King of the Road

By Andrew Delaney

State v. Gorton, 2014 VT 1

Not only are cigarettes bad for your health, they’re very expensive. 

Defendant worked as a night manager for a grocery store for two years.  He did not smoke “old stogies that [he had] found,” but he did find some lost credit cards in the store.  He got caught using one of them that had been reported stolen, and confessed to a litany of sins—including stealing multiple cartons of cigarettes over eighteen months.  His first estimate was eight cartons a week, but he later revised that number downward.  

Eventually he was charged with one count of embezzlement and four counts of fraudulent use of a credit card.  More specifically, he was charged “with embezzling cigarette cartons from ‘on or about March 1 to August 24, 2010.’”  He pled (pleaded if you like your legal terms to sound like an unfortunate pant-style) guilty to all charges, and got a mostly suspended sentence with a whole lot of “pushin’ broom.” 

A restitution hearing was eventually held.  Even though the judge had told the state to ask for it within thirty days, it didn’t happen for several months.  Defendant testified that his initial estimates were high because he felt pressured by the store’s loss-prevention agents, and that he actually stole seventy-five to eighty cartons of cigarettes.  A loss-prevention supervisor testified that the total loss over the eighteen months during which defendant admitted stealing cigarettes was about $69,000, but that figure included all grocery losses, not just cigarettes.

The trial court’s restitution order was based on “the wholesale price of eight cartons of cigarettes a week over eighteen months for a total of $33,786.72.” Defendant appealed.

Defendant’s first argument is that “the trial court committed reversible error by allowing a restitution hearing to occur after the State missed the court imposed thirty-day deadline for requesting a hearing.”

The SCOV doesn’t agree, disposing quickly of the argument.  The SCOV notes that there’s no statutory deadline and that’s that.  The state requested restitution at the sentencing hearing, and everyone knew it was coming; the SCOV finds no abuse of discretion.

Defendant’s next argument is the restitution order’s breadth exceeded the scope of his conviction.  Here, with a little help from the state, defendant finds a little more traction.  The information charged a six-month period.  And at the sentencing hearing, the judge misread the information, noting a single day.  Defendant’s ultimate argument is that he should only have to pay for one day’s worth of cigarettes.

The state makes a partial concession here, acknowledging that the timeframe is incorrect and posits “that the restitution order should be limited to the six-month range contained in the information.”

Here, the SCOV reasons that the judge’s misstatement does not limit restitution to one day.  Defendant signed a plea agreement and knew very well what the agreeing was.  The SCOV notes that even if it were to accept the argument, the trial court would’ve been within its discretion to order restitution based on the conviction as charged.

So the SCOV sends it back to the trial court for a new restitution hearing limited to the six-month period charged in the information.  But first, the SCOV addresses two issues raised by defendant “that may reemerge on remand.”

First, the trial court failed to make findings on defendant’s ability to pay.  The SCOV notes that this is required and directs the trial court to make those findings on remand. 

Defendant also argues that the trial court was required to make findings as to whether the grocery store’s losses were uninsured.  The SCOV also notes that this is required and again directs the trial court to make those findings.

Smoke ‘em if you got ‘em.