State v. Street

306 Neb. 380

945 N.W.2d 450

STATE of Nebraska, appellee,

v.Chad K. STREET, appellant.

No. S-19-307.

Supreme Court of Nebraska.

Filed July 10, 2020

Matt Catlett, of Law Office of Matt Catlett, Lincoln, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

The defendant appeals an order of restitution. He asserts that the county court erred by ordering restitution of a damaged vehicle in the amount of the cost of repairing the vehicle without knowing whether those repair costs exceeded the vehicle's fair market value before the defendant's crime. The defendant also asserts that he is unable to pay the amount ordered. We affirm the sentence as pronounced, but remand the matter with directions to modify the written judgment to conform to the pronounced sentence.

BACKGROUND

Chad K. Street pleaded to and was convicted of one count of leaving the scene of an accident and one count of reckless driving. The charges stemmed from an incident in the early morning hours of February 20, 2017. Street crashed into the victim's unoccupied vehicle that was parked on the street in front of the victim's home. Street then fled the scene by foot, leaving behind his own vehicle, which had been thrown onto its side.

As part of the sentence, the State sought restitution under Neb. Rev. Stat. §§ 29-2280 through 29-2289 (Reissue 2016). At the sentencing hearing, the State adduced evidence that the victim's vehicle, a 2005 Chevy Equinox with roughly 79,000 miles, had been in good condition before the accident. After the accident, it was no longer operational.

The vehicle was towed to a body shop. The victim later found out from the body shop that the vehicle was "totaled." There was no evidence explaining what "totaled" meant.

An estimator at the body shop prepared an estimate for the vehicle's repair to bring it back to its preaccident condition. The estimator testified that the vehicle had been "hit hard in the left rear." According to the estimate, it would cost $10,347.70 to repair the vehicle so that it was in the same condition as it was before Street hit it.

The victim could not recall the vehicle's purchase price. No evidence was presented as to the vehicle's estimated fair market value before the incident.

Concerning his ability to pay any restitution, Street testified that he rents an apartment through Veterans Affairs. He testified that he pays a portion of the rent and that Veterans Affairs pays the other portion. Street did not describe the amount of his contribution. Street receives $1,017 in disability benefits each month. He pays $35 to $45 per month for his cell phone and about $50 per month for cigarettes. He testified that he voluntarily sends his wife, with whom he is separated, $300 per month to help support their 3-year-old daughter. The State presented evidence that over the prior 18 months, Street had posted five different bonds in a total amount of $2,400.

Defense counsel argued at the sentencing hearing that the State had failed to meet its burden of proof for restitution because it had failed to present evidence of the vehicle's market value. According to defense counsel, civil principles should apply such that "actual damages" under § 29-2281 for a vehicle are the lesser of either the repair costs or the vehicle's reduction in value. Thus, without evidence of the vehicle's fair market value before the incident, there was insufficient evidence from which the court could calculate actual damages for purposes of restitution under § 29-2280. Defense counsel also asserted the evidence that the vehicle was "totaled" demonstrated that under § 29-2282(3), "return or repair is impossible, impractical, or inadequate." Finally, defense counsel argued that Street was indigent and would be unable to pay any restitution.

The county court ordered restitution in the amount of $10,347.70, the cost of repairing the vehicle. The court reasoned that the language of the restitution statutes did not set forth a civil standard requiring that the restitution be in the amount of the vehicle's fair market value before the crime if repairing the vehicle would cost more than it had been worth. Since there was no evidence presented by the parties as to the market value of the vehicle before the crime, the court explained, "the only number that I've got is the number that's contained in ... the estimate."

The court ordered any bonds that had been forfeited to be reinstated to the victim. The court calculated that by the time those bonds were applied, Street would owe approximately $9,000 in restitution.

The court explained that while it did not "have a lot to go on in terms of what [Street] could afford," his voluntary payment of $300 for his daughter's care and his recent bond payments indicated that he "ought to be able to handle $300 a month toward restitution." At that rate, it would take Street about 21/2 years to pay the balance of the restitution fully. The court pronounced from the bench that the restitution be paid in the amount of $300 per month until paid in full.

The monthly payment and term were not described in the sentencing order, however. The sentencing order merely provides that Street pay a total of $10,347.70 to the victim.

Street appealed to the district court, assigning that the county court erred in ordering restitution. Street argued that there was insufficient evidence to support the order of restitution because there was no evidence of the vehicle's fair market value before the accident. Defense counsel also asserted that the evidence the vehicle was "totaled" meant the cost of repairing the vehicle exceeded its value. Lastly, Street argued that because Street was indigent and the payment resulted in Street's income falling below the federal poverty threshold, the evidence was insufficient to show he had a reasonable ability to pay. The district court found the order of restitution was supported by the evidence and not contrary to law.

Street appealed to the Nebraska Court of Appeals, assigning that the district court erred in affirming the restitution component of the county court's sentence because there was insufficient evidence of actual damages to warrant the restitution and because Street is not capable of paying the restitution ordered. The Court of Appeals affirmed.¹ The Court of Appeals held that the amount of the order of restitution was supported by the evidence of the repair cost of the vehicle. Further, it held that the county court's determination that Street was capable of paying $300 per month in restitution conformed to the law, was supported by competent evidence, and was neither arbitrary, capricious, nor unreasonable.

We granted Street's petition for further review.

ASSIGNMENTS OF ERROR

On further review, Street assigns that the Court of Appeals erred in finding no error in the district court's affirmance of the restitution component of the county court's sentence because (1) there was insufficient evidence of actual damages to warrant the restitution and (2) Street is not capable of paying the restitution ordered.

STANDARD OF REVIEW

The rule that a sentence will not be disturbed on appeal absent an abuse of discretion is applied to the restitution portion of a criminal sentence just as it is to any other part of the sentence;² sentences within statutory limits will be disturbed by an appellate court only if the sentence complained of was an abuse of judicial discretion.³

ANALYSIS

Restitution is purely statutory, and a court has no power to issue such an order in the absence of enabling legislation.⁴ Restitution ordered by a court pursuant to § 29-2280 is a criminal penalty imposed as a punishment for a crime and is part of the criminal sentence imposed by the sentencing court.⁵

Restitution, like any other part of the sentence, involves discretion.⁶ The appropriateness of an order of restitution is necessarily a subjective judgment and not a mathematical application of factors.⁷ On appeal, we do not endeavor to reform the trial court's order. Rather, we review the record made in the trial court for compliance with the statutory factors that control restitution orders.⁸

The rule that a sentence will not be disturbed on appeal absent an abuse of discretion is applied to the restitution portion of a criminal sentence just as it is to any other part of the sentence.⁹ A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.¹⁰

Sections 29-2280 through 29-2289 govern a trial court's authority to order restitution for actual damages sustained by the victim of a crime for which the defendant is convicted. Section 29-2280 provides in relevant part that "[a] sentencing court may order the defendant to make restitution for the actual physical injury or property damage or loss sustained by the victim as a direct result of the offense for which the defendant has been convicted." (Emphasis supplied.)

Section 29-2281, in turn, provides in full:

To determine the amount of restitution, the court may hold a hearing at the time of sentencing. The amount of restitution shall be based on the actual damages sustained by the victim and shall be supported by evidence which shall become a part of the court record. The court shall consider the defendant's earning ability, employment status, financial resources, and family or other legal obligations and shall balance such considerations against the obligation to the victim. In considering the earning ability of a defendant who is sentenced to imprisonment, the court may receive evidence of money anticipated to be earned by the defendant during incarceration. A person may not be granted or denied probation or parole either solely or primarily due to his or her financial

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