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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 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
LORI S. WELSH,
Court of Appeals No. A-11197
Appellant, Trial Court No. 3PA-11-2403 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2405 - December 13, 2013
Appeal from the District Court, Third Judicial District,
Palmer, John W. Wolfe, Judge.
Appearances: Hannah E. King (briefs) and Hanley R.
Robinson (oral argument), Assistant Public Defenders, and
Quinlan Steiner, Public Defender, Anchorage, for the
Appellant. Mary Gilson, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and
Michael C. Geraghty, Attorney General, Juneau, for the
Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,
*
Senior Judge .
Judge MANNHEIMER.
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
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Lori S. Welsh was convicted of third-degree theft for stealing pain
medication pills from the veterinary clinic where she worked. As part of her sentence,
the district court ordered Welsh to pay restitution to the clinic for the retail value of the
pills - i.e., the amount of money that these pills would have sold for, if the clinic had
sold them to paying customers. In this appeal, Welsh argues that the district court should
have ordered her to pay restitution for the wholesale value of the pills - i.e., the amount
of money that the clinic paid for the pills.
There was a significant difference between the retail value of the pills and
the wholesale value of the pills. According to the testimony, the clinic bought the pills
for 3 cents apiece, but the clinic sold the pills for an average of 76 cents apiece.
The district court ordered Welsh to pay the higher figure based on the
rationale that Welsh had been unjustly enriched in an amount equal to 76 cents per pill.
The court reasoned that Welsh "should not obtain a better result" by stealing the pills
than if she had purchased the pills as a retail customer. But we conclude that this
reasoning is inconsistent with Alaska's restitution statutes.
Two statutes govern awards of restitution in criminal cases, because these
awards can be imposed in two different ways: as a direct provision of the defendant's
sentence, or as a condition of the defendant's probation.
The statute that governs restitution as a condition of probation, AS 12.55.-
100(a)(2), specifies that the restitution should be "for actual damages or loss caused by
the crime for which [the] conviction was had."
The statute that governs restitution as a direct provision of a sentence,
AS 12.55.045(a), does not explicitly declare that the restitution should be for "actual
damages or loss". However, the statute does specify that the restitution should be paid
"to the victim or other person injured by the offense" (emphasis added), and the statute
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declares that, when the sentencing court determines the amount of restitution, the court
"shall take into account the ... public policy that favors requiring criminals to compensate
for damages and injury to their victims", as well as "[the] financial burden placed on the
victim ... and other persons injured by the offense". (Again, emphasis added)
These phrases suggest that AS 12.55.045(a), like its sibling AS 12.55.-
100(a)(2), was intended to authorize courts to impose restitution for the actual damages
or loss suffered by the victim or other injured person.
Moreover, it would be anomalous to construe the two statutes differently
- to limit restitution orders to the amount of actual damages or loss when the restitution
is imposed as a condition of the defendant's probation under AS 12.55.100(a)(2), but
allow the sentencing court to order the defendant to pay a greater amount when the
restitution is a direct provision of the defendant's sentence under AS 12.55.045(a).
We also note that even though the district court's stated intention was to
negate any unjust enrichment for Welsh, there remains an element of unjust enrichment
in the district court's decision to award restitution to the veterinary clinic based on the
retail value of the pills (76 cents apiece) rather than the wholesale value (3 cents apiece).
By ordering Welsh to pay the clinic 76 cents for every stolen pill, the district court has
essentially ordered Welsh to fund the clinic's future purchase of twenty-five times as
many pills as were stolen.
In past decisions, this Court has noted the differing wording of the two
statutes, and we have suggested - but never directly held - that the two statutes should
be construed in pari materia, so that restitution in criminal cases would be limited to
actual damages regardless of whether the restitution was made a direct part of the
defendant's sentence or a condition of the defendant's probation. See Noffsinger v. State ,
850 P.2d 647, 650 (Alaska App. 1993); Fee v. State , 656 P.2d 1202, 1206 (Alaska App.
1982).
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We now hold that restitution under either statute should be assessed
according to the damages or loss arising from the defendant's crime, and not the amount
of the defendant's unjust gain. Accordingly, we reverse the district court's restitution
order in this case, and we direct the court to enter a restitution order based on the
veterinary clinic's loss.
We do not say that the revised amount of restitution must be limited to the
wholesale cost of the stolen pills - because that amount of restitution might not wholly
cover the clinic's actual damages or loss. See State v. Hall, 304 P.3d 677 (Kan. 2013)
(discussing the proper amount of restitution in a similar case of theft from an animal
clinic). But the restitution order must be based on the clinic's loss, not Welsh's gain.
This portion of the district court's judgement is REVERSED, and the
district court is directed to re-assess the amount of restitution in accordance with this
opinion.
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