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Scott Abraham Groom v State of Alaska (5/31/2024) ap-2777

Scott Abraham Groom v State of Alaska (5/31/2024) ap-2777

                                                   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  



SCOTT ABRAHAM GROOM,  

                                                                 Court of Appeals No. A-13288  

                                   Appellant,                  Trial Court No. 3AN-13-05483 CR  



                          v.  

                                                                            O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                        No. 2777 - May 31, 2024  



                 Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                       

                 Anchorage, Kevin M. Saxby, Judge.  



                 Appearances:  Kelly R. Taylor, 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 Wollenberg and Harbison,  

                                                

                 Judges.  



                 Judge HARBISON, writing for the Court.  

                 Judge WOLLENBERG, dissenting.  


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

                        Scott Abraham Groom was convicted of one count of scheme to defraud                                                    



                                                                                          1  

and was ordered to pay $259,881.12 in restitution.                                                                                                      

                                                                                             On appeal, Groom contends that the  



                                                                                                                                                    

restitution order was issued in violation of his right to a jury trial under both the Sixth  



                                                                                                                                                

Amendment to the United States Constitution and Article I, Section 11 of the Alaska  



                        2  

                                                                                                                                                     

Constitution.             According to Groom, these constitutional provisions prevent a court from  



                                                                                                                                                   

relying on any facts not proven to a jury beyond a reasonable doubt when the court  



                                                                                                                                                    

issues a restitution order in a criminal case. Groom also contends that the superior court  



                                                                                                                                                        

erred by assigning him responsibility for the full amount of restitution while limiting his  



                                                                                                                                           

co-defendant's restitution liability to the amount specified in her cooperation agreement  



                                                                                                                                             

with the State.  For the reasons explained in this opinion, we reject Groom's claims of  



                                                                                                   

error and affirm the superior court's restitution order.  



                                                      

            Background facts and proceedings  



                                                                                                                                                         

                        Groom was convicted of engaging in conduct constituting a scheme to  



                                                                                                                                                         

obtain over $10,000 in state funds by "false or fraudulent pretense, representation, or  



                                                                                                              3  

                                                                                                 

promise" and obtaining funds in accordance with this scheme.                                                                                         

                                                                                                                 To prove its case at trial,  



                                                                                                                                              

the  State  presented  evidence  that  Groom  and  his  co-defendant,  Laurayne  Fischer,  



                                                                                                                                           

submitted  false  claims  to  the  Alaska  Division  of  Risk  Management  (the  Division)  



                                                                                                                                                

requesting reimbursement for medical treatment Fischer purportedlyprovided toGroom.  



      1     AS 11.46.600(a)(2).  



      2     Groom   also   appealed  his  conviction,  but  we  bifurcated  the  issues  for  decision.  



Today's opinion resolves the issues relating to the superior court's restitution order.   We  

previously issued an opinion affirming Groom's conviction.                                                    Groom v. State, 2023 WL   

 177486 (Alaska App. Jan. 11, 2023) (unpublished).  



      3     See AS 11.46.600(a)(2).  



                                                                          - 2 -                                                                          2777  


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

                     Groom  had  been  entitled,  under  a  workers'  compensation  settlement  

                                                                                                                    



agreement, to be reimbursed by the Division for the cost of certain medical treatment.  

                                                                                                                                      



Over a period of approximately two and a half years, Fischer filled out medical claim  

                                                                                                                            



forms  stating  that  she  had  provided  treatment  to  Groom  that  she  had  not,  in  fact,  

                                                                                                                             



provided.  Groom faxed the claim forms to the Division, and the Division paid Fischer  

                                                                                                                          



as requested.  Fischer and Groom then shared the reimbursement proceeds.  

                                                                                                                     



                     The  State  filed  criminal  charges  against  Fischer  and  Groom  for  this  

                                                                                                                              



conduct, and a grand jury returned an indictment charging Fischer and Groom with  

                                                                                                                              



multiple felony offenses.  

                          



                     Prior to Groom's trial, Fischer entered into a comprehensive cooperation  



and plea agreement with the State. Fischer agreed to plead guilty to a single consolidated  

                                                                                                                  



count of second-degree theft and to accept joint and several liability with Groom for  

                                                                                                                                



 $20,391.46 in restitution.  As part of the deal, she also agreed to testify against Groom  

                                                                                                                          



at trial.  Under the terms of the agreement, Fischer's liability was capped at the agreed  

                                                                                                                           



upon restitution amount, "even if . . . Groom [was] found liable for a larger amount of  

                                                                                



restitution by a State of Alaska Superior Court."  

                                                               



                     Groom's case proceeded to trial, and the jury found Groom guilty of all but  

                                                                                                                                



one count of the indictment.  Groom contested the award of restitution, arguing that the  

                                                                                                                                



evidence was unreliable and insufficient to support the State's request, and that any  

                                                                                                                               



restitution against Groom should be limited to the amount Fischer was ordered to pay  

                                                                                                                               



pursuant to her plea agreement.  But after reviewing the evidence presented at trial, the  

                                                                                                                                



court rejected Groom's arguments.  It determined that the Division suffered a loss of  

                                                                                                                                 



 $259,881.12  as  the  result  of  Groom's  criminal  conduct,  and  it  issued  a  restitution  

                                                                                                                     



judgment for that amount.  This appeal followed.  

                                                              



                                                               - 3 -                                                            2777  


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

             Groom's argument that the superior court's restitution order violated his                                                               

             constitutional right to a criminal jury trial under the Sixth Amendment                                           



                                                                                                                                                    4  

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



                                                                                                                          

 Statute 12.55.045 mandates that courts "shall, when presented with credible evidence,  



                                                                                                                                                           

 . . . order a defendant convicted of an offense to make restitution."  Our case law makes  



                                                                                                                                                          

 clear that the amount of restitution should reflect the actual damages proximately caused  



                                                                                                          5  

                                                                                                             

by the conduct for which the defendant was convicted. 



                                                                                                                                                                   

                          On appeal, Groom does not argue that there was insufficient evidence to  



                                                                                                                                                                  

 support the superior court's award of restitution in the amount of $259,881.12 or that the  



                                                                                                                                                                 

 superior court erred in how it came to this amount.   Instead, Groom claims that the  



                                                                                                                                                                 

restitution judgment was issued in violation of his right to have a jury, rather than the  



                                                              

 court, determine the amount of restitution.  



                                                                                                                                            

                          Groom's argument is primarily based on decisions of the United States  



                                                                                                                                                                     6  

                                                                                                                                                                         

 Supreme Court interpreting the Sixth Amendment of the United States Constitution. 



                                                                                                                                                              

The Sixth Amendment provides that, in "all criminal prosecutions, the accused shall  



       4     Skupa v. State, 520 P.3d 1184, 1186 (Alaska App. 2022); see AS 12.55.045(a).  



       5     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 convicted, not additional   

uncharged conduct.").  



       6  

                                                                                                                          

             Groom's opening brief mentions Article I, Section 16 of the Alaska Constitution,  

                                                                    

which preserves the right to a jury trial in civil cases where the amount in controversy  

                                                                                                                                             

 exceeds $250 "to the same extent as it existed at common law."  But Groom does not assert  

                                                                                                           

that Alaska's statutory restitution scheme or the specific restitution judgment in this case  

                                                                                                          

violates this constitutional provision, and we accordingly do not decide that question in this  

             

 case.  Cf. State v. Arnett, 496 P.3d 928, 931, 936-38 (Kan. 2021) (invalidating portions of  

Kansas criminal restitution statutes because they infringed on a defendant's right to a civil  

jury trial).  



                                                                               - 4 -                                                                               2777  


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

enjoy the right to a speedy and public trial, by an impartial jury."                                                                       In its landmark     



decision in           Apprendi v. New Jersey                         , the Supreme Court explained that the right to a jury                                       



trial is not limited to adjudicating a defendant's guilt but extends to a determination of                       



any fact that increases the penalty for a crime beyond the prescribed statutory maximum                                                                



                                                                                  7 

                                                                                                                       

(other than the fact of a prior conviction).   In other words, the defendant has the right  



                                                                                                                                                                     

to a jury determination of all the facts that the law makes essential to determining the  



                                                                                 

parameters of the potential punishment.  



                                                                                                                                                                     

                          Four years later, the Supreme Court held in Blakely v. Washington that the  



                                                                                  

relevant "statutory maximum" is not the maximum sentence a judge may impose after  



                                                                                                                                                                

finding additional facts, but rather is the maximumsentence the judge may impose solely  



                                                                                                                                                              8  

                                                                                                                                                                   

on the basis of the facts reflected in the jury verdict or admitted by the defendant.                                                                             And  



                                                                                                                                                             

more recently, the Court held that any fact that increases a mandatory minimum penalty  



                                                                                                                                              9  

                                                                                                                                                   

must also be submitted to a jury and proved beyond a reasonable doubt. 



                                                                                                                                                                       

                          Relying on these cases, Groom argues that the facts relied on by a court to  



                                                                                                                                                     

determine the appropriate restitution award must be found by a jury beyond a reasonable  



                                                                                                                                                                   

doubt.           He  contends  that,  in  this  case,  the  court  was  not  authorized  to  award  any  



                                                                                                                                                             

restitution because determining the amount of the Division's losses required factual  



                                                                                                                                                                       

findings beyond those necessary to adjudicate his guilt, and that these findings must be  



                                                                   

made by a jury rather than by the judge.  



                                                                                                                                                                       

                          We previously considered the question of whether the Apprendi  line of  



                                                                                                                                                

cases applies to restitution orders in two separate cases - an unpublished memorandum  



       7     Apprendi v. New Jersey , 530 U.S. 466, 490 (2000).  



       8     Blakely v.   Washington, 542 U.S. 296, 303-04 (2004).  



       9     Alleyne v. United States , 570 U.S. 99, 102, 114-15 (2013).  



                                                                                 - 5 -                                                                                 2777  


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

                                            10                                                                                                             11  

decision,  Her v. State                   ,    and more recently, a published opinion,                                        Skupa v. State              .    But we   



did not definitively answer the question in either case.                                           



                           In  Her, we noted that the overwhelming authority had determined that the                                                                    



                                                                                                                   12  

                                                                                                                                                                       

Apprendi  line of cases did not apply to restitution orders.                                                            But we acknowledged that  



                                                                                                                                                                      

 some legal commentators and two Supreme Court justices appeared to believe that  



                                                                                                                                                           

Apprendi and its progeny require the facts supporting a restitution award to be submitted  



                  13  

                                                                                                                                                                       

to a jury.             Ultimately, we concluded that we did not need to decide this question of law  



                                                                                                                                                         

because, even if the Sixth Amendment right to a jury trial applies to the restitution  



                                                                                                                                                                  

determination, the absence of a jury finding was harmless beyond a reasonable doubt  



                                                       14  

                                                             

under the facts of that case. 



                                                                                                                                                 15  

                                                                                                                                                                      

                           In Skupa, we also declined to answer this legal question.                                                                    Skupa was  



                                                                                  16  

                                                                                                                                                                 

                                                                                        As required by the plea agreement, Skupa  

convicted pursuant to a plea agreement. 



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



       11     Skupa v. State, 520 P.3d 1184, 1186-91 (Alaska App. 2022).  



       12    Her, 2019 WL 3318138, at *4.  



       13  

                      

             Id. ; see also Hester v. United States, 139 S. Ct. 509, 509-11 (2019) (Gorsuch, J.,  

                                                                                                                               

dissenting); 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 in a case in which the  

                                                                                                                                 

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

restitution).  



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



       15     Skupa, 520 P.3d at 1190.  



       16    Id. at 1186.  



                                                                                  - 6 -                                                                                   2777  


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

                                                                                                                                             17  

entered a guilty plea to the charge of first-degree theft and agreed to pay restitution.                                                          



                                                                                                                                             

After conducting a restitution hearing, the court ordered her to  pay $415,554.61 in  



                  18  

restitution.                                                                                                                               

                      For the first time on appeal, Skupa claimed that the superior court was not  



                                                                                                                                             

authorized to award more than $25,000 in restitution because she had only admitted to  



                                                                                       19  

                                                                                                                                         

                                                                                           Skupa claimed it was plain error  

stealing "$25,000 or more" when she pleaded guilty. 



                                                                                                                                             

for the superior court to have failed to recognize that the restitution order was issued in  



                                                                                          20  

                                                                                   

violation of her Sixth Amendment right to a jury trial. 



                                                                                                                                       

                      But when Skupa entered into her plea agreement, she waived her Sixth  



                                                    21  

                                                                                                                                          

Amendment right to a jury trial.                        Even assuming Skupa could argue that her guilty plea  



                                                                                                                                         

was not knowing and voluntary because she was unaware that she was waiving a right  



                                                                                                                                          

to a jury determination of restitution - a right that no court had recognized - she was  



                                                                                                                                             

not attempting to withdraw her plea.  Instead, Skupa sought to maintain the benefits of  



                                                                                                                                   

her plea agreement while demanding a jury trial on the amount of restitution.  Because  



                                                                                                                                    22  

                                                                                                                            

the law does not permit this approach, we rejected Skupa's claim of plain error. 



                                                                                                                                            

                      Like  Skupa,  Groom  did  not  demand  a  jury  trial  on  the  question  of  



                                                                                                                                         

restitution and instead asserts on appeal that the superior court's failure to conduct a jury  



                                                                                                                                              

trial  was  plain  error.                But  unlike  Skupa,  Groom  was  not  convicted  as  part  of  a  



                                                                                                                                           

comprehensive plea agreement. This case thus requires us to resolve the question we left  



                                                                                                                                           

unanswered in Skupa and Her :  whether a criminal defendant has the right under the  



      17   Id.  



      18   Id.  



      19   Id. at 1188; see also AS 11.46.120(a).  



      20   Skupa, 520 P.3d at 1188.  



      21   Id. at 1190.  



      22   Id. at 1190-91.  



                                                                    - 7 -                                                                   2777  


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

Sixth Amendment to have a jury - rather than the court - determine the amount of                                                         



restitution.  



                      As we noted in Skupa, "Every court to address this legal issue - at least  



fifteen state courts and eleven federal circuit courts - has held that the Apprendi line of  

                                                                                                                                         

                                                                                               23   Courts that have decided  

cases does not apply to indeterminate restitution statutes."                                                                    

                                                                                 



this issue have generally followed one of two analytical paths to reach the conclusion  

                                                                                                                           



     23    Id. at 1188-89; see, e.g.,  United States v. Vega-Martínez, 949 F.3d 43, 54-55 (1st Cir.  



2020); United States v. Bengis, 783 F.3d 407, 412-13 (2d Cir. 2015); United States v. Leahy,  

438 F.3d 328, 337-38 (3d Cir. 2006);  United States v. Day, 700 F.3d 713, 732 (4th Cir.  

2012);  United States v. Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014);  United States v.  

Churn, 800 F.3d 768, 781-82 (6th Cir. 2015); United States v. Wolfe, 701 F.3d 1206, 1216-18  

(7th Cir. 2012); United States v. Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015); United  

States v. Green, 722 F.3d 1146, 1148-51 (9th Cir. 2013);                                  United States v. Burns, 800 F.3d  

1258, 1261-62 (10th Cir. 2015); 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)); State v. Leon, 381 P.3d 286, 289 (Ariz. App. 2016); 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); Smith v. State,  

990 N.E.2d 517, 521-22 (Ind. App. 2013); State v. Arnett, 496 P.3d 928, 933-34 (Kan. 2021),  

                                                                                       

cert. denied, 142 S. Ct. 2868 (2022);  Commonwealth v. Denehy, 2 N.E.3d 161, 174-75  

                                                                                                                            

(Mass. 2014); People v. Corbin, 880 N.W.2d 2, 14 (Mich. App. 2015); State v. Field, 116  

                                                                         

P.3d 813, 817 (Mont. 2005); State v. Clapper, 732 N.W.2d 657, 663-64 (Neb. 2007); State  

                                                                                                  

v. Martinez , 920 A.2d 715, 721-22 (N.J. App. 2007); People v. Horne, 767 N.E.2d 132, 139  

(N.Y. 2002); State v. Deslaurier, 371 P.3d 505, 509 (Or. App. 2016); State v. White, 2004  

        

WL 2326708, at *24 (Tenn. Crim. App. Oct. 15, 2004) (unpublished); State v. Kinneman,  

                                                                  

119 P.3d 350, 355 (Wash. 2005); 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 award 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,  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).  



                                                                  - 8 -                                                                 2777  


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

                                                                                                                             24  

that restitution findings may be made by a judge rather than a jury.                                                              One group of courts        



has concluded that, for purposes of the Sixth Amendment, criminal restitution is not                                                                              



punishment, while the other group has concluded that                                                     Apprendi  and its progeny do not                         



                                                                                                                                                               25  

apply because indeterminate restitution statutes do not specify a maximum award.                                                                                    



                          The  first  of  these  analytical  paths  is  inconsistent  with  Alaska's  well- 

                                                                                                                                                             

established case law explaining that one purpose for restitution is punishment.26  

                                                                                                                                                           Under  



                                                                                                                                                                    27  

                                                                                                                                                                          

Alaska law, restitution is a "hybrid remedy" with both punitive and remedial aspects. 



                                                                                                                                                                

A restitution order is intended to compensate the victim for their actual damages or loss,  



                                                                                                                                                                 

and it is also intended to be part of the defendant's sentence and a condition of any  



                                                                 28  

                                                                                                                                                                 

probation or suspended sentence.                                       In this manner, "restitution serves two goals:  not  



                                                                                                             

only restoring victims, but also making defendants pay the expenses they have caused  



                                                    29  

                                  

by their criminal conduct." 



                                                                                                                                                            

                          The punitive aspect of a restitution order is clearly reflected in the statute  



                                                                                                                                                          30  

                                                                                                                                                              This  

that sets out the consequences of a defendant's willful failure to pay restitution. 



                                                                                                                                                         

statute permits such a defendant to be imprisoned and to receive "[c]redit . . . toward  



       24    Arnett , 496 P.3d at 933.  



       25    Id.  



       26    See, e.g.,  Ortiz v. State, 173 P.3d 430, 431-33 (Alaska App. 2007) (explaining that  



restitution is sufficiently punitive to implicate                                    ex post facto  clause); Reyes v. State, 978 P.2d  

635,  637-41  (Alaska  App.  1999)  (discussing   how  restitution  is  sufficiently   punitive  to  

implicate double jeopardy clause).  



       27    Ortiz, 173 P.3d at 432-33.  



       28    AS 12.55.045(a), (i).  



       29    Mahan v. State , 51 P.3d 962, 969 (Alaska App. 2002).  



       30    See AS 12.55.051.  



                                                                               - 9 -                                                                                2777  


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

satisfaction of the [restitution] order . . . for every day [the defendant] is incarcerated for                                        



                       31  

nonpayment."                                                                                                                   

                           As this Court has noted, this statute undermines the restorative purpose  



                                                                                                                                        

of restitution while promoting its punitive purpose:  "A victim is not compensated by  



                                                                                                                                

having the defendant spend time in jail.  In fact, because the defendant must receive  



                                                                                                                              

credit  for  every  day  spent  in  jail,  the  very  opposite  occurs:                                    the  victim  actually  



                                                                                                                                       

loses compensation when the defendant is imprisoned for willful non-payment of the  



                                     32  

                                                                                                                                  

restitution obligation."                   Indeed, because of the punitive nature of restitution under  



                                                                                                                                         

Alaska law, this Court has explained that a restitution obligation is sufficiently penal to  



                                                                                                                                      

trigger the protections of the ex post facto clause and also that restitution awards are  



                                                                        33  

                                                                            

"punishment" for double jeopardy purposes. 



                                                                                                                                         

                      Given this well-established case law, we decline to follow the reasoning of  



                                                                                                                                        

those  courts  that  have  held  that  restitution  does  not  offend  Apprendi  because  it  is  



                                                                                                                          

primarily intended to compensate the victim and should therefore not be considered  



                                                                                                                                

criminal punishment.  Instead, we conclude that, under Alaska law, restitution awards  



                                                                                              

must be considered punishment for purposes of the Sixth Amendment.  



                                                                                                                                   

                      Wenext consider thesecondanalytical path that courts havefollowed when  



                                                                                                                                      

evaluating whether a restitution determination must be made by a jury - reasoning that  



                                                                                                                                        

Apprendi  does not apply because indeterminate restitution statutes authorize courts to  



                                                                                                                                       

impose the actual damages resulting from the defendant's crime as a consequence of the  



                                                                                                                                   

conviction itself and do not set out a maximum amount that may be imposed. This group  



                                                                                                                                       

of  courts  has  noted  that,  unlike  statutes  setting  out  maximum  fines  or  terms  of  



                                                                                                                                     

incarceration, indeterminate restitution statutes permit a restitution award up to the total  



      31   AS 12.55.051(a).  



      32   Ortiz, 173 P.3d at 433.  



      33   Id. ; Reyes v. State, 978 P.2d 635, 637-41 (Alaska App. 1999).  



                                                                 - 10 -                                                                2777  


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

 amount of the victim's loss and do not have prescribed maximums.                                                                                                                        Thus, these courts                



reason that a judicial investigation into the extent of the victim's damages "does not                                                                                                                                             



 increase   the   statutory   maximum or                                                              mandatory   minimum,   it   merely   determines   the  



 appropriate restitution within the indeterminate range already authorized by the jury's   

 finding of guilt."                           34  



                                                                                                                                                                                                                                   

                                     In this sense, when a sentencing judge makes findings to determine the  



                                                                                                                                                                                                              

 appropriate amount of restitution, the process is analogous to that a judge undertakes  



                                                                                                                                                                                                            

when  determining  the  appropriate  term  of  imprisonment  within  an  authorized  



                                                                                                                                                                                                     

 indeterminate sentencing range. In the context of determining the termof imprisonment,  



                                                                                                                                                                                                                                    

 once the defendant has been convicted, "no further fact-finding is necessary to invest the  



                                                                                                                                                                                                                  35  

                                                                                                                                                                                                                                  

 sentencing judge with the authority to impose any sentence within this range."                                                                                                                                          As this  



                                                                                                                                                                                                                                   

 Court explained in Carlson v. State, such judicial fact-finding does not implicate the  



          34      Skupa v. State, 520 P.3d 1184, 1189 (Alaska App. 2022)                                                                                                ; see also United States v.  



Burns, 800 F.3d 1258, 1261-62 (10th Cir. 2015) (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);                                                                             United States v. Milkiewicz                                            , 470 F.3d 390,  

404 (1st Cir. 2006) ("[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                                                                                            United States v. Leahy, 438 F.3d  

 328, 338 n.11 (3d Cir. 2006)));   State v. Deslaurier, 371 P.3d 505, 509 (Or. App. 2016)   

 ("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.").  



          35       Carlson v. State, 128 P.3d 197, 209 (Alaska App. 2006) (emphasis added).  



                                                                                                              - 11 -                                                                                                                     2777  


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

                                                                                                                    36  

constitutional concern at issue in the                                 Apprendi  line of cases.                         This is because the trial              



court's additional fact-finding is "not done to establish the judge's legal authority to                                                                           



impose the selected sentence" (because the judge is already invested by statute with the                                                                         



                                                                                                                               37  

                                                                                                                                                              

authority to sentence a defendant within the indeterminate range).                                                                  "Rather, this fact- 



                                                                                                                                           

finding is done to explain . . . why the judge exercised their sentencing discretion in a  



                                     38  

                    

particular manner." 



                                                                                                                                                                   

                          The same is true when the court determines the appropriate amount of  



                                                                                                                                                                    

restitution. Once a defendant has been convicted, no further fact-finding is necessary to  



                                                                                                                                                   

vest the sentencing court with the legal authority to impose the established restitution  



                                                                                                                                                               

amount  (because  the  judge  is  already  authorized  to  enter  a  restitution  award  that  



                                                                                                                                                       

compensates the victim for the losses proximately caused by the defendant's criminal  



                                                                                                                                                         

conduct).   Instead, the court's additional fact-finding is done to explain the court's  



                                                                                                                                                                         

accounting - i.e., how it determined the amount of restitution the defendant must pay.  



                                                                                                                                                            

Thus, as we explained in Skupa, Alaska's restitution statutes place defendants "on notice  



                                                                                                                                                            

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



                                                                                                                                         39  

                                                                                                                           

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



                                                                                                                                                              

                          For  these  reasons,  we  join  the  majority  of  courts  in  holding  that  



                                                                                                                                                               

indeterminate restitution statutes like Alaska's permit a restitution award up to the total  



                                                                                                                                                                

amount of the victim's loss and do not have statutory maximums. We thus conclude that  



                                                                                                                                                         

the trial court did not run afoul of the Sixth Amendment when it found that Groom  



       36    Id.  



       37    Id.   



       38    Id.  



       39    Skupa, 520 P.3d at 1190 (quoting State v. Davison, 973 N.W.2d 276, 286 (Iowa  



2022)).  



                                                                              - 12 -                                                                               2777  


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

defrauded the Division in the amount of $259,881.12, rather than submitting this issue                                                                                                                                   



to a jury.                



      



                  Groom's argument that the superior court's restitution order violated his                                                                                                                  

                  right to a criminal jury trial under the Alaska Constitution                                                               



                                    Groom next contends that the right to a have a jury determine the amount                                                                                                      



of restitution is required by Article I, Section 11 of the Alaska Constitution.                                                                                                                             



                                    "When a defendant asserts that the Alaska Constitution affords greater                                                                                                         



protection   than   the   corresponding   provision   of   the   Federal   Constitution,   it   is   the  



defendant's burden to demonstrate something in the text, context, or history of the                                                                                                                                          



                                                                                                                                                                           40  

Alaska Constitution that justifies this divergent interpretation."                                                                                                                                                            

                                                                                                                                                                                    As support for his  



                                                                                                                                                                                                   

position, Groom relies on the text of Article I, Section 11 of the Alaska Constitution,  



                                                                                                                                                                                                                                   

which provides that "[i]n all criminal prosecutions, the accused shall have the right to a  



                                                                                                                                                                                                                                 

speedy and public trial, by an impartial jury."  Groom also claims that his position is  



                                                                                                                                                                                                                     

supported by the Alaska Supreme Court's opinion in Baker v. Fairbanks  - which  



                                                                                                                                                                                                                       

recognized Alaska's jury trial right can be broader than that provided by the Sixth  



                                                                                                                                                                                                                             

Amendment - and by subsequent cases employing Baker 's reasoning to expand the  



                                                                             41  

                                                          

right to a jury trial in Alaska. 



                                                                                                                                                                                                                 

                                    In Baker, the supreme court held that "in any criminal prosecution, whether  



                                                                                                                                                                                                                  

under state law or for violation of a city ordinance, the accused upon demand is entitled  



                                      42  

                                                                                                                                                                                                                                 

                                             The court defined the "category of 'criminal' prosecutions" broadly to  

to a jury trial." 



                                                                                                                                                                                                                        

include: offenses for which incarceration is a "direct penalty," offenses which may result  



         40       State v. Zerkel, 900 P.2d 744, 758 n.8 (Alaska App. 1995).  



         41       Baker v. Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970).  



         42       Id. at 401.  



                                                                                                           - 13 -                                                                                                                 2777  


----------------------- Page 14-----------------------

in the loss of a valuable license, and offenses which - even without the possibility of     



                                                                                                                                                                 43  

incarceration - "still connote criminal conduct in the traditional sense of the term."                                                                                



                                                                                                                                                              

The court noted that "[a] heavy enough fine might also indicate criminality because it can  



                                                                                                                                         44  

                                                                                                                                                        

                                                                                                                                             In so doing,  

be taken as a gauge of the ethical and social judgments of the community." 



                                                                                                                                                            

the supreme court recognized that it was extending Alaska's constitutional jury trial right  



                                                                                     

beyond the scope of its federal counterpart.  



                                                                                                                                                     

                         Since Baker, the right to a jury trial has been further extended to criminal  



                                           45  

                                                                                                                                                            

contempt proceedings,                         to some civil contempt proceedings (given the punitive as well  



                                                                                                               46  

                                                                                                                                               

as remedial elements invariably included in such cases),                                                           and to minor consuming  



                                                                                                                 47  

                                                                                                                                                             

alcohol cases punishable by a mandatory period of probation.                                                          Groomrelies on this line  



                                                                                                                                                              

of cases to argue that restitution likewise triggers the right to a jury trial pursuant to the  



                                                                                                                                                       

Alaska Constitution. To demonstrate that restitution connotes criminal conduct, Groom  



                                                                                                                                                              

points to the potential size of restitution awards, the possibility of incarceration in the  



                                                                                                                                                           

case of willful non-payment, and the fact that they are court-ordered in a criminal case.  



                                                                                                                                                    

                         But the reasoning of Baker and its progeny is not applicable to the question  



                                                                                                                                                 

presented in this case. Instead, Baker governs the initial question of whether a defendant  



                                                                                                                                                         

is entitled to have a jury, rather than a court, adjudicate their guilt.  Under Baker, courts  



                                                                                                                                                               

must look to the ramifications of the possible punishment to answer this question. If the  



                                                                                                                                                 

punishment is serious enough, then the offense falls into the "category of 'criminal'  



      43    Id. at 402.  



      44    Id. at 402 n.29.  



      45     State v. Browder, 486 P.2d 486 P.2d 925, 937 (Alaska 1971).  



      46     Gwynn v. Gwynn, 530 P.2d 1311, 1312-13 (Alaska 1975); Johansen v. State , 491 P.2d   



759, 767 (Alaska 1971).  



      47     State v. Auliye, 57 P.3d 711, 718 (Alaska App. 2002).  



                                                                            - 14 -                                                                              2777  


----------------------- Page 15-----------------------

 prosecution," and the defendant is given the right to have a jury adjudicate the question                                                                                                                                                                           



 of guilt.                   



                                             In the present case, there is no dispute that Groom was charged with a                                                                                                                                                                          



 criminal offense and that, as a result, he had the right to have a jury determine whether                                                                                                                                                                            



 he was guilty of the charged offenses.  (In fact, Groom exercised this right, and it was     



 a jury, rather than the court, that found him guilty of scheme to defraud.)                                                                                                                                                                            Instead, the   



 question presented in this case is whether Groom's sentence (specifically, the restitution                                                                                                                                                                     



 portion of his sentence) was predicated on facts that should have been found by a jury,                                                                                                                                                                                       



 rather than a judge. The reasoning of                                                                                    Baker  does not apply to this determination; instead,                                                                                         



 as we have explained, Alaska law allows for judges to impose sentences within an                                                                                                                                                                                                       

 indeterminate range of allowable sentences.                                                                                                       48  



                                                                                                                                                                                                                                                                                         

                                             Because Groom has failed to identify something in the text, context, or  



                                                                                                                                                                                                                                                                                                     

 history of the Alaska Constitution that would indicate Alaska's constitutional criminal  



                                                                                                                                                                                                                                                                                        

jury trial right is more expansive than its federal counterpart in the Apprendi context, we  



                                                                                                                      

 reject Groom's state constitutional claims.  



                                                                                                                                                                                                                                                                 

                       Groom's argument that the superior court order unlawfully exceeded the  

                                                                                                                                                            

                       amount of damages proportional to his fault  



                                                                                                                                                                   

                                             Groom's final argument is that the superior court erred by assigning him  



                                                                                                                                                                                                                                                                                       

 liability for the entirety of the losses proximately caused by his crimes, even though his  



                                                                                                                                                                                                                                                                                          

 co-defendant, Laurayne Fischer, was ordered to reimburse the Division for only part of  



                                                                                                                                                                                                                                                                                     

 the losses. Relying primarily on a discussion of the role of joint and several liability and  



                                                                                                                                                                                                                                                                               

 comparative  fault  in  the  civil  context,  Groom  argues  that  the  court  should  have  



            48         See Carlson v. State, 128 P.3d 197, 209 (Alaska App. 2006).  



                                                                                                                                       - 15 -                                                                                                                                                  2777  


----------------------- Page 16-----------------------

apportioned liability, ordering him to pay restitution only in an amount that was equal   



to his share of the fault.                



                              But in        Noffsinger v. State                      , this Court upheld the superior court's ruling that                                                 



a defendant and his accomplice were jointly and severally liable for restitution, over the                                                                                                 

defendant's assertion that the court should apportion their liability for theft of property.                                                                                                  49  



                                                                                                                                                                                    

We noted that, unlike civil damages, criminal restitution awards are limited to actual  



                                                                                                                                                                                   

damages and may be imposed only when a defendant has acted with a culpable mental  



                                                                                                                                                                                 50  

                                                                                                                                                                                        

state  so  far  beyond  ordinary  negligence  as  to  warrant  a  criminal  sanction.                                                                                                    We  



                                                                                                                                                                                        

concluded that there was no realistic argument in Noffsinger that the defendant was only  



                                                                                                                                              51  

                                                                                                                                                                                  

partially at fault, or had caused only a limited portion of the loss.                                                                              For the same reason,  



                                                                                                                                                                                             

we reject Groom's contention that the superior court should not have required him to  



                                                                                                                            52  

                                                                                                             

reimburse the Division for the full amount of its losses. 



        49     Noffsinger v. State, 850 P.2d 647, 650-51 (Alaska App. 1993).  



        50     Id. ;   see   also  Peterson   v.  Anchorage,   500  P.3d  314,  324  (Alaska  App.  2021)  



(explaining that a civil defendant is entitled to substantive protections, including the ability  

to argue comparative fault, that are generally not available in a criminal restitution hearing);   

Thompson v. State, 64 P.3d 132, 134 (Alaska App. 2003) (noting that, although Alaska law   

no longer imposes joint and several liability when two or more civil defendants are found to   

be joint tortfeasors, joint and several liability is still available in criminal cases when a   

sentencing court imposes restitution on two or more accomplices).  



        51     Noffsinger, 850 P.2d at 651.  



        52     The restitution judgment in this case states that Groom and Fischer are jointly and  

                                                                                                                                                                                          

severally liable for $20,391.46 (the amount set out in Fischer's cooperation agreement) but  

                     

that Groom alone is liable for $239,489.66 (the restitution that exceeds the amount set out  

                                                                                                                                                                                           

in the cooperation agreement).  On appeal, Groom contends that the trial court's restitution  

                                                                                                             

order may be read to foreclose him from "any recourse in contribution from Fischer."  But  

                                                                                        

the restitution judgment says nothing about Fischer's liability to Groom for contribution.  

                                                                                                                                                              

And AS 12.55.045(b) clearly provides that an order of restitution "does not limit any civil  

                                                                                                                                                                                        

                                                                                                                                                                     (continued...)  



                                                                                          - 16 -                                                                                              2777  


----------------------- Page 17-----------------------

          Conclusion  



                    The superior court's restitution judgment is AFFIRMED.  

                                                                                      



     52   (...continued)  



liability of the defendant arising from the defendant's conduct." We thus do not construe the  

                                                                                           

restitution order as barring Groom from seeking contribution from Fischer in a civil action.  

                                                                                               



                                                            - 17 -                                                          2777  


----------------------- Page 18-----------------------

 Judge WOLLENBERG, dissenting.                            



                               The Sixth Amendment to the United States Constitution provides that, in     



 "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,                                                                                                



by an impartial jury[.]" Article I, Section 11 of the Alaska Constitution sets out a similar                                                                                          



                              1  

requirement.                                                                                                                                                                                     

                                   I would hold that these provisions require that criminal restitution be  



                                                                              

 determined by a jury.  I therefore dissent.  



                                                                                                                                                                                           

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



                                                                                                                                                                              

Amendment, "any fact that increases the penalty for a crime beyond the prescribed  



                                                                                                                                                                      

 statutory maximum," other than the fact of a prior conviction, "must be submitted to a  



                                                                                                         2  

                                                                                                                                                                                                

jury, and proved beyond a reasonable doubt."                                                                 Two years later, in Ring v. Arizona, the  



                                                                                                                                                                                                

 Court - relying on Apprendi - reiterated that any fact that increases the scope of the  



                                                                                                                                                                                                  

 defendant's punishment is subject to this requirement:  "If a State makes an increase in  



                                                                                                                                                                                             

 a defendant's punishment contingent on the finding of a fact, that fact - no matter how  



                                                                                                                                                                          3  

                                                                                                                                                                               

 the State labels it - must be found by a jury beyond a reasonable doubt." 



        1       Article I, Section 11 provides, in relevant part:                                                           "In all criminal prosecutions, the  



 accused shall have the right to a speedy and public trial, by an impartial jury of twelve,                                                                                           

 except that the legislature may provide for a jury of not more than twelve nor less than six                      

 in courts not of record."  



        2      Apprendi v. New Jersey , 530 U.S. 466, 490 (2000).  Facts admitted by the defendant  

                                                                                                                                                                          

 are also outside the scope of the Apprendi rule.  See Blakely v. Washington, 542 U.S. 296,  

                                                                                                                    

 303 (2004).  



        3       Ring v. Arizona,  536 U.S. 584, 602 (2002) (emphasis added) (citing Apprendi , 530  

                                                                                                                                       

U.S. at 482-83).  



                                                                                             - 18 -                                                                                                2777  


----------------------- Page 19-----------------------

                         The Supreme Court has since applied this same reasoning to presumptive                                      



                                                                                   4  

 sentencing schemes (                 Blakely v. Washington                     ),                                                                      

                                                                                      criminal fines (Southern Union Co. v.  



                            5                                                                                                                  6  

                                                                                                                                                   

 United States),              and mandatory minimum sentences (Alleyne v. United States).                                                          Pre- 



                                                                                                                                             

 Apprendi case law in Alaska similarly held that facts that increase the maximumsentence  



                                                                    7  

                                                             

 for a crime had to be proved to a jury. 



                                                                                                                                           

                         In applying Apprendi  to presumptive sentencing schemes, the Supreme  



                                                                                                                                                     

 Court stated in Blakely  that the "'statutory maximum' for Apprendi  purposes is the  



                                                                                                                                                      

 maximum sentence a judge may impose solely on the basis of the facts reflected in the  



                                                                               8  

                                                                                                                                          

jury verdict or admitted by the defendant."                                        "In other words, the relevant 'statutory  



       4    Blakely, 542 U.S. at 303 (holding that the phrase "statutory maximum," for purposes   



 of  Apprendi , refers to "the maximum sentence a judge may impose                                                solely on the basis of the  

facts reflected in the jury verdict or admitted by the defendant ").  



       5     Southern Union Co. v. United States, 567 U.S. 343, 360 (2012) (holding that Apprendi  



 applies to criminal fines).  



       6  

                                                                                                                                             

            Alleyne  v.  United  States ,  570  U.S.  99,  115-16  (2013)  (holding  that  any fact  that  

                                                                                                                        

 increases a mandatory minimum penalty must be submitted to a jury and proved beyond a  

 reasonable doubt).  



       7    Donlun v. State, 527 P.2d 472, 473-74 (Alaska 1974) (holding that, where a criminal  



                                                                                                                                                     

 statute  provides  for  enhanced  ranges  of  punishment  for  aggravated  instances  of  the  

                                                                                                                   

 proscribed  offense,  the  aggravating  facts  must  be  set  out  in  the  indictment  or  charging  

 document and proven at trial before the defendant can be exposed to an increased range of  

                          

 punishment).  But see Huf v. State, 675 P.2d 268, 271-73 (Alaska App. 1984) (declining to  

                                                                                                                                             

 apply this rule to Alaska's presumptive sentencing scheme), abrogated by Blakely, 542 U.S.  

 at 303.  



       8    Blakely, 542 U.S. at 303.  



                                                                         - 19 -                                                                        2777  


----------------------- Page 20-----------------------

maximum' is not the maximum sentence a judge may impose after finding additional                                                                     



                                                                                                                                                              9  

facts, but the maximum [the judge] may impose                                                 without  any additional findings."                                 



                                                                                                                                                         

                          I would reach a similar conclusion in the restitution context. In the absence  



                                                                                                                                                           

of any additional finding of facts, the amount of restitution authorized by a jury's verdict  



                                                                                                                                                      

alone is generally zero (or, in the case of monetary crimes that have a minimumthreshold  



                                                                                                                               10  

                                                                                                                                                      

finding of loss, the amount of loss necessarily found by the jury).                                                                 Thus, as Professor  



                                                                                                                                                                 

LaFave asserts, any additional fact-finding by a judge is precluded by Apprendi  and  



                                                                                                                                                                

Alleyne :   "If a judge is prohibited from imposing any restitution at all without first  



                                                                                                                                                                    

finding  some  loss,  or,  if  a  judge  must  impose  restitution  upon  finding  loss,"  as  in  



               11  

Alaska,                                                                                                                                                            

                   "a defendant under Apprendi and Alleyne should have the right to insist that the  



                                                                                                                               12  

                                                                                                                                    

government prove that loss beyond a reasonable doubt to a jury." 



                                                                                                                                                      

                          In theanalogous context of criminal fines, the SupremeCourt hasexpressly  



                                                                                         13  

                                                                                                                                                                 

held that Apprendi limits judicial fact-finding.                                              In Southern Union, the defendant was  



                                                                                                                                                                     

charged with violating an environmental statute by storing liquid mercury without a  



       9     Id. at 303-04.  



       10    See Southern Union, 567 U.S. at 347, 352 (holding that any fine greater than $50,000   



- the amount corresponding to the minimum finding of guilt made by the jury - violated                                                              

Apprendi); see, e.g., AS 11.46.130(a)(1) ("A person commits the crime of theft in the second   

degree if the person commits theft . . . and the value of the property or services is $750 or                                   

more but less than $25,000[.]").  



       11    See AS 12.55.045(a) ("The court shall, when presented with credible evidence, unless  



the victim or other person expressly declines restitution, order a defendant convicted of an  

offense to make restitution . . . to the victim or other person injured by the offense[.]"  

                                                                                                                                            

(emphasis added)).  



       12    6 Wayne R. LaFave et al., Criminal Procedure § 26.6(c), at 1073 (4th ed. 2015).  



       13    Southern Union, 567 U.S. at 352.  



                                                                              - 20 -                                                                                2777  


----------------------- Page 21-----------------------

                                                                                                                                                   14  

permit "[f]rom on or about September 19, 2002 until on or about October 19, 2004."                                                                     



                                                                                                                                              

The jury instructions authorized the jury to find the defendant guilty even if the jury  



                                                                                                                                                   15  

                                                                                                                                                       

found that the defendant violated the statute for only a single day within that date range. 



                                                                                         16  

                                                                                                                                          

                                                                                              The relevant sentencing statute  

The jury subsequently found the defendant guilty. 

                                                                                                                        17  At sentencing,  

                                                                                                                                  

                                                                                                      

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



the district court found - based on the content and context of the verdict - that the  

                                                                                                                                                



maximum potential fine was $38.1 million ($50,000 for each of the 762 days from  

                                                                                                                                             



September 19, 2002 to October 19, 2004), and imposed a $6 million fine (as well as a  

                                                                                                                                

$12 million "community service obligation").18  

                                                                                   



                                                                                                                                      

                       The Supreme Court reversed the fine, concluding that "the rule of Apprendi  



                                                                             19  

                                                                                                                                                 

applies to the imposition of criminal fines."                                     The Court explained that there was no  



                                                                                                                                              

basis to treat fines differently from other forms of punishment and held that judicial fact- 



                                                                                                                                       

finding  that  enlarged  a  fine  beyond  that  permitted  by  the  jury's  verdict  violated  



                 20  

                                                                                                                                                 

Apprendi .              The  Court  made  clear  that  when  the  amount  of  a  fine  may  only  be  



                                                                                                                                       

determined by "reference to particular facts" - including the extent of "the victim's  



                                                                                                                                         

loss" - Apprendi requires that the facts essential to determining the maximum amount  



                                                                                         

of the fine be found by a jury beyond a reasonable doubt:  



      14    Id. at 346 (alteration in original).  



      15    Id. at 347.  



      16    Id. at 346.  



      17    Id. at 347 (quoting 42 U.S.C. § 6928(d)).  



      18    Id.  



      19    Id. at 360.  



      20    Id. at 349, 352, 360.  



                                                                      - 21 -                                                                     2777  


----------------------- Page 22-----------------------

                           [T]he    amount   of                     a    fine,    like    the    maximum    term    of  

                           imprisonment or eligibility for the death penalty,                                                      is often   

                           calculated by reference to particular facts.                                             Sometimes, as   

                           here, the fact is the duration of a statutory violation; under                         

                           other statutes it is the amount of the defendant's gain                                                    or the  

                           victim's  loss,   or   some   other   factor.     In   all   such   cases,  

                           requiring juries to find beyond a reasonable doubt facts that                                                   

                           determine   the   fine's   maximum   amount   is   necessary   to  

                           implement                 Apprendi 's                 "animating                  principle":                    the  

                           "preservation of the jury's historic role as a bulwark between                                         

                           the   State   and   the   accused   at  the   trial   for   an   alleged  

                           offense."[21]  



                                                                                                                                                                       

                           Southern Union, of course, was addressing fines, not restitution.  But the  



                                                                                                                                                                      

only principled way to distinguish a fine from restitution is to conclude that a fine is a  



                                                                                                                                     22  

                                                                                                                                          

punishment and restitution is not (as some other courts have held). 



                                                                                                                                                                           

                           In today's opinion, the Court recognizes that restitution in Alaska has a  



                                                                                                                                                                    

"punitive aspect" and thus constitutes a penalty for purposes of Apprendi .  I agree with  



                                                                                                                                                                  

this conclusion, which is derived directly from our case law.  We have held that, while  



                                                   

restitution clearly serves an important remedial purpose - to compensate a victim for  



                                                                                                                                                                     

the loss incurred - it is sufficiently punitive to implicate both the ex post facto  and  



                                                 23  

                                                                                                                                                     

                                  

double jeopardy clauses.                              And, as the majority notes, a defendant may be incarcerated  



       21    Id. at 349-50 (emphasis added) (citations omitted).  



       22    See, e.g.,  United States v. LaGrou Distrib. Sys., Inc., 466 F.3d 585, 593 (7th Cir.                                         



2006)  (explaining  that  the  Seventh  Circuit  has   repeatedly   held  that  restitution  is  not  a  

criminal penalty, but a "classic civil remedy"); State v. Leon, 381 P.3d 286, 289 (Ariz. App.  

                                                                                                                                                              

2016) ("In Arizona, the courts have uniformly concluded that restitution's primary purpose  

is not penal in nature.").  



       23    See Ortiz v. State, 173 P.3d 430, 431-33 (Alaska App. 2007); Reyes v. State, 978 P.2d  



635, 637-41 (Alaska App. 1999); see also Paroline v. United States, 572 U.S. 434, 456  

          

                                                                                                                                                   (continued...)  



                                                                                - 22 -                                                                                   2777  


----------------------- Page 23-----------------------

 for failing to pay restitution, with each day of incarceration negating a portion of the                                                       

restitution obligation.              24  



                                                                                                                                

                       The majority nonetheless concludes that a jury trial is not required for  



                                                                                                                                    

restitution determinations, reasoning that the jury's verdict alone authorizes restitution  



                                                                                                                                               

in the full amount of a victim's losses, and thus, the additional judicial fact-finding that  



                                                                                                                                      

is  necessary  to  determine  the  amount  of  restitution  does  not  increase  the  statutory  



                                                                                                                                       

maximum sentence for purposes of Apprendi .  In reaching its conclusion, the majority  



                                                                                                                                           

analogizes the determination of restitution  to  the process a judge undertakes when  



                                                                                                                              

determining the appropriate term of imprisonment within an authorized indeterminate  



                     

 sentencing range.  



                                                                                                                                              

                       But this is a flawed analogy.  In Carlson v. State, which the majority cites  



                                                                                                                                    

in support of its reasoning, the jury's verdict for second-degree murder alone authorized  



                                                                                                           25  

                                                                                                                                             

the sentencing court to impose a sentence of up to  99 years.                                                    The fact that a prior  



                                                         26  

                                                                                                                                    

                                                              set  a  benchmark  range  for  first  felony  offenders  

judicial  decision,  Page  v.  State, 



                                                                                                                                         

convicted of second-degree murder -requiring the sentencing court to present a "sound  



      23    (...continued)  



 (2014) (noting that, while "the primary goal of restitution is remedial or compensatory, . . .  

                                                                               

it also serves punitive purposes," which might be sufficient to bring restitution "within the  

purview of the Excessive Fines Clause").  

            Indeed, the majority of federal appellate courts have held that restitution is a "criminal  

                                                                                                                                       

remedy that serves a punitive and deterrent purpose."  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, 584 (2014).  



      24    AS 12.55.051(a).  



      25    Carlson v. State, 128 P.3d 197, 203-05 (Alaska App. 2006).  



      26    Page v. State, 657 P.2d 850, 855 (Alaska App. 1993).  



                                                                      - 23 -                                                                     2777  


----------------------- Page 24-----------------------

reason" for upwardly departing from that benchmark - did not raise the statutory                                                       

maximum to which the defendant was already subject based on the jury's findings.                                                                27  



                                                                                                                                                  

                       In the restitution context, however, the maximum restitution amount is $0  



                                                                                                           

(or the amount directly found by the jury) absent any further findings of fact.  Judicial  



                                                                                                                                   

fact-finding regarding the extent of the victim's loss does not determine the appropriate  



                                                                                                                  

amount  of  restitution  within  a  particular  range.                                     Rather,  this  judicial  fact-finding  



                                                                                                                                              

determines  what that range is -  i.e., it determines the permissible maximum (and  



                                                                                         

minimum).  This is precisely what is forbidden by Apprendi .  



                                                                                                                                              

                       As the Alaska Supreme Court recently recognized in State v. Grubb, prior  



                                                                                                                                        

to the enactment of Alaska's revised criminal code in 1978 (effective in 1980), Alaska's  



                                                                                                                                             

statutes contained only "a single reference to restitution: a provision that allowed a judge  



                                                                                                                     28  

                                                                                                                                                   

                                                                                                                          The authority to  

to require a defendant to pay restitution as a condition of probation." 



                                                                                                                                                   

impose a probation condition requiring restitution payments was understood as part of  



                                                                                                                                                   

a judge's "wide range of discretion in sentencing," and such a condition was proper as  



                                                                                                                     29  

                                                                                                                                                

long as there was "a reasonable and valid basis for its imposition."                                                      If this were still  



                                                                                                                                          

Alaska's restitution scheme, I might agree with the majority that a judge who awards  



                                                                                                                              

restitution  is  merely  determining  an  appropriate  amount  within  an  indeterminate  



                     

sentencing scheme.  



                                                                                                                                     

                       But, asthesupremecourt also noted, "over the last fiftyyears thelegislature  



                                                                                                                       30  

                                                                                                                                           

has steadily expanded the rights of crime victims to obtain restitution."                                                  Unless a victim  



      27    Carlson, 128 P.3d at 204.  



      28    State v. Grubb, 546 P.3d 586, 593 (Alaska 2024); see also former AS 12.55.100(a)(2)  



(pre-1980); SLA 1955, ch. 195, § 1.  



      29   Hagberg v. State, 606 P.2d 385, 387 (Alaska 1980).  



      30    Grubb, 546 P.3d at 595; see also  Alaska Const. art. I, § 24 (providing that crime   



                                                                                                                                (continued...)  



                                                                      - 24 -                                                                      2777  


----------------------- Page 25-----------------------

or other person who suffered a loss expressly declines restitution, Alaska's restitution                                       



scheme requires a finding of the amount of damages or loss caused by a defendant's                                                           



            31  

crime.                                                                                                                                           

                 And this finding constitutes the maximum (and minimum) allowable restitution  



amount.  



                                                                                                                                                              

                          Our current restitution scheme, therefore, has less in common with the  



                                                                                                                              

restitution scheme in early Alaska law and more in common with a fine that existed in  



                                                                                                                                                                

early Alaska law.   Prior to the enactment of the revised criminal code, the crime of  



                                                                                                                                                              

embezzlement of public money was punishable, in part, "by a fine equal to twice the  



                                                                                                                          32  

                                                                                                                                                           

amount converted, loaned, or neglected or refused to be paid."                                                                  The criminal code  



                                                                                                                                                                

specifically provided that "the amount of the money converted, loaned, or neglected or  



                                                                                                                                                            33  

                                                                                                                                                                 

refused to be paid shall be ascertained by the verdict of the jury as near as may be."                                                                           It  



                                                                                                                                                                

therefore appears that there is historical practice in Alaska for applying the principles of  



                                                                                                                                                

Apprendi and Southern Union to situations where punishment is calculated based on a  



       30    (...continued)  



victims have "the right to restitution from the accused").  



       31    See  AS  12.55.045(a);  Grubb,  546  P.3d  at  595  (describing  the  award  of   criminal  



restitution under AS 12.55.045(a) as "mandatory"). Alaska Statute 12.55.045(n) sets out the   

method for determining the value of propertystolen or damaged, while subsection (o) defines     

"loss of income" for purposes of cases involving stolen property.                                                      AS 12.55.045(n)-(o); see  

also AS 12.55.100(a)(2)(B).  



       32    Former AS 11.20.300 (pre-1980); see also ACLA § 65-5-63 (1949); CLA § 4807  

                                                                                             

(1933); CLA § 1928 (1913); Carter's Annotated Alaska Code, pt. I, § 48 (1900).  



       33    Former AS 11.20.310 (pre-1980); see also ACLA § 65-5-64 (1949); CLA § 4808  



(1933); CLA § 1929 (1913); Carter's Annotated Alaska Code, pt. I, § 49 (1900).  



                                                                            - 25 -                                                                              2777  


----------------------- Page 26-----------------------

determination of the actual damages or loss of the victim, rather than viewing such                                                      

punishments as part of an indeterminate sentencing scheme.                                           34  



                                                                                                                                       

                      Accordingly, whileI acknowledgethesignificant consequences that would  



                                                                                                                                        

flow from requiring jury trials for restitution, I fail to see how the Court's ruling today  



                                                                                                                                

that restitution can be found by a judge, instead of a jury, can be logically reconciled  



                                      

with Apprendi and its progeny.  



                                                                                                                                        

                      Other  dissenting  judges  and  commentators  have  articulated  this  same  



         35  

view,                                                                                                                                        

             but the position has failed to gain traction among state and federal courts, and the  



      34   See Baker v. Fairbanks, 471 P.2d 386, 400-01 (Alaska 1970) ("If, historically, jury  



trial had always been available on a broad basis in Alaska, it is only reasonable to conclude  

                                                                                                             

that the framers thought they were continuing an existing practice.").  



      35  

                                                                                                            

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

                                                     

from denial of certiorari); State v. Arnett, 496 P.3d 928, 943 (Kan. 2021) (Standridge, J.,  

                                                                                                          

dissenting)  ("When  viewed  collectively,  [the  cases  declining  to  extend  Apprendi  to  

                                                                                                                                     

restitution] may appear to provide overwhelming support for finding that Apprendi does not  

                                                                        

apply to restitution orders.  However, when read individually, these cases fail to provide a  

                                                                                                          

consistent or clear rationale for why Apprendi  should not apply to restitution."); State v.  

Clapper,  732  N.W.2d  657,  664  (Neb.  2007)  (Connolly,  J.,  dissenting)  (asserting  that  

Nebraska's restitution statute "is a criminal penalty," and thus, "allowing a sentencing court  

to order restitution without the defendant's admitting the facts or a jury's deciding the facts  

supporting restitution" violates Blakely); United States v. Leahy, 438 F.3d 328, 342 (3d Cir.  

2006) (McKee, J., concurring in part and dissenting in part) ("[T]he question is whether the  

                                                                                                                                          

verdict 'alone' allows the judge to impose restitution with no additional finding of fact.  

                                                                                                      

Obviously, it doesn't.   Notwithstanding the jury's verdict, no restitution can be imposed  

                                                                                                                                    

absent a judicial determination of the amount of loss."); United States v. Carruth, 418 F.3d  

900, 906 (8th Cir. 2005) (Bye, J., dissenting) ("Once we recognize restitution as being a  

                                                                                                                                        

'criminal  penalty'  the  proverbial Apprendi  dominoes  begin  to  fall.                                         While  many in  the  

                                                                                                                                              

pre-Blakely  world  understandably subscribed  to  the  notion  Apprendi  does  not  apply  to  

                                                                                                             

restitution because restitution statutes do not prescribe a maximum amount, . . . this notion  

                                                                                                                                    

is no longer viable in the post-Blakely world which operates under a completely different  

                                                                                                                           

understanding of the term prescribed statutory maximum."); Judge William M. Acker, Jr.,  

                                                                                                                           (continued...)  



                                                                    - 26 -                                                                   2777  


----------------------- Page 27-----------------------

United States Supreme Court has repeatedly denied petitions of certiorari to decide the                                                       



          36  

issue.        



                                                                                                                                              

                       That said, two Supreme Court justices have expressed doubt about the  



                                                                                                                                         

failure by courts to extend the rule of Apprendi to restitution. In a dissent from the denial  



                                                                                                                                              

of certiorari in one case, Justice Gorsuch, joined by Justice Sotomayor, reiterated the  



                                                                                                                                      

principle set out in Blakely that "the term 'statutory maximum' . . . refer[s] to the harshest  



                                                                                                                                              

sentence  the  law  allows  a  court  to  impose  based  on  facts  a  jury  has  found  or  the  



                                          37  

                                                                                                                                   

defendant has admitted."                      Accordingly, Justice Gorsuch said, "the statutory maximum  



                                                                                                                                        

for restitution is usually zero, because a court can't award any restitution without finding  



                                                                    38  

                                                                                                                                        

additional facts about the victim's loss."                               Justice Gorsuch therefore reasoned:  "[J]ust  



                                                                                                                                                 

as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it  



      35    (...continued)  



The Mandatory Victims Restitution Act is Unconstitutional.  Will the Courts Say So After  

                                                                                                     

Southern  Union  v.  United  States,  64  Ala.  L.  Rev.  803  (2013);  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  

        

(2014); see also 6 Wayne R. LaFave, et al., Criminal Procedure, § 26.6(c), at 1073-74 nn.63- 

                              

66  (4th  ed.  2015);  United  States  v.  Green, 722  F.3d  1146,  1151  (9th  Cir.  2013)  ("Our  

                                                                                                     

precedents are clear that Apprendi  doesn't apply to restitution, but that doesn't mean our  

                                                                                  

caselaw's well-harmonized with Southern Union.  Had Southern Union come down before  

                                                                                                                      

our cases, those cases might have come out differently.").  



      36   See, e.g., Arnett , 496 P.3d 928, cert. denied, 142 S. Ct. 2868 (2022); Hester, 139 S.  



Ct. at 509.  The Supreme Court has said, however, that a denial of certiorari "carries with it  

                                                                                                            

no implication whatever regarding the Court's views on the merits of a case which it has  

                                                                                                                    

declined to review."  Maryland v. Baltimore Radio Show , 338 U.S. 912, 919 (1950).  



      37   Hester, 139 S. Ct. at 510 (Gorsuch, J., dissenting from denial of certiorari) (citing  

                                                                                                                       

Blakely v. Washington, 542 U.S. 296, 303 (2004)).  



      38   Id.  



                                                                     - 27 -                                                                    2777  


----------------------- Page 28-----------------------

would seem to follow that a jury must find any facts necessary to support a (nonzero)                                          

restitution order."           39  



                      Justice Gorsuch also stated that the Sixth Amendment was understood at  



                                                                                                                                             

the time of enactment "as preserving the 'historical role of the jury at common law,'" and  



                                                                                                                                       

that restitution awards at common law would have been predicated on specific factual  



                                  40  

                                                                                                                               

findings by the jury.                  Justice Gorsuch explained, specifically as to stolen goods:  



                                                                                                                 

                      And as long ago as the time of Henry VIII, an English statute  

                                                                                                              

                       entitling victims to the restitution of stolen goods allowed  

                                                                                                                         

                       courts to order the return only of those goods mentioned in  

                                                                                                                

                      the  indictment  and  found  stolen  by  a  jury.                                1  J.  Chitty,  

                                                                                                                       

                       Criminal Law 817-820 (2d ed. 1816); 1 M. Hale, Pleas of the  

                                                                                                                        

                       Crown  545  (1736).                  In  America,  too,  courts  held  that  in  

                                                                                                                      

                      prosecutions  for  larceny,  the  jury  usually  had  to  find  the  

                                                                                                                 

                      value of the stolen property before restitution to the victim  

                                                                                                                        

                       could be ordered.  See, e.g., Schoonover v. State, 17 Ohio St.  

                                                                                                                        

                      294  (1867);  Jones  v.  State,  13  Ala.  153  (1848);  State  v.  

                                                                                                                          

                      Somerville, 21 Me. 20 (1842);  Commonwealth v. Smith, 1  

                                                                                                                       

                      Mass. 245 (1804). See also Barta, Guarding the Rights of the  

                                                                                                          

                      Accused  and  Accuser:                        The  Jury's  Role  in  Awarding  

                                                                                                                     

                       Criminal Restitution Under the Sixth Amendment, 51 Am.  

                                                                                                                     

                       Crim. L. Rev. 463, 472-476 (2014). And it's hard to see why  

                                                                                                      

                      the right to a jury trial should mean less to the people today  

                                                                                                              

                      than  it  did  to  those  at  the  time  of  the  Sixth  and  Seventh  



                                                               [41]  

                                                

                      Amendments' adoption. 



      39   Id.  



      40   Id. at 511 (quoting Southern Union. Co. v. United States                                  , 567 U.S. 343, 353 (2012)).  



      41  

                                                                                                                                        

           Id. at 511.  Interestingly, a section of the Carter Code, the first codification of Alaska  

                                                                                                                                               

law in 1900, provided, "That when an indictment charges an offense against property by  

                                                                                                                                          

larceny,  embezzlement,  or  obtaining  by  false  pretenses,  the  jury,  on  conviction,  shall  

                                                                                                                                        

ascertain and declare in the verdict the value of the property stolen, embezzled, or falsely  

                                                                                                          

obtained."  Carter's Annotated Alaska Code, pt. II, § 141 (1900).  According to annotations  

                                                                                                                            (continued...)  



                                                                    - 28 -                                                                2777  


----------------------- Page 29-----------------------

                       Finally, Justice Gorsuch observed that if restitution was truly "beyond the                                                



reachoftheSixth               Amendment's protections in  criminal  prosecutions,"then                                           "theSeventh   



Amendment and its independent protection of the right to a jury trial in                                                           civil   cases"  

would seemingly apply.                    42  



                                                                                                                                               

                       Although the Seventh Amendment right to a civil jury trial has never been  



                                                     43  

                                                                                                                                                

incorporated against the states,                         the Alaska Constitution entitles a person to a jury trial  



                                                                                                                                                   

to the same extent as it existed at common law "in civil cases where the amount in  



                                                                                  44  

                                                                                                                                                     

controversy exceeds two hundred fifty dollars."                                        And AS 12.55.045(l) provides that a  



                                                                                                                                                 

criminal  restitution  judgment in  Alaska "is a civil judgment for  the amount of the  



                                                                                                                                                

restitution." If the right to a jury trial in criminal cases does not apply to restitution, then  



                                                                                                                                                    45  

                                                                                                                                                        

the right to a jury trial in civil cases would seemingly be implicated by this provision. 



      41    (...continued)  



in the Carter Code, this section was taken from an Ohio statute that was passed in the wake  

                                                                                

of Schoonover v. State - one of the cases Justice Gorsuch cites in his historical analysis of  

                                                        

the Sixth Amendment.  Schoonover v. State, 17 Ohio St. 294, 298 (Ohio 1867) ("But in order  

                                        

to award the restitution which the statute authorizes, in twofold the value of the property  

                                                                                                                                   

stolen, the actual value of the property becomes material, and unless such value be found in  

                                                                 

the verdict, the judgment of restitution can not be rendered."); see also Armstrong v. State,  

                                                

21 Ohio St. 357, 360 (Ohio 1871) (noting that the Ohio statute was passed after Schoonover).  

This section of the Carter Code ultimately became former Alaska Criminal Rule 31(e)(1)  

                                                                         

(pre-1993).  See also ACLA § 66-13-72 (1949); CLA § 5340 (1933); CLA § 2250 (1913).  

This rule provision was rescinded by SCO 1114 (dated Oct. 23, 1992; effective Jan. 15,  

                                                                 

1993) after this Court noted that it "seem[ed] to be a relatively obscure rule not commonly  

used in practice."  Salvato v. State, 814 P.2d 741, 743 (Alaska App. 1991).  



      42   Hester, 139 S. Ct. at 511 (Gorsuch, J., dissenting from denial of certiorari).  



      43    See Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 219 (1916).  



      44    Alaska Const. art. I, § 16.  



      45    See State v. Arnett, 496 P.3d 928, 933, 937-38 (Kan. 2021) (rejecting the notion that  



                                                                                                                                (continued...)  



                                                                      - 29 -                                                                      2777  


----------------------- Page 30-----------------------

It is difficult to see why a criminal defendant would not be entitled to a jury trial under                                                   

one right or the other.               46  



      45    (...continued)  



restitution orders based on judicial fact-finding violate the Sixth Amendment but explaining  

                                                                                                                                                   

that "[b]y allowing the judge to determine the legal damages proximately caused by the  

crime, rather than a jury, and then converting that determination into a civil judgment for the  

                                    

victim, the statutory scheme bypasses the traditional function of the jury to determine civil  

                                                                                                         

damages" and thus declaring unconstitutional the portion of the state's restitution statute  

requiring an order of restitution to be enforced as a civil judgment).   



      46    As  one  dissenting  judge  in  a  Kansas  case  noted,  restitution  has  been  viewed  as  



something of a "Goldilocks remedy - not too punitive to trigger the Sixth Amendment, not  

                                                             

too compensatory to trigger [the civil jury trial right]."  State v. Robison, 469 P.3d 83, 101  

                                                                                               

(Kan. App. 2020) (Leben, J., dissenting), aff'd, 496 P.3d 892 (Kan. 2021).  

            Some courts have suggested that restitution is, at heart, an equitable remedy and,  

                                                                                                                                                 

therefore, outside the scope of the civil jury trial right.  See, e.g., United States v. Fountain,  

                                                                                             

768 F.2d 790, 801 (7th Cir. 1985) ("Restitution is frequently an equitable remedy, meaning,  

                                                                                                      

of  course,  that  there  is  no  right  of  jury  trial.");  see  also  State  v.  First  Nat'l  Bank  of  

                                                                                                                                                    

Anchorage ,  660  P.2d  406,  423-24  (Alaska  1982)  (recognizing  that  restitution  was  an  

                                                              

equitable  remedy at  common  law  and  therefore  that  there  is  no  right  to  a  jury in  civil  

                                                                                                                                            

restitution cases under the Alaska Constitution).  But this analysis appears to conflate civil  

                                                                                    

restitution  and  criminal  restitution.                          Civil  restitution  allows  a  plaintiff  to  recover  a  

                                                                                                                                 

defendant's unjust gains, Haines v. Comfort Keepers, Inc., 393 P.3d 422, 428-29 (Alaska  

                                                                                                     

2017), while criminal restitution allows a victim to recover damages or loss caused by a  

                                                                                                                                                      

defendant's crime.  Welsh v. State, 314 P.3d 566, 568 (Alaska App. 2013).  At common law,  

                                                                                                                             

parties in civil actions for damages were entitled to a jury trial.  See Ross v. Bernhard, 396  

                                                                                                   

U.S. 531, 533 (1970) ("The Seventh Amendment, for example, entitled the parties to a jury  

trial in actions for damages to a person or property, for libel and slander, for recovery of land,  

                                                                                                                                                 

and for conversion of personal property.").  

            I acknowledge that in Grubb, the Alaska Supreme Court stated that "[d]amages in  

                                                                                                                                                     

civil suits are . . . not directly equivalent to damages available for criminal restitution" and  

                                                   

that criminal restitution "may be available to a more expansive class than in civil litigation."  

                                                   

State v. Grubb, 546 P.3d 586, 597 (Alaska 2024).  The court also stated, in a footnote, that  

AS 12.55.045(l) was intended as "a 'procedural change in the enforcement mechanism for  

                                                                                                                                          

the  judgment,'"  and  it  "does  not  otherwise  affect  the  purposes  or  features  of  criminal  

                                                                                                                                 (continued...)  



                                                                       - 30 -                                                                       2777  


----------------------- Page 31-----------------------

                        The Alaska Supreme Court has recognized that "[t]here has always been                                                       



                                                                                  47  

a strong policy favoring jury trials in Alaska."                                                                                                   

                                                                                       This policy "is bottomed on [the] belief  



                                                                                                                                                 

that the right to jury trial holds a central position in the framework of American justice,  



                                                                                                                                                          

and [the] further belief as to the primacy which must be accorded the accused's right to  



                                                                                                                                          48  

                                                                                                                                                

                                                                                                                                

a fair trial against considerations of convenience or expediency to the state." 



                                                                                                                                                            

                        Ultimately, the reluctance to extend Apprendi may be understandable as a  



                                                                                                                                                   

matter of policy:  it would mean upending restitution schemes across the country, much  



                                                                                                                                         

like Apprendi  (and Blakely) upended sentencing schemes.  But it does not make sense  



                                                                                                                                                

as a matter of legal principle; the logic of Apprendi cannot be squared with the judicial  



                                                                                        

fact-finding underlying an award of restitution.  



                                                                                             

                        As another dissenting judge recently explained:  



      46    (...continued)  



restitution."  Id. at 600 n.101 (quoting Lapp v. State , 220 P.3d 534, 540 (Alaska App. 2009)).  

                             

But  Grubb was  not  addressing the right to a jury trial.   Moreover, as noted above, the  

                                                                                                      

criminal restitution statutes establish a damages remedy, and the right to a civil jury trial  

                                                                                                                                                      

would therefore seemingly apply if the right to a criminal jury trial does not.  See Curtis v.  

                                                                                                              

Loether ,  415  U.S.  189,  194  (1974)  ("The  Seventh  Amendment  does  apply  to  actions  

                                                                                                                                                

enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal  

                                                                                

rights and remedies, enforceable in an action for damages in the ordinary courts of law.");  

                                                                                                                                                  

Loomis Elec. Prot., Inc. v. Schaefer , 549 P.2d 1341, 1344 (Alaska 1976) ("Similarly, in the  

instant case, where part of the relief sought is  compensatory and punitive damages, we  

                                                                                                               

believe that Art. I, Sec. 16, of the Constitution of Alaska guarantees the parties the right to  

                                                                                       

a jury trial.").  



      47    Loomis Elec. Prot. , 549 P.2d at 1344 n.16 (citing Johansen v. State , 491 P.2d 759  



(Alaska 1971) (contempt proceedings for non-payment of child support); R.L.R. v. State, 487  

                                                                                                    

P.2d 27 (Alaska 1971) (delinquency proceedings under Children's Rules); State v. Browder,  

                                                                

486 P.2d 925 (Alaska 1971) (proceedings for direct criminal contempt); Baker v. City of  

                                                                                                             

Fairbanks, 471 P.2d 386 (Alaska 1970) (prosecution for violation of a city ordinance)).  



      48    Browder, 486 P.2d at 937 (footnote omitted).  



                                                                         - 31 -                                                                          2777  


----------------------- Page 32-----------------------

                                                            When viewed collectively, [the many cases declining                                                                                   

                                        to   extend   Apprendi   to   restitution]   may  appear   to   provide  

                                        overwhelming support for finding that                                                                                     Apprendi   does not   

                                        apply to restitution orders. However,                                                                          when read individually,  

                                        these cases fail to provide a consistent or clear rationale for                                                                                 

                                        why  Apprendi  should not apply to restitution.                                                                                               . . .       I would   

                                        find   the   Sixth   Amendment   applies   to  restitution   orders.  

                                        Restitution is part of the "criminal prosecution" to which that                                                                                                            

                                         Sixth Amendment jury trial right attaches. Courts award it in                                                                                                                

                                        a    criminal    proceeding    as    part    of    a    criminal  sentence.   

                                        Imposing   it   serves   punitive   aims   and   not   paying   it   has  

                                        punitive consequences.                                                   Juries, not judges, were historically                                      

                                        required   to  find  the   amount   of   restitution   based   on   facts  

                                        alleged   in   the   indictment.     And   under   Southern  Union,  

                                        present-day juries must also decide restitution for the same                                                                                                          

                                        reasons they must find the facts needed to award criminal                                                                                                   

                                        fines.[49]  



                                                                                                                                                                                                 

I agree with this analysis.  And for these reasons, I respectfully dissent.  



          49        Arnett , 496 P.3d at 943 (Standridge, J., dissenting).  



                                                                                                                          - 32 -                                                                                                                         2777  

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