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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
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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
| ADRIAN RAMON ORTIZ, | ) |
| ) Court of Appeals No. A-9611 | |
| Appellant, | ) Trial Court No. 3AN-03-10739 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2123 - November 16, 2007] |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: Brian T. Duffy, Anchorage, and
Joshua P. Fink, Public Advocate, Anchorage,
for the Appellant. Diane L. Wendlandt,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Adrian Ramon Ortiz was convicted of one count of
robbery in the first degree,1 and he was ordered to pay
restitution to the victims of this robbery.
Superior Court Judge Philip R. Volland conducted the
restitution hearing. In a written motion, Ortiz argued that his
restitution obligation should be governed by the version of AS
12.55.045 that was in effect at the time he committed his
offense.
In 2003, when Ortiz committed the robbery, AS 12.55.045
gave a sentencing judge discretion as to whether to order
restitution, and it further allowed the sentencing judge to
consider, if certain conditions were met, the defendants ability
to pay the proposed restitution.2 But in 2004, the Alaska
Legislature amended the statute in two key ways. First, the
legislature removed a sentencing judges discretion to grant or
withhold restitution; the statute now requires the judge to order
restitution unless the victim expressly waives restitution.3
Second, the legislature eliminated a sentencing judges authority
to consider the defendants ability to pay when setting the total
amount of restitution.4
Ortizs attorney argued that application of the new
statutory provisions to Ortiz would violate the ex post facto
clause. Thus, the attorney asserted that Judge Volland was
required to apply the 2003 version of the statute and, therefore,
Ortizs ability to pay was relevant to setting the amount of
restitution.
Judge Volland rejected this argument and concluded that
he was obliged to apply the current version of the statute.5
That is, Judge Volland ruled that he was precluded from
considering Ortizs ability to pay restitution when setting the
amount of the restitution. Ultimately, Judge Volland ordered
that Ortiz and his co-defendants be jointly and severally liable
for $103,226.85 in restitution.
Ortiz appeals this decision, renewing his argument that
the ex post facto clause prohibited Judge Volland from applying
the 2004 version of the restitution statute.
Why we conclude that application of the 2004
statute to Ortiz violates the ex post facto
clause
The United States Constitution forbids any state from
passing an ex post facto law.6 Similarly, the Alaska
Constitution forbids the imposition of ex post facto laws.7
Ortiz does not specify which constitutional provision he is
claiming the benefit of, but that is immaterial because the
Alaska Supreme Court has held that there is no distinction
between state and federal law on this issue.8
The ex post facto clause forbids a legislature from
enacting any statute which punishes as a crime an act previously
committed, which was innocent when done; which makes more
burdensome the punishment for a crime, after its commission; or
which deprives one charged with a crime of any defense available
according to law at the time when the act was committed.9 We
have summarized this definition as forbidding the retrospective
application of laws that alter the definition of crimes or
increase the punishment for criminal acts.10
The fact that a criminal statute is retrospective does
not necessarily mean that it is a prohibited ex post facto law.11
The threshold question we must answer when deciding if [this
statute] is an ex post facto law is whether [the statutes]
provisions ... increase the quantum of punishment Ortiz received
for his conviction.12
Several federal circuit courts of appeal have addressed
the question of whether the ex post facto clause is violated by
retrospective application of a restitution statute that forbids a
sentencing court from considering the defendants ability to pay.
In 1996, Congress passed the Mandatory Victims Restitution Act of
1996 (MVRA).13 The MVRA made restitution mandatory for certain
offenses, and it also required a sentencing court to order full
restitution for the victims losses, irrespective of the
defendants ability to pay.14
Because the MVRA superseded a prior restitution statute
that required sentencing courts to consider a defendants ability
to pay, application of the MVRA to defendants whose offenses pre-
dated the enactment of this statute raised a question under the
ex post facto clause. The federal circuits reached differing
answers to this question.
The majority of the circuits15 have concluded that
retrospective application of the MVRA violates the ex post facto
clause of the United States Constitution, because restitution
imposed as part of a defendants sentence is criminal punishment,
not a civil sanction, and the shift from discretionary to
mandatory restitution increases the punishment meted out to a
particular defendant.16
The minority view is set out in United States v.
Newman.17 In Newman, the Seventh Circuit concluded that, even
though the new restitution provision operated to the defendants
detriment, this detriment did not create an ex post facto
violation.18 The court concluded that the primary purpose of
restitution under the MVRA was not to punish criminals, but
rather to compensate victims and to force wrongdoers to surrender
ill-gotten gains.19 Thus, the court held that restitution was
not a criminal punishment for purposes of the ex post facto
clause and, therefore, retroactive application of the
restitution provisions of the MVRA did not violate this clause.20
Thus, the majority of the federal courts which have
addressed this question have held that the provision of the MVRA
which forbids a sentencing judge from considering the defendants
ability cannot be applied retroactively, while a minority of
federal courts have concluded that this provision is not punitive
and therefore can be imposed retroactively without violating the
ex post facto clause.
The State urges us to adopt the minority view
represented by the Newman decision. The State argues that the
intent of the 2004 amendments to Alaskas restitution statute was
primarily to compensate victims of a crime rather than to punish
the defendant, and to make restitution orders in criminal cases
equivalent to the civil judgments that victims might obtain if
they sued the defendants.
We reject the States argument because we conclude that
restitution is a hybrid remedy. It is true, as the State
asserts, that one primary purpose of restitution is to compensate
victims for the harm done by the defendants criminal act. But a
restitution order in a criminal case differs significantly from a
judgment that a victim might obtain against a defendant in a
civil lawsuit.
The most obvious difference is that, when a court
orders a defendant to pay restitution, the defendant faces
imprisonment for willful failure to pay the restitution.21
Unless the defendant can establish that he was unable to pay
despite having made continuing good faith efforts to pay the ...
restitution, the court has the authority to imprison the
defendant by revoking his probation, finding him in contempt, or
ordering him imprisoned until the order of the court is
satisfied.22
Moreover, the sentencing courts authority to imprison
the defendant for willful non-payment is directly proportional to
the amount of restitution that the defendant has been ordered to
pay. Subsection (a) of AS 12.55.051, which governs enforcement
of restitution orders, declares that the sentencing court is
authorized to imprison the defendant for a term that may not
exceed one day for each $50 of the unpaid portion of the ...
restitution or one year, whichever is shorter.23
Additionally, when a defendant is imprisoned for
willful non-payment of a restitution order, the defendant must
receive [c]redit ... toward satisfaction of the [restitution]
order ... for every day [the defendant] is incarcerated for
nonpayment.24 This provision most strikingly demonstrates the
underlying penal nature of the restitution order. A victim is
not compensated by having the defendant spend time in jail. In
fact, because the defendant must receive credit for every day
spent in jail, the very opposite occurs: the victim actually
loses compensation when the defendant is imprisoned for willful
non-payment of the restitution obligation.
These provisions of AS 12.55.045 and AS 12.55.051
demonstrate that, even though restitution orders may further the
aim of compensating the victim, these orders also have penal
characteristics that cannot be ignored. Under Alaska law, the
restitution order in a criminal case differs substantially from
the money judgment that a victim might obtain against the
defendant in a civil lawsuit.
We therefore conclude that retrospective application of
the Alaska restitution statute violates the ex post facto clause.
Accordingly, we VACATE the restitution order in Ortizs
case, and we direct the superior court to re-evaluate the
question of restitution, applying the version of the restitution
statute that existed at the time Ortiz committed his offense.
We do not retain jurisdiction of this case.
_______________________________
1 AS 11.41.500(a)(1) and/or (3).
2 Former AS 12.55.045(a) (2003) & former AS 12.55.045(f),
(g) (2003), respectively.
3 AS 12.55.045(a), as amended by ch. 17, 1, SLA 2004.
4 AS 12.55.045(g), as amended by ch. 17, 3, SLA 2004.
5 Id.
6 U.S. Const. art. I, 10.
7 Alaska Const. art. I, 15.
8 State v. Creekpaum, 753 P.2d 1139, 1143 (Alaska 1988).
9 State v. Anthony, 816 P.2d 1377, 1378 (Alaska 1991)
(quoting Dobbert v. Florida, 432 U.S. 282, 292, 97 S. Ct. 2290,
2298, 53 L. Ed. 2d 344 (1977)).
10 Amin v. State, 939 P.2d 413, 416 (Alaska App. 1997)
(quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715,
111 L. Ed. 2d 30 (1990)).
11 See Anthony, 816 P.2d at 1378 (The mere fact that [a
statute] alters a convicted felons circumstances to his or her
disadvantage does not in itself invalidate the statute as ex post
facto.); see also Stoneking v. State, 39 P.3d 522, 524 (Alaska
App. 2002) (a statute is not illegally retrospective merely
because it upsets expectations or operates to the disadvantage of
individual defendants.).
12 Patterson v. State, 985 P.2d 1007, 1011 (Alaska App.
1999), overruled on other grounds by Doe v. State, Dept. of
Public Safety, 92 P.3d 398 (Alaska 2004). See also Smith v. Doe,
538 U.S. 84, 92, 123 S. Ct. 1140, 1146-47, 155 L. Ed. 2d 164
(2003) (stating that the framework for this inquiry is well-
established by United States Supreme Court precedent).
13 Title 2, Subtitle A of the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(codified in relevant part at 18 U.S.C. 3663A, 3664).
14 18 U.S.C. 3663(A)(1) & 18 U.S.C. 3664 (f)(1)(A),
respectively.
15 See United States v. Edwards, 162 F.3d 87, 88 (3d Cir.
1998); United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir.
1998); United States v. Bapack, 129 F.3d 1320, 1327 n.13 (D.C.
Cir. 1997); United States v. Williams, 128 F.3d 1239, 1241 (8th
Cir. 1997); United States v. Baggett, 125 F.3d 1319, 1322 (9th
Cir. 1997); United States v. Thompson, 113 F.3d 13, 15 n.1 (2d
Cir. 1997).
16 Edwards, 162 F.3d at 89 (citations omitted).
17 144 F.3d 531 (7th Cir. 1998).
18 Id. at 537, 542.
19 Id. at 542.
20 Id. See also United States v. Bach, 172 F.3d 520, 523
(7th Cir. 1999); United States v. Nichols, 169 F.3d 1255, 1279-80
(10th Cir. 1999).
21 AS 12.55.051(a).
22 Id.
23 Id.
24 Id.
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