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The text of this opinion can be corrected before the
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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
| BARRY LEE LAPP, | ) |
| ) Court of Appeals No. A-9778 | |
| Appellant, | ) Trial Court No. 4FA-94-3065 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2244 November 20, 2009 | |
Appeal from the
Superior Court, Fourth Judicial District,
Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Kenneth L. Covell, Fairbanks,
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 Bolger, Judges.
BOLGER, Judge.
In 1995, Barry Lee Lapp was convicted of manslaughter
and five counts of assault. Superior Court Judge Niesje J.
Steinkruger entered an order requiring Lapp to pay approximately
$85,000 in restitution to the victims of his crimes, and to pay
10% of his wages toward restitution until all victims are fully
paid. When Lapp failed to pay the full restitution during his
probation, the judge entered a civil judgment for the balance.
Lapp asserts that the superior court had no authority to enter
this civil judgment for the remainder of the restitution because
the judgment violated his rights to due process, his protection
against double jeopardy, and constitutional restrictions on ex
post facto laws. Lapp also argues that the civil judgment was
barred by the doctrine of equitable estoppel. We conclude that
the 2001 amendment to the restitution statute was merely a
procedural change that did not violate the restriction on ex post
facto laws, and that the judgment itself did not increase Lapps
punishment in a way that violated due process or the protection
against double jeopardy. We also conclude that the superior
courts failure to sua sponte recognize the issue of estoppel was
not plain error.
Background
On September 16, 1994, Lapp recklessly caused an
automobile collision that killed one person and seriously injured
several others. Lapp pleaded no contest under a plea agreement,
and on April 20, 1995, he was convicted of manslaughter,1 five
counts of felony assault,2 and driving while intoxicated.3 Lapp
was then sentenced to 10 years imprisonment with 2 years
suspended. A hearing was scheduled to determine the amount that
Lapp would have to pay for restitution, but before the hearing
began, Lapp agreed to a stipulation to pay restitution totaling
$86,455.87 to his four victims. This stipulation was used by
Judge Steinkruger as a basis for a restitution order.
The restitution order included a stipulated payment
schedule and stated that the restitution provisions shall be part
of the sentencing judgment previously entered in this matter.
The judgment incorporated this restitution order, but also made
restitution a condition of Lapps probation.
On May 4, 2000, Lapp began serving his 5 years of
probation. During his probation, Lapp presented pay stubs to his
probation officers, who then told Lapp the amount he should pay
in restitution. Lapp complied with the terms of his probation,
which included making all of the payments his probation officers
directed him to pay. By May 4, 2005, Lapp had completed his
probation. However, during that five-year span, Lapp had only
paid $15,750 in restitution. By September 16, 2005, Lapp had
stopped making his restitution payments. He was contacted by his
probation officer about his failure to make payments, and a week
later the State petitioned to revoke his probation.
On February 24, 2006, Judge Steinkruger scheduled an evidentiary
hearing to determine whether Lapp had violated his probation.
The judge suggested that it might be possible to convert Lapps
restitution order into a civil judgment. The judge wrote the
following notation on the scheduling order:
It appears that the States only remedy is
for the remaining restitution owed to be
treated as a civil judgment. This assumes
the State does not contest the defendant
paid 10% of wages as the State and defendant
agreed to. Therefore, at the above hearing
the court will consider whether the State is
in agreement, i.e., that the State does not
contest the defendant was not in violation
regarding restitution during the five years
of probation.
At the April 5, 2006 hearing, the State requested that
the restitution order be converted into a civil judgment.
Despite Lapps objections, Judge Steinkruger allowed the State to
lodge a civil judgment to enforce the total amount of restitution
still owed. In her ruling, Judge Steinkruger relied on the 2001
amendment to the restitution statute, particularly including AS
12.55.045(l), which provides that a restitution order in a
criminal case is a civil judgment for the amount of the
restitution. Judge Steinkruger also ruled that the 2001
amendment did not violate any constitutional principles or breach
Lapps plea agreement.
Pursuant to this ruling, the State submitted
accounting records which detailed Lapps payments and established
that Lapp still owed $70,705.87 in restitution. Judge
Steinkruger then issued a civil judgment for that amount, which
Lapp now appeals.
Did the Civil Judgment Violate Double Jeopardy?
Under the double jeopardy clauses of the state and
federal constitutions, once a sentence has been meaningfully
imposed, it may not, at a later time, be increased.4 Lapp
contends that the 1995 judgment of conviction only obligated him
to make restitution as a condition of his probation, so that
entering a civil judgment in 2006 for the remaining restitution
was an increase in his punishment. Citing Shagloak v. State,5
Lapp also argues that the same circumstances violated his right
to substantive due process.
Thus, we must examine the judgment and associated
documents to determine whether Lapps obligation to pay
restitution was only a condition of his probation, or whether it
was also an independent component of his sentence. When we
construe a judgment, we primarily seek to ascertain the
sentencing judges intention as stated in the contemporaneous
sentencing record.6 When we review the judgment and
contemporaneous sentencing documents in this case, it is apparent
that restitution was not only a condition of Lapps probation, but
also an independent component of the judgment.
Analyzing the judgment itself, the list of probation
conditions includes the following items:
15. The defendant shall pay
restitution as set forth in the Restitution
Order entered in this case which is
incorporated herein by reference.
16. The restitution ordered is a
condition of probation and a part of this
judgment.
Thus, the judgment explicitly states that, in addition to being a
condition of probation, the restitution was also intended to be
an independent part of the judgment.
This construction is also supported by the language of
the separate restitution order, which requires the payment of a
stated amount of restitution to each victim using the following
language: It is hereby ordered that the defendant shall pay
restitution under Count [X] to [Victim A] in the sum of
[$XX,XXX]. In a separate section, the order requires Lapp to
make monthly payments of 10% of his gross wages.
Another section of the restitution order provides for
the distribution of the restitution payments. The order
specifies that the restitution payments will be distributed in
equal amounts to each victim until the first victim is fully
paid, and then continues,
Thereafter, the payments shall be
distributed to the remaining unpaid victims,
on an equal percentage basis, until an
additional victim is fully paid. Such
procedure of distribution shall continue
until all victims are fully paid.[7]
Finally, the order provides that these provisions concerning
restitution shall be part of the sentencing judgment previously
entered in this matter.
Thus, the language of the order is inconsistent with
the idea that restitution would be limited to the term of
probation. There is no mention of probation in the restitution
order. Restitution was not scheduled to terminate after the term
of probation, but rather, was ordered to continue until all
victims are fully paid. And the explicit direction that the
order is part of the sentencing judgment shows that the order was
not only a probation condition, but was specifically intended to
be a separate component of the judgment.
Furthermore, this construction is also consistent with
the language of the stipulation between the parties. When
construing an agreement between parties, we use ordinary
principles of contract interpretation,8 attempting to give effect
to the reasonable expectations of the parties considering the
language of the contract as well as relevant extrinsic evidence.9
Here, the parties agreed in the stipulation that
payments should be made to each victim using the following
language: The victim should pay restitution under Count [X] to
[Victim A] in the sum [$XX,XXX]. The stipulation included the
agreement that the defendant would make restitution payments in
monthly amounts of 10% of his gross wages. The stipulation also
included the parties agreement to the same distribution that was
ordered by the court, which specified that: Such procedure of
distribution should continue until all victims are fully paid.10
Like the terms specified in the restitution order, the
terms of the stipulation are inconsistent with the termination of
restitution after probation has been completed. The stipulation
does not mention probation, and the parties agreed that
restitution should continue until all victims are fully paid.
Lapp argues that the superior court did not have the
authority to impose restitution as an independent component of
the 1995 judgment. He relies on R.I. v. State,11 where we held
that the 1995 juvenile delinquency statutes did not authorize the
superior court to enter a civil judgment for restitution.12 But
in R.I., we expressly recognized that, in criminal prosecutions,
a sentencing court could order a convicted defendant to pay
restitution either as an independent component of the sentence,
or as a condition of probation.13 We also recognized that the
restitution statute authorized crime victims to pursue execution
on a restitution order as if it were a civil judgment.14 The
superior court was therefore acting within its authority when it
imposed Lapps restitution order as an independent component of
his judgment.
In summary, under the 1995 stipulation and restitution
order, the restitution obligation was intended to operate as an
independent component of Lapps sentence, not just as a condition
of his probation, and Lapps obligation continued until all of the
victims were fully paid.
We now turn to the validity of the civil judgment that
the superior court entered in 2006. The civil judgment required
Lapp to pay the balance of restitution to the two remaining
victims. The first paragraph of the judgment provided:
1. The defendant shall pay restitution to
the following recipient(s) for the amounts
shown below:
Restitution Recipients
Amount
A. Robert White
$47,858.76
B. Bryan Wade
$22,847.11
TOTAL AMOUNT DUE
$70,705.87
The civil judgment thus required Lapp to pay no more than the
original restitution order required that is, to pay restitution
to the victims until they were paid in full.
Lapp argues that the superior courts entry of this
judgment violated the prohibition against double jeopardy based
on our decision in Kelly v. State.15 In Kelly, the superior
court originally imposed restitution only as a condition of
probation.16 But after revoking the defendants probation, the
court also tried to enforce the restitution condition as an
independent component of the judgment.17 We concluded that the
imposition of the civil judgment independent of Kellys probation
was an increase in punishment in violation of the protection
against double jeopardy.18
But in Kelly, we also recognized that it would have
been permissible for the original sentencing judge to require
payment of restitution both as a condition of probation and also
as an independent component of the judgment.19 That was exactly
what happened in Lapps case: the obligation to make restitution
to his victims was an independent component of his judgment
imposed at the time he was originally sentenced. Accordingly,
the entry of the 2006 civil judgment did not increase Lapps
punishment. At most, it altered the procedures by which the
victims could enforce the preexisting restitution obligation.
Thus, Lapps right to protection against double jeopardy has not
been violated because the 2006 civil judgment did not create any
new restitution obligation.
Was the 2001 Restitution Statute an Ex Post Facto Law?
Judge Steinkruger relied on the 2001 amendment to the
restitution statute when she entered the civil judgment against
Lapp in 2006. Lapp now argues that application of the 2001
statute to his case violates the ex post facto clauses of the
state and federal constitutions because his offenses were
committed before 2001.20
The ex post facto clauses forbid 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.[21]
This provision forbids the retrospective application of laws that
alter the definition of crimes or increase the punishment for
criminal acts.22 But the ex post facto clause does not bar
retrospective application of merely procedural amendments.23 So
the initial question that we must address is whether the 2001
amendment to the restitution statute increased the substantive
quantum of punishment Lapp received for his conviction.24
Lapps argument assumes that the restitution order was
unenforceable after he completed his term of probation. To
address this argument, we must analyze the restitution statute in
effect when Lapp committed his several felonies in 1994. At
the time of Lapps offenses in 1994, the restitution statute
provided:
[A] restitution recipient may enforce
payment of a restitution order against a
defendant under AS 09.35 as if the order
were a civil judgment enforceable by
execution. This subsection does not limit
the authority of the court to enforce ...
orders of restitution to victims.[25]
In 1994, civil judgments were enforceable by execution
under AS 09.35.010. Nothing in the execution statute limited the
enforcement of a restitution obligation to the term of the
debtors probation.26 So when former AS 12.55.051(d) stated that
restitution orders could be enforced as if the orders were civil
judgments, that provision implied that restitution could be
enforced beyond the period of probation.
This aspect of the Alaska statute was consistent with
the preexisting common law principle that the government may seek
civil execution of a fine in a criminal case.27 Under this rule,
a court could enforce the payment of a fine even after the
expiration of a sentence of imprisonment.28 Following this same
common law principle, courts interpreting similar statutory
schemes have held that the sentencing court can enforce
restitution as an independent component of the judgment even
after the defendants terms of imprisonment and probation have
expired.29 We likewise conclude that there was nothing in the
1994 restitution statute that limited the enforcement of
restitution to the defendants term of probation if restitution
was ordered as an independent component of the judgment.
We now turn to the 2001 amendment to the restitution
statute. In 2001, the legislature amended the statute by adding
a section that provided in part, that [a]n order by the court
that the defendant pay restitution is a civil judgment for the
amount of the restitution.30 This language took effect on
January 1, 2002, and was intended to apply to all judgments or
orders of restitution entered in adjudications of delinquency of
minors or in criminal cases before, on, or after the effective
date of the legislation.31
In summary, before the 2001 amendment, the restitution
statute stated that a restitution order could be enforced as if
the order were a civil judgment.32 After the 2001 amendment, the
statute stated that a restitution order is a civil judgment.33
It is unclear why the legislature believed that this language
should be changed. But it is clear that the new language was
intended to reaffirm crime victims preexisting right to enforce
restitution obligations through civil execution. If this
amendment changed the law in any fashion, it was a procedural
change in the enforcement mechanism for the judgment; it was not
a substantive increase in the quantum of punishment.
To argue that applying the 2001 statute was an
improper ex post facto application of the law, Lapp relies on
Ortiz v. State,34 where we ruled that retrospective application
of an amendment to the restitution statute constituted an ex post
facto law.35 At the time that Ortiz committed his crime, AS
12.55.045 allowed the sentencing judge to consider the defendants
ability to pay restitution.36 But this statute was amended in
2004 by removing the judges discretion to consider the defendants
ability to pay.37 We concluded that retrospective application
of this amendment to the restitution statute violated the ex post
facto clause.38
In Lapps case, however, the enactment of AS
12.55.045(l) did not operate to change the amount of restitution
or the nature of Lapps obligation to his victims, nor did it
alter the factors that the superior court was to consider when
setting restitution. Both before and after the 2001 amendments,
a restitution order was enforceable as a civil judgment.
In People v. Lowe,39 the Colorado Court of Appeals
addressed a similar case considering the retrospective
application of a law allowing for the civil enforcement of
criminal restitution orders.40 In Lowe, the defendant had been
imprisoned for eight years when the Colorado General Assembly
enacted a restitution statute allowing the Colorado Department of
Corrections to collect or withhold 20% of the deposits into
inmates accounts to satisfy their delinquent restitution
obligations.41 The Colorado court held that this amendment to
the restitution statute did not constitute an ex post facto law
because the amendment simply facilitate[d] collection from
defendant of the sums he was ordered to pay at the time of his
sentencing.42
Likewise, the 2001 amendment to AS 12.55.045 was at
most a procedural change to facilitate the collection of
restitution rather than a substantive change in the amount or
nature of the restitution obligation. The amendment did not
alter the definition of criminal conduct or increase the penalty,
and therefore applying this amendment to Lapp does not violate
the ex post facto clause.43
Did the Civil Judgment Violate Due Process?
Lapp also makes three arguments that the judges 2006
entry of the civil judgment amounted to a denial of procedural
due process. First, Lapp argues that the judge was not impartial
because she suggested that the State abandon its petition to
revoke probation and request that the restitution order be
converted to a civil judgment. Although Lapp does not cite any
cases in support of this argument, a judges comments during
litigation will generally not disqualify the judge unless the
comments display clear inability to render fair judgment.44
Judge Steinkrugers suggestion in this case is not the sort of
comment that would violate this standard. Indeed, the judges
comment also favored Lapp because she clearly discouraged the
States request to revoke Lapps probation.
Second, Lapp argues that the superior court ignored
his request for discovery. But Lapps request did not include a
request for any specific information about the restitution
calculation. Ordinarily, a party must move for a court order
compelling discovery in order to preserve this type of request as
an issue for appeal.45 We conclude that Lapp has waived this
claim by failing to request a ruling from the superior court.
Third, Lapp argues that the superior court entered the
restitution judgment without holding a hearing. This issue
requires some review of the trial court record. The State filed
a motion to set the restitution amount at $72,105.87. In
response, Lapp filed a motion to strike, arguing that the States
motion was unsupported. Then, the State filed an opposition to
the motion to strike supported by records from Lapps probation
officer detailing Lapps payments and the resulting restitution
balance. A few days later the State amended its request,
proposing a judgment requiring distributions to the remaining
victims in the total amount of $70,705.87.
After the State filed the records that supported its
restitution request, Lapp could have filed an opposition to the
motion to set the restitution amount, a reply memorandum in
support of his motion to strike, or a request for a hearing.46
But Lapp did not file anything with the superior court (or in
this appeal) indicating that he contested the amount of
restitution that the State requested. We conclude that Lapp has
waived his right to a hearing on this issue by his failure to
request a hearing when he had the opportunity to do so,47 as well
as by his failure to show any grounds for disputing the States
proposed amount of unpaid restitution.
Accordingly, we reject Lapps arguments on this point
and conclude that Lapp was not denied due process.
Was the States Claim for Restitution Barred by Equitable
Estoppel?
Lapp also argues that the States claim for restitution
is barred by equitable estoppel. To establish equitable estoppel
against the State, the defendant must show that (1) the
governmental body assert[ed] a position by conduct or words; (2)
the private party act[ed] in reasonable reliance thereon; (3) the
private party suffer[ed] resulting prejudice; and (4) the
estoppel serves the interest of justice so as to limit public
injury.48 Lapp argues that the State has made three assertions
justifying estoppel: (1) the prosecutor drafted the restitution
order after negotiations with defense counsel; (2) during Lapps
probation, his probation officer determined Lapps required
restitution payments based on his pay stubs; and (3) the
probation officer did not move for modification of the payment
schedule. Because Lapp did not assert equitable estoppel in the
superior court, he has waived the issue on appeal unless it was
plain error for the superior court to fail to recognize this
issue.49
Lapp has not established plain error. Governmental
decisions not to pursue prosecution or enforcement generally are
not assertions sufficient to support a defense of estoppel.50 In
other words, the fact that the probation officer calculated
restitution payments consistent with Lapps restitution order was
not an assertion that the State would give up the provisions that
required Lapp to continue his payments until all of the victims
were paid in full.51 Thus, Lapp cannot establish that the
superior courts failure to recognize the defense of equitable
estoppel was a plain or obvious error.
Conclusion
We conclude that the entry of a civil judgment for the
unpaid portion of the restitution did not increase Lapps
punishment for his offenses or alter Lapps legal position in any
way that violated due process, the protection against double
jeopardy, or the ex post facto clauses of the state and federal
constitutions. We therefore AFFIRM the superior courts judgment.
_______________________________
1 AS 11.41.120(a)(1).
2 AS 11.41.210(a) and AS 11.41.220(a)(1)(A) & (B).
3 AS 28.35.030(a)(1) & (2).
4 Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971).
5 597 P.2d 142, 145 (Alaska 1979).
6 Alvin v. State, 42 P.3d 1156, 1159 (Alaska App. 2002).
7 Emphasis added.
8 Logghe v. Jasmer, 686 P.2d 694, 697 (Alaska 1984).
9 Sowinski v. Walker, 198 P.3d 1134, 1143-44 (Alaska 2008).
10 Emphasis added.
11 894 P.2d 683 (Alaska App. 1995).
12 Id. at 686.
13 Id. at 685.
14 Id. at 685 n.2.
15 842 P.2d 612 (Alaska App. 1992).
16 Id. at 613.
17 Id.
18 Id. at 614.
19 Id. at 613-14.
20 We must apply our independent judgment to determine
whether a statute violates the constitution. Doe v. State, 189
P.3d 999, 1003 (Alaska 2008).
21 Ortiz v. State, 173 P.3d 430, 431 (Alaska App. 2007)
(quoting State v. Anthony, 816 P.2d 1377, 1378 (Alaska 1991)).
22 Amin v. State, 939 P.2d 413, 416 (Alaska App. 1997)
(quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715,
2719, 111 L. Ed. 2d 30 (1990)).
23 Stoneking v. State, 39 P.3d 522, 524 (Alaska App.
2002).
24 See Ortiz, 173 P.3d at 431-32.
25 Former AS 12.55.051(d) (1994) (emphasis added).
26 See former AS 09.35.020 (1994).
27 See Hudmon v. Coonfield, 396 S.W.2d 296, 296-97 (Ark.
1965); Smith v. Whatcom County Dist. Court, 52 P.3d 485, 490
(Wash. 2002) (citing The King v. Woolf, 1 Chit. 401, 438-39 (K.B.
1819)).
28 See Ex parte Vendetti, 6 Alaska 381, 383 (D. Alaska
Terr. 1921).
29 State v. Brown, 182 P.3d 75, 79 (Mont. 2008); State v.
Joseph, 569 A.2d 819, 821 (N.J. Super. 1990); Commonwealth v.
Mourar, 504 A.2d 197, 208 (Pa. Super. 1986); State v. Gullickson,
659 N.W. 2d 388, 390-91 (S.D. 2003); State v. Dickey, 841 P.2d
1203, 1207-08 (Utah App. 1992).
30 AS 12.55.045(l). The legislature also amended
subsection AS 12.55.051(c), which authorizes the Department of
Law to collect restitution on behalf of a recipient.
31 Ch. 92, 45, 50, SLA 2001.
32 Former AS 12.55.051(d) (1994) (emphasis added).
33 AS 12.55.045(l) (emphasis added).
34 173 P.3d 430.
35 Id. at 433.
36 Id. at 431.
37 Id.
38 Id. at 433.
39 60 P.3d 753 (Colo. App. 2002).
40 Id. at 757-58.
41 Id. at 757.
42 Id.
43 See Stoneking, 39 P.3d at 524.
44 Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001)
(quoting Liteky v. United States, 510 U.S. 540, 551, 114 S. Ct.
1147, 1155, 127 L. Ed. 2d 474 (1994)).
45 Marino v. State, 934 P.2d 1321, 1327 (Alaska App.
1997).
46 See Alaska R. Crim. P. 42(c) & (e).
47 See DeNardo v. Maassen, 200 P.3d 305, 315 (Alaska 2009)
(A party may waive the right to an evidentiary hearing on
disputed material questions of fact by failing to request one
before the court rules on the matter.).
48 Boyd v. State, Dept of Commerce and Econ. Dev., 977
P.2d 113, 116-17 (Alaska 1999) (quoting Crum v. Stalnaker, 936
P.2d 1254, 1256 (Alaska 1997)).
49 See Kaiser v. Umialik Ins., 108 P.3d 876, 881 (Alaska
2005).
50 See State, Dept of Commerce and Econ. Dev. v. Schnell,
8 P.3d 351, 356 (Alaska 2000); Grunert v. State, Commercial
Fisheries Entry Commn, 735 P.2d 118, 122-23 (Alaska 1987).
51 Cf. Hodges v. State, 158 P.3d 864, 866 (Alaska App.
2007) ([A] sentencing judge must consider a defendants ability to
pay ... when the judge determines the schedule and the amount of
the defendants payments.).
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