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THE COURT OF APPEALS OF THE STATE OF ALASKA
J.C.W., )
) Court of Appeals No. A-5137
Appellant, ) Trial Court No. 4FA-S93-92CP
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1370 - September 16,
1994]
Appellee. )
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Niesje J.
Steinkruger, Judge.
Appearances: Colleen A. Kosluchar, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Nora King, Assistant Attorney
General, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
J.C.W., a minor, appeals a disposition order entered in
a delinquency proceeding by Superior Court Judge Niesje J.
Steinkruger. J.C.W. argues that the superior court committed
error in conducting his disposition hearing and in fixing the
amount of restitution he was required to pay.
FACTS
J.C.W. and another minor stole and damaged various
items of Jerry and Anita Simpson's personal property. The state
filed a delinquency petition alleging that J.C.W. had engaged in
conduct amounting to second-degree criminal mischief and first-
degree burglary. J.C.W. eventually admitted committing third-
degree criminal mischief and criminal trespass; he was
adjudicated a delinquent minor, and a disposition hearing was
scheduled before Judge Steinkruger.
Prior to J.C.W.'s disposition hearing, Judge
Steinkruger received a letter from the Simpsons; attached to the
letter was their victim impact statement, a list of lost
property, and photographs of the damage done to certain property.
Judge Steinkruger also received letters from an uncle of Jerry
Simpson and Anita Simpson's father. The letters complained, in
part, that the prosecuting attorney was downplaying the magnitude
of J.C.W.'s crime and urged Judge Steinkruger to appoint a
different prosecuting attorney. The letter from Anita Simpson's
father also attached a newspaper editorial suggesting that judges
hold parents financially accountable for their children's
criminal misconduct. Upon receiving these materials, the court
evidently distributed copies to the parties.
J.C.W. and the state jointly objected to the letters,
arguing that their acceptance and consideration by the court was
unauthorized. Judge Steinkruger found these objections
groundless and declined to disregard the letters.
J.C.W.'s predisposition report itemized damages
totaling $10,164.56 and addressed the manner in which J.C.W.
could make restitution in the seventeen months remaining before
his nineteenth birthday, when the children's court would lose
jurisdiction over the case. The predisposition report
recommended assigning J.C.W.'s 1994 permanent fund dividend to
the Simpsons and requiring J.C.W. to pay $250.00 per month for
seventeen months, for a total of $5,150.00 -- roughly half the
damages caused by J.C.W. and his companion. Based on a review of
J.C.W.'s earning capacity, the report concluded that requiring
such payments would be realistic; the report further noted that
J.C.W. and his companion appeared to be "equally responsible for
losses and damages."
At the disposition hearing, the Simpsons appeared in
the company of Anita Simpson's father, Dr. Rudolph Krejci.
J.C.W. did not dispute the Simpsons' right to attend the hearing
as victims of the offense, pursuant to AS 47.10.070(b). However,
J.C.W. did object to Krejci's presence, "since he is not a victim
in this case." The state joined in J.C.W.'s objection, pointing
out that "the statute clearly says the victim or the victim's
agent. I don't believe it allows for the victim and agent."
Judge Steinkruger permitted Krejci to remain, stating, "I believe
that a member of the victim's family can be included within the
broad meaning of that statute."
During the disposition hearing, Georgene Brennan, the
author of the predisposition report, notified the court that she
had just received information concerning additional damages the
Simpsons had suffered. Brennan stated, however, that
"restitution is going to have to be limited to what [J.C.W.] can
realistically earn before his nineteenth birthday and I'm not
sure he can earn more than $5,000.00 even though he owes a great
deal more." The court ultimately ordered that J.C.W. be jointly
and severally liable for the full amount of restitution that was
undisputed, $10,164.56, and directed that J.C.W. attempt to
comply with the restitution award by: 1) depositing the bulk of
his $200.00-$300.00 savings account with the court; 2) applying
both his 1994 and 1995 permanent fund dividend payments toward
restitution; and 3) making monthly payments of $250.00 from wages
he earns from part-time work during the school year, with an
increase to $500.00 per month if J.C.W. worked more than thirty-
two hours a week.
DISCUSSION
On appeal, J.C.W. challenges as erroneous the superior
court's refusal to disregard letters from relatives of the
Simpsons, the court's denial of his request to exclude Anita
Simpson's father, Dr. Krejci, from the disposition hearing, and
the court's order holding J.C.W. jointly and severally liable for
the full, undisputed amount of restitution, rather than for half
of the total, as the predisposition report recommended.
A. Standard of Review
As to each issue, the state concedes error. The
state's concession of error is not determinative:
Although a confession of error by the
Attorney General is entitled to great weight,
it does not relieve this court of the
obligation to perform our judicial function.
The public interest in criminal appeals does
not permit their disposition by party
stipulation. We must therefore independently
review the proceedings below to insure that
the error confessed is supported by the
record on appeal and has legal foundation.
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (footnote
omitted).
B. Letters from the Simpsons' Relatives
J.C.W. argues that the trial court should not have
considered letters from the Simpsons' relatives, because
consideration of such materials is not authorized by AS
47.10.081(a) or Alaska Delinquency Rule 22.
Alaska Statute 47.10.081(a) requires that a court
conducting a disposition hearing in a juvenile delinquency case
be given "a predisposition report . . . , a victim impact
statement . . . , and any further information that the court may
request." Alaska Delinquency Rule 22(a)(1) specifies the
information to be included in the predisposition report.1
Although the statute and rule list the information that must be
made available to aid the court in a disposition hearing, neither
purports to limit what materials the court may consider as a
discretionary matter. The parties cite no authority for reading
such a limitation into these provisions, and we decline to do so.2
Cf. Nelson v. State, 874 P.2d 298, 302-03 (Alaska App. 1994)
(language in Alaska Criminal Rule 16 requiring disclosure of
certain information does not act as a limitation depriving the
court of discretion to order disclosure of other information).
In the absence of an express restriction governing the
consideration of unsolicited letters, the superior court was
authorized to "proceed in any lawful manner" that was not
"inconsistent with [the Delinquency Rules] and [did] not unduly
delay or otherwise interfere with the unique purpose and
character of delinquency proceedings." Delinquency Rule 1(f).
The pertinent question, then, is whether consideration of
unsolicited letters would "unduly delay or interfere with the
unique purpose and character" of J.C.W.'s disposition hearing.
J.C.W. maintains that consideration of unsolicited
letters "compromises the confidential nature of the delinquency
proceedings and juvenile court files," effectively rendering them
public. We find little merit to this argument. The
confidentiality of juvenile records provided for in AS
47.10.090(b) is aimed at protecting the privacy of minors by
preventing the dissemination of information concerning juvenile
delinquency proceedings to the public. We know of no reason why
the guarantee of confidentiality should insulate the court from
relevant information submitted to it by members of the public.
Delinquency Rule 2(g) explicitly describes juvenile
disposition proceedings as "analogous to a sentencing hearing in
a criminal case." In criminal cases, sentencing judges have
discretion to consider a broad range of sentencing information,
cf. Nukapigak v. State, 576 P.2d 982, 984-85 (Alaska 1978), and
are not prohibited from considering unsolicited letters, provided
that the parties are given appropriate notice of their
submission. Bowlin v. State, 643 P.2d 1, 2-3 (Alaska App. 1982).
When a court conducting a disposition hearing in a delinquency
matter receives unsolicited information that is irrelevant or
otherwise objectionable, the parties may of course object on
substantive grounds and seek its exclusion, just as they could do
in a criminal case. But when the unsolicited materials are
relevant and otherwise unobjectionable, we see no ground for
their exclusion.3
We conclude that Judge Steinkruger did not abuse her
discretion in declining to disregard the unsolicited letters.4
C. Presence of Dr. Krecji
Alaska Statute 47.10.070(a) generally bars members of
the public from attending disposition hearings. Subsection (b)
of the same statute, however, expressly authorizes attendance by
"the victim of an offense that a minor is alleged to have
committed, or the designee of the victim." J.C.W. argues that
Dr. Krejci did not qualify as either a victim or a victim's
designee, and so should have been excluded from the disposition
hearing pursuant to AS 47.10.070(b).
J.C.W. correctly asserts that Krejci was not the victim
of the offense. J.C.W. further asserts that Krejci's attendance
as a victim designee was not justified, since AS 47.10.070
authorizes only the victim "or" the designee of the victim to
attend, and since the victims personally attended in this case.
The state concedes that J.C.W.'s argument has merit, and we
conclude that this concession is well founded.
Our conclusion that Krejci did not qualify for
attendance under subsection (b), as a victim or victim designee,
does not necessarily establish the impropriety of his presence at
the disposition hearing. Although subsection (a) of AS 47.10.070
generally prohibits the public from attending juvenile
proceedings, it allows the court leeway in individual cases by
providing that "the court, in its discretion, may permit
individuals to attend a hearing, if their attendance is
compatible with the best interests of the minor."
In W.M.F. v. Johnstone, 711 P.2d 1187 (Alaska App.
1986), we had occasion to consider the circumstances under which
it is "compatible with the best interests of the minor" to admit
an individual member of the public to a disposition hearing; we
concluded that compatibility could be found only "when the
interest of the individual is substantial and when the
possibility of significant harm to the minor is negligible." Id.
at 1189-90.5
In the present case, a strong argument could be made
that admission of Krejci was justified under this standard: as
the parent of one of the victims, Krejci certainly had a
substantial interest in the case; moreover, it seems highly
likely that the harm to J.C.W. resulting from Krejci's attendance
was negligible, since Krejci had evidently already attended a
previous hearing in J.C.W.'s case as the designee of Anita
Simpson, who did not attend the earlier proceeding.
Nevertheless, W.M.F. calls for a careful case-by-case
balancing of the respective interests of the minor and the person
who seeks admission to a juvenile proceeding, before the superior
court decides the issue of admission. W.M.F., 711 P.2d at 1190.
W.M.F. also plainly contemplates express findings by the court
explaining its decision. Id. Judge Steinkruger did not
undertake the requisite balancing and made no findings to support
her decision admitting Krejci. The judge's decision appears to
have been based on the mistaken assumption that AS 47.10.070(b)
could be construed to allow Krejci's attendance as a matter of
right.
Under the circumstances, we believe it necessary to
remand this case to the superior court for an express finding as
to whether Krejci's admission was justified under W.M.F. If the
court finds on remand that Krejci's admission was not justified
under the W.M.F. standard, then J.C.W. should be afforded a new
disposition hearing.6
D. Amount of Restitution Ordered
J.C.W. contends that the trial court erred in setting
the amount of his restitution. Specifically, he asserts that
the court should not have doubled the recommended amount of
$5,082.28 by making him jointly and severally liable for
$10,164.56, the full undisputed amount of damages in the case.
J.C.W. contends that the trial court ignored evidence indicating
that this amount exceeded his earning capacity, and he argues
that the court failed to consider the negative impact this
excessive amount would have on his rehabilitation. The state
concedes error, agreeing that it is unrealistic to believe that
J.C.W. will be capable of earning $10,164.56 before his
nineteenth birthday.
Alaska Statute 47.10.080(b)(4) authorizes the court in
a juvenile delinquency matter to "order the minor to make
suitable restitution." Although this provision does not define
the term "suitable restitution" or expressly provide for
consideration of the minor's earning capacity, we have previously
likened the provision to AS 12.55.100(a)(2), the statute
governing restitution for adult offenders. See J.M. v. State,
786 P.2d 923 (Alaska App. 1990). At the time of J.C.W.'s
offense, AS 12.55.100(a)(2) required sentencing courts in
criminal cases to inquire into a defendant's ability to pay
before imposing restitution.7 Other states also appear to
require inquiry into earning capacity in delinquency cases and to
forbid restitution orders exceeding a minor's ability to pay.
See, e.g., In re Maricopa County Juvenile Action No. J-96304, 708
P.2d 1344 (Ariz. App. 1985); Charles S. v. Superior Court, 653
P.2d 648 (Cal. 1982) (en banc); State in the Interest of D.G.W.,
361 A.2d 513 (N.J. 1976).
The uncontroverted evidence before the court at the
disposition hearing indicated that J.C.W. might be capable of
paying a maximum of approximately $7,000.00 in restitution prior
to his nineteenth birthday, the point at which the children's
court would lose jurisdiction over him. Hence, if viewed in
isolation, the provision of the court's restitution order holding
J.C.W. jointly and severally liable for the total sum of
$10,164.56 might be construed as excessive. We think it
inappropriate, however, to view the $10,164.56 figure in
isolation from the remainder of the restitution order.
Two aspects of the overall restitution order mitigate
the effect of the provision holding J.C.W. responsible for the
full amount of restitution. First, because the restitution order
specifies that J.C.W. is to be jointly and severally liable with
his accomplice, J.C.W. would become liable for the full amount
only if his accomplice paid nothing toward restitution;
conversely, if J.C.W's accomplice paid his share, J.C.W. would be
required to pay only half the total figure, even though his
earning capacity might permit him to pay somewhat more.
Second, the restitution order sets out a specific
payment schedule for J.C.W. to follow in making his restitution
payments. This schedule is geared to J.C.W.'s current earning
capacity and imposes no undue burden on him. Reading the
superior court's restitution order as a whole and in a common
sense manner, we interpret the provision holding J.C.W. jointly
and severally liable for $10,164.56 to do little more than leave
the door open for future modification of J.C.W.'s payment
schedule if his earning capacity increases significantly prior to
his nineteenth birthday. Barring a future amendment of the
restitution order based on an actual increase in earning
capacity, J.C.W. will be able to remain in full compliance with
the order by continuing to meet the originally specified payment
schedule until his nineteenth birthday. He can thereby satisfy
the restitution requirement upon reaching the age of majority,
even though his total payments may fall considerably short of the
full amount of $10,164.56.
So construed, the restitution order is inoffensive: it
neither disregards the evidence concerning J.C.W.'s earning
capacity, nor ignores the potentially deleterious effects on
rehabilitation of an excessive payment requirement. We have
previously held that joint and several liability for restitution
may properly be ordered when a defendant can "realistically be
expected to pay." Noffsinger v. State, 850 P.2d 647, 649 (Alaska
App. 1993). We decline to find the restitution order in this
case to be unrealistic.
CONCLUSION
This case is REMANDED for further findings concerning
Dr. Krejci's presence at the disposition hearing, as directed
herein. In all other respects, the disposition order is
AFFIRMED.
_______________________________
1. Delinquency Rule 22(a)(1) states:
(a) Predisposition Report.
(1) The predisposition report filed by
the Department may include information
concerning the following: the juvenile's
family background, educational history, past
adjudications, verified past incidents of
delinquent behavior; the juvenile's medical,
psychological and psychiatric history; and a
description of the delinquent act and the
juvenile's attitude about the act. The
report must contain a recommendation
regarding the recommended form of treatment
that would be in the best interests of the
juvenile and the public, and the victim
impact statement required by AS 47.10.081(a).
2. We likewise decline to read Delinquency Rule 22(b),
which provides that the court "may order mental and physical
examinations of the juvenile, studies of the home of any person
with whom the juvenile might be placed by the court, and may
provide for any other reports to aid in disposition," as a
restriction precluding the court from considering unsolicited
material that it has not expressly ordered submitted.
3. J.C.W. maintains that the police reports in his case
were improperly divulged to the public. J.C.W. suggests that
this alleged violation warranted exclusion of the letters.
However, even assuming such a violation occurred, we fail to see
why the remedy of suppression would be appropriate in the
circumstances of this case.
4. The state advances a conclusory argument that, if the
letters were admissible, Judge Steinkruger gave disproportionate
weight to them. Our review of the record convinces us that there
is no merit to this claim.
5. In 1986, subsection (b) of AS 47.10.070 -- allowing
victims or victim designees to attend disposition hearings as a
matter of right -- had not yet been enacted; the statute
consisted only of the language now embodied in subsection (a).
To the extent that J.C.W. argues that the enactment of subsection
(b) was meant to abrogate the court's discretionary authority to
admit non-victim members of the public, we find the argument
frivolous.
6. Since neither party was able to address the issue of
Krejci's admission in light of the W.M.F. standard prior to Judge
Steinkruger's earlier ruling, the parties should be allowed the
opportunity to request a hearing before the court makes its
findings on remand.
7. The Alaska legislature recently restricted a trial
court's consideration of an adult defendant's ability to pay, see
AS 12.55.045(f) & (g); we express no view on whether this
restriction would affect juvenile delinquency proceedings.
