State of WV v. Lucas
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
__________________
No. 23903
__________________
STATE OF WEST VIRGINIA,
Plaintiff below, Appellee,
v.
GARY MICHAEL LUCAS,
Defendant below, Appellant.
_______________________________________
Appeal from the Circuit Court of Mercer County
Hon. John R. Frazier, Judge
Case No. 95-FE-0063-F
AFFIRMED
_______________________________________
Submitted: September 17, 1997
Filed: November 20, 1997
William C. Meyer, II,
Esq. Darrell
V. McGraw, Jr., Esq.
Public Defender
Services Attorney
General
Princeton, West
Virginia Molly
M. McGinley, Esq.
Attorney for
Appellant Assistant
Attorney General
Attorneys
for Appellee
JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1.
The Supreme Court of Appeals reviews sentencing orders, including
orders of restitution made in connection with a defendant's
sentencing, under a deferential abuse of discretion standard,
unless the order violates statutory or constitutional commands.
2.
Read in pari materia, the provisions of W.Va. Code,
61-11A-1 [1984], W.Va. Code, 61-11A-4(a) [1984], W.Va.
Code, 61-11A-4(d) [1984], W.Va. Code, 61-11A- 5(a)
[1984] and W.Va. Code, 61-11A-5(d) [1984], establish that
at the time of a convicted criminal defendant's sentencing, a
circuit court should ordinarily order the defendant to make full
restitution to any victims of the crime who have suffered
injuries, as defined and permitted by the statute, unless the
court determines that ordering such full restitution is
impractical.
3.
Under W.Va. Code, 61-11A-1 through -8 and the
principles established in our criminal sentencing jurisprudence,
the circuit court's discretion in addressing the issue of
restitution to crime victims at the time of a criminal
defendant's sentencing is to be guided by a presumption in favor
of an award of full restitution to victims, unless the circuit
court determines by a preponderance of the evidence that full
restitution is impractical, after consideration of all of the
pertinent circumstances, including the losses of any victims, the
financial circumstances of the defendant and the defendant's
family, the rehabilitative consequences to the defendant and any
victims, and such other factors as the court may consider.
4. For
purposes of determining whether or what amount of restitution may
be entered as a judgment against a defendant at the time of a
criminal defendant's sentencing pursuant to W.Va. Code, 61-11A-4(a)
[1984], the indigency of a defendant or the current ability or
inability of a defendant to pay a given amount of restitution is
not necessarily determinative or controlling as to the
practicality of an award of restitution. If the court determines
that there is a reasonable possibility that a defendant may be
able to pay an amount of restitution, the court, upon
consideration and weighing of all pertinent circumstances, is
permitted but not required to determine that an award of
restitution in such an amount is practical.
5.
When a court is determining the practicality of an award of
restitution, a finding that there is a reasonable possibility of
a defendant's payment of a restitution award must not be based
solely on chance; there must be some concrete evidence specific
to a defendant showing that the defendant has assets, earning
potential or other present or potential resources, or similar
grounds upon which the court may conclude that there is a
reasonable chance that the defendant may be able to pay the
restitution amount in question.
6.
When restitution is ordered at a criminal defendant's sentencing
pursuant to the provisions of W.Va. Code, 61-11A-4(a)
[1984], the circuit court is not required to spread its findings
and conclusions on the record in every case in which full
restitution is ordered. In cases where full restitution is
ordered and where noncompliance with the restitution order will
not in itself yield a potential penalty, the decision whether to
make findings and assign reasons is committed to the sound
discretion of the court. If the record contains sufficient data
for the Supreme Court of Appeals to review the basis of the
circuit court's order, the court need not assign specific reasons
for its decision to order full restitution. However, if the
record is insufficient, if potential penalties will be triggered
by the defendant's failure to pay the restitution which has been
ordered, or if less than full restitution is ordered, the circuit
court must make appropriate findings and conclusions regarding
the matters which it has considered, including but not
limited to the losses sustained by any victims, the financial
resources and earning ability of the defendant and the
defendant's dependents, and the tailoring of the amount of
restitution which a defendant must pay to the defendant's means
and circumstances.
7. To
facilitate appellate review and maximize the likelihood of well-
reasoned decision-making in all cases when restitution is ordered
pursuant to W.Va. Code, 61-11A-1 et seq. and
particularly when large sums are involved, a circuit court is
well advised to exercise its discretion and make full findings
and conclusions on the record regarding restitution, even when
such findings are not required.
8.
Where a criminal defendant intends to and does obtain money or
other benefit from an insurance company by committing a criminal
act of arson , the insurance company is a direct victim of the
crime and is eligible for restitution under the provisions of W.Va.
Code, 61-11A-4(a) [1984].
Starcher, J.:
The appellant,
Gary Michael Lucas, was convicted of arson in the Circuit Court
of Mercer County for burning down his Bluewell, West Virginia IGA
grocery store. At the appellant's sentencing, the circuit court
entered a restitution judgment order against the appellant on
behalf of Aetna Casualty Company for $1,430,000.00 in insurance
proceeds that Aetna paid as a result of the fire.
The appellant
contends that the court's restitution order was improper because
the appellant cannot repay such a large sum. The appellant also
argues that Aetna is not a "victim" under our victim
protection statute.
Because the
circuit court's entry of a restitution judgment order does not in
itself mean that the appellant will be penalized if he is unable
to repay the amount of restitution established in the order --
and because the insurance company was the victim in this case --
we affirm the circuit court's order.
I.
Facts and Background
In the fall of
1992, the appellant, Gary Michael Lucas, bought an IGA grocery
store in Bluewell, West Virginia from Mr. William Warden, who
financed the purchase. In compliance with the purchase agreement,
the appellant insured the grocery store with the Aetna Casualty
Company ("Aetna"). The appellant had previously owned
and operated
several grocery stores. His family had been in the grocery
business for 40 years. The appellant said at trial that during
1993 he personally made about $120,000.00 from the Bluewell IGA
business.
On July 3, 1994,
the appellant's grocery store was destroyed by fire. Aetna
subsequently paid out $1,430,000.00 in fire insurance proceeds.
Most of the proceeds were applied to discharge the appellant's
debt to Mr. Warden and other debts related to the business. The
appellant stated at his trial that his "net" from the
fire insurance proceeds was about $200,000.00.
On November 1,
1995, the appellant was convicted of first degree arson, a
violation of W.Va. Code, 61-3-1 [1935]. See footnote 1 1
The prosecution's position at the appellant's sentencing was that
the appellant, as part of his sentence, should be ordered to pay
to Aetna as victim restitution the full amount of the financial
injury which the appellant had caused to Aetna. An attorney for
Aetna addressed the court at the sentencing hearing, verifying
the amount paid by Aetna. The appellant told the court at his
sentencing that he was indigent, and that his wife was working at
the Huntington Mall.
The circuit
judge denied probation and sentenced the appellant to a two to 20
year term of incarceration, to run consecutively with a sentence
that the appellant had received for violating federal drug laws.
In sentencing the appellant, the circuit judge entered
judgment against the appellant and on behalf of Aetna in the
amount of $1,430,000.00 in restitution. The judge also ordered
the appellant to sign over to Aetna a $121,000.00 certificate of
deposit in the appellant's name which federal authorities were
holding.See footnote 2 2
At the sentencing
hearing, the circuit court engaged in a dialogue with the
appellant's counsel about the propriety of the amount of the
restitution judgment order, and about whether ordering the
appellant to sign over the certificate of deposit would allow
Aetna to have a "double recovery."See footnote 3 3
In this dialogue,
the court stated that if the appellant was indeed indigent, he
could not be penalized for failure to pay the amount of
restitution established in the judgment
order. The judge also stated that the appellant
was free to make further motions challenging the amount of the
restitution order and/or the requirement of signing over the
certificate of deposit. No such motions appear in the record.
The appellant
appealed his conviction and his sentence, including the portion
of the sentencing order entering judgment for Aetna for
$1,430,000.00. We granted the petition for appeal, but only on
the issue of the restitution ordered by the circuit court.
II.
Discussion
A.
Standard of Review
The Victim
Protection Act of 1984 ("the Act"), W.Va Code,
61-11A-1 through -8 codifies the principal statutory law of
this state governing court-ordered restitution by a person
convicted of a crime.See
footnote 4 4 In the instant case, the circuit court
entered a restitution judgment order against the appellant at the
time of the appellant's sentencing. This action by the court is
authorized by W.Va Code, 61-11A -4(a) [1984], which
states that a circuit court,
. . . when
sentencing a defendant convicted of a felony or misdemeanor
causing physical, psychological or economic injury or loss to a
victim, shall order, in addition to or in lieu of
any other penalty authorized by law, that the defendant make
restitution to any victim of the offense. . . .
Thus
a restitution order entered pursuant to this statutory provision
is considered a component of sentencing.
The Supreme Court
of Appeals reviews sentencing orders, including orders of
restitution made in connection with a defendant's sentencing,
under a deferential abuse of discretion standard, unless the
order violates statutory or constitutional commands. See State
v. Head, 198 W.Va. 298, 301, 480 S.E.2d 507, 510 (1996).
B.
Was the Circuit Court's Restitution Order Improper?
The
appellant argues that the circuit court's entry of judgment
against him in the total amount of Aetna's losses, $1,430,000.00,
was improper. The appellant principally relies upon language from
our cases requiring that the amount of restitution to be paid by
an offender as a condition of probation or parole be reasonably
tailored to an offender's ability to pay.
We discuss these
cases later in this opinion, but we begin our consideration of
the appellant's argument with a review of pertinent language from
several sections of the Act.
W.Va. Code,
61-11A-1(b) [1984] states, in part:
The legislature
declares that the purposes of this article are to enhance and
protect the necessary role of crime victims and witnesses in the
criminal justice process and to ensure that the
state and local governments do all that is possible within the
limits of available resources to assist victims and witnesses of
crime without infringing on the constitutional rights of the
defendant.
W.Va. Code,
61-11A-4(a) [1984] states:
The court,
when sentencing a defendant convicted of a felony or misdemeanor
causing physical, psychological or economic injury or loss to a
victim, shall order, in addition to or in lieu of any other
penalty authorized by law, that the defendant make restitution to
any victim of the offense, unless the court finds restitution to
be wholly or partially impractical as set forth in this article.
If the court does not order restitution, or orders only partial
restitution, under this section, the court shall state on the
record the reasons therefor.
W.Va. Code,
61-11A-4(d) [1984] states:
The court
shall impose an order of restitution to the extent that such
order is as fair as possible to the victim and the imposition of
such order will not unduly complicate or prolong the sentencing
process.
W.Va. Code,
61-11A-5(a) [1984] states:
The court, in
determining whether to order restitution under this article and
in determining the amount of such restitution, shall consider the
amount of the loss sustained by any victim as a result of the
offense, the financial resources of the defendant, the financial
needs and earning ability of the defendant and the defendant's
dependents, and such other factors as the court deems
appropriate.
W.Va. Code,
61-11A-5(d) [1984] states:
Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by
a victim as a result of the offense shall be on the
prosecuting attorney. The burden of demonstrating the financial
resources of the defendant and the financial needs of the
defendant and such defendant's dependents shall be on the
defendant. The burden of demonstrating such other matters as the
court deems appropriate shall be upon the party designated by the
court as justice requires.
We will not burden the reader with an elaborate exegesis of the foregoing- quoted language from the Act, because (after analyzing one important phrase, which we do in a footnoteSee footnote 5 5 ) we believe that the cumulative meaning of this language, read in pari materia,
is clear. The above-quoted provisions of W.Va. Code, 61-11A-1 [1984], W.Va. Code, 61- 11A-4(a) [1984], W.Va. Code, 61-11A-4(d) [1984], W.Va. Code, 61-11A-5(a) [1984] and W.Va. Code, 61-11A-5(d) [1984], read in pari materia, establish that at the time of a convicted criminal defendant's sentencing, a circuit court should ordinarily order the defendant to make full restitution to any victims of the crime who have suffered injuries, as defined and permitted by the statute,See footnote 6 6 unless the court determines that ordering such full restitution is impractical.
` The question
then arises, what does "impractical" mean, in the
context of a restitution order? To address this question, we will
first look at the term "impractical" as it is more
generally used. See
footnote 7 7
This Court has
recognized that the word "impractical" does not
necessarily mean the same thing as "impossible." See
Dolin v. Roberts, 173 W.Va. 443, 445, 317 S.E.2d 802, 804
(1984): "[Requiring license suspensions within
twenty-four hours of drunk driving arrests] . . . would not only
be impractical, it would be virtually impossible . . .
." See also Stockert v. Council on World Service
and Finance of Methodist Church, 189 W.Va. 1, 2, 427 S.E.2d 236, 237 (1993). "The doctrine of cy pres is an
equitable device employed when the terms of a charitable trust
become illegal, impossible, or impractical to fulfill . .
." (emphasis added) .
Looking to
other jurisdictions, in LaCourse v. City of St. Paul, 294
Minn. 338, 343, 200 N.W.2d 905, 909 (1972), the court said:
The word
"impractical" does not necessarily mean
"impossible." Webster's Third New International
Dictionary (1961) p. 1136, defines "impractical" as
synonymous with "impracticable." "(I)ncapable of
being put into use or effect or of being accomplished or done
successfully or without extreme trouble, hardship, or
expense."
Another court
has similarly distinguished "impractical" from
"impossible" or "infeasible," stating that
the fact that use of a safety device is feasible or possible does
necessarily mean that the method is practical -- and that
practicality is "not theoretical or ideal . . . [but]
implies proven success in meeting the actual demands made by
actual living or use." Century Steel Erectors, Inc. v.
Dole, 888 F.2d 1399, 1405 (D.C.Cir. 1989).
Thus, whether a
proposal is practical or impractical is not a simple yes-or-no
factual determination of whether the proposal is technically
feasible or within the theoretical realm of possibility. Rather,
determining whether a proposal is practical or impractical
involves considering and weighing probabilities, costs and
benefits. If the costs substantially outweigh the benefits when
considered in light of the probabilities , a proposal may be
deemed to be impractical, even if it is technically or
theoretically possible or feasible.
What then are
the factors that a court must and may consider in assessing the
probabilities, costs and benefits -- and thus the practicality --
of an award of full restitution?
Again
we turn first to the applicable statutory language. W.Va. Code,
61-11A- 5(a) [1992] requires that:
The court, in
determining whether to order restitution under this article and
in determining the amount of such restitution, shall consider the
amount of the loss sustained by any victim as a result of the
offense, the financial resources of the defendant, the financial
needs and earning ability of the defendant and the defendant's
dependents, and such other factors as the court deems
appropriate.
Thus, the statute
calls for consideration of (1) the victim's losses, (2) the
defendant's financial circumstances, and (3) such other factors
as the court may choose to consider.
The Act also
states that the court should endeavor to be fair to the victim
and at the same time not unduly complicate or prolong the
sentencing. W.Va. Code, 61-11A-4(d) [1984]. Whether
property may be returned to a victim or whether a monetary
payment in lieu of return is necessary may also be a
consideration. W.Va. Code, 61-11A-4 (b)(1)(B) [1984].
The court may also consider the alternatives of rendering
services in lieu of payment, or making payment to a designated
person or organization, if restitution payment to a victim is
impractical. W.Va. Code, 61-11A-4(b)(4) [1984] . See
note 5, supra.
We will
primarily address the consideration to be given by the court to
the factor of a defendant's circumstances in making a restitution
determination -- because the issue in the instant appeal is the
appellant's contention that the circuit court ordered
restitution against him without giving proper consideration to
the appellant's financial circumstances.
A number of our
cases have discussed what consideration a court should give to a
criminal defendant's financial circumstances when considering
victim restitution.
In Fox v.
State, 176 W.Va. 677, 682, 347 S.E.2d 197, 202 (1986), this
Court stated:
[I]t is generally
held that even in the absence of statute, the sentencing court
may not order restitution without first inquiring into and
determining on the record the offender's ability to pay.
We stated in Fox
that a probationer's restitution payment is unreasonable
"if it is beyond the offender's ability to pay without undue
hardship to himself or his family." Syllabus Point 1, in
part, Fox, supra. Payment causing undue hardship occurs
when "after the deduction of the [payment] from a person's
wages enough money [does not] remain to meet ordinary and
necessary expenses with something left over for unforeseen
expenses and some discretionary spending." Cottrell v.
Public Finance Corporation, 163 W.Va. 310, 316, 256 S.E.2d 575, 580 (1979). To avoid undue hardship, the payment required
must not be so much as to "make it impossible for the debtor
to provide for the family." Id.
In another case,
we stated that:
A probation
condition requiring repayment of costs and attorneys fees is
constitutionally acceptable if it is tuned to the probationer's
ability to pay without undue hardship and is subject to
modification if his indigency persists or reoccurs . . .
Probation may not be revoked for failure to pay restitution,
costs
and attorneys fees unless the probationer's failure is contumacious . . . A trial court seeking to revoke probation for failure to pay assessed costs or restitution must make findings of fact that indicate defendant's ability to pay, weighing available assets, i
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