Opinion
Court of Appeals No. A-8843.
July 27, 2005.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Trial Court No. 3PA-02-41 DL.
J. Randall Luffberry, Assistant Public Advocate, Palmer, Joshua Fink, Public Advocate, Anchorage, for the Appellant.
Robert J. Collins, Assistant District Attorney, Palmer, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
On June 28, 2002, W.C. and several other individuals unlawfully used an unoccupied house in Wasilla as the venue for a "party." The party evolved into a frenzy of destruction that caused over $50,000 in damages. The superior court adjudicated W.C. a delinquent minor after W.C. had admitted a petition charging first-degree criminal trespass and third-degree criminal mischief. The superior court ultimately imposed a restitution order that held W.C. liable for all the damages to the house. W.C. appeals, contending that the restitution order is unlawful.
AS 11.46.320(a)(2) AS 11.46.482(a)(1), respectively.
Because the record supports a finding that W.C. aided and abetted the other vandals, we affirm the superior court's restitution order.
Facts and proceedings
Up to thirty juveniles and young adults held a party at the home of Bill and Virginia Hoyt. The house was unoccupied because the Hoyts were preparing to sell the residence. After the party, nearly every window in the house was broken. Empty beer bottles littered the home's interior. A door was knocked off its hinges. There were several holes in the sheetrock. Honey, catsup, pickles, juice, and other items of food were smeared on the walls, the fixtures, and the carpets. Graffiti was spray painted on the walls. The house suffered water damage because a water filter was broken. Every room in the house was damaged.
The police investigated and learned that W.C. was one of the participants in the vandalism. The State filed a petition to adjudicate W.C. a delinquent, charging that W.C.'s conduct in the episode would support the criminal charges of second-degree criminal mischief, a felony, and first-degree criminal trespass. As described in the petition, one of the investigating officers estimated that there was $40,000 in damage to the house.
Ultimately, the State and W.C. reached an agreement. The State amended the petition by reducing second-degree criminal mischief to third-degree criminal mischief. W.C.'s attorney told the court that as a result of his forthcoming admission, W.C. would face a restitution order and "[W.C.] will be responsible for his share of the damage even if it amounts to more than $500." The amount of restitution would be determined later. At the disposition hearing on April 25, 2003, Superior Court Judge Eric Smith placed W.C. on probation with restitution to be determined later. Shortly thereafter, a contractor examined the Hoyt residence and determined that it would cost the Hoyts $51,826.68 to repair their residence. Initially, the State requested that the court order restitution from W.C. for one fourth of the repair cost. Judge Smith granted that request and entered a restitution order for $12,956.67, holding W.C. and other juveniles responsible for this amount jointly and severally. The State moved to amend the restitution order, arguing that if the court were going to impose joint and several liability for the damages, the court should impose a restitution order in W.C.'s case for the entire amount of damages.
W.C. opposed the State's request. Judge Smith conducted two later hearings, one in December 2003 and the other in February 2004. At the first hearing, W.C.'s attorney indicated that he would not be opposed to a restitution order of $1,500 but argued that W.C. should not be responsible for more than the damage he admitted doing himself. Judge Smith indicated that he thought that W.C. and the other juveniles faced joint and several liability (as he had already ordered) and that he had to determine what was suitable restitution in the case. The court deferred the issue until after the resolution of a related case involving another of the juveniles.
The court returned to the issue at the second hearing, held in February 2004. Judge Smith pointed out that W.C. faced potential liability for the conduct of the other actors as a result of his admission to the petition, based on the judge's reading of Noffsinger v. State. Judge Smith understood that W.C. was arguing that the disposition record did not support a prima facie case that W.C. had aided and abetted the actions of the other vandals and that, therefore, W.C. should not have to pay restitution for all the damages.
850 P.2d 647 (Alaska App. 1993).
But Judge Smith did not resolve that issue at the hearing. He recognized that he had raised the case of Noffsinger at the hearing without notice and wanted to give the parties time to address that case and any other remaining issues before resolving the issue of restitution. Judge Smith had already ruled that W.C. was responsible for more than the damage he had admitted that he had personally caused. Because W.C. was asking the court to reconsider that ruling, Judge Smith said that it was W.C.'s burden to convince him that he could impose a restitution order on W.C. only for the damage that he admitted he had caused. Judge Smith set a briefing schedule and indicated that if W.C. convinced him that he had erroneously ordered joint and several liability, he would schedule a hearing to litigate W.C.'s individual responsibility based on W.C.'s conduct in the vandalism at the Hoyt house.
After the parties filed their pleadings, Judge Smith issued an order amending the restitution order. The order provided that W.C. would be responsible for restitution for the entire amount of damage to the Hoyts' house. Thus, Judge Smith implicitly rejected W.C.'s contention that the record did not support restitution for all the damage. W.C. appeals.
Discussion
In Noffsinger, we upheld the superior court's ruling that Noffsinger and his accomplices were jointly and severally liable for restitution for all the victim's loss, even though Noffsinger claimed he had individually taken only a small portion of the property that comprised the victim's total loss. Noffsinger argued that this court should extend to criminal cases the statutory preclusion of joint and several liability that had recently been enacted in civil tort actions. But we rejected that argument, reasoning that, unlike civil damages, criminal restitution awards are limited to actual damages. We distinguished restitution from civil damages because restitution in criminal cases serves several purposes in addition to compensating a victim. For example, restitution in a criminal case also furthers a defendant's rehabilitation, deters a defendant and others from committing crime, and expresses community condemnation of the crime. In addition, we emphasized that criminal restitution required a defendant to commit an act more reprehensible than mere negligence — i.e., one requiring criminal sanction.
Noffsinger, 850 P.2d at 651.
Id. at 650.
Id.
Id.
Id. at 650-51.
Id. at 651.
W.C. argues that the record does not support a finding that he intended to damage the home or intended to break into the home. But this claim is undercut by W.C.'s admission to the delinquency petition. His admission conclusively established that he had intended to damage some of the Hoyts' property and that he had illegally entered the Hoyts' house.
W.C. also argues that Judge Smith's restitution order erroneously described W.C. as a co-defendant with two of the other participants in the vandalism. Essentially, W.C. argues that the record is devoid of any support for a finding that W.C. aided and abetted others in vandalizing the Hoyts' house. We reject that argument. Viewing the record in the light most favorable to Judge Smith's findings and order, we conclude that the record, including the predisposition report, supports the finding that W.C. aided or abetted the other vandals while intending to promote or facilitate the vandalism of the Hoyts' house.
See Riley v. State, 60 P.3d 204, 205-07 (Alaska App. 2002).
Next, W.C. argues that Judge Smith failed to assess W.C.'s ability to pay restitution before ordering W.C. to pay restitution for all the damages. W.C. cites Thompson v. State for the proposition that the superior court must assess W.C.'s ability to pay before holding him jointly and severally liable. In Thompson, we vacated the superior court's restitution order holding the appellant jointly and severally liable, along with his accomplices, for $33,197 of restitution. The superior court had evaluated Thompson's ability to pay only a per capita share of the restitution amount, but imposed joint and several liability for the entire amount which Thompson would have had to pay if his three accomplices failed to pay their share. Thompson asserted that he would not be able to pay the entire amount of restitution, but the superior court declined to address the point. We ruled that under the circumstances of the case, former AS 12.55.045(f) required us to vacate the court's restitution order. As it existed at the time, AS 12.55.045(f) allowed a defendant sentenced to pay more than $5,000 in restitution and sentenced to more than 90 days in prison to ask the court to reduce the restitution obligation. The statute provided that the court presume that a defendant had the ability to pay restitution unless the defendant proved by clear and convincing evidence that he did not possess the present or future ability to pay restitution.
64 P.3d 132 (Alaska App. 2003).
Id. at 135.
Id. at 133.
Id. at 134-35.
AS 12.55.045(f) (repealed 2004).
Id.
By its terms, AS 12.55.045(f) applied to those defendants who were sentenced to serve more than 90 days of unsuspended incarceration as Thompson was. W.C. was not institutionalized but was placed on probation. Furthermore, although W.C. in one pleading indicated that he wanted to present evidence regarding restitution, he did not call any witnesses to present evidence on his present or future ability to pay restitution.
At the beginning of the December 12 hearing, Judge Smith saw the issue as primarily the minor's ability to pay. But W.C. disagreed with the court's view and argued that the issue was the court's power to impose restitution for the entire damages. W.C. announced that restitution of $1,500 was more than the damage he had caused personally and was fair "considering his finances." As we discussed above, the court continued the hearing until after the completion of the related case involving the other juvenile.
When the parties returned for the final hearing, W.C. did not ask to present evidence on his ability to pay. Rather, W.C. continued to argue that he was only obligated to pay for what he had done personally, unless he were deemed vicariously liable for damages caused by the other vandals. Because W.C. did not present evidence at the hearings on W.C.'s ability to pay and the court never ruled on the issue, W.C. has not preserved this claim.
Finally, W.C. argues that the court erred by not setting a payment schedule. But Judge Smith indicated that any restitution order would be referred for collection to the Attorney General's office, which would set a payment schedule and that if W.C. thought that the schedule was unfair, that he would review W.C.'s objections. W.C. has not convinced us that Judge Smith's decision was erroneous.
Conclusion
The judgment of the superior court is AFFIRMED.