Opinion
SUPERIOR COURT CRIMINAL ACTION DOCKET NO. CR-16-229
05-04-2017
STATE OF MAINE v. WENDY GAGNE
STATE OF MAINE
KENNEBEC, SS.
RESTITUTION ORDER
The matter before the court is the State of Maine's Motion to Enforce Payment of Restitution dated June 23, 2016 and the Defendant's Motion to Dismiss dated January 20, 2017. A hearing on both motions was held on April 28, 2017, which included testimony from Diana York the restitution clerk with the Kennebec County District Attorney's Office, and the Defendant Wendy Gagne. Also admitted into evidence were the following exhibits: State's Exhibit 1 and Defendant's Exhibits 1-12. Based upon the evidence presented at the hearing and a review of the file in this case, and after consideration of the arguments made by the parties, the court makes the following findings of fact and conclusions of law.
FINDINGS AND CONCLUSIONS
On October 3, 2002 the Defendant waived indictment to an information charging her with one count of Class B theft by deception of "over $400,000" of property belonging to Maine Pulp and Paper Association (MPPA), her former employer. She entered a not guilty plea on October 10, 2002, but changed her plea to guilty on October 30, 2002. The plea agreement was a "cap" agreement whereby the State could argue for 10 years, all but 5 years suspended with 4 years of probation and restitution, and the Defendant could argue for less incarceration. Sentencing was held on February 6, 2003. Both the prosecution and the defense submitted written sentencing memoranda. Attorney Charles Einsiedler of the firm Pierce Atwood submitted a letter on behalf of the Board of Directors of MPPA.
The court (Studstrup, J.) sentenced the Defendant to 7 years, with all but 30 months suspended followed by 4 years of probation. As part of the judgment and commitment the sentencing court ordered the Defendant to make restitution in the amount of $400,000 for the benefit of the victim. As a condition of her probation, the Defendant was ordered to pay restitution in the "maximum" amount of $400,000 for the benefit of the named victim.
In his letter to the sentencing court, Attorney Einsiedler requested restitution for his client in the amount of $367,400, which represented the claimed theft of $400,000 minus payments already made by the Defendant to MPPA of $32,600. The State sought an identical amount of restitution. State's Exhibit 1 admitted at the hearing on April 28, 2017, reflects restitution payments by the Defendant while incarcerated and/or on probation totaling $15,317.39.
The court finds that the $400,000 restitution amount made part of the Defendant's judgment and her probation, was intended to be a maximum amount before application of any cash payments made by the Defendant to the victim. Accordingly, the court further finds that the Defendant has made cash payments totaling $47,917.39 ($32,600 + $15,317.39), leaving a balance of $352,082.61 prior to the application of any other credits to which the Defendant may be entitled as discussed below.
In his letter to the sentencing court dated January 29, 2003, Attorney Einsiedler made reference to three (3) properties owned by the Defendant in the central Maine area as to which the Defendant (and apparently her husband) granted the victim mortgages. At the hearing on April 28, 2017 the Defendant offered into evidence Defendant's Exhibits 1, 2 and 3 being recorded mortgage deeds on real estate in Pittston, Augusta and Gardiner, respectively, each dated January 31, 2003. The Defendant testified that neither she nor her husband had any further ownership interest in these properties, and she had no knowledge or information about the properties at this time.
Counsel for the Defendant also raised the possibility that MPPA may have received an insurance settlement as a result of the Defendant's employee theft, but no details of any such payment was provided to the court. During a hearing on the State's Motion to Revoke the Defendant's Probation held on December 10, 2009 (Mills, J.) the Defendant presented several letters her counsel had sent to Attorney Einsiedler in 2009 seeking information regarding any insurance payments and/or any proceeds obtained from the foreclosure of the 3 properties that were the subject of the mortgage deeds identified as Defendant's Exhibits 1, 2 and 3. See also Defendant's Exhibits 1,2 and 3 to the Motion to Revoke and Defendant's Exhibit 4 to Motion to Enforce). According to counsel for the Defendant, Attorney Einsiedler did not provide any information regarding insurance payments or any proceeds from the three parcels of real estate.
In a letter dated June 19, 2009 (Defendant's Exhibit 2 to Motion to Revoke) counsel for the Defendant outlined the foreclosure proceedings on each of the properties. It is not known how much, if any, proceeds MPPA realized as a result of those foreclosure actions.
The Defendant's motion to dismiss is premised on two arguments. First, she contends that the State's earlier motion to revoke her probation for failure to pay restitution was denied and, thereafter, her probation terminated. Thus, she claims that her restitution obligation no longer exists. As explained on the record at the April 28, 2017 hearing, the court disagrees with this contention because the Defendant's obligation to make restitution was part of the sentencing judgment, in addition to being a condition of her probation. See 17-A M.R.S. §§1326-A, 1326-F and 1329.
Secondly, the Defendant maintains that earlier this year the Maine Pulp and Paper Association dissolved as a nonprofit corporation. See Defendant's Exhibits 5, 6 & 7. Thus, the Defendant argues, there is no longer a victim for whose benefit restitution must be paid. The Maine Criminal Code does not appear to clearly address this issue. Nevertheless, the court concludes that the corporation's entitlement to restitution from the Defendant is an asset of the corporation and the directors of the corporation, as liquidating trustees, have the authority to dispose of any undistributed property of the corporation. See 13-B M.R.S. §§1111(2) and 1104(1)(D) & (2).
For the reasons stated on the record of the April 28, 2017 hearing, the Defendant's motion to dismiss the State's motion to enforce restitution is denied.
The court would note that 17-A M.R.S. §1325(2)(A) provides that restitution is not authorized without the victim's consent. Presumably, the directors of the now dissolved MPPA could determine that it no longer wishes to receive restitution from the Defendant. The court is not aware that the authorized persons of the corporation have taken such an action. See also 17-A M.R.S. §1324(2)(restitution may be authorized for "[t]he county where the offense was prosecuted if the victim voluntarily refuses restitution. . . .")
The Defendant further argues that it is the State's responsibility and burden to account for any other payments received by the victim from some collateral source, such as insurance or from the proceeds of the sale of the three mortgaged properties. The court agrees that it is the State's initial burden of proving "the extent of the victim's loss." State v. Berube, 1997 ME 165, ¶ 19, 698 A.2d 509. On that issue the State has satisfied its burden. In the court's view, it is the Defendant's burden to present evidence that she should be credited with additional amounts that may have been subsequently paid to the victim from a collateral source or from the sale of the three parcels of mortgaged real estate.
The court has scheduled a follow-up hearing for June 30, 2017 at 10:00 am if there is a need to take additional evidence relevant to the issue of whether the victim has received compensation from a collateral source or has received any proceeds from the mortgaged real estate. --------
During her testimony on April 28, 2017 the stated that based on her current income and financial resources she has the ability to pay $200 per month towards restitution.
Based upon the foregoing, the court finds that the Defendant is in default of her obligation to make restitution and further finds that the default was not inexcusable. IT IS ORDERED, that the Defendant shall pay restitution for the benefit of the victim as follows: up to the amount of $352,082.61 in payments of $200 per month beginning in May, 2017, to be paid to the Office of the District Attorney, 95 State Street, Augusta, Maine 04330.
FAILURE TO OBEY THIS COURT ORDER MAY SUBJECT YOU TO PENALITIES INCLUDING CONFINEMENT OF UP TO SIX MONTHS IN A COUNTY JAIL. SEE 17-A M.R.S. §1330.
CONCLUSION
For the foregoing reasons, the entry is:
State of Maine's Motion to Enforce Restitution is GRANTED.
Defendant's Motion to Dismiss is DENIED. Dated: May 4, 2017.
/s/_________
William R. Stokes
Justice, Superior Court