State of Utah v. Nunley

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Benjamin Matthew Nunley,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000196-CA

F I L E D
December 14, 2000 2000 UT App 352 -----

Third District, Murray Department
The Honorable Michael K. Burton

Attorneys:
Catherine E. Lilly and Robert K. Heineman, Salt Lake City, for Appellant
Jan Graham and Christine F. Soltis, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Billings.

BILLINGS, Judge:

Defendant appeals a restitution judgment entered against him by the trial court pursuant to Utah Code Ann. § 76-3-201 (1999).

Defendant first argues that once the $16,000 restitution figure was accepted at his original sentencing hearing, it became a ceiling on the amount of restitution that could be imposed. He thus claims the trial court erred when, after a restitution hearing he requested, the court set restitution at $19,646.15. In support of his argument, Defendant relies on State v. Tindal, 748 P.2d 695 (Wash. Ct. App. 1988). In Tindal, the defendant appealed a trial court's order of restitution on the grounds of insufficient evidence. See id. at 696. The defendant's plea agreement contained a stipulation that, for purposes of sentencing, the facts were set forth in the "certificate of probable cause." Id. The "certificate of probable cause" set forth the amount of the victim's loss at $21,251.00. See id. The trial court ordered restitution in the amount of $25,666.39. See id. The Washington Court of Appeals reversed the trial court's order of restitution concluding that the evidence did not "establish the amount of the victim's loss at the figure chosen by the trial judge." Id. at 697. Unlike Tindal, the evidence in Defendant's restitution hearing did establish actual damages at $19,646.15, the figure chosen by the trial court.

Defendant next argues that, as a matter of policy, a trial court should not be able to increase the amount of a restitution order because it "chills" a defendant's exercise of his right to a restitution hearing. In support of his argument Defendant relies on State v. Sorensen, 639 P.2d 179 (Utah 1981). However, Sorensen is distinguishable from the present case.

The court in Sorensen held that when a defendant's conviction has been set aside on direct review, the imposition of a more severe sentence upon a second conviction violates a defendant's statutory, see Utah Code Ann. § 76-3-305, and constitutional, see Utah Const. art. VIII, § 9, rights. SeeSorensen, 639 P.2d at 181. The purpose behind the prohibition is to "assure that there is no chilling or deterring of the criminal defendant's exercise of his basic constitutional right to appeal." Id.

Here we are not dealing with a conviction that has been set aside on direct review or a constitutional right to appeal. We are dealing with a right provided by a statute, see Utah Code Ann. § 76-3-201(4)(e) (1999), that is concerned with compensating the victim, see Monson v. Carver, 928 P.2d 1017, 1029 (Utah 1996), not with punishing the offender as in Sorensen.

Defendant received his statutory right to a restitution hearing. See Utah Code Ann. § 76-3-201(4)(e) (1999). The victim testified as to the amount of his pecuniary damages and Defendant's counsel cross-examined the victim regarding the same. Defendant failed to produce any evidence to persuade the trial court that the victim's claim of damages was excessive. Despite the trial court's offer that Defendant could present evidence at a subsequent hearing, Defendant failed to do so. Thus, we cannot say that the trial court abused its discretion or "exceeded that prescribed by law" in ordering $19,646.15 in restitution. State v. Weeks, 2000 UT App 273,¶7, 405 Utah Adv. Rep. 57 (quoting State v. Schweitzer, 943 P.2d 649, 653 (Utah Ct. App. 1997)).

We therefore affirm.
 
 

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Judith M. Billings, Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge