STATE V. LACK, 1982-NMCA-111, 98 N.M.
500, 650 P.2d 22 (Ct. App. 1982)
STATE OF NEW MEXICO Plaintiff-Appellee,
vs.
JOE PAUL LACK, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1982-NMCA-111, 98 N.M. 500, 650 P.2d 22
APPEAL FROM THE DISTRICT COURT OF DONA
ANA COUNTY, Martin, Judge
Motion for Rehearing denied August 20,
1982; Certiorari denied August 20, 1982
JEFF BINGAMAN, Attorney General, MARCIA
E. WHITE, Asst. Attorney General, Santa Fe, New Mexico, Attorneys for Appellee.
JOHN E. KEITHLY, Anthony, New Mexico,
Attorney for Appellant.
Donnelly, J., wrote the opinion. WE
CONCUR: Joe W. Wood, J., C. Fincher Neal, J.
{1} Defendant was convicted
by jury of aggravated battery, a third degree felony, §
30-3-5 (C), N.M.S.A.
1978. Defendant appeals the court's judgment requiring as a condition of
probation that he make restitution to the victim for expenses of $1,750.13 for
substitute workers to perform victim's job during his convalescence and for
$450.00 allegedly paid for health care on behalf of the victim. Defendant has
not challenged that portion of the court's order of restitution requiring
payment of $3,615.65 for additional health care provided to the victim as a
result of the victim's injuries sustained in the assault.
{2} The issues presented by
defendant relating to the procedural requisites for imposing a valid order of
restitution upon a defendant convicted or adjudicated guilty in a criminal case
are a matter of first impression in this jurisdiction.
{3} Following defendant's
conviction, the trial judge suspended execution of a basic sentence of three
years in the state penitentiary, with the exception of the payment of a
$1,000.00 fine and a term of sixty days to be served in the Dona Ana County
Jail. The judge also placed defendant on probation following his release from
confinement. Among other terms of probation imposed, the court ordered:
{*504} 1. That the
defendant make restitution to the victim, Saul Sanchez, and his health care
providers in the amount of $5,815.78, which sum shall be paid to the Clerk of
the District Court within thirty days of the entry of this judgment and
disposition.
3. That the defendant's failure to make the necessary
restitution within thirty days from entry of this judgment and disposition
shall be grounds for revocation of the defendant's probation.
{4} Subsequent to the entry
of the court's dispositional order, defendant moved to modify the judgment. He
contended that the order requiring restitution in the absence of a proper
determination of the amount of restitution constituted a determination of civil
liability without a right of jury trial, or the right to controvert the
evidence, and was in violation of defendant's constitutional right to due
process. Defendant also asserted that imposition of restitution in the amount
ordered was punitive in nature, and was improperly imposed in the absence of
evidence to support the court's order and determination of defendant's ability
to pay.
{5} Defendant's conviction
arose out of a barroom brawl which occurred at the Rincon Bar in Dona Ana
County. Defendant hit the victim, Saul Sanchez, in the face with a hammer,
necessitating extensive medical treatment and corrective surgery.
{6} At the initial hearing on
sentencing, the court indicated that it had a presentence report. Defendant and
his counsel reviewed the report and both indicated they did not know of
anything that was incorrect in the report. Attached to the presentence report,
among other items, were two documents signed by the victim which certified that
he paid two individuals the sum of $1,750.13 for labor performed, and a list of
medical costs that included $450.00 allegedly paid for health care rendered to
him. The trial court initially ordered defendant to undergo a sixty day
diagnostic commitment at the state penitentiary pursuant to §
31-20-3(C),
N.M.S.A. 1978 (Repl. 1981). Prior to commencement of the diagnostic commitment,
defendant successfully moved the court to reconsider its order. Another
sentencing hearing was held on December 14, 1981. At the close of this hearing,
the trial judge, in announcing sentence, stated that from the presentence
report, "I am satisfied that you can pay the doctor and the hospital bills
and the loss of wages that this man has had by being forced to employ someone
else to take his position. These total expenses that this man sustained are in
the amount of $5,815.78."
{7} Following the court's
imposition of sentence, including the requirement of the payment of
restitution, the defendant made no response. On December 28, 1981, however,
defendant by written motion sought to modify the judgment and disposition on
the grounds asserted in this appeal. After a hearing, the trial court denied
the motion.
{8} In his challenge to the
propriety of the trial court's order of restitution for lost earnings and for
reimbursement for certain medical expenses, defendant asserts a two-fold
argument: (1) that he was denied proper notice and opportunity to fully contest
the amount determined by the court, and (2) that the amount was not within the
scope of damages properly allowable as restitution.
I. Notice and Opportunity to Contest Restitution
{9} Defendant first asserts that
he was denied proper notice and opportunity to fully contest the amount of
restitution ordered by the trial court. Defendant does not challenge the trial
court's authority to order restitution as a condition of probation.
{10} By legislative enactment,
New Mexico's public policy requires that each violator of the Criminal Code
make restitution to the victims of his criminal activities to the extent that
the violator is reasonably able to do so. Section
31-17-1, N.M.S.A. 1978 (Repl.
1981), provides in applicable part:
B. If the trial court exercises either of the sentencing
options under Section 31-20-6 NMSA 1978 [entry of an order deferring {*505} or suspending sentence], the court
shall require as a condition of probation or parole that the defendant, in
cooperation with the probation or parole officer assigned to the defendant,
promptly prepare a plan of restitution, including a specific amount of
restitution to each victim and a schedule of restitution payments. If the
defendant is presently unable to make any restitution but there is a reasonable
possibility that the defendant may be able to do so at some time during his
probation or parole period, the plan of restitution shall also state the
conditions under which or the event after which the defendant will make
restitution. If the defendant believes that he will not be able to make any
restitution, he shall so state and shall specify the reasons. If the defendant
believes that no person suffered actual damages as a result of the defendant's
criminal activities, he shall so state.
C. The defendant's plan of restitution and the
recommendations of his probation or parole officer shall be submitted promptly
to the court. The court shall promptly enter an order approving, disapproving
or modifying the plan taking into account the factors enumerated in Subsection
D of this section. Compliance with the plan of restitution as approved or
modified by the court shall be a condition of the defendant's probation or
parole. * * * The court thereafter may modify the plan at any time upon the
defendant's request or upon the court's own motion. * * *
D. The probation or parole officer when assisting the
defendant in preparing the plan of restitution, and the court before approving,
disapproving or modifying the plan of restitution, shall consider the physical
and mental health and condition of the defendant, his age, his education, his
employment circumstances, his potential for employment and vocational training,
his family circumstances, his financial condition, the number of victims, the
actual damages of each victim, what plan of restitution will most effectively
aid the rehabilitation of the defendant and such other factors as shall be
appropriate. The probation or parole officer shall attempt to determine the name
and address of each victim and the amount of his pecuniary damages.
E. The clerk of the court shall mail to each known victim a
copy of the court's order approving or modifying the plan of restitution,
including the court's statement, if any, under Subsection C.* * *
F. At any time during the probation or parole period the
defendant or the victim may request and the court shall grant a hearing on
any matter related to the plan of restitution. [Emphasis added.]
{11} Under the statute cited
above, failure of a defendant to comply with the plan of restitution approved
or modified by the court may constitute a violation of a condition of probation
and parole. The court under § 31-17-1 G.,
supra, has continuing
jurisdiction to modify a plan of restitution or to extend the period of
restitution but not beyond the maximum period of probation or parole as
provided in §§ 31-20-6, 31-20-7 and
31-21-10, N.M.S.A. 1978 (Repl. 1981).
{12} It is solely within the
province of the legislature to establish penalties for criminal behavior.
State
v. Mabry,
96 N.M. 317,
630 P.2d 269 (1981). Upon entry of a judgment of
conviction for a crime not constituting a capital or first degree felony, and
except as specifically limited by statute,
see §§ 31-18-16, 31-18-16.1
and
31-18-17, N.M.S.A. 1978 (Repl. 1981), as examples, the trial court is
empowered to defer the imposition of sentence or enter an order suspending in
whole or in part the imposition of sentence. § 31-20-3,
supra. A trial
court may impose conditions of probation as authorized by law.
State v.
Ayala,
95 N.M. 464,
623 P.2d 584 (Ct. App. 1981). Legislative enactment of
§ 31-17-1,
supra, requiring victim restitution is declarative of public
policy to make whole the victim of the crime to the extent possible. As
observed in
State v. Harris, 70 N.J. 586, 362 A.2d 32 (1976),
"Restitution in a proper case
{*506} may
ofttimes be a compelling reminder of the wrong done and meaningfully contribute
to the rehabilitation process." In
State v. Balsam, 130 Ariz. 452,
636 P.2d 1234 (Ct. App. 1981), the court similarly stated, "An effective
way to awaken appellant's sense of social responsibility and aid in his
rehabilitation is to require him to repay the costs society has incurred as a
result of his misconduct."
{13} If sentence is deferred
or suspended, § 31-17-11(B),
supra, mandates that the district court
"shall require as a condition of probation or parole" that the
defendant make restitution to the victim for actual damages caused by the crime
for which the defendant was convicted, unless the court determines the
defendant is unable to make restitution in whole or in part during the period
of probation.
See State v. Gross,
648 P.2d 348 (N.M. Ct. App. June 8,
1982).
{14} Under § 31-17-1,
supra,
a full evidentiary hearing tantamount to a civil trial adjudicating liability
is not contemplated as a prerequisite for the trial judge to require
restitution. N.M.R. Evid. 1101 (d)(2), N.M.S.A. 1978, (Supp. 1981), specifies
that the rules of evidence are not applicable in proceedings for sentencing by
the court without a jury. The quantum of restitution need not be proven by a
preponderance of the evidence as though the sum were being established in a
civil action for damages.
State v. Harris, supra. A condition of
restitution by a court placing a defendant on probation creates neither a debt
nor a debtor-creditor relationship between the persons making and receiving
restitution.
People v. Mosesson, 78 Misc.2d 217, 356 N.Y.S.2d 483
(Sup.Ct. 1974). However, under § 31-17-1,
supra, the court, as a
condition of probation, must require the defendant in conjunction with his
parole or probation officer to prepare a plan of restitution to each victim
unless defendant waives such a plan or agrees to the amount of restitution
being claimed. At time of sentencing, where restitution is ordered it is
incumbent upon defendant to specify whether he contests any amount of actual
damages claimed by a victim and to advise the court whether he believes he will
be able to make restitution.
{15} Upon submission of
defendant's plan of restitution and the recommendations of his parole or
probation officer, the court is required to enter an order approving,
disapproving, or modifying the plan after considering each of the factors
enumerated in § 31-17-1(D),
supra, including determination of the
defendant's ability to pay restitution and the times and amounts of restitution
payable.
See Annot., 73 A.L.R.3d 1240 (1976);
People v. Kay, 36
Cal. App.3d 759, 111 Cal. Rptr. 894 (1973);
State v. Hess, 86 Wash.2d
51, 541 P.2d 1222 (1975). The court is not bound, however, by statements that
he is unable to make restitution or pay specific amounts, where there is
appropriate data or evidence showing otherwise. Authority to grant probation is
a matter of legislative grace, and the district court's power to impose
probation is purely statutory.
State v. Mathews, 130 Ariz. App. 46, 633
P.2d 1039 (1981);
see also State v. Sublett,
78 N.M. 655,
436 P.2d 515
(Ct. App. 1968).
{16} In
People v. Tidwell,
33 Ill. App.3d 232, 338 N.E.2d 113 (1975), the Illinois Court of Appeals
considered contentions that closely parallel defendant's arguments here. In
Tidwell,
defendant argued that the trial court erred and abused its discretion by
ordering that defendant pay as a condition of probation $200.00 in restitution
to a victim without the amount of restitution being proved by competent
evidence. There, the only evidence of amount of damage submitted at time of
sentencing was the uncorroborated statement of the victim that defendant's
damage necessitated repairs in the sum of $209.00. The court denied defendant's
claims, noting that at a sentencing hearing in a criminal case, a trial judge
need not conduct a full-blown civil damage suit to determine the proper amount
of restitution. The court further stated:
What the judge should hear or have presented for his
consideration in such a proceeding [sentencing hearing involving an order of
restitution] is subject to the parameter of reasonableness; not technical rules
of evidence. Compare People v. Schleyhahn, {*507}
4 Ill. App.3d 591, 281 N.E.2d 409. Of course, in proceedings such as this a
defendant is free to cross-examine witnesses and contradict them with other
evidence.
{17} Implicit in the
provisions of § 31-17-1,
supra, requiring the preparation of a
restitution plan, is the giving of notice to defendant of the amount of
restitution claimed, the opportunity to dispute the amount thereof, and inquiry
into defendant's ability to pay restitution.
See Standards for Criminal
Justice 18-2.3 (c) and Commentary (1980). Due process is satisfied by affording
the defendant an opportunity to challenge the amount of restitution claimed by
the victim when there is a factual basis in the record to support the trial
court's calculations as to the proper sum of restitution.
State v. Harris,
supra; contra State in the Interest of Besendorfer, 568 P.2d 742 (Utah
1977);
see also Annot., 79 A.L.R.3d 976 (1977).
{18} In
State v. Harris,
supra, the court adopted for use in criminal sentencing hearings a method
approved in
State in the Interest of D.G.W., 70 N.J. 488, 361 A.2d 513
(1976), for determining proper restitution, which was originally employed in
juvenile court proceedings. The court in
D.G.W. stated:
To protect his interest in his earnings and income and his
interest in continued liberty the * * * [offender], minimally, is concerned
about (1) the amount of damage he will be held responsible for, (2) the method
of determining the value, (3) his pro rata share where several defendants are
involved and (4) a reasonable method of repayment which realistically assesses
his ability to pay.
Balanced against these concerns is the State's interest in
maintaining a disposition procedure which, while always preserving the
offender's right to be heard, is not unduly encumbered. We are satisfied that a
balance can be struck short of a full-blown adversarial procedure, something
more in the nature of a summary proceeding. * * *
{19} The procedure specified
in § 31-17-1,
supra, must be followed in ordering restitution to satisfy
due process rights of a convicted defendant. Where the court determines that
restitution is appropriate, the probation department should investigate the
nature and extent of the actual damages caused by defendant's criminal acts and
report this information to the court. The amount of restitution and time of
payment must be set by the court and may not be left to the discretion of
probation authorities.
Cada v. State, 382 So.2d 405 (Fla. Dist.Ct. App.
1980);
People v. Good, 287 Mich. 110, 282 N.W. 920 (1938). In
D.G.W.,
supra, the court further noted:
The results of this investigation would then be summarized in
a report similar to a presentence report for use by the court in setting the
terms of probation. In this regard, the probation department is merely acting
as a factfinder and an extension of the power of the court. * * * However, the
final decision on the amount of restitution to be made and the terms thereof is
within the sole province of the trial judge.
{20} Although the trial court
commendably undertook to order that restitution be paid by the defendant for
actual damages allegedly sustained by the victim as the result of defendant's
criminal acts, the record fails to indicate that any plan of restitution was
ever prepared by defendant in cooperation with the probation or parole
department as required by § 31-17-1,
supra.
{21} Notice and opportunity
on the part of the defendant to prepare a plan of restitution to the victim or
to challenge the accuracy of the amount of restitution or his ability to pay
restitution is mandatory under § 31-17-1,
supra. Nevertheless, defendant
has not objected on appeal to his lack of opportunity to prepare a plan of
victim restitution for submission to the sentencing judge. The failure to
comply with this requirement was not error under the facts herein. As shown by
the presentence report, defendant possessed substantial assets and owns and
operates a truck and has a monthly income. This data was supplied by the
defendant and supports the court's determination of defendant's ability to pay
{*508} restitution. The presentence report
gave defendant prior notice concerning the amounts of restitution detailed in
the presentence report, and he was adequately accorded an opportunity to
contest the amounts ordered by the court.
II. Amounts Awarded as Restitution
{22} Defendant's assertion
that the court's order of restitution requiring payment of $1,750.13 for lost
earnings falls outside any actual damages sustained by the victim is without
merit. "Actual damages" as defined in § 31-17-1 (A)(2),
supra,
includes all damages which a victim could recover against the defendant in a
civil action arising out of the same facts or event, except punitive damages
and damages for pain, suffering, mental anguish and loss of consortium.
See
also Alber v. Nolle,
645 P.2d 456 (Ct. App. 1982). Earnings are properly
includable within "actual damages" as contemplated by § 31-17-1,
supra.
N.M.U.J.I. Civ. 18.3, N.M.S.A. 1978 (Repl.1980);
see generally, State v.
Mottola,
84 N.M. 414,
504 P.2d 22 (Ct. App. 1972); Annot. 79 A.L.R.3d,
supra.
The sum of $450.00 paid for additional health care expense is also adequately
supported by data contained in the presentence report.
{23} Under § 31-17-1,
supra,
restitution to the victim must be considered as part of the sentencing process.
By its nature, sentencing involves the proper application of sound judicial
discretion in determining a proper sentence in each case. The sentencing judge
must make an independent decision regarding an appropriate sentence and is not
bound by presentence recommendations.
People v. Tijerina, 632 P.2d 570
(Colo. 1981);
see State v. Mincey, 130 Ariz. 389, 636 P.2d 637 (1981).
{24} If the record does not
contain sufficient evidence to support a determination of the amount of
restitution, the court may conduct a hearing upon the issue and order
appropriate restitutional payments based on data before the court which
defendant is given an opportunity to controvert. Conditions of probation
imposed upon a defendant must be made clear in the order of probation at time
of sentencing.
State v. Allen,
82 N.M. 373,
482 P.2d 237 (1971);
State
v. Soria,
82 N.M. 509,
484 P.2d 351 (Ct. App. 1971).
{25} Where the amount
required to be paid is not supported by appropriate documentary evidence such
as medical or doctor bills, under § 31-17-1,
supra, the defendant has an
obligation to make his objection to the amount of damage known to the
sentencing judge at the time the condition is imposed or request a hearing to
fix the amount.
Shenah v. Henderson, 106 Ariz. 399, 476 P.2d 854 (1970).
{26} A sentencing hearing,
however, is not a trial and strict evidentiary rules which govern the
proceedings in which defendant's adjudication of guilt or innocence are
determined are not rigidly applicable to sentencing hearings. N.M.R. Evid.
1101(d)(2),
supra; see also State v. Johnson, 101 Idaho 581, 618 P.2d
759 (1980). Defendant is not entitled to a jury trial involving the amount of
restitution. However, a defendant has a right to be sentenced on the basis of
accurate information.
See United States v. Tucker, 404 U.S. 443, 92 S.
Ct. 589, 30 L. Ed. 2d 592 (1972);
Townsend v. Burke, 334 U.S. 736, 68 S.
Ct. 1252, 92 L. Ed. 1690 (1948).
{27} The presentence report
had as attachments two certificates signed by the victim, indicating payment of
$1,750.13 to other persons to do his work while he was recuperating from his
injuries, and other documentation of $450.00 for health care provided to the
victim. While defendant was not accorded the opportunity as contemplated by §
31-17-1,
supra, to review and submit a plan of restitution in
conjunction with the probation office concerning the actual damages sustained
by the victim, nevertheless, defendant and his counsel had an adequate
opportunity to review the presentence report, including the victim's challenged
certificates, prior to sentencing and hence were put on prior notice of the
existence
{*509} and amount of the
disputed claims.
1 Under N.M.R. Crim. P. 56, N.M.S.A.
1978 (Repl. 1980), a presentence report must be made available for inspection
by the parties and their attorneys prior to any sentencing hearing imposed by
the court. The rule provides in applicable part:
(b) Inspection. The [presentence] report shall be
available for inspection by only the parties and attorneys by the date
specified by the district court, and in any event, no later than two working
days prior to any hearing at which a sentence may be imposed by the court.
(c) Hearing. Before a sentence is imposed, the parties
shall have an opportunity to be heard on any matter concerning the report. The
court, in its discretion, may allow the parties to present evidence regarding
the contents of the report.
{28} Use of a presentence
report at sentencing is not mandatory.
State v. Vialpando,
93 N.M. 289,
599 P.2d 1086 (Ct. App.),
cert. denied, 93 N.M. 172, 598 P.2d 215
(1979). The practice of obtaining such reports, however, is highly salutary.
But where, as here, the trial judge orders a presentence report, the defendant
has a right to prior opportunity to review its contents, and to be heard on
matters contained therein. N.M.R. Crim. P. 56,
supra.
{29} At the first sentencing
hearing, the trial judge expressly inquired of defendant contained in the
presentence report:
THE COURT: Have you had an opportunity to review it?
THE COURT: Is there anything that's incorrect that's set
forth in the presentence report?
MR. LACK: Not that I know of.
{30} Any possible error which
may have arisen by virtue of the failure of the trial court to accord defendant
the opportunity to prepare a plan of restitution to the victim in conjunction
with the probation department was obviated by defendant's failure to object to
the amount or basis of the victim's claim for restitution as set out in the
presentence report furnished to defendant.
State v. Padilla,
648 P.2d
807 (N.M.Ct. App. June 8, 1982);
Synders v. Hale,
89 N.M. 734,
557 P.2d
583 (Ct. App.),
cert. denied, 90 N.M. 8, 558 P.2d 620 (1976).
{31} Section 31-17-1 (F),
supra,
also permits a defendant to seek a hearing and court review of any matter
related to restitution as ordered by the court. Here, following the initial
sentencing hearing, defendant sought trial court review of the order of
restitution and was accorded an opportunity to further challenge the victim's
claim of actual damages for reimbursement for labor and to his claim of medical
expenses. Under such posture, the defendant was not denied due process. Due
process is a malleable principle which must be molded to a particular
situation, considering both the rights of the parties and the interests of the
state.
Matter of Valdez,
88 N.M. 338,
540 P.2d 818 (1975).
{32} The victim's
certificates setting forth the amount of damages sustained together with the
billing statements in the presentence report were not inherently unreliable as
defendant contends and constituted adequate evidentiary basis upon which the
trial court could properly order restitution.
See State v. Boyd,
84 N.M.
290,
502 P.2d 315 (Ct. App. 1972). The trial court also made proper inquiry
into defendant's ability to pay the sums of restitution ordered and indicated
the component sums and manner of their computation.
{33} The judgment and order
suspending sentence and ordering restitution are affirmed.
WE CONCUR: Joe W. Wood, J., C. Fincher Neal, J.
1
As stated in State v. Wood, 230 Kan. 477, 638 P.2d 908 (1982), a
defendant's due process rights are not violated by having a probation officer
collect data and prepare a presentence report. "The important thing is for
the defendant and his counsel to be afforded an opportunity to read and
consider information contained in the presentence report and to rebut information
which they deem to be incorrect."