State v. Mooring

547 P.3d 870

2024 UT App 49

STATE of Utah, Appellee,

v.James B. MOORING, Appellant.

No. 20230253-CA

Court of Appeals of Utah.

Filed April 4, 2024

Third District Court, Salt Lake Department, The Honorable Elizabeth A. Hruby-Mills, No. 111904457

J. Adam Knorr Salt Lake City, and Chase G. Peterson, Attorneys for Appellant

Sean D. Reyes Salt Lake City, and Connor Nelson, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Ryan D. Tenney concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 In 2012, James B. Mooring entered into a plea agreement in which he agreed, among other things, to pay $50,000 in court-ordered restitution. At that time, based on his ability to pay, Mooring began making $100 monthly payments. Mooring continued to make $100 monthly payments until June 2022, at which point the State filed a motion asking the district court to revisit Mooring’s ability to pay. Mooring submitted an updated financial declaration to the court, and in 2023, the court entered an order adjusting Mooring’s monthly restitution payment to $1,100 per month. The court did not change the total amount of court-ordered restitution owed, however, leaving that amount set at $50,000.

¶2 Mooring appeals the district court’s order adjusting his restitution payment schedule. He argues that the court erred in adjusting the payment schedule because (1) the adjustment is prohibited under Utah law, (2) the adjustment violates double jeopardy, (3) the adjustment violates substantive due process, and (4) the State should be equitably estopped from seeking an adjustment. We are not persuaded by any of Mooring’s arguments, and we accordingly affirm the district court’s order.

BACKGROUND

¶3 In 2011, the State charged Mooring with one count of securities fraud, a second-degree felony, and one count of sales by an unlicensed agent, a third-degree felony. The following year, Mooring entered into a plea in abeyance agreement with the State wherein he agreed to plead guilty to one count of sales by an unlicensed agent and to comply with various conditions, including that he pay $50,000 in "court-ordered restitution." In exchange, the State agreed to reduce the third-degree felony plea to a class B misdemeanor after a thirty-six-month abeyance period.

¶4 Under the conditions of the plea agreement, Mooring would "make monthly restitution payments in an amount to be determined by the parties, or an amount otherwise approved by the Court based upon the financial resources of [Mooring] and the burden the payment of restitution will impose with regard to [Mooring’s] other obligations." If Mooring paid the full amount of the court-ordered restitution by the time the abeyance period ended, he would be sentenced to time served. Otherwise, he would be sentenced to court-supervised probation and would "remain on court-supervised probation until the $50,000.00 … is paid in full." Payments were set to begin "on or before May 25, 2012," at the rate of $100 per month.

¶5 In June 2016, at the end of the abeyance term, the district court found that Mooring had "complied with the terms and conditions of the plea agreement" and was "current in his court-ordered restitution payments." Accordingly, the court entered an order reducing Mooring’s felony plea to a class B misdemeanor plea. The court also ordered Mooring to "continue to make monthly restitution payments in the same amount as [has] been made to date" and to "remain on court-supervised probation until the court-ordered restitution is paid in full."

¶6 In August 2018, the State filed a motion requesting that the district court extend Mooring’s probation "for an indefinite period of time, or until [Mooring] has paid his restitution in full." Shortly thereafter, the court issued an order (2018 Order) entering Mooring’s conviction and ordering that he be placed on court-supervised probation "for an indefinite period [of] time, or until [Mooring] has paid his restitution in full." The court noted that Mooring’s restitution balance owed was $42,600, and it ordered Mooring to "continue to pay restitution … at a monthly rate of no less than $100.00 per month."

¶7 In June 2022, the State moved for a review hearing to determine whether the probation should continue or whether the outstanding restitution balance should be referred to the Office of State Debt Collection. The motion also requested that Mooring be required to complete a new financial declaration. The court granted the State’s motion and ordered Mooring to file an updated financial declaration and a written response to the State’s request for a review hearing. Mooring submitted a new financial declaration and a memorandum opposing the State’s request for a review hearing. He argued that the court should deny the State’s request because changing the "longstanding" arrangement would constitute a modification of Mooring’s restitution order that would violate Utah law, "double jeopardy, estoppel, and substantive due process."

¶8 After reviewing Mooring’s updated financial declaration and hearing argument on the matter, the district court disapproved the $100 monthly payments. The court found that Mooring had the ability to "pay substantially more than he has been paying," and it rejected his argument that a change to the payment schedule is a modification of the restitution order prohibited under Utah law. The court did not, however, determine what the change to Mooring’s payments should be. Instead, the court ordered the parties to first confer with respect to the new monthly payment amount; if the parties could not reach a stipulation as to the amount, the court would establish it, taking into account Mooring’s current ability to pay.

¶9 Pursuant to the district court’s order, the parties conferred regarding an increased monthly restitution payment amount; however, they were not able to come to an agreement. As a result, in March 2023, the court entered an order of restitution. The new order did not change the total amount of court-ordered restitution owed ($50,000), but it "adjust[ed] the monthly payment schedule to reflect the financial resources of [Mooring] as disclosed in his financial declaration … and his demonstrated ability to pay more than his previous monthly payment indicated." Relying on sections 77-32b-103(3)(b) and 77-38b-205(2)(a)(ii) of the Utah Code, the court increased the monthly payment "from $100 per month to not less than $1,100 per month." The court explained that this increase was justified "because of what appears to be a significant increase in [Mooring’s] ability to pay." Relying on Mooring’s updated financial declaration, the court found that Mooring had a gross monthly income of around $13,000, and that he had multiple voluntary and discretionary monthly expenses, including spending $1,000 on donations, $200 on entertainment, and $150 in retirement deposits. The court concluded that because these voluntary and discretionary expenses "can be modified," Mooring "is able to allocate more money towards the restitution he currently owes the victims."

ISSUE AND STANDARDS OF REVIEW

[1–3] ¶10 Mooring now appeals, raising one issue for our review. Mooring argues the district court erred in adjusting his monthly restitution payment schedule. "We will not disturb a district court’s restitution order unless it exceeds that prescribed by law or [the court] otherwise abused its discretion. But we review a district court’s interpretation of restitution statutes for correctness." State v. Hamilton, 2018 UT App 202, ¶ 15, 437 P.3d 530 (quotation simplified). Likewise, constitutional issues are questions of law that are reviewed for correctness. See State v. Archibeque, 2022 UT 18, ¶ 11, 509 P.3d 768.

ANALYSIS

¶11 Mooring contends the district court erred in adjusting his monthly restitution payment schedule. As part of this challenge, Mooring raises four distinct arguments. First, he argues the court erred in determining that the adjustment did not violate Utah law. Second, he argues the adjustment violates the federal Double Jeopardy Clause. Third, he argues the adjustment violates his federal substantive due process rights. Fourth, he argues the State should be equitably estopped from seeking an adjustment We address each argument in turn.

I. Utah Law

[4] ¶12 Mooring first asserts the district court violated Utah law when it adjusted his monthly restitution payment Specifically, Mooring contends the court’s adjustment constitutes a modification to his restitution order that is time-barred under section 77-38b-205 of the Utah Code.¹ This argument is not supported by the plain language of the statute.

¶13 Section 77-38b-205 sets forth the process for entering an order for restitution. Subsection (1) outlines the court’s obligation to order restitution upon conviction as part of the sentence imposed. Utah Code § 77-38b-205(1) (2022). In cases where the defendant "enters a plea in abeyance … that includes an agreement to pay restitution, the court shall order the defendant to pay restitution in accordance with the terms of the plea in abeyance." Id. § 77-38b-205(1)(b).

¶14 After the court has entered "an order … to pay restitution under Subsection (1)," the court must then take two additional actions. Id. § 77-38b-205(2)(a). First, the court must "enter an order to establish a criminal accounts receivable." Id. § 77-38b-205(2)(a)(i). Second, the court must "establish a payment schedule for the criminal accounts receivable." Id. § 77-38b-205(2)(a)(ii). Both the criminal accounts receivable and the payment schedule are to be established in accordance with section 77-32b-103, which provides factors a court shall consider when establishing a "payment schedule." Id. § 77-32b-103(3)(b) (listing the victim’s needs, the defendant’s other obligations and ability to pay, and any other relevant circumstances as factors to consider). Once this process is complete, "[i]f the defendant objects...