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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BRIANNA MARIE PETERSON,
Court of Appeals No. A-12891
Appellant, Trial Court No. 3AN-16-06203 CR
v.
O P I N I O N
MUNICIPALITY OF ANCHORAGE,
Appellee. No. 2710 - October 15, 2021
Appeal from the District Court, Third Judicial District,
Anchorage, Douglas Kossler, Judge.
Appearances: Richard K. Payne, Denali Law Group,
Anchorage, for the Appellant. Sarah E. Stanley, Assistant
Municipal Prosecutor, and Rebecca A. Windt Pearson,
Municipal Attorney, Anchorage, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge WOLLENBERG.
Brianna Marie Peterson was involved in a traffic accident that severely
injured another driver. The Municipality of Anchorage charged her with one count of
----------------------- Page 2-----------------------
driving with a revoked license, but did not bring any charges directly related to the
accident.1
Peterson pleaded guilty to the single count of driving with a revoked
license. At the sentencing hearing, the Municipality did not present any formal evidence
or sworn testimony about the accident or the reasons for Peterson's revoked license.
Nonetheless, the traffic accident figured prominently in the district court's decision to
impose a term of imprisonment and to order restitution.
On appeal, Peterson challenges her sentence and the restitution order,
contesting the court's reliance on an accident for which she was not separately charged
or convicted. We conclude that - in the absence of a conviction related to the accident
or any indication in the record that the losses were caused by Peterson's criminal
conduct, as opposed to her negligence - restitution was improperly imposed in this
criminal case and must be pursued in a separate civil action. However, we also conclude
that, given the broad goals of sentencing and the purposes underlying the statutory
prohibition on driving with a revoked license, the court could reasonably rely on the
circumstances surrounding Peterson's criminal conduct in formulating her term of
imprisonment, particularly since Peterson never contested that she was at least partially
at fault for the accident.
We therefore reverse the restitution judgment, but otherwise affirm
Peterson's sentence.
Background facts
AccordingtotheMunicipality's chargingdocument, in June2016, Peterson
was driving in the middle lane of the road when she allegedly turned in front of a bus that
1 Former Anchorage Municipal Code (AMC) 09.28.019(B)(1) (pre-July 2016).
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was being driven in the left lane. The driver of the bus swerved to avoid hitting
Peterson's car, causing the bus to collide with a light pole. The bus driver was badly
injured and hospitalized. When the police checked the status of Peterson's Washington
driver's license, they discovered that it was revoked.
Although the Municipality charged Peterson with driving with a revoked
license, Peterson was not charged with any additional criminal offenses arising out of the
accident. Peterson ultimately pleaded guilty to a single count of driving with a revoked
license, with sentencing open to the district court.
At sentencing, the court found an aggravating factor - that Peterson had
2
prior criminal convictions similar in nature to the current offense.
The court was
3
therefore authorized to impose a term of imprisonment of up to 1 year.
The prosecutor argued that Peterson should be considered a worst offender
and subjected to the maximum penalty, given her history of driving-related convictions
and the severity of the accident. (Peterson had several prior driving-related convictions
from Washington state: two prior convictions for driving while license suspended, one
conviction for reckless driving, and one conviction for driving without a valid operating
license.) The prosecutor also argued that the court should impose restitution for the
accident.
Neither party presented any sworn testimony or formal evidence regarding
the accident. (The prosecutor apparently submitted photographs of the scene to the
court, but these photographs are not part of the appellate record.) The bus driver
provided a statement in which he recounted the accident from his perspective: he saw
2 Former AS 12.55.135(a)(1)(C) (2017). This statute became effective on July 12,
2016, and it applied to sentences imposed on or after the effective date for conduct occurring
before, on, or after the effective date. SLA 2016, ch. 36, §§ 91, 185(u)(4), 188.
3 Former AS 12.55.135(a)(1) (2017); AMC 08.05.020(H)(1).
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----------------------- Page 4-----------------------
the front tire of Peterson's van turn toward him, he "yanked" his steering wheel to try to
avoid hitting her, and he then clipped Peterson's van and ran into the light pole. In her
allocution, Peterson apologized for what happened. She said that she had consulted her
GPS before pulling her car out and "was certain that there was a double-turn lane." She
nonetheless acknowledged "that does not excuse me being behind the wheel of a car."
Peterson's attorney argued that the accident was not a foreseeable
consequence of driving with a revoked license, and that therefore the court should not
take it into consideration at sentencing. The attorney also argued that any restitution
should be pursued separately through a civil case, where fault could be apportioned
between the parties. The attorney noted that the bus driver stated that when he saw
Peterson turn her wheel, he took some evasive action, and that it was unclear how a civil
jury would evaluate the relative responsibility of the parties.
In its sentencing comments, the court found that "it was foreseeable that . . .
4
an accident would occur." In particular, the court found that Peterson's history of
driving offenses suggested that she had not learned the rules of the road and that, as a
result, she put people at risk when she drove. Accordingly, the court found that there
was a nexus between Peterson's driving with a revoked license and the accident itself.
Based on Peterson's criminal history and the harm to the bus driver, the
court imposed a sentence of 365 days with 190 days suspended (175 days to serve). The
court also ordered Peterson to pay restitution for the accident, and, pursuant to Alaska
4 The court cited two cases in support of its ruling: Johnson v. State , 224 P.3d 105,
105-06 (Alaska 2010) (discussing the standard of foreseeability in criminal prosecutions
based on reckless conduct); Brown v. Anchorage, 764 P.2d 322, 323 (Alaska App. 1988)
("Although causing injury to another person is not an element of the offense of driving while
intoxicated, it is a foreseeable result of this conduct and aggravates the offense.").
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----------------------- Page 5-----------------------
Criminal Rule 32.6(c)(2), the court gave the Municipality ninety days to file a proposed
restitution amount.
After the Municipality filed a proposed restitution judgment, the court
ordered restitution totaling $38,831.20 - $30,460 to the bus driver (for lost wages and
transportation costs) and$8,371.20 to theMunicipalityofAnchorage(for damagecaused
by the bus to the light pole).
Peterson now appeals her sentence, arguing that the court erred in
considering the accident when formulating a term of imprisonment and in imposing
restitution.
Why we reverse the restitution order
We first address the restitution order. Peterson was convicted, under
AMC 09.28.019(B)(1), of driving with a revoked license. This ordinance prohibits a
person, acting with criminal negligence as to the status of their driver's license, from
driving a motor vehicle when that person's license has been revoked.5
To be liable under
this ordinance - or the state counterpart, AS 28.15.291(a) - a person need not cause
an injury or accident while driving with the revoked license.
Peterson argues that the restitution order is improper because the crime of
driving with a revoked license is a regulatory offense without a direct victim. She notes
that the ordinance prohibiting driving with a revoked license does not contain any
5 Peterson was convicted under the pre-July 2016 version of this ordinance. A month
after Peterson committed her offense, the Anchorage Assembly amended this portion of the
ordinance, AMC 09.28.019(B)(1), to make it applicable only to those whose licenses were
revoked based on the commission of certain prior offenses. See infra footnote 15 for a
further description of this amendment.
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----------------------- Page 6-----------------------
element involving injury or a risk of injury, and contends that evidence about the
accident would likely have been inadmissible had she proceeded to trial on the charge.
Alaska's restitution statutes provide that, unless a victim declines
restitution, a court shall order restitution for the actual damages or loss caused by the
6
conduct for which the defendant was convicted. In particular, AS 12.55.045(a)
authorizes restitution, as a direct component of a sentence, "to the victim or other person
7
injured by the offense[.]" And AS 12.55.100(a)(2)(B) authorizes restitution, as a
condition of probation, "to aggrieved parties for actual damages or loss caused by the
crime for which conviction was had[.]" We have previously held that restitution under
both statutes "should be assessed according to the damages or loss arising from the
8
defendant's crime[.]"
6 Welsh v. State, 314 P.3d 566, 567 (Alaska App. 2013) (discussing AS 12.55.045(a)
(authorizing restitution as a direct component of a sentence) and AS 12.55.100(a)(2)(B)
(authorizing restitution as a condition of probation)).
7 See also AS 12.55.045(a)(1)-(2) (providing that, in determining the amount of
restitution, the trial court shall consider the "public policy that favors requiring criminals to
compensate for damages and injury" and the "financial burden placed on the victim and those
who provide services to the victim and other persons injured by the offense as a result of the
criminal conduct of the defendant").
8 Welsh, 314 P.3d at 568. In this case, the district court imposed restitution as a direct
component of Peterson's sentence. Neither party contests the application of AS 12.55.045(a)
- the state statute authorizing restitution as a direct component of a defendant's sentence
- to Anchorage municipal crimes, and we therefore assume for purposes of this appeal that
it does. We have previously held that the Anchorage Municipal Code permits the imposition
of restitution as a condition of probation. See Lock v. Anchorage, 1982 WL 889390, at *2
(Alaska App. Nov. 17, 1982) (unpublished) (noting that AMC 08.50.020(E), the sentencing
provision of the Anchorage Penal Code, incorporates by reference AS 12.55.100, which
authorizes the imposition of restitution as a condition of probation).
- 6 - 2710
----------------------- Page 7-----------------------
The strict elements of the crime of conviction do not necessarily define the
9
parameters of a potential restitution order.
However, a court cannot award restitution
10
for uncharged conduct that is distinct from the conduct that resulted in the conviction,
unless the parties have agreed that the defendant will be subject to such a restitution
11
order. That is, the damages for which restitution is ordered must be caused by the
criminal conduct for which the defendant was convicted, not additional uncharged
conduct.12
Peterson was not charged with reckless or careless driving, offenses which
13
would require the Municipality to demonstrate the manner in which Peterson drove.
9 See Farmer v. State, 449 P.3d 1116, 1124-25 (Alaska App. 2019); Harris v. State, 678
P.2d 397, 408 (Alaska App. 1984), rev'd on other grounds by Stephan v. State, 711 P.2d
1156 (Alaska 1985); Fee v. State, 656 P.2d 1202, 1205 (Alaska App. 1982).
10
See, e.g., Nelson v. State, 628 P.2d 884, 895-96 (Alaska 1981) (reversing restitution
order for items stolen in uncharged burglaries); Schwing v. State, 633 P.2d 311, 313-14
(Alaska App. 1981) (reversing award of restitution for three uncharged cocaine sales made
to an informant).
11 Kimbrell v. State, 666 P.2d 454, 455 (Alaska App. 1983) (holding that a court may
impose restitution for a separate, dismissed charge only if, inter alia, "the defendant admits,
and there is no factual question as to whether, the defendant caused or was responsible for
the aggrieved party's loss," and "the defendant consents, freely and voluntarily, to make full
restitution").
12 See id. (holding that "restitution cannot be required in an amount greater than the loss
or damage caused by the offense for which a defendant is convicted"); Yannello v. State,
2014 WL 1691542, at *5 (Alaska App. Apr. 23, 2014) (unpublished) ("Under Alaska law,
the courts are limited to awarding restitution only for actual damages or losses arising from
a defendant's crime." (citing Welsh, 314 P.3d at 568)).
13 See AMC 09.28.010 (reckless driving); AMC 09.28.015 (careless driving); see also
AS 28.35.400 (state statute prohibiting reckless driving); AS 28.35.410 (state statute
prohibiting negligent driving).
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----------------------- Page 8-----------------------
Instead, the ordinance only required the Municipality to show that Peterson drove her
vehicle - and that she did so with a revoked license (and with criminal negligence as
14
to the status of her license).
Moreover, there was no agreement that Peterson would
pay restitution for the traffic accident, and the Municipality presented no evidence as to
15
Given this background, the question
the reasons why Peterson's license was revoked.
is whether Peterson's role in the traffic accident can fairly be considered part of the
conduct for which she was convicted.
Alaska courts have not previously addressed the question of whether a
defendant can be ordered to pay restitution for a traffic accident that occurred while the
defendant was driving with a revoked license, where the sole charge and conviction was
driving with a revoked license. But several other state courts have held that the mere
14 Former AMC 09.28.019(B)(1) (pre-July 2016).
15 Peterson was charged under the pre-July 2016 version of AMC 09.28.019(B)(1) that
made it unlawful for a person, with criminal negligence as to the status of their driver's
license, to "[d]rive a motor vehicle at a time when that person's driver's license, privilege
to drive, or privilege to obtain a license has been canceled, suspended[,] or revoked in this
or another jurisdiction." See former AMC 09.28.019(B)(1) (pre-July 2016). The basis for
the license revocation was not a specified element of the offense. The current ordinance,
which was enacted in July 2016, makes it a misdemeanor for a person to drive with a revoked
license only if their license was revoked for a specific reason - i.e., for previously driving
under the influence or refusing to submit to a chemical test. AMC 09.28.019(B)(1) & (C)(1);
see also Anchorage Emergency Ordinance (EO) No. 2016-1, §§ 3-4 (July 12, 2016);
Anchorage Ordinance (AO) No. 2016-83(S), §§ 5-6 (July 26, 2016). (Other instances of
driving with a revoked license are now classified as minor offenses.) The amended
definition of the crime did not apply to Peterson because she committed her offense in June
2016.
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----------------------- Page 9-----------------------
occurrence of an accident while the defendant is driving with a revoked license is
16
insufficient to justify an order of restitution against the defendant.
For instance, at least
two courts have held that restitution for injuries sustained as a result of an accident in
which the defendant was driving with a revoked or suspended license is inappropriate
in a criminal case, and should instead be resolved through a separate, civil action.
In State v. McDonough, McDonough was involved in an accident when the
17
vehicle he was operating collided with a taxicab. McDonough was driving on a
suspended license, and he later pleaded no contest to this charge. At sentencing, the trial
court ordered McDonough to pay restitution to compensate the taxi driver for his
18
financial losses and medical bills.
19
The Maine Supreme Judicial Court vacated the restitution judgment. The
court explained that while it was possible that McDonough was negligent in causing the
accident, "negligent operation is not an element of the crime of [driving with a suspended
license], and therefore, the conviction [did] not establish that McDonough was negligent
20
or that his negligence was the cause of the damages" to the taxi driver. The court held
that, absent an agreement between the parties that the defendant would pay restitution,
"there [was] no nexus between the act of driving while one's license is suspended and
16 See People v. Taylor, 179 Cal.App.3d Supp. 1, 12, 225 Cal.Rptr. 430, 436 (Cal. App.
1986); Schuette v. State, 822 So.2d 1275, 1283 (Fla. 2002); State v. McDonough, 968 A.2d
549, 551 (Me. 2009); State v. LaFlam, 965 A.2d 519, 521 (Vt. 2008).
17 McDonough , 968 A.2d at 550.
18 Id. at 550.
19 Id. at 551.
20 Id.
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driving negligently so as to cause an accident" - and that McDonough's liability for the
accident could instead be pursued in a separate civil action. 21
In State v. LaFlam, the defendant drove his van through the front of a store,
22
At the time of the accident, the defendant's driver's
causing damage to the building.
license was suspended for driving under the influence. Following a jury trial, the
defendant was convicted of driving with a suspended license, and he was ordered to pay
23
restitution for the damage to the building.
24
The Vermont Supreme Court vacated the restitution order. The court
acknowledged that LaFlam had caused the damage to the store by driving his vehicle
through the front door. But the court also noted that LaFlam was never charged with a
crime directly connected to that act, and was instead only convicted of driving with a
suspended license. Like the Maine court, the Vermont court explained that the damage
for which restitution is ordered must be caused by the criminal act for which the
defendant was convicted - and that the defendant's criminal act must be both a cause-
25
in-fact and the proximate cause of the damage. The court concluded that LaFlam's
failure to have a license was simply a condition and not a proper cause of the damage:
While [the] defendant should not have been driving in light
of his license suspension, we do not see how the license
suspension alone can be deemed a proximate cause of the
victim's injuries. Driving without a license, [the] defendant
21 Id. ("If McDonough's driving was negligent, as well as illegal, his liability for the
accident can be established through a separate, civil action.").
22 State v. LaFlam, 965 A.2d 519, 520 (Vt. 2008).
23 Id.
24 Id. at 524.
25 Id. at 521-22.
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could have driven negligently or safely. An accident could
have been caused by another driver's negligence or by forces
outside [the] defendant's control. [26]
Two other courts have vacated restitution orders issued under similar
circumstances, but left open the possibility that restitution could be ordered under certain
narrow circumstances where the government has shown that the accident was the natural
27
and proximate consequence of the criminal act of driving on a revoked license. In each
instance, however, the courts determined that the government had failed to meet that
burden.28
29
Like the majority of states that have addressed this question, Alaska
employs a test of proximate causation in evaluating claims for restitution in a criminal
30
case.
Thus, in order to obtain a restitution order in this case, the Municipality was
required to show both that Peterson's criminal conduct - i.e., her act of driving with a
revoked license - was a cause in fact (a "but for" cause) of the losses incurred, and also
26 Id. at 523.
27 Schuette v. State, 822 So.2d 1275, 1283-84 & n.9 (Fla. 2002); People v. Taylor, 179
Cal.App.3d Supp. 1, 12-13, 225 Cal.Rptr. 430, 436-37 (Cal. App. 1986).
28 Schuette v. State, 822 So.2d at 1284; People v. Taylor, 179 Cal. App.3d Supp. at 12.
29 See, e.g., Taylor, 179 Cal.App.3d Supp. at 12; Schuette, 822 So.2d at 1283; State v.
McDonough , 968 A.2d 549, 551 (Me. 2009); LaFlam , 965 A.2d at 521 (all applying a
proximate causation test for the imposition of restitution). The Washington Court of Appeals
has upheld an award of restitution for an accident that occurred while the defendant was
driving with a suspended license (and was convicted of that charge), but the court applied
solely a "but for" theory of causation. State v. Harris, 327 P.3d 1276, 1279-80 (Wash. App.
2014).
30 See Ned v. State, 119 P.3d 438, 446 (Alaska App. 2005) (rejecting a standard of
causation limited to "but for" causation because that would extend the scope of restitution
beyond the amount that could lawfully be awarded in a civil case).
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----------------------- Page 12-----------------------
that the losses were a natural and proximate result of Peterson's criminal conduct to
31
which liability should attach.
Stated differently, the Municipality was required to show
that Peterson's criminal conduct was a "substantial factor" in bringing about the ensuing
32
damage. It was not enough for the Municipality to show that but-for Peterson's
driving, the accident would not have occurred.
As cases from other states demonstrate, establishing a proximate cause
connection under these circumstances is exceedingly difficult. The act of obtaining a
license does not guarantee that the driver will not cause accidents, and the fact that a
defendant's license was suspended or revoked does not necessarily make it more likely
33
that the person will be responsible for an accident in the future.
31 See id.; see also Paroline v. United States, 572 U.S. 434, 446, 449-50 (2014)
(recognizing that "[p]roximate cause is a standard aspect of causation in criminal law and the
law of torts," and discussing the need to establish both causation in fact and proximate
causation with respect to a federal restitution statute); Howarth v. State, Pub. Def. Agency,
925 P.2d 1330, 1333 (Alaska 1996) (explaining that "legal cause encompasses two concepts"
- actual (or "but-for") causation and causation grounded in legal policy, which asks
"whether the conduct has been so significant and important a cause that the defendant should
be legally responsible" (internal quotations and citations omitted)).
32 See State v. Malone, 819 P.2d 34, 36 (Alaska App. 1991) ("A criminal defendant can
be held responsible only for injuries that 'result from' or are 'caused by' his conduct. But
the defendant's conduct need not be the sole factor in producing the injury. Rather, the test
is whether the defendant's conduct was a 'substantial factor' in bringing about the result.").
33 See LaFlam, 965 A.2d at 523; see also State v. Bakka, 826 A.2d 604, 611 (N.J. 2003)
("Unlike driving while intoxicated, speeding, or some other conduct from which a reckless
state of mind may be inferred circumstantially, the mere fact that a defendant is an unlicensed
driver does not by itself suggest an awareness of risk."); cf. Brown v. Anchorage, 764 P.2d
322, 323 (Alaska App. 1988) ("Although causing injury to another person is not an element
of the offense of driving while intoxicated, it is a foreseeable result of this conduct and
aggravates the offense.").
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----------------------- Page 13-----------------------
Indeed, in the tort context, driving without a valid license does not
generally constitute evidence of negligence. In that context - i.e., in a civil lawsuit
arising from a traffic accident - the majority of jurisdictions have held that evidence
that one of the parties drove in violation of a driver's license restriction is not admissible
on the question of negligence in the absence of a causal connection between the violation
34
and the injury.
This is because the defendant's "status as a licensed or unlicensed
driver" does not tend to prove or disprove "whether the manner in which [the defendant]
35
operated [their] vehicle was a substantial factor in causing the accident."
Moreover, as we previously noted, negligent operation is not an element of
the crime of driving with a revoked license. Accordingly, awarding restitution for
driving with a revoked license requires a trial court not only to make findings about the
amount of loss and damages (findings that are standard in the restitution context), but
34 See Schuette, 822 So.2d at 1283-84 (discussing Brackin v. Boles, 452 So.2d 540, 545
(Fla. 1984)); see also Taylor, 179 Cal.App.3d Supp. at 6 ("In California, as in most
jurisdictions, it has long been the rule in both civil and criminal cases that evidence that a
driver is unlicensed is not admissible on the issue of negligence as the cause of an
accident."); Rentschler v. Lewis, 33 S.W.3d 518, 519 (Ky. 2000) (holding that the
defendant's status as a licensed or unlicensed driver was irrelevant in a tort case because it
would not tend to prove or disprove whether the manner of his driving caused the accident);
LaFlam , 965 A.2d at 522-23 (discussing Dervin v. Frenier, 100 A. 760, 761 (Vt. 1917),
which held that the trial court erred in admitting, in a tort case, evidence that the defendant
- who ran over a pedestrian - did not have a driver's license, finding that this illegality
was "a mere condition and not a cause of the plaintiff's injury").
35 Rentschler, 33 S.W.3d at 519; see also Ardinger v. Hummell, 982 P.2d 727, 735 n.29
(Alaska 1999) (recognizing that a plaintiff is not precluded from recovering civil damages
arising out of an accident simply because the plaintiff was operating their vehicle without a
license, at least "absent a causal connection between the lack of a license and the resulting
injuries").
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----------------------- Page 14-----------------------
also to make additional findings about a defendant's conduct - findings beyond those
36
that are inherent in the criminal conviction itself.
Under our restitution statute, this is not permitted. We have previously
stated that "consideration of the precise crime for which [a defendant] was convicted is
of paramount importance" in determining whether a person is an "aggrieved party" for
37
purposes of restitution. In Pena v. State, the defendant was convicted of manslaughter
after he drove under the influence and collided with another vehicle, injuring the driver
38
of the other vehicle and killing the passenger. We upheld an order of restitution for
property damages and injuries sustained by the driver since those losses "were
unquestionably the consequence of precisely the same conduct and intent on Pena's part
as the conduct and intent that caused the death with which Pena was charged and . . .
39
convict[ed]."
Similarly, in a pair of cases - Nelson v. State and Schwing v. State - the
Alaska Supreme Court and this Court held that only losses caused by the conduct
underlying the conviction are compensable in restitution. These courts therefore
reversed the award of restitution for items stolen in uncharged burglaries and uncharged
36 See State v. Baker, 177 A.3d 1093, 1100 (Vt. 2017) ("[B]ecause restitution is triggered
by a conviction, the harm for which a defendant pays restitution must be a directly
foreseeable result of the criminal act that leads to a conviction.").
37 Pena v. State, 664 P.2d 169, 178 (Alaska App. 1983) (citing AS 12.55.100(a)(2)),
rev'd on other grounds, 684 P.2d 864 (Alaska 1984).
38 Id. at 171.
39 Id. at 178; see also Farmer v. State, 449 P.3d 1116, 1124-26 (Alaska App. 2019)
(holding that, where the defendant did not contest her criminal responsibility for causing the
victim's damages and losses, restitution was not limited by the statutory maximum damages
threshold that defined the degree of offense).
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----------------------- Page 15-----------------------
40
drug sales, respectively. The United States Supreme Court - interpreting a federal
restitution statute - has likewise held that a defendant who pleaded guilty to a single
count of use of an unauthorized credit card could not be ordered to pay restitution for
losses occasioned by additional stolen credit cards, notwithstanding the fact that the
41
government proffered evidence that the defendant had stolen these additional cards.
In doing so, the Supreme Court rejected the position taken by several circuit courts that
a defendant could be ordered to pay restitution for additional conduct for which the
42
defendant was not convicted.
Here, the prosecutor did not present any evidence about why Peterson's
license was revoked. The court stated that it "believe[d]" Peterson never got her license
and therefore never learned the rules of the road, but acknowledged that it had "not
43
This information was critical to the court's determination that there
looked into this."
40 See Nelson v. State , 628 P.2d 884 (Alaska 1981) (reversing restitution order for items
stolen in uncharged burglaries); Schwing v. State, 633 P.2d 311 (Alaska App. 1981)
(reversing award of restitution for three uncharged cocaine sales made to an informant).
41 Hughey v. United States, 495 U.S. 411, 413 & n.1, 414-16 (1990) (interpreting former
18 U.S.C. § 3579 (1987), which authorizes federal courts to order "a defendant convicted of
an offense" to "make restitution to any victim of such offense"; now codified at 18 U.S.C.
§ 3663); see also Paroline v. United States, 572 U.S. 434, 445 (2014) (interpreting a different
federal restitution statute as "intended to compensate victims for losses caused by the offense
of conviction").
42 See Hughey, 495 U.S. at 415 n.2 (citing United States v. Berrios, 869 F.2d 25, 32 (2d
Cir. 1989) and United States v. Duncan, 870 F.2d 1532, 1537 (10th Cir. 1989)).
43 We note that the judgments for Peterson's prior convictions for driving with a revoked
license suggest that she was otherwise eligible for reinstatement of her license.
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----------------------- Page 16-----------------------
was a causal link between Peterson's criminal conduct and the damages arising from the
accident, since a license can be revoked for reasons unrelated to a person's driving. 44
In addition, the district court justified its restitution order by finding that
Peterson violated the rules of the road when she "turned into another lane" and "caused
the accident." But this is essentially a finding of negligence untethered from Peterson's
criminal conviction - a finding regarding her underlying conduct for which Peterson
was not charged or tried. Indeed, if Peterson had originally been charged with recklessly
causing physical injury to the bus driver, and the charge dismissed as part of her plea
agreement with the Municipality with no agreement to pay restitution for his injuries, our
45
case law would not permit the imposition of restitution.
We acknowledge that the state's licensing requirements, and the related
driving with a revoked license statute, serve important purposes. The state has a strong
46
interest in ensuring that its drivers are properly trained and know the rules of the road.
And we have previously recognized that the restitution statutes should be construed
44 See, e.g., AS 28.15.187 (providing for revocation of a driver's license or privilege to
drive when a person has used a driver's license as a false or fraudulent identification).
45 See Kimbrell v. State, 666 P.2d 454, 455 (Alaska App. 1983).
46 Cf. Smith v. State, 756 P.2d 913, 915-16 (Alaska App. 1988) (holding that reasonable
suspicion that a person is driving with a suspended license is a legitimate basis for a traffic
stop on the ground that the person may pose an imminent public danger to other motorists);
State v. Zerkel, 900 P.2d 744, 752 (Alaska App. 1995) (recognizing that license revocation
is "akin to a restraining order or injunction, protecting the public from future harm by
depriving an unsafe or irresponsible driver of his or her authority to continue to operate
motor vehicles").
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broadly to effectuate the legislature's purpose of compensating victims and other people
47
fully for losses caused by the defendant's criminal conduct.
But without a link between the losses for which restitution was ordered and
48
awarding restitution under these circumstances would
Peterson's criminal conduct,
penalize Peterson for conduct for which she was not convicted nor afforded the right to
49
a jury trial under the Sixth Amendment. The risk is too great that a restitution order
under these circumstances will "require[] payment for damage which was caused by
50
noncriminal conduct."
This does not mean that a victim is without recourse when an unlicensed
driver negligently causes an accident. Rather, the victim is free to sue the defendant in
a tort action for negligence. Such an action ensures that the victim can recover for any
damages caused by the defendant's negligence. It also ensures that the defendant is
entitled to the substantive protections (e.g., the ability to argue comparative fault) and
47 See AS 12.55.045(a)(1) & (2); see also Maillelle v. State, 276 P.3d 476, 479 (Alaska
App. 2012) (noting the Alaska Legislature has made it plain that it intends Alaska's
restitution statute to be construed broadly).
48 See Hughey v. United States, 495 U.S. 411, 420-21 (1990) (rejecting the notion that
the expansive declaration of purpose behind the restitution statute should be read to require
restitution for acts outside the offense of conviction).
49 U.S. Const. amend. VI & Alaska Const. art. I, § 11 (providing for the right to a jury
trial in criminal prosecutions); see also Hester v. United States, 139 S.Ct. 509, 509-11 (2019)
(Gorsuch, J., dissenting from the denial of certiorari) (noting that, to the extent restitution is
beyond the purview of the Sixth Amendment's right to a jury trial in criminal prosecutions,
then the Seventh Amendment's right to a jury trial in civil cases would seemingly be
implicated).
50 People v. O'Rourke, 105 Cal.App.3d Supp. 1, 4, 165 Cal.Rptr. 92 (Cal. App. 1980).
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procedural protections ( e.g., a jury trial) that are not generally available in a criminal
restitution hearing.
Accordingly, for the reasons discussed, we reverse the restitution order.
Why we affirm Peterson's term of imprisonment
Peterson also argues that, because causing an injury or accident is not an
element of the offense for which she was convicted, the court erred when it considered
the accident and injuries to the bus driver when imposing her sentence. But the
51
information germane to sentencing is not so restricted, either by statute or case law. In
formulating a sentence of imprisonment, a court "may consider any facts relevant to the
defendant's reformation or the need to protect the community from the defendant or
52
those similarly situated, which are verified in the record."
The goals of sentencing, as set out in AS 12.55.005, are broad, and under
this statute, judges are required to consider "the circumstances of the offense" when
51 See AS 12.55.005(4) (requiring the sentencing court to consider "the circumstances
of the offense and the extent to which the offense harmed the victim or endangered the public
safety or order").
52 Huckaby v. State, 632 P.2d 975, 976 n.2 (Alaska App. 1981); see also Nukapigak v.
State, 562 P.2d 697, 701 n.2 (Alaska 1977), aff'd on rehearing, 576 P.2d 982 (Alaska 1978)
(noting allegations of misconduct must be "corroborated or substantiated by supporting data
or information" in order to be considered at sentencing); Grandstaff v. State, 171 P.3d 1176,
1211 (Alaska App. 2007) ("A trial judge may consider evidence of prior uncharged
misconduct at a defendant's sentencing if the misconduct is verified."); Brakes v. State, 796
P.2d 1368, 1371-72 (Alaska App. 1990) (holding that a sentencing judge may rely on any
information that is verified in the record, even conduct for which the defendant was
acquitted, given the differing burdens of proof); Willard v. State, 662 P.2d 971, 975 (Alaska
App. 1983) (discussing the court's reliance on uncharged allegations of sexual assault at
sentencing).
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----------------------- Page 19-----------------------
53
imposing a sentence. Judges also maintain considerable discretion in formulating an
appropriate sentence.54
Here, the district court evaluated the totality of the circumstances and the
Chaney criteria (as codified in AS 12.55.005), identifying deterrence and isolation as the
55
primary reasons for a more substantial term of imprisonment. The court found that
Peterson's potential for rehabilitation was "extremely guarded" given her history of
driving offenses. And ultimately, although the court considered the extent to which the
offense harmed the bus driver, the court focused "in particular" on Peterson's criminal
history and the need for personal deterrence in imposing the sentence.
One of the primary purposes of the prohibition on driving with a revoked
license is to protect the public. And the prohibition on driving with a revoked license,
together with the attendant penalties for violating the statute, is designed in part to deter
56
persons with suspended licenses from driving on public highways.
Given Peterson's
history of driving-related convictions, and the totality of the circumstances, we cannot
57
say that the sentence imposed is clearly mistaken.
53 AS 12.55.005(4).
54 Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
55 See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
56 Cf. State v. Fearick, 350 A.2d 227, 229-30 (N.J. 1976) (upholding, against
constitutional challenge, mandatory minimum jail term for defendant involved in accident
while driving with a suspended license, notwithstanding defendant's undisputed lack of fault
for the accident, in part because the mandatory jail term "provides additional deterrence for
those who drive while their licenses are revoked").
57 McClain v. State , 519 P.2d 811, 813-14 (Alaska 1974). Peterson also argues that she
was prejudiced when the Municipality initially sought to rely on a second aggravating factor
- former AS 12.55.135(a)(1)(B) (2017) (most serious conduct included in the definition of
(continued...)
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----------------------- Page 20-----------------------
Weacknowledgethatitmayappearatleast facially inconsistent toconclude
that a court cannot rely on uncharged conduct as the basis for a restitution order, while
at the same time endorsing the court's reliance on that same conduct in crafting a term
of imprisonment. But under the restitution statute, a defendant's liability is limited to the
proximate effects of the offense of conviction, since restitution is intended to allow crime
victims and others who have suffered losses as a result of a defendant's criminal conduct
to recover monetary damages that would otherwise be subject to recovery only in a civil
58
suit.
Without such a limitation - and in the absence of an agreement to pay restitution
for uncharged conduct - defendants would lack notice of the permissible scope of their
59
financial liability, and their liability would be without any apparent limit.
In contrast, the permissible term of imprisonment for a given criminal
conviction is subject to a statutory maximum - a limit that the court may not exceed,
regardless of the defendant's uncharged conduct. So long as a defendant has notice and
an opportunity to contest the conduct on which the court relies, and the court makes
appropriate findings regarding the defendant's conduct and how that conduct relates to
57 (...continued)
the offense). But having reviewed the record, we see no discernible prejudice to Peterson
since the Municipality withdrew this aggravating factor prior to sentencing and Peterson
conceded that her prior convictions established the aggravator on which the court ultimately
relied.
58 See Ned v. State, 119 P.3d 438, 446 (Alaska App. 2005).
59 See State v. Baker, 177 A.3d 1093, 1100 (Vt. 2017) ("[B]ecause restitution is triggered
by a conviction, the harm for which a defendant pays restitution must be a directly
foreseeable result of the criminal act that leads to a conviction.").
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----------------------- Page 21-----------------------
the Chaney criteria, we have held that a court may rely even on conduct for which the
defendant was acquitted in formulating an appropriate sentence. 60
Conclusion
For these reasons, we REVERSE the order of restitution. We otherwise
AFFIRM the judgment of the district court.
60 See Brakes v. State, 796 P.2d 1368, 1372 (Alaska App. 1990) (permitting sentencing
judges to rely on conduct for which a defendant was acquitted in enhancing a defendant's
term of imprisonment - if the judge concludes, based on substantial evidence, that the
defendant actually committed the crime for which he was acquitted).
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