Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Judgment of conviction and sentence for felony driving under the influence with persistent violator sentence enhancement, affirmed; restitution order vacated and case remanded.
Raymond Stuart Nienburg appeals from the judgment of conviction entered upon his plea of guilty to felony driving under the influence and to being a persistent violator of the law. He contends that the district court erred in its award of restitution and that an excessive sentence was imposed. We reverse in part and affirm in part.
Although the facts giving rise to these charges are not well developed in the record, it appears that when an officer stopped Nienburg's vehicle for investigation of driving irregularities, Nienburg got out of the car and ran, and the officer chased him down. Nienburg was charged with felony driving under the influence (DUI), with a sentence enhancement for being a persistent violator of the law; misdemeanor driving without privileges; and misdemeanor resisting and obstructing officers.
Nienburg arrived at a plea agreement with the State whereby he agreed to plead guilty to driving under the influence and to being a persistent violator of the law, and the State agreed to dismiss the remaining charges and to recommend a particular sentence. The plea agreement was not reduced to writing, and it was described only cryptically at the plea hearing as follows:
[DEFENSE COUNSEL]: Yes, Your Honor. My client's going to offer the court a guilty plea to Count One only, which is operating a motor vehicle under the influence of alcohol with a prior felony conviction within 15 years. My client will also plead guilty to the Information Part II. The state's agreed to limit its sentencing recommendation to a 15-year sentence, four years fixed and eleven years indeterminate.
COUNSEL]: Fine, public defender fees, driver's license suspension is open for argument, the defense is free to argue for less. Restitution is not to exceed $1,156.98.
The prosecutor did not object to nor supplement this articulation of the agreement. The district court repeated its understanding of the restitution term to be that "restitution will not exceed $1,156.98." There was no discussion at this hearing concerning the identity of the "victim" for whom restitution would be sought or the nature of the $1,156.98 economic loss. There also was no expression of consent from Nienburg to pay restitution for economic loss that resulted from the dismissed misdemeanor charge of resisting and obstructing an officer.
At the subsequent sentencing hearing, it was revealed that the victim seeking restitution was Boise City. When the arresting officer was chasing down and capturing Nienburg, apparently the officer's pants ripped, and the cost of replacement pants was $68. Further, when Nienburg fled, he left his car door open and his dog took the opportunity to escape from the vehicle. The dog ran away and, at a location approximately 100 yards from the site of the traffic stop, a responding backup officer struck the dog with his cruiser, killing the animal and damaging the vehicle. The cost to repair the cruiser represented the remaining $1,088.98 of the requested restitution.
At the outset of the sentencing hearing the district court said that as part of the plea agreement, "[Nienburg] agreed that he would pay the restitution and it's in an amount of approximately or a little bit more than $1,156.98 and [Nienburg] was free to argue for less." In response to the court's question, defense counsel and the prosecutor indicated that this was their understanding of the term. The State then handed the court a copy of its proposed order of restitution seeking $68 awardable to the Boise Police Department and $1,088.98 awardable to Boise City, for a total of $1,156.98. The district court asked if Nienburg was willing to pay that restitution amount. Defense counsel responded in the negative, arguing that "$1,088.98 (of the amount sought) is not restitution" and asked the court not to award this amount. The following colloquy then occurred:
THE COURT: . . . [Nienburg] agreed that he would pay that restitution. I'm sorry. That was part of the discussion. And we even--they even talked about the amount.
So if he wants to violate the plea agreement, then the plea agreement's gone and the state's free to argue for imposition of up to life. [DEFENSE COUNSEL]: He definitely ...