under Criminal Rule 53. However, the rule that directly governs this situation is Criminal Rule 40. Criminal Rule 40(b)(2) provides:
(b) Enlargement. When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion:
. . .
(2) Upon motion permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect[.]
Because the superior court did not base its decision to relax the ninety-day deadline on Criminal Rule 40, it made no express finding as to whether the State's delay in filing the proposed restitution order amounted to "excusable neglect." But this finding is implicit in the court's conclusion that the State's delay was reasonable. The State asserted that it was late in submitting the proposed restitution order mainly because the stolen property was being held in evidence in the prosecution of Osborne's co-defendant, who went to trial and was sentenced seven months after Osborne.
On the record before us, we cannot conclude that this was a valid reason for the State's long delay in filing the proposed restitution order. Osborne agreed as a condition of his plea to pay restitution jointly and severally with any co-defendants. Consequently, Osborne was individually liable for the whole amount of restitution, regardless of the outcome of his co-defendant's trial. The State has not explained why it was necessary to wait until after Osborne's co-defendant was sentenced to assess the value of the stolen property.
See Thompson v. State, 64 P.3d 132, 134 (Alaska App. 2003) (noting that Alaska law no longer imposes "joint and several" liability when two or more civil defendants are found to be joint tortfeasors, but that joint and several liability is still available in criminal cases when a sentencing court imposes restitution on two or more accomplices).
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Nevertheless, in the absence of any allegation that the prosecutor acted in bad faith or to gain some strategic advantage, we agree with the superior court's implicit finding that the State's delay amounted to excusable neglect. Moreover, Osborne has not argued that he detrimentally relied in any way on the court's ninety-day deadline for the filing of the proposed restitution order. He does not claim, for instance, that he would have been able to fulfill his restitution obligation before the end of his probation period if the proposed restitution order had been timely or that he has been prejudiced by additional interest owed the victims. In other words, he has not argued that he was prejudiced by the delay in establishing his restitution obligation — as opposed to by the obligation itself, which, though burdensome, was a burden he specifically bargained for. Furthermore, Osborne never objected to the State's delay during the additional seven months it took the State to file its proposed restitution order.
We conclude that the superior court did not abuse its discretion by accepting the State's late-filed restitution proposal and by ordering Osborne to pay restitution.
Conclusion
We AFFIRM the judgment of the superior court.