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Sarah Romines Skupa v. State of Alaska (11/10/2022) ap-2735

Sarah Romines Skupa v. State of Alaska (11/10/2022) ap-2735

                                                    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@akcourts.gov
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



SARAH ROMINES SKUPA,  

                                                                   Court of Appeals No. A-13346  

                                   Appellant,                   Trial Court No. 3AN-13-06898 CR  



                           v.  

                                                                              O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                      No. 2735 - November 10, 2022  



                  Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                        

                  Anchorage, Erin B. Marston, Judge.  



                  Appearances:  Megan R. Webb, Assistant Public Defender, and  

                                      

                  Samantha       Cherot,     Public   Defender,       Anchorage,        for   the  

                  Appellant.   Diane L. Wendlandt, Assistant Attorney General,  

                                                                                       

                  Office of  Criminal Appeals, Anchorage, and Treg R. Taylor,  

                                                        

                  Attorney General, Juneau, for the Appellee.  



                  Before:  Allard, Chief Judge, and Harbison and Terrell, Judges.  

                                               



                  Judge ALLARD.  



                  Sarah   Romines   Skupa   worked   as   a   bookkeeper   for   an   environmental  



consulting  company  for  several  years.   During  that  time,  Skupa  stole  more  than  $400,000  



from  the  company  through  various  fraudulent  schemes.  


----------------------- Page 2-----------------------

                   A  grand  jury  indicted  Skupa  on  seven  counts  of  scheme  to  defraud.   Skupa  



                                                                                                                             1  

later  pleaded  guilty,  pursuant  to  a  plea  agreement,  to  a  single  count  of  first-degree  theft.   



Sentencing   was   open   to   the   discretion   of   the   superior   court   (within   the   0-  to   2-year  



presumptive  range),  as  was  the  amount  of  restitution.   



                   At  sentencing,  the  superior  court  imposed  a  sentence  of  2  years  with  1  year  



suspended  (1  year  to  serve)  and  5  years'  probation.   Following  a  restitution  hearing,  the  



court  ordered  Skupa  to  pay  $415,554.61  in  restitution.   



                    Skupa  now  appeals  the  restitution  order,  raising  two  different  arguments.   



First,   Skupa   argues   that   she   has   a   constitutional   right   to   a   criminal  jury   trial   on   the  



amount   of  restitution,   and   she   claims  that   it  was  plain   error   for  the   superior   court  to  



award   any   restitution   in   the   absence   of   the   necessary jury   findings.    Second,   Skupa  



argues   that   there   was   insufficient   evidence   presented   to   support   $28,699.88   of   the  



restitution  award.   



                   For  the  reasons  explained  here,  we  find  no  plain error  with  regard  to  the  



alleged  jury  trial  right  and  we  find  sufficient  evidence  to  support  the  challenged  portion  



of  the  restitution  award.   Accordingly,  we  affirm  the  restitution  judgment  of  the  superior  



court.   



          Skupa's  argument  that  it  was  plain  error  for  the superior court to fail  to  

          recognize  her  right  to  a  criminal  jury  trial  on  the  amount  of  restitution  



                   Under   Alaska   law,   restitution   is   determined   by   the   trial   court.    Alaska  



Statute   12.55.045(a)  provides, in relevant p                 art,  that  "[t]he  court s   hall,  when  presented  



with  credible  evidence,  unless  the  victim  or  other  person  expressly  declines  restitution,  



order   a   defendant   convicted   of   an   offense   to   make   restitution   as   provided  in   this  



     1    AS 11.46.120.  



                                                            - 2 -                                                       2735
  


----------------------- Page 3-----------------------

section  .  .  .  ."   An  order  of  restitution  is  considered  part  of  a  defendant's  sentence  and  a  



                                                                            2  

condition of any  probation  or  suspended sentence.   The  order is also a civil judgment  



for   the   amount   of   restitution;   this   civil  judgment   remains   enforceable   after   the  

defendant's  sentence  is  complete.3  



                                                                                                                               

                    In the current case, Skupa pleaded guilty to first-degree theft.  In doing so,  



                                                                                                                   

she admitted that she had  stolen at least  $25,000 from the  environmental consulting  



                                           4  

                                

company where she worked.   



                                                                                                                                

                    The superior court held a restitution hearing to determine the amount of  



                                                                                                                              

money that  Skupa had  stolen.  At the hearing, the  State presented  a report  from the  



                                                                                                                             

University  of  Alaska  Anchorage's  Justice  for  Fraud  Victims  Project,  which  had  



                                                                                                                             

conducted a detailed  forensic examination of the  company's  financial records.   The  



                                                                                                                             

report  identified  $497,293.56  in  "potentially  fraudulent"  financial  transactions  and  



                                                                                                                          

$73,173.87 in transactions "warranting further investigation."  The author of the report  



testified at the restitution hearing, as did the owner of the company.  The hearing took  



                                                                                                                             

three days to complete.  The court ultimately imposed $415,554.61 in restitution.  



                                                                                                                              

                    Prior  to  the  restitution  hearing,  Skupa  filed  written  objections  to  the  



                                                                                                                    

proposed restitutionjudgment.  Her primary objection was that "[t]he criminal restitution  



                                                                                                                        

process denies Ms. Skupa the protections of law afforded to all citizens in a civil dispute,  



                                                         

including but not limited to her right to have the claim for damages heard and decided  



     2    AS 12.55.045(i).  



     3    AS 12.55.045(l).  



     4    See AS 11.46.120(a) ("A person commits the crime of thef                             t in the first degree if the  



person commits theft as defined in  AS   11.46.100 and the value of  the property  or services  

is $25,000 or more."); see also AS 11.46.100 ("A person commits theft if  . . .  with intent to  

deprive another of  property  or to appropriate property  of  another to oneself  or a third person,  

the person obtains the property of another.").  



                                                              - 3 -                                                         2735
  


----------------------- Page 4-----------------------

by  an  impartial  jury,  her  right  to  the  comprehensive  discovery  process  employed  in  civil  



                                                             5  

court,  and  her  right  to  effective  counsel."   Skupa  noted  that the  company had  already  



filed  a  civil  action  against  her,  and  she  argued  that  to  protect  her  constitutional  rights  in  



civil court,  the  superior  court  should  impose  only  a  "nominal"  amount  of  restitution  in  



the  criminal  case  and  should  allow  the  rest  of  the  restitution  to  be  determined  in  the  civil  



action  where  her  rights  were  properly  protected.   Skupa  renewed  this  argument at  the  



restitution  hearing.    



                   Although   the   superior   court   gave   no   reasoning,   it   overruled   Skupa's  



objection  and  issued  the  restitution  order.   



                    On appeal,  Skupa does not renew her  argument  that  the criminal  procedures  



for determining restitution are insufficiently protective of her constitutional rights in a  



                         6  

                                                                                                                       

civil  proceeding.          Instead, she raises, for the first time, an argument under the  Sixth  



                                                                                                                     

Amendment.             According  to  Skupa,  the  Sixth  Amendment  of  the  United  States  



                                                                                                                            

Constitution and Article I, Section  11 of the Alaska Constitution require the  State to  



                                                                                                                                

prove  any facts underlying  a restitution  award to  a jury  beyond  a reasonable  doubt.  



                                                                                                                       

Skupa argues that this right to a criminal jury on restitution is based on the United States  



     5    Skupa also objected that the requested restitution judgment constituted an excessive  



fine in violation of  her state and federal constitutional rights, and that she had not been given  

all  of   her  requested  discovery   on  the  company's  finances.    She  has  not  renewed  these  

objections on appeal.  



     6    Cf.   State v. Arnett, 496 P.3d 928, 934 (Kan. 2021), cert. denied, 142 S.   Ct.   2868  



(2022) (holding restitution statutes  violated state constitutional right to civil jury trial                            and  

accordingly severing portions of statutes that converted restitution into civil judgment).  



                                                            - 4 -                                                       2735
  


----------------------- Page 5-----------------------

                                                                             7                                   8  

 Supreme  Court  decisions  in  Apprendi  v.  New  Jersey,  Blakely  v.  Washington,  Southern  



                                         9                                            10  

 Union  Co.  v.   United  States,  and  Alleyne  v.   United  States.                     



                    In  Apprendi  v.  New  Jersey,  the  Supreme  Court  held  that,  under  the  Sixth  



Amendment,   "[o]ther   than   the   fact   of   a   prior   conviction,   any   fact   that   increases the  



penalty  for  a  crime  beyond  the  prescribed  statutory  maximum  must  be  submitted  to  a  

jury,   and   proved   beyond   a   reasonable   doubt."11  

                                                                                                                              

                                                                                Four  years  later,  in  Blakely  v.  



                                                                                                       

 Washington, the Court extended this rule to findings of aggravating facts, holding that  



                                                                                                                                

the phrase "statutory maximum" for purposes of Apprendi is "the maximum sentence a  



                                                                                                                     

judge may impose solely on the basis of the facts reflected in the jury verdict or admitted  



                            12  

                                 

by the defendant." 



                                                                                                                               

                    Almost a decade later, the Supreme Court issued Southern  Union Co. v.  



                                                                                                              13  

                                                                                                                  Southern  

 United States in which it applied Apprendi  and Blakely to criminal fines. 



                                                                                                                              

 Union  Co.  involved  a  corporate  defendant  that  was  convicted  of  a  single  count  of  



                                                                                                                  

unlawfully storing liquid mercury.  The criminal penalty for the company's conviction  



                                                                                                       14 

                                                                                                                

                                                                                                           At sentencing,  

included "a fine of not more than $50,000 for each day of violation." 



                                                                                                                          

the trial court found that the company had unlawfully stored liquid mercury for 762 days,  



     7    Apprendi v. New Jersey , 530 U.S. 466 (2000).  



     8    Blakely v.   Washington, 542 U.S. 296 (2004).  



     9    Southern Union Co. v. United States, 567 U.S. 343 (2012).  



     10   Alleyne v. United States , 570 U.S. 99 (2013).  



     11   Apprendi , 530 U.S. at 490.  



     12   Blakely, 542 U.S. at 303 (emphasis omitted).  



     13   Southern Union Co., 567 U.S. at 346.  



     14   Id. at 347 (citing 42 U.S.C. § 6928(d)).  



                                                             - 5 -                                                        2735
  


----------------------- Page 6-----------------------

and   imposed   a   fine   of   $6  million   as   well   as   a   $12   million   "community   service  



obligation."     The   company   argued   that  this  judicial   factfinding   violated   its   Sixth  



Amendment  right  to  a  jury  trial  and  it  asserted  that,  because  the  verdict  did  not  require  



the   jury   to   determine   the   number   of   days   it   violated   the   law,   the   court   was   only  



authorized  to  impose the maximum fine for 1 day.  The Supreme Court  agreed,  noting  



that  "our  decisions broadly prohibit judicial factfinding that increases  maximum criminal  



 'sentence[s],'   'penalties,'   or   'punishment[s]'-   terms   that   each   undeniably   embrace  

fines."15  



                                                                                                                        16  

                                                                                                               

                    A year later, the Supreme Court decided Alleyne v.  United States.                                      The  



                                                                                                                     

defendant in Alleyne was convicted of robbery and using a firearm, but he was subjected  



                                                                                                                              

to an enhanced mandatory minimum sentence based on the judge's  finding that he had  



                                        17  

                                                                                                                             

                                            The  Supreme Court  agreed with the  defendant that this  

"brandished" the  firearm. 



                                                                                                                               

judicial factfinding violated the Sixth Amendment, holding that "[f]acts that increase the  



                                                                                                                              

mandatory minimum sentence are . . . elements and must be submitted to the jury and  



                                                     18  

                                                          

                                           

found beyond a reasonable doubt." 



                                                                                                                    

                    Relying on the reasoning of these four cases, Skupa argues that restitution  



                                                                                                                    

is partially punitive in nature, and she asserts that, as a criminal "penalty," restitution  



                                                                                                                          

must be based on facts that have been found by a jury beyond a reasonable doubt.  Skupa  



                                                                                                                               

therefore  argues  that  the  superior  court  was  only  authorized  to  award  $25,000  in  



      15  Id.  at 350 (alterations in original) (citing Blakely, 542 U.S. at 304; Apprendi , 530 U.S.  



at 490; Ring v. Arizona, 536 U.S. 584, 589 (2002)).  



      16  Alleyne v. United States , 570 U.S. 99 (2013).  



      17  Id. at 103-04.  



      18  Id. at 108.  



                                                              - 6 -                                                         2735
  


----------------------- Page 7-----------------------

restitution   because   she   had   only   admitted   to   stealing   "$25,000   or   more"   when   she  



                                                 19  

pleaded  guilty  to  first-degree  theft.             



                   Skupa acknowledges  that  she  did  not  make  this  argument  to the  superior  



court.   But  she  asserts  that  it  was  plain  error  for  the  superior  court  to  fail  to  recognize  that  



its  judicial  factfinding  violated  her  Sixth  Amendment  rights.   To  establish  plain  error,  



Skupa  is  required  to  show  this  failure  (1)  was  not the  result  of  intelligent  waiver  or  a  



tactical   decision   not   to   object;   (2)   was   obvious;   (3)   affected   substantial   rights;   and  

(4)  was  prejudicial.20  



                                                                                                                   

                   Skupa faces a difficult task in proving plain error in this case.  Every court  



                                                                                                                  

to address this legal issue - at least fifteen state courts and eleven federal circuit courts  



                                                                                                            

- has held that the Apprendi line of cases does not apply to indeterminate restitution  



            21  

                                                                                                             

statutes.       A few of these courts have held that restitution does not offend Apprendi  



     19  See AS 11.46.120(a).  



     20  See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).  



     21  At the state level:  See, e.g., State v. Arnett,  496 P.3d 928, 933-34 (Kan. 2021), cert.  



denied, 142 S. Ct. 2868  (2022); People v. Chhoun, 480 P.3d 550, 590 (Cal. 2021);  People  

v. Knapp, 487 P.3d 1243, 1260 (Colo. App. 2020); State v. Foumai, 2018 WL  495679, at *4  

(Haw. App. Jan. 22, 2018) (unpublished); State v.  Leon , 381 P.3d 286,   289 (Ariz. App.  

2016);  State  v.   Deslaurier,  371  P.3d  505,  509  (Or.  App.  2016); People  v.  Corbin,  880  

N.W.2d 2,   14 (Mich. App. 2015); Commonwealth  v. Denehy, 2 N.E.3d 161, 174-75 (Mass.  

2014);  Smith v. State, 990 N.E.2d 517, 521-22 (Ind. App. 2013); State   v.   Clapper, 732  

N.W.2d 657, 663-64 (Neb. 2007); State v. Martinez, 920 A.2d 715, 721-22 (N.J. Super. App.  

Div. 2007); State v. Field, 116 P.3d 813, 817 (Mont. 2005); State v. Kinneman, 119 P.3d 350,  

355 (Wash. 2005); State v. White, 2004 WL 2326708, at *24 (Tenn. Crim. App. Oct. 15,  

2004) (unpublished); People v. Horne,767 N.E.2d 132, 139 (N.Y. 2002); see  also  State v.  

Davison, 973 N.W.2d 276, 286-88 (Iowa 2022) (applying Apprendi to a specific provision  

of   Iowa  law  that  mandates  a   $150,000  minimum   restitution  when  a  defendant's  crime  

"caused the death of  another" and holding that jury  must have found that defendant "caused  

the death of  another" but distinguishing this statute from  Iowa's general restitution scheme,  

                                                                                                       (continued...)  



                                                         - 7 -                                                     2735
  


----------------------- Page 8-----------------------

because  it  is  primarily  intended to compensate  the  victim  and  should  therefore  not  be  



                                             22  

considered   criminal  punishment.               The  majority   of   courts   follow   a  different   analytic  



path.    These   courts  reason   that,  unlike   fines   or   terms   of   incarceration,   indeterminate  



restitution  statutes  do  not  have  statutory  maximums  -  i.e.,  these  laws  authorize  courts  



to  impose  up  to  the  actual  damages  resulting  from  the  defendant's  crime  based  on  the  



conviction  itself.   These  courts  conclude  that  judicial  investigation  into  the  extent  of  the  



victim's  damages  therefore  does  not  offend  Apprendi  because it  does  not  increase  the  



(...continued)  

which  is  otherwise  indeterminate  and  limited   to   pecuniary   damages);  State  v.  Rey,  905  

N.W.2d 490, 497 (Minn. 2018) (concluding that modest  mandatory-minimum-restitution  

requirement was not an unconstitutional fine, and therefore refusing to reach defendant's  

Alleyne and  Blakely  argument); Cummings v. State, 58 So.3d 715, 721-22 (Miss. App. 2011)  

(finding that defendant's  Sixth Amendment challenge to restitution did not rise to level of  

plain  error,  noting  that  many   federal  circuit  courts  have  declined   to   apply   Apprendi   to  

restitution).  

         At the federal level:   See United States v. Kachkar, 2022 WL 2704358, at  *10 (11th  

Cir. July 12, 2022) (unpublished) (citing Dohrmann v. United States , 442 F.3d 1279, 1281  

(11th Cir. 2006)); United States v. Vega-Martínez,  949 F.3d 43, 54-55 (1st Cir. 2020) (citing  

United States v. Milkiewicz, 470 F.3d 390, 403-04 (1st Cir. 2006)); United States v. Churn,  

800 F.3d 768, 781-82 (6th Cir. 2015) (citing United States v. Sosebee, 419 F.3d 451, 561 (6th  

Cir. 2005)); United States v. Burns, 800 F.3d 1258, 1261-62 (10th Cir. 2015); United States  

v. Bengis,   783 F.3d 407, 412-13   (2d Cir. 2015);  United States v. Thunderhawk,  799 F.3d  

 1203, 1209 (8th Cir. 2015) (citing United States v.   Carruth, 418 F.3d 900, 904 (8th Cir.  

2005)); United States v. Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014) (citing United States  

v. Read,  710 F.3d 219, 231 (5th Cir. 2012); United States v. Green, 722 F.3d 1146, 1148-51  

(9th  Cir. 2013);  United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012); United States  v.  

 Wolfe,  701 F.3d 1206, 1216-18 (7th Cir. 2012); United States v. Leahy, 438 F.3d 328, 337-38  

(3d Cir. 2006).  



     22  Field, 116 P.3d at 817; Thunderhawk, 799 F.3d at 1209; Wolfe, 701 F.3d at 1216-18;  



see also Burns, 800 F.3d at 1261 (explaining that Tenth Circuit precedent treats restitution  

as compensatory rather than punitive and therefore forecloses applying Apprendi 's rule of  

                                                                    

criminal law).  



                                                       - 8 -                                                   2735
  


----------------------- Page 9-----------------------

statutory   maximum   or   mandatory   minimum,   it   merely   determines   the   appropriate  



restitution  within  the  indeterminate  range   already   authorized  by  the  jury's   finding  of  

guilt.23  

            



                                                                                                                

                   Restitution  in  Alaska  utilizes  an  indeterminate  model  like  the  statutes  



                                                                                                                   

addressed  by  other  courts.              Alaska  Statute  12.55.045  mandates  that  courts  order  



                                                                                                                       

restitution upon conviction, and our case law makes clear that restitution is limited to the  



                                                                                                                     

actual  damages  directly  resulting  from  the  conduct  for  which  the  defendant  was  



               24  

convicted.                                                                                                         

                   We therefore agree with those other courts that defendants are "on notice  



     23   See  Deslaurier,   371  P.3d  at  509  ("Restitution  in  the  full  amount  of   the  victim's  



economic damages does not exceed the 'prescribed statutory  maximum' because restitution  

for the full amount of  the victim's economic damages is the only   'restitution outcome that  

is consistent with a  jury's verdict.'  The jury  found that defendant committed the crime and,  

in doing so, found that defendant was liable for the full amount of  the victim's economic  

damages." (quoting State v. Ramos, 340 P.3d 703, 706-07 (Or. App. 2014))); Milkiewicz , 470  

F.3d at 404 ("[T]he jury's finding of  guilt leads to only  one outcome; in every  case in which  

such punishment is imposed, 'the jury's verdict automatically  triggers restitution in the full  

amount of  each victim's losses[.]'" (quoting Leahy , 438 F.3d at 338 n.11)); see, e.g., Leon ,  

381 P.3d at 289-90; Foumai, 2018 WL 495679 at *4; Chhoun, 480 P.3d at 590; Denehy , 2  

N.E.3d at 174-75; Smith, 990 N.E.2d at 521-22; Clapper, 732 N.W.2d at 663; Martinez , 920  

A.2d at 721-22; Kinneman, 119 P.3d at 355; White, 2004 WL 2326708 at *24; Horne, 767  

N.E.2d at 139; Dohrmann, 442 F.3d at 1281; Vega-Martínez,  949 F.3d at 54-55; Churn, 500  

F.3d at 781-82; Bengis, 783 F.3d at 412-13; Rosbottom, 763 F.3d at  420;   Green, 722 F.3d  

at 1148-51; Day , 700 F.3d at 732; see also Burns, 800 F.3d at 1261-62 (rejecting defendant's  

argument that the Apprendi   line of   cases applied to restitution because sentencing courts  

order restitution to   compensate victims for their losses and therefore there is no statutory  

maximum amount of  restitution that a sentencing court can exceed).  



     24   Grubb v. State, 506 P.3d 791, 795 & n.10 (Alaska App. 2022) (noting that criminal  



restitution may not exceed the damages available in a civil suit and cannot go beyond "actual  

                      

loss  or  damages"  (citing Noffsinger  v.  State,  850  P.2d  647,  650  (Alaska  App.  1993)));  

                                                                                            

Peterson v. Anchorage, 500 P.3d 314, 319 (Alaska App. 2021) ("[T]he damages for which  

restitution is ordered must be caused by the criminal conduct for which the defendant was  

                                                                                          

                                                                                                        (continued...)  



                                                          - 9 -                                                     2735
  


----------------------- Page 10-----------------------

that  their  criminal  conduct,  if  proved  in  a  jury  trial,  could  lead  to  an  indeterminate  award  



                                                                                                       25  

of  restitution  as  needed  to  compensate  the  victim  for  pecuniary  losses."                           



                   We  have  previously  grappled  with  the  question  of  whether  the  Apprendi  



line  of  cases  applies  to  restitution  orders  in  an  unpublished  memorandum  decision,  Her  



            26  

                                                                                                                 

v.  State.      In that case, we noted that the overwhelming authority was against applying  



                                                                                                                      

the  Apprendi  line  of  cases  to  restitution  orders,  but  that  there  were  some  legal  



                                                                                                                      27  

                                                                                                                           In  

commentators and two Supreme Court justices who appeared to believe otherwise. 



Her,   we   ultimately   concluded   that  we   did   not   need   to   decide   this   question   of   law  



because,   even   assuming  that  the   Sixth  Amendment  right  to   a  jury  trial   applies  to  the  



determination   of   the  proper   amount   of  restitution,  the   absence   of   a  jury   finding  was  

harmless  beyond  a  reasonable  doubt.28  

                                                           



                                                                                                                      

                   We likewise conclude that we need not decide this issue in this case, albeit  



                                                                                                            

for  different  reasons.           As  already  noted,  Skupa  did  not  raise  a  Sixth  Amendment  



                                                                                                                               

argument in the trial court proceedings.  Moreover, Skupa did not go to trial in this case.  



     24   (...continued)  



convicted, not additional uncharged conduct.").  



     25   State v. Davison, 973 N.W.2d 276, 286 (Iowa 2022).  



     26   Her v. State,  2019 WL 3318138, at *3-5 (Alaska App. July  24, 2019) (unpublished).  



     27   See Hester v. United States, 139 S. Ct. 509, 509-11 (2019) (Gorsuch, J., dissenting);  



see also  James M. Bertucci, Apprendi-Land Opens its Borders:   Will the Supreme Court's  

Decision in Southern Union Co. v. United States Extend Apprendi's Reach to Restitution?,  

58 St. Louis U.L.J. 565,  587-88 (2014).  Despite the dissent in Hester, the Supreme Court  

has continued rejecting petitions for certiorari in cases addressing Apprendi  and restitution.  

See, e.g., Arnett v. Kansas , 142 S.   Ct.   2868 (2022) (denying certiorari for case in which  

Kansas   Supreme Court refused to find a Sixth Amendment jury   trial right to determine  

restitution).  



     28   Her, 2019 WL 3318138, at *3-5.  



                                                           - 10 -                                                      2735
  


----------------------- Page 11-----------------------

Instead,   she   entered  into   a  plea   agreement  with  the   State.   As  part   of  this  agreement,  



Skupa was required  to waive her Sixth  Amendment  right to a  jury  trial under the state  



and  federal  constitutions.   Thus,  assuming  arguendo  that  the  Sixth  Amendment  right  to  



a  jury  trial  applies  to  the  determination  of  the  proper  amount  of  restitution,  Skupa  waived  



that  right.  



                    It  is  true,  of  course,  that  a  jury  trial  waiver  must  be  knowing  and  intelligent,  



and  it  would  be  difficult  to  say  that  Skupa  knowingly  and  intelligently  waived  a  right  that  



no  court  has  thus  far  acknowledged.   But  to  the  extent  Skupa  means  to  argue  that  her  



guilty  plea  was not knowingly and  intelligently  made,  the  proper  procedural  vehicle  is  

a  motion  to  withdraw  her  plea.29  

                                                                                                                            

                                                  Skupa has never filed such a motion, and she has not  



                                                                                                                        

argued on appeal that she should be permitted to withdraw her plea.  Instead, she seeks  



                                                                                                                    

to maintain the benefits of her plea agreement while forcing the State to try the question  



                                                                                                                 

of restitution before a twelve-person jury  (and to the standard of beyond a reasonable  



                                                                         

doubt).  The law does not permit this approach.  



                                                                                                                            

                    Under these circumstances, we conclude that it was not plain error for the  



                                                                                                                        

court  to  hold  a  restitution  hearing,  in  accordance  with  accepted  law,  and  to  order  



                                                                                                                          

restitution based  on evidence that  showed, by a preponderance  of the  evidence, that  



                                                                     

Skupa stole $415,554.61 from her employer.  



                                                                                                          

          Skupa's   argument   that  there  was   insufficient  evidence  to  support  

                                                      

          $28,699.88 of the restitution award  



                                                                                                                           

                    As already mentioned, the $415,554.61 restitution award in this case was  



                                                                                                                     

supported, in part, by the fraud examination conducted by the Justice for Fraud Victims  



                                                                                                                   

Project housed and coordinated by the University of Alaska Anchorage.  The Project's  



     29   See Woodbury v. State, 151 P.3d 528, 532 (Alaska App. 2007); Grasser v. State, 119  



P.3d 1016, 1018 (Alaska App. 2005).  



                                                           - 11 -                                                        2735
  


----------------------- Page 12-----------------------

report   included   fifteen   different   exhibits   listing  multiple   types   of   fraud   allegedly  



committed   by   Skupa   -   including   underpayment   of   health   and   dental   insurance  



premiums,   unauthorized   change   of  pay   rate,   unauthorized   wire   transfers   to   different  



banks,   unauthorized   additional   payroll,  unauthorized   airline   ticket   purchases,   and  



unauthorized  purchases  at  Office  Depot  and  Home  Depot.   



                   On   appeal,   Skupa   challenges   the  restitution   award   for   the  unauthorized  



purchases  at  Home  Depot,  which  totaled  $28,699.88.   More  specifically,  she  asserts  that  



there  was  insufficient evidence to  support  $14,815.81  of  this  portion  of  the  restitution  



award.   We  disagree.  



                   Under current  Alaska  law,  the  State  was required  to prove  the  restitution  

amount  by a preponderance of the evidence.30  At the restitution hearing, the owner of  



                                                                 

the company testified that he had identified multiple Home Depot purchases that were  



                                                                                                                         

not authorized and unrelated to the business.  The Justice for Fraud Victims Project was  



                                                                                                                               

able to identify $28,699.88 in "potentially fraudulent transactions" from Home Depot.  



                                                                                                                        

                   The unauthorized purchases  included home  construction materials with  



                                                                                                                        

delivery receipts showing these items were delivered directly to Skupa's home.  This  



                                                                                                                  

included  $9,211.60  for  wood  flooring  and  $4,672.47  for  cedar  fencing,  totaling  



                                                                                                                       

$13,884.07.  Skupa admits in her briefing that her home address was linked to these  



                                                                                                                     

purchases.  As a result, there is clearly a preponderance of evidence connecting Skupa  



             

to these purchases.  



                                                                                                                     

                    Skupa nevertheless challenges the remaining portion of the Home Depot  



                                                                                                                             

balance, for $14,815.81.  The list of challenged purchases includes a child's swing, a  



                                                                                                                   

pirate ship wheel, a hose, a sprinkler, a ratchet, LED floodlights, utility knives, drywall  



     30   See Noffsinger v. State, 850 P.2d 647, 650 (Alaska App. 1993) (citing Brakes v. State,  



796 P.2d 1368, 1372 n.5 (Alaska App. 1990)).  



                                                          - 12 -                                                       2735
  


----------------------- Page 13-----------------------

mud, paint, a gas-powered trimmer, a planter, a stainless-steel refrigerator, and several  

                                                                                                                         



other items.  

          



                    But the record establishes that the Statepresented severalpieces of evidence  

                                                                                                                       



linking Skupa to these purchases.  Notably, none of the items purchased could be found  

                                                                                                                           



on the company's property.  Many of the items were meant for children, and Skupa had  

                                                                                                                               



four children.  And some of the purchases were made at the Home Depot in Wasilla,  

                                                                                                         



which was close to Skupa's home.  (The company was located in Anchorage.)  

                                                                                                                         



                    The State also relied on the presentence report, which stated that police  

                                                                                                                           



officers had  executed a  search warrant  at  Skupa's residence  and "[i]n the residence  

                                                                                                                     



officers  located  many  items  as  described  on  Home  Depot  invoices  that  had  been  

                                                                                                                            



purchased by the defendant without authorization."  

                                                        



                    On appeal, Skupa argues that any reliance on the presentence report was  

                                                                                                                              



improper because it was not entered into evidence at the restitution hearing.  But, as the  

                                                                                                                                



State points out, the presentence report was already part of the record and Skupa did not  

                                                                                                                                



object to its use at the restitution hearing.  Moreover, Skupa had previously been given  

                                                                                                                            



an opportunity to object to any language in the report that she disagreed with or believed  

                                                                                                                       



to be unsupported by the evidence during her sentencing hearing.  Indeed, Skupa did  

                                                                                                                               



object to other parts of the presentence report, but she did not object to the assertion that  

                                                                                                                               



items from the unauthorized Home Depot invoices were found in her home.  

                                                                                                                      



                    Having reviewed the restitution hearing and the exhibits in support of the  

                                                                                                                                



restitution amount, we find no error in the superior court's decision to order $28,699.88  

                                                                                                                   



in restitution for the unauthorized Home Depot purchases.  

                                                                                          



          Conclusion  



                    The restitution judgment  of the superior court is AFFIRMED.  

                                                                                                                    



                                                             - 13 -                                                          2735
  

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