Thursday, November 10, 2011

Reasonable Restitution Reasoning Required: Reproved, Reversed, and Remanded

State v. Kenvin, 2011 VT 123

Restitution orders have to be based on somewhat reasoned application of the applicable statutes.  Otherwise, the SCOV gets annoyed.   

This case stems from a September 2008 accident at an intersection.  Defendant was traveling north when he made a left-hand turn.  A motorcyclist was traveling south and could not avoid Defendant’s truck.  The motorcycle collided with the truck; the cyclist was knocked into the air and later died from the resulting injuries.

Defendant was charged with grossly negligent operation, death resulting, but the jury convicted Defendant only of the lesser-included crime of negligent operation. 

The State requested restitution for the victim’s family’s travel costs, a radiology bill not covered by insurance, and storage costs for the decedent’s motorcycle. 

Defendant objected.  He argued that the jury had acquitted him on the grossly negligent operation charge and, therefore, found him not legally responsible for the victim’s death.  The trial court rejected this argument.  Defendant also argued that the victim’s family’s travel expenses were not a direct result of negligent operation.  Defendant objected when the State offered the restitution order, but he was cut off before defense counsel had a chance to elaborate.  The trial court proclaimed that the travel expenses of the decedent’s wife, children, grandchildren, and mother were “directly connected” to his death.  The trial court—without making any findings regarding Defendant’s ability to pay—made two restitution orders.  Defendant appealed. 

The SCOV first discusses the substance of the restitution order.  Noting that there was no clear record of what was included, that there were no findings made by the trial court, and that according to the State’s representation below, the costs included the victim’s family’s travel costs, a radiology bill not covered by insurance, and storage costs for the decedent’s motorcycle, the SCOV concludes that the only cost properly included in a restitution order in this case would be the uncovered medical bill. 

The SCOV explains that the restitution statute does not apply to the victim’s family’s costs in this case.  The SCOV notes that there must be a direct causal link between the costs and the crime.  Although there is language in the statute that refers to the family of a “homicide victim,” the SCOV notes that the Defendant here was convicted of negligent operation and thus, Defendant cannot be held responsible for conduct not covered by his conviction.  Because there is no element of harm or injury required for a negligent operation conviction, there is no necessary connection that can be used to connect the elements of the crime to the expenses of the family.  Thus, the trial court could not order restitution to the victim’s family.  Naturally, if convicted of the original charge, one can reasonably infer that a conviction for grossly negligent operation, death resulting, would support restitution to the victim’s family.  

Accordingly, the SCOV concludes that while the decedent’s family has suffered greatly, the decedent was the only “victim” for purposes of the restitution statute.  The SCOV also notes that the trial court’s lack of findings when it ordered compensation to the victims’ compensation program was in error.  Finally, the SCOV notes that the restitution statutes specifically require the trial court to determine a defendant’s ability to pay a restitution order and that the trial court failed to do so.  The SCOV points out the Defendant had filed a public defender application and that the trial court placed Defendant on a twenty-four hour curfew.  On remand, the trial court must make findings regarding Defendant’s ability to pay.

The bottom line here seems to be that trial courts need to take their time, develop a complete record, and apply the statutes carefully when ordering restitution.  Otherwise, the SCOV may hand it back.

Defendant’s remaining argument was that the trial court violated Vermont’s indeterminate sentence structure when it gave him an eleven-to-twelve month sentence.  I could spend a long time explaining the SCOV’s analysis here, but it is not that difficult.  After the SCOV ruled against minimum sentences that were 30 days or less than the maximum in State v. Delaoz, the legislature changed the statute.  The new statute says it doesn’t violate the indeterminate sentence structure as long as the minimum and the maximum are different numbers—even if the difference is teeny tiny.  The statute, as a clarifier, applies to Defendant’s claim.  The end.     

Hmm.  I suppose that’s a rather flip and cursory explanation of the SCOV’s reasoning regarding the indeterminate sentencing argument.  Good thing I’m not ordering restitution, huh?

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