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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MATTHEW SCOTT HODGES, | ) |
| ) Court of Appeals No. A-9610 | |
| Appellant, | ) Trial Court No. 3AN-05-3782 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2103 May 25, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland,
Judge.
Appearances: J. Adam Bartlett, Anchorage,
for the Appellant. Diane L. Wendlandt,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Under AS 12.55.045(a), a sentencing court must order
the defendant to make restitution to the victims of the crime
(unless the victims decline restitution). AS 12.55.045(g)
directs the court to assess the total amount of restitution
without regard to the defendants ability to pay although, under
AS 12.55.045(c), the court may give the defendant time to pay the
restitution, and the court may also allow the defendant to pay
the restitution in installments of a specified amount.
In this appeal, the defendant argues that unless a
defendants ability to pay is taken into account when setting the
total amount of restitution, the restitution order will violate
the defendants right to due process of law as well as the
sentencing goal of rehabilitating the offender.
As we explain here in more detail, we conclude that
assessing the total amount of restitution without regard to a
defendants ability to pay does not deprive the defendant of due
process of law, nor does it defeat the sentencing goal of
reformation, so long as the sentencing judge does consider the
defendants ability to pay when the judge sets the schedule and
the monetary amount of the defendants payments toward that
restitution obligation. We therefore uphold the
constitutionality of AS 12.55.045(g).
Underlying facts
Matthew Scott Hodges was convicted of second-
degree theft.1 As one of the conditions of his
probation, Hodges was ordered to pay restitution in an
amount to be determined in a separate post-sentencing
hearing.
Thereafter, the State submitted a request for
restitution in the amount of $86,814.50 the full
amount of the victims loss. Hodges objected to the
States request. He conceded that he should pay
restitution, but he argued that it would be
unconstitutional for the court to assess the amount of
restitution without allowing Hodges to argue and prove
that he lacked the financial ability to pay the sum
requested by the State.
Hodges acknowledged that AS 12.55.045(g)
directs the sentencing court to assess the amount of
restitution without regard to the defendants ability to
pay. However, Hodges argued that this statute violated
his right to due process of law. See Article I,
Section 7 of the Alaska Constitution. Hodges also
argued that if the court set the amount of restitution
without regard to his ability to pay, this would
frustrate the sentencing goal of rehabilitation of the
offender. See State v. Chaney, 477 P.2d 441, 443-44
(Alaska 1970), and Article I, Section 12 of the Alaska
Constitution: Criminal administration shall be based
[in part] upon ... the principle of reformation.
On January 10, 2006, Superior Court Judge
Philip R. Volland took two actions regarding the
question of restitution. As mandated by AS
12.55.045(g), Judge Volland set Hodgess total amount of
restitution at $86,814.50 the full amount of the
victims loss. But Judge Volland also issued a written
order in which he declared that Hodgess objections to
the restitution were premature.
In his order, Judge Volland pointed out that
Hodgess restitution hearing had not yet been held, and
thus the court had not yet established Hodgess payment
level. (Judge Volland was apparently referring to the
money amount and frequency of Hodgess restitution
payments.) Because the details of Hodgess payment
schedule had not yet been determined, Judge Volland
concluded that it was premature for Hodges to argue
that he was being ordered to make restitution payments
that were beyond his financial ability. The judge
wrote, At this point, no payment level has been
determined, and hence [there is, as yet,] no factual
basis [for Hodgess] claim that he cannot meet the
proposed restitution payments.
In response, Hodges filed a motion for
reconsideration. In this motion, Hodges clarified that
his argument did not relate to the amount and/or the
scheduling of the restitution payments that the court
might eventually order. Hodges contended that even if
Judge Volland established a schedule of installment
payments that Hodges was capable of paying, it was
nevertheless unconstitutional for the judge to set the
total amount of restitution without regard to Hodgess
ability to pay that full amount. Judge Volland denied
this motion for reconsideration.
Why we conclude that neither the guarantee of due
process nor the principle of reformation is violated
when a sentencing court sets the total amount of
restitution without regard to the defendants ability to
pay that sum
In order to assess the constitutionality of
subsection (g) of AS 12.55.045 (the subsection that
directs a sentencing court to assess the total amount
of restitution without regard to the defendants ability
to pay), we must first interpret subsection (c) of the
statute the provision that grants a sentencing judge
the authority to allow the defendant to pay the
restitution over time, in installments.
Both Judge Vollands ruling in this case and
Hodgess request for reconsideration of that ruling
appear to be premised on the assumption that, under
AS 12.55.045(c), a sentencing judge can (and should)
take account of a defendants ability to pay when the
judge sets the payment schedule i.e., the money amount
and the frequency of the defendants restitution
payments.
This reading of subsection (c) is supported
both by the overall wording of the statute and the
policy behind the statute.
Subsection (g) of the statute forbids a
sentencing judge from considering a defendants ability
to pay [when] ordering the amount of restitution. But
it appears that, in fashioning this restriction, the
legislature wanted to carry out the policy of making
restitution orders the equivalent of a civil judgement
entered against the defendant in favor of the victims.
Indeed, in subsection (l) of AS 12.55.045, the
legislature has declared that a sentencing judges
restitution order is a civil judgment for the amount of
the restitution, and that this restitution order can be
enforced by either the State or the victims themselves
through any procedure authorized by law for the
enforcement of a civil judgment. See also AS
12.55.051(e) (f).
In civil litigation, the amount of a
defendants liability is not determined according to the
defendants ability to pay; rather, damages in a civil
case are determined according to the plaintiffs loss.2
Once the amount of liability is determined, there are
various legal mechanisms that protect a defendant from
immediate or complete enforcement of the judgement, if
immediate or complete enforcement would leave the
defendant without the resources to live.3 But the
plaintiff is entitled to a judgement for the full
amount of their loss.
AS 12.55.045 prescribes a similar rule for
restitution orders in criminal cases. Under subsection
(g) of this statute, crime victims are entitled to a
restitution order that directs the defendant to
compensate them for the full amount of their loss.
Nevertheless, under subsection (c), a sentencing judge
must consider the defendants ability to pay when
structuring the defendants payment of the restitution.
This view of the matter is confirmed by the
companion statute, AS 12.55.051, which deals with the
enforcement of restitution orders. Subsection (a) of
this statute declares that a defendant can not be
punished, either in contempt proceedings or in
probation revocation proceedings, for failing to make
court-ordered restitution payments [if] the defendant
was unable to pay despite having made continuing good
faith efforts. Moreover, subsection (c) of this
statute declares that any defendant who has been
sentenced to pay restitution may request a hearing
regarding the defendants ability to pay the ...
restitution at any time that the defendant is required
to pay all or a portion of the ... restitution. At
this hearing,
[i]f ... the defendant proves ... that [they]
will be unable through good faith efforts to
satisfy the order requiring payment of the
... restitution, the court shall modify the
order so that the defendant can pay the ...
restitution through good faith efforts.
Subsection (c) then adds this clarifying
final sentence: The court may not reduce an
order of restitution[,] but [the court] may
change the payment schedule.
For these reasons, we interpret AS
12.55.045 to mean (1) that crime victims are
entitled to a restitution order that covers
their full loss, just as if they had sued and
won in civil litigation, even when it is
clear that the defendant lacks the financial
ability to pay that full amount, but (2) a
sentencing judge must consider a defendants
ability to pay when framing the terms under
which this restitution obligation will be
enforced i.e., when the judge determines the
schedule and the amount of the defendants
payments.
Having interpreted AS 12.55.045 in
this manner, we now address Hodgess
constitutional arguments.
Hodgess first argument is that
calculation of the amount of restitution
without regard to his ability to pay denies
him due process of law. This argument has no
merit. There is no violation of due process
when, in civil litigation, the amount of a
defendants liability is calculated without
regard to the defendants ability to pay.
Likewise, there is no violation of due
process when, in criminal litigation, the
amount of a defendants restitution liability
is calculated in the same manner.
Due process of law becomes
important when the sentencing court
establishes how this restitution is to be
paid. Due process of law likewise becomes
important if the State later claims that the
defendant should be punished for failing to
make the scheduled payments, or if the
defendant later claims that a previously
established payment schedule is now beyond
the defendants means. But a defendants right
to due process of law is not infringed when
the sentencing court enters a restitution
order that covers the full amount of the
victims loss.
This leaves Hodgess second
argument: his claim that calculation of the
amount of restitution without regard to his
ability to pay violates the mandate of
Article I, Section 12 of the Alaska
Constitution i.e., the principle that penal
administration shall be based, in part, on
the goal of reforming the offender.
Hodges relies primarily on the
Alaska Supreme Courts decision in Karr v.
State, 686 P.2d 1192 (Alaska 1984). The
defendant in Karr was found guilty of
embezzling over $350,000 from her employer.4
As part of Karrs sentence, the superior court
ordered her to pay restitution of $300,000
even though the sentencing judge expressly
stated three times that it would be
impossible for Karr to pay [this amount of
restitution].5
Rather than inquiring into the
amount or frequency of payments that Karr
might reasonably be expected to make, the
sentencing judge simply declared that all we
can do is get as much back as we can.6 The
judge added that [he] frankly [didnt] think
it [made] much difference whether he ordered
restitution of $300,000, or $200,000, or even
$100,000 because he did not believe that the
victim would ever get much money from Karr.7
At the time of Karrs sentencing, a
previous version of AS 12.55.045 was in
effect. That previous version of the statute
provided:
In determining the amount and method of
payment of restitution, the [sentencing]
court shall take into account the financial
resources of the defendant and the nature of
the burden [that] payment [of the
restitution] will impose.
The supreme court agreed with Karr that,
under this statute, it was error for the
superior court to order her to pay $300,000
in restitution when it was clear to the
superior court that Karr had no prospect of
paying this amount.
The supreme court noted that the
statute expressly directed a sentencing judge
to consider the defendants financial
resources, and the burden that payment of the
restitution would place on the defendant,
when the judge assessed the amount and method
of payment of restitution.8 The supreme
court concluded that, even though other
statutory provisions authorized a sentencing
court to modify a previous restitution order,
this authority did not exempt the sentencing
court from complying with the statutory
mandate to consider the defendants ability to
pay when the court initially set the
defendants restitution obligation.9
The supreme court then declared
that this result, mandated by statute, was
also supported by policy:
Restitution should not only compensate the
victim ... but should [also] further the
rehabilitation of the offender. If
restitution is ordered in an amount that is
clearly impossible for the defendant to pay,
the offenders rehabilitation will be
inhibited and not furthered. If the offender
is haled into court for nonpayment of
restitution under AS 12.55.051(a), or if the
offender petitions the court under AS
12.55.051(c) to avoid this sanction, his
reintegration into society will be disrupted.
Also, an offender might simply give up and
make no payments at all if the restitution
ordered is clearly impossible to pay. This
could result in the offenders incarceration
... or in his fleeing the jurisdiction to
avoid this sanction, neither of which would
further the dual goals behind restitution.
Karr, 686 P.2d at 1197.
Hodges urges us to read this
language broadly interpreting it to preclude
a sentencing judge from ordering full
restitution unless it affirmatively appears
that the defendant is capable of making full
restitution. We do not believe that such a
broad interpretation of Karr is warranted.
To begin with, the precise holding
in Karr was that the sentencing judge
violated the version of AS 12.55.045 that was
in effect at the time. That statute has
since been changed: it no longer requires a
sentencing judge to consider a defendants
ability to pay when the judge assesses the
total amount of restitution. In fact, the
statute forbids this. Thus, to the extent
that Karr simply holds that a sentencing
judge must obey the statutes governing
sentencing, the Karr decision does not speak
to the situation presented in Hodgess case.
Moreover, we do not believe that
the current version of AS 12.55.045
undermines the policy considerations that the
supreme court listed in Karr.
We note that the former version of
AS 12.55.045 (the portion quoted above)
differs in only one respect from the current
version. The former version of the statute
directed a sentencing judge to consider a
defendants ability to pay when assessing the
amount and method of payment of restitution.
The current version of the statute directs a
sentencing judge to assess the amount of
restitution without regard to the defendants
ability to pay, but the current version
continues to require the sentencing judge to
consider the defendants ability to pay when
setting the method of payment.
In this way (as we explained
above), the restitution statute parallels the
remedy that the victim would be entitled to
if the victim pursued civil litigation
against the defendant i.e., the right to a
judgement for the full amount of the loss,
but not the right to collect that judgement
in a manner that reduces the defendant to
penury.
Under Alaska law, a criminal
judgement is normally conclusive evidence of
civil liability, regardless of whether that
judgement is entered as a result of a trial
verdict or a plea of guilty or no contest.10
Thus, as a practical matter, it would seem to
make little difference to the defendants
rehabilitation if the sentencing court
assesses the amount of restitution without
regard to the defendants ability to pay
because the victim would be entitled to this
same result if the victim took the trouble to
pursue a civil lawsuit.
Instead, the concerns that the
supreme court adverted to in Karr (the
potential obstacles to rehabilitation that
might arise if a defendant were ordered to
pay restitution in an amount that is clearly
impossible) come into play most directly when
a sentencing court establishes the defendants
method of payment for instance, when the
court sets the amount and frequency of the
defendants installment payments. On this
point, the current version of AS 12.55.045 is
the same as the former version: the
sentencing judge must consider the defendants
ability to pay.
For these reasons, we conclude that
AS 12.55.045 does not offend the principle of
reformation embodied in Article I, Section 12
of the Alaska Constitution.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1AS 11.46.130(a)(1) (theft of property valued at $500 or
more).
2See AS 09.17.040.
3See, e.g., AS 09.38.010 030.
4Karr, 686 P.2d at 1193.
5Id. at 1196.
6Id. at 1197.
7Id. at 1196 n. 11.
8Id. at 1196-97.
9Id. at 1197.
10See Burcina v. Ketchikan, 902 P.2d 817, 822 (Alaska 1995)
(holding that a civil plaintiff is collaterally
estopped from relitigating any element of a criminal
charge to which he has pled nolo contendere); Howarth
v. Alaska Public Defender Agency, 925 P.2d 1330, 1333
(Alaska 1996) (holding a former client of the Public
Defender Agency who was suing to recover money for
alleged malpractice was collaterally estopped from
asserting his innocence of a charge to which he had
pleaded no contest); Lashbrook v. Lashbrook, 957 P.2d
326, 330 n. 2 (Alaska 1998) (holding that a defendant
in a child custody dispute was precluded from
challenging the facts which constitute the elements of
the [domestic assault and weapons offense] to which he
pled no contest).
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