Renfro v. State

Page 491

785 P.2d 491

William Henry RENFRO, a/k/a Maco Renfro, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 89-105.

Supreme Court of Wyoming.

Jan. 10, 1990.

Leonard D. Munker, State Public Defender, PDP, Steven E. Weerts, Sr. Asst. Public Defender, PDP, and Donald K. Slaughter, Student Intern, PDP, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen Byrne, Sr. Asst. Atty. Gen., and H. Frank Gibbard, Student Intern, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

URBIGKIT, Justice.

This case again presents the quintessential dispute within Wyoming criminal appeals to consider whether credit for incarceration upon pre-trial failure to post bond should be granted against either or both the minimum and maximum sentence entered under the Wyoming indeterminate sentencing statutes. A second issue presented is the recurring question of restitution computation.

Appellant William Henry Renfro (Renfro), age twenty, after involvement in a serious course of crime in Teton County, was arrested and charged with five offenses. He copped a plea to the most serious, aggravated robbery, in consideration of dismissal of the other four charges.

The sentence entered included penitentiary imprisonment for a period of not less than seven years and not more than fourteen years, a fine in the amount of $10,000 and "[t]hat the defendant pay restitution to the Clerk of the District Court on behalf of Farmer Jacks [the grocery store business victim] in the amount of $11,581.00."

The trial court did not state and the sentence did not reflect any decision about credit on the 138 days spent by Renfro in jail prior to sentencing. ¹ Issues presented on appeal include indigency incarceration status of presentence jail time ² and requirements to properly establish restitution amounts. ³

In first addressing restitution, we find the State to agree with Renfro that the restitution amount was improperly established to provide compliance with the applicable statute, W.S. 7-9-103, since no special finding was made and no documentary support provided for determination of the amount.

(a) If the court requires restitution of a defendant, then at the time of sentencing it shall fix a reasonable amount as restitution owed to each victim for actual pecuniary damage resulting from the defendant's criminal activity, and shall include its determination of the pecuniary damage as a special finding in the judgment of conviction.

(b) To satisfy the order the clerk upon request of the victim or the district attorney, may issue execution against the defendant for any assets including wages subject to attachment in the same manner as in a civil action.

(c) The court's determination of the amount of restitution owed under this section is not admissible as evidence in any civil action.[ ⁴

W.S. 7-9-103.

Reversal or remand of the restitution award is not an issue, but only whether reversal or remand for recomputation by adequate proof should be ordered. ⁵ We will follow our current decision on attorney's fees and proof of damages in general to determine that restitution should, in accord with the statute, be established in amount by some credible evidence, Petty-Ray Geophysical, Div. of Geosource, Inc. v. Ludvik, 718 P.2d 9 (Wyo.1986), and then delineated within the special finding requirement of W.S. 7-9-103. Proof of the offense from which restitution may be required is an intrinsic element of the proof of the crime and consequently requires the "beyond a reasonable doubt" character of evidence. Proof of the restitution amount as a question of sentence need only be proved by credible evidence, by a preponderance, or burden of the evidence. Com. v. Nawn, 394 Mass. 1, 474 N.E.2d 545 (1985).

We are required to address the specific issue presented of whether remand for a second chance to prove should be granted or, failing to provide sufficient evidence to prove the amount, whether the decision is reversed on the basis of inadequate evidence to sustain the decision. In order to provide a uniform approach with the present posture now developed for attorney's fees and generally for proof of damages and in order to also simplify the number of appeals with which this court is presented, we will follow the principle that where the initial computation of the amount of restitution was the result of a failure of proof, we will not normally remand for a recomputation unless we are remanding for other sentencing changes as well. See Kaess v. State, 748 P.2d 698 (Wyo.1987). Accord Albrecht v. Zwaanshoek Holding En Financiering, B.V., 762 P.2d 1174 (Wyo.1988) and Miles v. CEC Homes, Inc., 753 P.2d 1021 (Wyo.1988). See also UNC Teton Exploration Drilling, Inc. v. Peyton, 774 P.2d 584 n. 6 (Wyo.1989). Restitution in the criminal case joins other elements of the offense for proper proof by prosecution. Sanchez v. State, 567 P.2d 270 (Wyo.1977). See also Keller v. State, 771 P.2d 379 (Wyo.1989).

The general principle that proper proof is required to validate an ordered restitution and that remand does not necessarily occur unless other reasons for reversal may exist is a well-supported status within this developing category of criminal appeals. The principle of proof of amount for restitution was finitely addressed in Kaess, 748 P.2d 698. See also Holtzheimer v. State, 766 P.2d 1177 (Alaska App.1989) and State v. Vinyard, 50 Wash.App. 888, 751 P.2d 339 (1988), where the items were deleted which were not properly proved. See likewise People v. Cheatum, 148 A.D.2d 986, 539 N.Y.S.2d 222, 222 (N.Y.A.D.1989), which stated that "[b]ecause the court ordered restitution without holding a hearing and relied solely upon the probation report, we modify the sentence by deleting the provision for restitution." Cheatum cites the same insufficiency of proof rule from presentence investigation report, United States v. Watchman, 749 F.2d 616 (10th Cir.1984).

A case similar in other requirements was State v. Blanchard, 409 A.2d 229, 237 (Me.1979), where initially the restitution claim was not properly proven in accord with statute. The court then struck the restitution as unrealistic when followed by a long period of incarceration. See likewise State v. Fleming, 125 N.H. 238, 480 A.2d 107 (1984); State v. Madril, 105 N.M. 396, 733 P.2d 365 (1987); Matter of Maricopa County Juvenile Action No. J-96304, 147 Ariz. 153, 708 P.2d 1344 (1985); and Rodriguez v. State, 710 S.W.2d 167 (Tex.App.1986), where unproven amounts were deleted.

An example of proper proof for malicious mischief damage to a building is provided by Lee v. State, 166 Ga.App. 485, 304 S.E.2d 446, 448 (1983):

There was extensive evidence as to the nature of the property damage fully documented by pictures and estimates. This was uncontested except for certain speculation as to who might have been responsible for the damage other than that to which the appellants explicitly admitted. It is apparent, therefore, that the trial court had competent evidence as to the damage, the amount of the damage, and the complicity of the three appellants in the causing of that damage. * * *

* * * The trial court had the authority to believe the appellants were not solely involved or that they were being untruthful in their limited admissions of damage. The credibility of witnesses is a matter of resolution by the trier of fact, in this case the trial court. * * * We must conclude on the basis of the evidence developed that the trial court was warranted fully in its conclusion that the appellants alone caused the $34,600 in damages and we are satisfied that any reasonable trier of fact could have found so beyond a reasonable doubt.

Cf. State v. Halsen, 111 Wash.2d 121, 757 P.2d 531 (1988), where the amount was computed by the appellate court from an admission of the parties in documentary record. Specifically, we do not adopt the notion presented in Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 Harv.L.Rev. 931, 944 (1984) that restitution, as a punitive sanction, is not limited by the amount of harm the offender inflicted on the victim or that the amount of restitution ordered, like the magnitude of any other sanction, bears only upon the degree of deprivation that the offender will suffer. This rule of adequacy of proof of amount required for restitution was directly addressed by our decision in Kaess, 748 P.2d at 699 as the approach which we now continue.

The reason for this requirement of damage proof is highlighted here. If the amount stated in the sentence were to be approved and the millennium subsequently arrives so that all of it was to be "repaid," Farmer Jacks would receive money which, by reasoned computation within this record, never was taken or ultimately lost. ⁶ The record provides no evidence of the total loss. Comments of the prosecuting attorney, unless identifying trial evidence or directing attention to file documentation or other credible evidence, cannot be substituted for proof.

The second issue presented of frequent concern to this court is credit upon the sentence for presentence incarceration. This court is convinced that rules should now be finitely established that end opportunity or obligation for further appeals on this subject.

From Jones v. State, 602 P.2d 378 (Wyo.1979) (Jones I) to Jones v. State, 771 P.2d 368 (Wyo.1989) (Jones II), there were eight cases, and this is ninth where this court has addressed presentence incarceration credit against sentences. In review of these nine cases, we seek to establish rules which should bring this course of continued appeals to an end for this category of litigation by finite criteria for a determinable result.

In Jones I, 602 P.2d at 381 the holding as limited was stated:

The law in jurisdictions which lack a statute governing credit for pre-sentence detention appears to be predominantly that the trial judge has discretion to...