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Thompson v. State (1/31/2003) ap-1849
Thompson v. State (1/31/2003) ap-1849
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ISHMAEL LAVAUNDUS THOMPSON, )
) Court of Appeals
No. A-8162
Appellant, )
Trial Court No. 3AN-00-8349 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1849 January 31, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Elizabeth D. Friedman,
Anchorage, for Appellant. Stephen B.
Wallace, Assistant District Attorney, Susan
A. Parkes, District Attorney, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Under AS 12.55.045(f), when a sentencing court intends
to order a defendant to pay more than $5000 in restitution, and
when the defendant is going to serve at least 90 days in prison,
the defendant is entitled to ask the court to reduce the
restitution obligation. The statute declares that it is the
defendants burden to show, by clear and convincing evidence, that
they are unable to pay the amount of restitution proposed. This
appeal raises the question of how a sentencing court should
assess a defendants ability to pay the proposed amount of
restitution when the defendant is one of a group of wrongdoers
who are being held jointly and severally responsible for the
restitution.
In the present case, the superior court evaluated the
defendants ability to pay under the assumption that the defendant
would only have to pay a per capita share of the total
restitution. We conclude that this was error. When a group is
held jointly and severally liable for restitution, any individual
defendants ability to pay must be assessed under the assumption
that this defendant may ultimately have to pay the full amount
unless the sentencing court concurrently establishes a payment
schedule that is consistent with the defendants ability to pay.
Underlying facts
Ishmael Lavaundus Thompson and three
accomplices were convicted of jointly participating in
a first-degree assault. The superior court found that
the victim of this assault was entitled to restitution
in the amount of $33,197. The court proposed to hold
each of the four accomplices jointly and severally
liable for this amount.
Thompson offered evidence that he would be
unable to pay $33,000 in restitution after he served
his prison term. Specifically, Thompson testified that
he was effectively an orphan (his mother was dead and
his fathers whereabouts were unknown); that his parents
had not provided for him; that he had previously held
only one job (a summer job for which he was paid the
minimum wage); and that he had never completed high
school (although he was working on a GED and was
receiving training as a food-handler and custodian).
Moreover, Thompson had been told that, because of his
felony record, he would most likely be able to get only
minimum-wage jobs until he had established a good
reputation.
The superior court found, by clear and
convincing evidence, that Thompson currently had no
assets and that his potential for future earnings [was]
a big question mark because of his lack of work
experience. Nevertheless, the court found that
Thompson had failed to prove, by clear and convincing
evidence, that he would be unable to pay a one-fourth
share of the restitution (approximately $8000) after he
served his prison sentence. The court therefore
refused to reduce Thompsons restitution obligation.
Thompsons judgement states that he is jointly and
severally liable for the whole amount $33,197.
The meaning of AS 12.55.045(f) when a sentencing court
imposes joint and several restitution liability on two
or more accomplices
Although Alaska law no longer imposes joint
and several liability when two or more civil defendants
are found to be joint tortfeasors1, this Court has
ruled that joint and several liability is still
available in criminal cases when a sentencing court
imposes restitution on two or more accomplices.2 In
the present appeal, we must determine the relationship
between joint and several liability for restitution and
a defendants right to seek reduction of the restitution
amount under AS 12.55.045(f) by proving inability to
pay.
When a defendant is held jointly and
severally liable for restitution, there is a chance
that the defendant will ultimately be required to pay
the whole amount. But the sentencing judge in
Thompsons case ruled that Thompsons ability to pay the
whole amount was irrelevant that the real issue was
whether Thompson could be expected to pay his per
capita share (i.e., a one-fourth share) of the
restitution.
Thompson now challenges this ruling. He
insists that, because he is potentially responsible for
the entire amount of restitution (over $33,000), the
superior court was obliged to decide whether he could
reasonably be expected to pay the whole amount and not
just whether he could reasonably be expected to pay one-
quarter of this amount.
In J.C.W. v. State, 880 P.2d 1067 (Alaska
App. 1994), we upheld an order of joint and several
restitution liability against a similar challenge. The
defendant in J.C.W. contested the sentencing judges
decision to hold him jointly and severally liable for
$10,164.56 in restitution.3 At sentencing, the
defendant presented uncontroverted evidence that he
could pay a maximum of approximately $7,000, and the
State conceded that the full award of $10,164.56
exceeded the defendants earning capacity.4
We agreed that, if viewed in isolation, the
provision holding J.C.W. jointly and severally liable
for the entire amount of restitution might be construed
as excessive.5 But we held that certain other
provisions of the restitution order saved it from
illegality.
First, we pointed out the obvious: that
J.C.W. would be obliged to pay the full amount only if
his accomplice failed to pay anything.6 Second, we
pointed out that the restitution order established a
specific payment schedule for J.C.W. to follow in
making his restitution payments a schedule that was
geared to J.C.W.s current earning capacity and that
impose[d] no undue burden on him.7 We then concluded:
Reading the ... restitution order as a whole
and in a common sense manner, we interpret
the provision holding J.C.W. jointly and
severally liable for [the whole amount of
restitution] 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 [in the future].
J.C.W., 880 P.2d at 1073.
Although our holding in J.C.W. may,
at first blush, support the superior courts
order in Thompsons case, we conclude that the
most significant aspect of the restitution
order in J.C.W. was the fact that (1) the
defendants restitution liability was tied to
a payment schedule, and (2) this payment
schedule was geared to the defendants ability
to pay. Thus, even if J.C.W.s accomplice
failed to pay anything, J.C.W.s individual
liability would be limited by the payment
schedule. True, the judgement stated that
J.C.W. was potentially obligated to pay the
whole amount, but this could happen only if
the superior court later revised the payment
schedule based on proof that his earning
capacity [had] increase[d] significantly.
The judgement in Thompsons case
contains no such limitation on his liability.
The superior court did not establish a
payment schedule for Thompson, but instead
left this matter to the Parole Board. As
matters stand now, Thompson is jointly and
severally liable for the whole amount, and
thus he could be ordered to pay more than
$33,000 in restitution even though, based on
the evidence presented at the sentencing
hearing, there is a significant possibility
that he is financially unable to meet this
obligation. So far, the superior court has
ruled only that Thompson has the ability to
pay $8000. Under these circumstances,
Thompson has not received the procedural
right guaranteed by AS 12.55.045(f).
The State points out that if a
defendant is later unable to satisfy a
restitution obligation imposed at sentencing,
the defendant is entitled to ask for a
hearing under AS 12.55.051(c). This statute
provides that, if the defendant proves by a
preponderance of the evidence that the
defendant will be unable [despite] good faith
efforts to satisfy the [restitution] order,
the sentencing court shall modify the order
so that the defendant can pay the ...
restitution through good faith efforts.
But the hearing specified in AS
12.55.051(c) is a remedy that allows a
sentencing court to re-examine a previously
entered restitution order. It does not
supplant a defendants procedural right under
AS 12.55.045(f) to plead financial inability
when the sentencing judge is initially
determining the amount of restitution.
For these reasons, we VACATE the
superior courts restitution order and we
REMAND this case to the superior court for re-
examination of the restitution issue.
On remand, the superior court may
again make Thompson jointly and severally
liable for the entire amount of restitution,
but only if (1) the court sets a payment
schedule that is based on Thompsons foreseen
ability to pay, or (2) the court finds, under
AS 12.55.045(f), that Thompson has failed to
prove by clear and convincing evidence that
he is unable to pay the full amount of the
restitution $33,197.
_______________________________
1 See AS 9.17.080 (codifying a system of comparative fault
in tort litigation).
2 See Noffsinger v. State, 850 P.2d 647, 650-51 (Alaska App.
1993).
3 J.C.W., 880 P.2d at 1072.
4 Id.
5 Id.
6 Id. at 1072-73.
7 Id. at 1073.
