State v. Speed

397 P.3d 824

STATE of Utah, Appellee,

v.Jason Michael SPEED, Appellant.

No. 20150011-CA

Court of Appeals of Utah.

Filed May 4, 2017

Joel J. Kittrell and Kristina H. Ruedas, Salt Lake City, Attorneys for Appellant.

Sean D. Reyes and Kris C. Leonard, Salt Lake City, Attorneys for Appellee.

Judge Stephen L. Roth authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen concurred.

Opinion

ROTH, Judge:

¶ 1 Jason Michael Speed appeals the district court's denial of his motion for relief from judgment and his request for a restitution hearing. We affirm.

BACKGROUND

¶ 2 In February 2010, Speed was charged with one count of theft by deception, a second degree felony. See Utah Code Ann. §§ 76-6-405, -412 (LexisNexis 2012). The information alleged that in his role as a supervisor at an "outsource service center for Verizon Wireless," Speed discounted "high-end" phones to nothing, had them sent to his address, and then resold them for his own profit. The information indicated that the "amount discounted on the [ ] phones" Speed disposed of in this way was $123,153.

¶ 3 Speed pleaded guilty to one count of third degree felony theft by deception in August 2010. Before sentencing, the court ordered a presentence investigation report (PSI). The PSI included a recommendation that Speed be placed on probation for thirty-six months and pay restitution. The PSI specified $126,547 as the amount of restitution, a figure which Speed's employer told Adult Probation and Parole (AP&P) was the value of the cell phones Speed had taken and sold.

¶ 4 In an October 2010 hearing, Speed was sentenced to an indeterminate prison term of zero to five years, which the court suspended. He was placed on probation for thirty-six months and was ordered to comply with certain conditions of probation, including paying restitution.

¶ 5 During the sentencing hearing, defense counsel addressed the court regarding the amount of restitution. He asserted that Speed had "taken full responsibility" for what he had done and had even "gotten two jobs ... in anticipation of having a large financial obligation related to this case." Speed admitted, however, that as of the date of the hearing, he had set aside nothing to pay for restitution and had instead "been trying to catch up on previous debt." Counsel stated that Speed was "still a little bit in question as to whether or not that full [restitution] amount was attributable to him," and that even though Speed unlawfully appropriated many phones, the restitution amount recommended by AP&P represented "the full retail value of these phones," which was an amount counsel asserted "almost nobody ever pays."

¶ 6 The sentencing court expressed concern "that [Speed had] done nothing to address the issue of restitution that exceeds $126,000." The court was particularly troubled that Speed had made no effort at repayment when he was "more responsible, by far, than any of [his] co-defendants,"¹ given that "[t]en, 15 times ... more restitution" was attributable to him. During the sentencing portion of the hearing, the court ordered Speed to serve a prison term of zero to five years but suspended all but the time already served and ordered him to complete thirty-six months of probation supervised by AP&P. After setting forth a number of terms of Speed's probation, the court concluded, "Pay restitution in the amount of $126,547." The court advised defense counsel that it would "let [him] approach later" about restitution but explained to Speed,

I want to get this on rather than deferring it. I want you to make monthly payments every single month toward the restitution. I will let you work with AP&P towards that, but I want them to immediately start getting reimbursed for their losses.... I really expect you to make significant advances towards dealing with this enormous restitution, that you need to make your victim whole.

¶ 7 Defense counsel then stated that he had spoken with the State "about having a restitution hearing to determine what court-ordered and total restitution would be." Following this remark, an exchange between defense counsel and the court ensued:

THE COURT: Well, get closer. If there are disputes[,] I set a lot of these restitution hearings because it's murky. So what I want you to do is file a motion for restitution.

[DEFENSE COUNSEL]: Okay.

THE COURT: And with some specifics about what I can look at before we get to the restitution hearing—

[DEFENSE COUNSEL]: Right.

THE COURT: —and nobody knows anything.

[DEFENSE COUNSEL]: Yeah. I think—it's not a complicated—I don't think it's going to be a complicated hearing. The only issue is really addressing his availability to pay and those resources he has available to pay this whole amount.

THE COURT: Well, let's get all of that documentation then.

[DEFENSE COUNSEL]: Okay.

THE COURT: I will set it for hearing.

[DEFENSE COUNSEL]: Okay. And, Your Honor, how long do we have to file that motion, just so—

THE COURT: Whenever you want.

[DEFENSE COUNSEL]: Okay. Thank you.

¶ 8 The original sentence, judgment, and commitment (the original judgment) entered after the sentencing hearing in October 2010 included among the probation conditions the statement, "Pay Restitution," but no dollar amount was identified. However, in February 2012, the court amended the judgment to identify the restitution amount as $126,547 (the corrected judgment), the amount recommended in the PSI and specified by the court in its verbal order to "[p]ay restitution in the amount of $126,547" at the sentencing hearing. The corrected judgment also added that restitution was "in behalf of" Speed's employer.

¶ 9 Subsequent to the sentencing hearing, AP&P filed three progress reports recommending that Speed's probation be closed as successful. The first two were filed four and nine months after the hearing, respectively, and the court denied both. The last report filed in September 2013 listed $126,547 as the amount ordered in restitution and indicated that as of September 24, 2013, Speed had made payments of only $1,418. Upon receipt of the third report, the court notified the parties that they had fourteen days to submit "any objections or other input regarding AP&P's recommendation" to close Speed's probation. Neither side responded, and on October 16, 2013, the court ordered Speed's probation terminated. The court noted "that because restitution is still outstanding, termination cannot be successful" and referred the remaining restitution to the Office of State Debt Collection.

¶ 10 Two weeks later, the court received a letter from Speed requesting a restitution hearing. In the letter, Speed stated that he had never had a restitution hearing and that his counsel never informed him of his entitlement to one. He asserted that he "[had been] on probation for eighteen months when [he] received [his] first notice with an amount owed for restitution," and by that point, over $7,000 in interest had accrued. He requested a hearing so that the court could "review [his] ability to pay."

¶ 11 New defense counsel filed a motion for relief from the judgment and a request for a restitution hearing. In the motion, Speed asserted that relief was justified under rule 60(b)(4) because the judgment awarding restitution was void. See Utah R. Civ. P. 60(b)(4) (providing that a "court may relieve a party or its legal representative from a judgment, order, or proceeding" if "the judgment is void"). Speed made two claims. First, he argued that the order was void because, as a jurisdictional matter, the restitution statute requires that court-ordered restitution be entered at "either the time of the sentence or within one year after sentencing," and he claimed that the sentencing court "did not determine and enter court-ordered restitution until" the corrected judgment, "more than one year after [he] was sentenced." Second, Speed argued that "his right to due process" was infringed, claiming that, because the State "did not file a request for restitution," he "never received notice of the proposed restitution amount and an opportunity to be heard" "prior to the restitution amount being entered." As a result, he requested that the court either strike the restitution order or re-open his case and hold a full restitution hearing.

¶ 12 At a subsequent hearing, the district court denied Speed's motion for relief from judgment and ordered that "the restitution amount will remain as it is and will remain with Utah State Debt Collection." As to the jurisdiction issue, the court determined that, based upon the transcript of the sentencing hearing, "the court did order restitution as part of the sentence ... in the amount of $126,547." The court also found that the omission of the exact number from the original judgment was essentially a clerical error and that the corrected judgment accurately shows "the restitution that was ordered on the day of [the] sentencing [hearing]." Accordingly, the court rejected Speed's argument that the judgment was void on jurisdictional grounds.

¶ 13 Similarly, the court rejected Speed's request for a restitution hearing on the basis that he had been denied due process, finding that he had notice of the amount of restitution sought and had been provided opportunities to be heard. The court noted in particular that the AP&P report indicated that the amount of loss attributed to Speed was $126,547, the exact amount awarded in restitution. It noted that "[t]here was a restitution amount ordered" at sentencing and that the exact amount of restitution so ordered was included in the third AP&P progress report, which also noted that Speed had made payments of approximately $1,400 toward that amount. Finally, the court noted that, although Speed had received notice of the restitution amount on multiple occasions, "other than the colloquy at sentencing, nothing was made of the restitution" "until well after the case was closed." In particular, the district court noted that after receiving AP&P's recommendation...