State v. Jamieson

480 P.3d 363

STATE of Utah, Appellee,

v.Gary JAMIESON, Appellant.

No. 20150863-CA

Court of Appeals of Utah.

Filed January 7, 2021

Emily Adams and Freyja Johnson, Salt Lake City, Attorneys for Appellant

Sean D. Reyes, Jeanne B. Inouye, and Karen A. Klucznik, Salt Lake City, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.

Amended Opinion¹

HARRIS, Judge:

¶1 Gary Jamieson downloaded, without authorization, over 1,400 of his boss's emails and disseminated them to outside parties. He later pled guilty to one count of "computer crimes," a class A misdemeanor. See Utah Code Ann. § 76-6-703(1) (LexisNexis 2017). The State sought restitution on behalf of his employer (Company), the victim of the crime. After holding a hearing, the district court calculated complete restitution in the amount of $120,378.27, a figure representing, in large part, the estimated value of the time Company officials spent dealing with the after effects of the email download.

¶2 Jamieson appeals from the restitution order, and asks us to consider two arguments.² First, he argues that the district court improperly included in its restitution figure at least some amount for time spent by Company employees while participating in the criminal case (e.g., attending hearings). Jamieson did not raise this argument below, but contends that the district court plainly erred by including any such amounts in its calculation. Second, Jamieson asserts that he received ineffective assistance of counsel because his attorney failed to take issue with the Company CEO's claim that he had devoted 553 hours to dealing with the email download.

¶3 We find Jamieson's arguments persuasive. Accordingly, we vacate the restitution order and remand the case to the district court for a new restitution hearing.

BACKGROUND

¶4 Jamieson was employed by Company as its chief engineer. In May 2011, Jamieson contacted another Company employee and requested access to the Company Chief Executive Officer's (the CEO) emails. At that time, the CEO was out of the country and was not reachable by phone. The employee gave Jamieson "remote access to [the CEO's] computer, bypassing the firewall, other network protections and password controls," thereby allowing Jamieson direct access to the CEO's computer. Jamieson had full access to the CEO's computer for about twenty minutes, and in that time period Jamieson printed out several hard copy files and downloaded many of the CEO's emails onto a thumb drive. In this fashion, Jamieson obtained "at least" 1,400 emails comprising some 2,000 printed pages. The emails were "very confidential" and included information regarding employee compensation, pending business deals, plans to hire a competitor's employees, and communications with other industry professionals.

¶5 Later, believing that Company was involved in illegal activity, Jamieson told the CEO that "I have your email[s], they're very damning, I'm going to take you down." Jamieson disseminated the emails to a federal government agency, federal law enforcement officials, and a local news organization. Company eventually fired Jamieson.

¶6 The State charged Jamieson with one felony count of "computer crimes." See Utah Code Ann. § 76-6-703(1) (LexisNexis 2017).³ At a preliminary hearing before a magistrate, the CEO was asked how much time he had spent "dealing with the fallout from [Jamieson's] disclosures," and he responded that he had not kept time records, and "wish[ed] [he] could recall that." He gave an "estimate," however, stating that "on average" he had spent "an hour a day ... over a two-year period." He acknowledged that a lot of the time he spent "was a rehash and trying to reconstruct what brought this whole thing on," and attempting to "rehears[e] and re-rehears[e] the sequence of events that led to this." The magistrate bound the case over for trial and, after plea negotiations, Jamieson pled guilty to one count of "computer crimes" as a class A misdemeanor.

¶7 After Jamieson pled guilty, the State sought a total of $164,609.77 in restitution. The bulk of this request consisted of time spent by the CEO. Indeed, the State asserted that the CEO had spent "553 hours (at minimum) ... reviewing printed emails, meeting with local [and federal] counsel, police investigators, [and] staff," and that the value of the CEO's time totaled $110,600. The State also sought $7,500 for time spent by three other Company employees, including its vice-president.

¶8 The restitution hearing was scheduled and postponed several times. The hearing was finally held in September 2015⁴ and, at the hearing, the district court posed direct questions about the 553 hours that the CEO claimed to have spent, asking Company counsel to "[h]elp me understand the 553 hours." Company counsel proffered the testimony of the CEO and vice-president as follows:

[T]he time that they had spent would probably fall into one of two pots. The time that was directly related to mitigating the damages and time that they'd spent dealing with the criminal process in general. Because we've been in court three or four times for this restitution hearing to be continued. So I asked them to allocate that .... What they responded to me was—their initial reaction was about 75 percent of [their time] fell into the former pot and about 25 percent in the latter.

The CEO also stated that he "wished he would have kept better records related to the time he spent on those [charges]."

¶9 The court invited Jamieson's attorney to ask questions of the Company employees. Jamieson's attorney asked one specific question—whether the vice-president was a salaried employee—but otherwise declined to examine the Company employees whose time was at issue. Specifically, counsel did not take the opportunity to question the CEO about his claim that he had devoted 553 hours to this case.

¶10 A few weeks after the restitution hearing, the district court issued a written decision calculating "complete restitution" at $120,378.27, a figure that was comprised almost entirely of Company employees’ time. The court excluded attorney fees from the calculation, but did not make any attempt to separate and exclude Company employees’ time spent attending to the criminal proceedings. The court credited the CEO with spending 553 hours on the matter, and calculated the value of the CEO's time at $110,600, exactly as the State requested. Likewise, the court granted the State's request, in its entirety, regarding the other employees’ time, valuing that time at $7,500. After taking Jamieson's finances into account, the court ordered Jamieson to pay $90,000, acknowledging that "the complete restitution in this case is larger than the [c]ourt-ordered restitution."

¶11 In addition to the restitution order, the district court sentenced Jamieson to a term of 365 days in jail, with 335 days suspended. The court also imposed a probationary term of thirty-six months on Jamieson, with the payment of court-ordered restitution as one of the conditions of probation.

ISSUES AND STANDARDS OF REVIEW

¶12 Neither of the arguments Jamieson raises on appeal were preserved in the district court. "When a party fails to raise and argue an issue in the [district] court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation." State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443. Jamieson asks us to consider his arguments on appeal under the plain error and ineffective assistance of counsel exceptions to the preservation requirement. See id. ¶ 19 (noting that plain error and ineffective assistance of counsel are exceptions to the preservation rule).

¶13 Jamieson first argues that the district court plainly erred by including in its restitution calculation monetary damages for time the CEO and vice-president spent related to the criminal litigation. Even where an issue is preserved below, "a reviewing court will not disturb a district court's [restitution] determination unless the court exceeds the authority prescribed by law or abuses its discretion." State v. Laycock , 2009 UT 53, ¶ 10, 214 P.3d 104. To the extent that the district court made legal determinations in connection with its restitution analysis, we review those legal determinations for correctness. See State v. Brooks , 908 P.2d 856, 858–59 (Utah 1995) ("The standard of review for a simple legal interpretation of a rule or statute is correctness."). To prevail under the plain error standard, Jamieson must demonstrate that (1) an error exists; (2) the error should have been obvious to the district court; and (3) the error harmed him, "i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant." State v. Bond , 2015 UT 88, ¶ 15, 361 P.3d 104 (quotation simplified).

¶14 Second, Jamieson argues that his trial attorney was constitutionally ineffective for failing to challenge the amount of time the CEO allegedly spent addressing the aftereffects of the email download. A claim for ineffective assistance of counsel raised for the first time on appeal presents a question of law, which we review for correctness. State v. Kozlov , 2012 UT App 114, ¶ 28, 276 P.3d 1207.

ANALYSIS

I

¶15 Jamieson first argues that the district court plainly erred by including in its restitution calculation at least some amount of time spent by Company employees in addressing the criminal litigation. We agree.

¶16 The Crime Victims Restitution Act (the Act)⁵ provides that "[w]hen a defendant enters into a plea disposition or is convicted of criminal activity that has resulted in pecuniary damages, ... the court shall order that the defendant make restitution to victims." Utah Code Ann. § 77-38a-302(1) (LexisNexis 2017). The Act defines restitution as "full, partial, or nominal payment for pecuniary damages to a victim." Id. § 77-38a-102(11). At the time Jamieson pled...