Opinion
A-13577
08-10-2022
KEEN SMITH, Appellant, v. STATE OF ALASKA, Appellee.
Jay A. Hochberg, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Madison M. Mitchell, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Third Judicial District, Anchorage, Trial Court No. 3AN-19-07062 CR Peter R. Ramgren, Judge.
Jay A. Hochberg, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Madison M. Mitchell, 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
ALLARD JUDGE
Keen Smith was convicted, following a jury trial, of one count of fourth-degree criminal mischief and two counts of fourth-degree assault for damaging property at an accounting firm and placing two people who worked there in fear of imminent physical injury. At sentencing, the superior court imposed the maximum sentence (365 days) on each assault conviction and ran both sentences consecutively. The court then imposed 1 additional year - entirely suspended - on the criminal mischief conviction, for a composite sentence of 3 years with 1 year suspended (2 years to serve). The court also imposed $21,743.75 in restitution.
AS 11.46.484 and AS 11.41.230(a)(3), respectively.
Smith now appeals his sentence and the restitution award.
Smith moved to expedite this Court's consideration of his appeal once the briefing was complete and the State's concessions of error were clear. The State did not oppose expedited consideration, and we granted the motion. This decision is therefore issued on an expedited basis.
Smith argues first that his sentence is excessive and that the superior court erred in multiple ways during his sentencing, including: (1) imposing maximum sentences on the assault convictions despite declining to find Smith a worst offender;(2) imposing maximum sentences in a misdemeanor case based on a statutory aggravated that applies to felony presumptive sentencing; (3) imposing a composite term of imprisonment that was greater than the maximum sentence for the most serious offense without providing any justification for doing so in violation of the Neal-Mutschler rule; and (4) engaging in inappropriate stacking with regard to the assault convictions. Smith also points out that the judgment erroneously states that he was to be placed on probation for 5 years as part of his sentence for the assault convictions even though he did not receive any suspended time on either of those convictions.
See State v. Wortham, 537 P.2d 1117,1120 (Alaska 1975) (holding that the trial court should not impose a maximum sentence without either an explicit or implicit worst offender finding; a finding of worst offender maybe based on the facts and circumstances surrounding the current offense, the defendant's history, or both).
See AS 12.55.155(c)(8); AS 12.55.125.
Phelps v. State, 236 P.3d 381, 393 (Alaska App. 2010) (holding that the Neal-Mutschler rule serves as guidance to a sentencing court and generally requires the court to provide an explanation if the composite term of imprisonment exceeds the maximum sentence of the most serious offense). The Phelps holding expands the Neal-Mutschler rule, which originally held that a sentencing judge could not exceed the maximum sentence of the most serious offense unless it served the sentencing goal of protecting the public. See Neal v. State, 628 P.2d 19,21 (Alaska 1981). Phelps allows the court to consider other sentencing goals. Phelps, 236 P.3d at 393.
See Phelps, 236 P.3d at 386 (explaining that while "multiple offenses normally ought to be punished more harshly than single offenses" this should not be done by "stacking" the individual sentences (citation omitted)); State v. Andrews, 707 P.2d 900, 910 (Alaska App. 1985) ("A person who commits ten sexual assaults should... receive a more severe sentence than a person convicted of a single incident, but he should not be punished ten times as severely."); see also 3 ABA Standards for CriminalJustice: Sentencing § 18-3.7(a) cmt. at 71-72 (1994) (noting that the "additive approach" of consecutive sentencing can "result in sentences of extraordinary harshness").
In response, the State concedes that the superior court made multiple errors, including imposing a maximum sentence without a worst offender finding, misusing a felony statutory aggravator in a misdemeanor case, and failing to make the necessary findings under Neal-Mutschler.
When the State concedes error in a criminal case, we are required to independently review the trial court proceedings to ensure that the concession of error is supported by the record and has legal foundation. We have independently reviewed the record in this case, and we agree that the State's concessions of error are well-founded and that a remand for resentencing is required.
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
Because we are remanding the case for resentencing, we do not reach Keen's excessive sentence claim.
Smith also appeals the restitution order in his case, asserting that the superior court erroneously ordered restitution for losses that were unsupported or not proximately caused by his conduct. Smith also argues that the superior court failed to make the requisite findings to support its restitution award. The State again concedes error.
Initially, the State requested $1,500 in restitution, which it asserted represented the amount that the accounting firm had paid to repair the damage caused by Smith. At sentencing, however, the superior court commented that the requested restitution amount did not appear to reflect all of the losses the accounting firm experienced as a result of Smith's actions. The superior court therefore deferred the issue of restitution until the State had a chance to consult further with the victims.
The State returned with a request for $25,546.87 in restitution, which included $4,625 in repairs and security enhancements and $20,343.75 in alleged lost income and profits.
This request also included $578.12 in unexplained losses. However, the superior court did not include this amount in its final restitution award.
At the restitution hearing, Smith's attorney agreed that the accounting firm was entitled to restitution for the damage caused by Smith, but he argued that the accounting firm was not entitled to restitution for the enhanced security improvements because they were not proximately caused by Smith's actions. The superior court agreed and reduced the $4,625 restitution requested for repairs and security enhancements to $ 1,400, the cost of the repairs without the security enhancements. The court issued a written order explaining its reasoning.
See Henderson v. State, 2018 WL 3768778, at *1 (Alaska App. Aug. 8, 2018) (unpublished) (reversing restitution award for installation of new security system because defendant's actions were not proximate cause of this expense); see also People v. Reyes, 166 P.3d 301, 303-04 (Colo.App. 2007) (reversing restitution award for installation of interior locks because costs not proximately caused by offender's conduct); Howell v. Commonwealth, 652 S.E.2d 107,109 (Va. 2007) (holding that installation of security system, while related to defendant's burglary, was not caused by the offense and defendant could therefore not be required to pay the cost of the security system as restitution).
Neither party on appeal appears to have been aware of this order. Instead, both parties erroneously claim that the superior court had ordered restitution for the security enhancements and they agree this was error. We remind both attorneys of their obligation to review the whole record and to ensure that their factual representations to this Court are accurate. See Alaska R. Prof. Conduct 1.1 (duty of competency); 1.3 (duty of diligence); 3.3 (duty of candor).
Smith's attorney also challenged the accounting firm's restitution request for $20,343.75 in alleged lost income and profits. The defense attorney argued that the accounting firm had failed to support its claim and had failed to show that mitigation efforts (such as allowing employees to work remotely) would not have been effective. The attorney also challenged the lost income and profits related to the time the employees spent in court proceedings. The court imposed the full $20,343.75 in alleged lost income and profits.
On appeal, Smith renews his challenges to the $20,343.75 restitution award for lost income and profits. Smith points out that the testimony was "muddled" regarding which days employees missed work and why, and the superior court did not make any findings regarding Smith's mitigation arguments. Smith also argues that it is against public policy to award the accounting firm restitution for lost income related to the time its employees spent in court proceedings. Smith points out that the accounting firm's owner decided to attend parts of the trial even though she was not subpoenaed to testify. And, according to Smith, for the employees that were subpoenaed, compensation for court time is limited to the witness fees provided under Alaska Administrative Rule 7(a). The State agrees with this position on appeal, although it is contrary to the position the State took in the superior court proceedings.
See Grubb v. State, 506 P.3d 791, 795 (Alaska App. 2022) (noting that Alaska law requires losses to be proximately caused by defendant's conduct).
See Alaska R. Admin. P. 7(a) ("A witness attending before any court, . . . whose testimony is necessary and material to the action, shall receive a witness fee of $12.50 if such attendance, including the time necessarily occupied in traveling . . . requires not more than three consecutive hours. If such attendance requires more than three consecutive hours, the witness shall receive a witness fee of $25.00 for each day of attendance. Any witness who attends at a point so far removed from the witness' residence as to necessarily prohibit return thereto from day-to-day shall receive per diem at the rate allowed for state employees.").
This Court has not previously been asked to rule on whether and under what circumstances a victim can receive restitution for time spent in court proceedings. This is therefore an open question under Alaska law. We note that many jurisdictions preclude such restitution awards, often on the ground that plaintiffs in a civil action cannot recover for time spent in court proceedings absent express statutory authorization. Notably, federal law expressly allows restitution for certain crime victims' "lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense." And other courts have permitted restitution under these circumstances even in the absence of such express statutory language, although some courts have limited the restitution to only those hearings where the victim's presence was "reasonably necessary."
See, e.g., State v. Yerkey, 159 N.E.3d 1232, 1240 (Ohio App. 2020) (holding that losses incurred in the prosecution of a crime are not economic losses suffered "as a direct and proximate result of the commission of an offense"); State v. Barrick, 347 P.3d 241, 243-46 (Mont. 2015) (holding that victims are not entitled to restitution for lost income due to prosecution despite statute providing restitution for "expenses reasonably incurred in attending court proceedings related to the commission of the offense" because lost income was not an expense and the State had not shown they would be recoverable in a civil action); State v. Brown, 342 P.3d 239,243 (Utah 2014) (concluding that lost wages and travel costs are "not properly compensable" because "the longstanding, well-settled rule of the Restatement generally forecloses recovery of costs or expenses incurred in the maintenance of, or related to, litigation" (citing Restatement (Second) of Torts § 914 (Am. L. Inst. 1979))); J.D. v. State, 717 So.2d 175, 176-77 (Fla. Dist. App. 1998) (explaining that lost wages from court attendance are not recoverable because, "[g]enerally, costs resulting from participation in court proceedings are not recoverable, absent a specific statute authorizing them"); cf. Ned v. State, 119 P.3d 438,446 (Alaska App. 2005) (holding that the legislature did not intend for "restitution in criminal cases to exceed the restitution that could be awarded in related civil cases").
See 18U.S.C. § 3663A(b)(4) (Mandatory Victims Restitution Act (MVRA) of 1996); Lagos v. United States, 138 S.Ct. 1684, 1688-89 (2018) (construing the MVRA language concerning "necessary . . . other expenses" to only include government investigations and criminal proceedings, not private investigations and civil proceedings). Courts have interpreted Lagos as serving to "sharpen[] [their] focus on the important qualifier" that only "necessary expenses are mandated for reimbursement." See In re: Akebia Therapeutics, Inc., 981 F.3d 32, 37-39 (1st Cir. 2020) (affirming denial of restitution for attendance at criminal proceedings by outside counsel for corporate victim).
See, e.g., State v. Lindsley, 953 P.2d 1248, 1250-52 (Ariz. App. 1997) (concluding that voluntary court appearances were no more a "matter of choice" than losses like counseling expenses and therefore allowing restitution for even voluntary court appearances); People v. Moore, 177 Cal.App.4th 1229,1232-33,99 Cal.Rptr.3d 555, 557-58 (Cal.App. 2009) (affirming award of restitution for lost wages for attending all hearings).
See State v. Ramos, 368 P.3d 446, 457 (Or. 2016) (allowing restitution for loss of income if it was "reasonably necessary" for the victim to appear in court); see also State v. Nichols, 473 P.3d 1145,1152 (Or. App. 2020) (affirming restitution award for loss of income for time spent at sentencing hearing to give victim impact statement but reversing restitution award for time spent at two pretrial hearings).
Here, because the superior court did not make clear findings regarding the basis for the $20,343.75 restitution award for alleged lost income and profits, we agree that a remand and reconsideration of the restitution award is warranted. We note that what restitution, if any, can be awarded for the time various employees spent at trial or pretrial court proceedings will need to be litigated on remand. The superior court should consider inviting the Office of Victims' Rights to participate in that litigation if the accounting firm's position is otherwise unrepresented.
Accordingly, for the reasons explained above, the judgment of the superior court is REVERSED, and this case is REMANDED for resentencing and a redetermination of the restitution award.