2013 Unpublished Opinion No. 620
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
Order awarding restitution, affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.
GUTIERREZ, Chief Judge
Saiyoth Tom Chongphaisane appeals from the restitution order imposed following his judgment of conviction for possession of methamphetamine. For the reasons set forth below, we affirm.
I. FACTS AND PROCEDURE
After police executed a search warrant at a residence where Chongphaisane was found with drugs, he was charged with one felony count of possession of a controlled substance (methamphetamine), Idaho Code § 37-2732(c); one misdemeanor count of possession of a controlled substance, I.C. § 37-2732(c); and one misdemeanor count of possession of drug paraphernalia, I.C. § 37-2734A. Pursuant to a plea agreement, Chongphaisane pled guilty to the felony charge in exchange for dismissal of the misdemeanors, a specific sentencing recommendation from the State, and the State's agreement not to file a sentencing enhancement. The State retained the right to request restitution. Prior to sentencing, the State was released from the plea agreement's restrictions after new charges were filed against Chongphaisane.
At the sentencing hearing, the State submitted its initial restitution request of $3018.21 for the costs of the investigation, to be paid to the Idaho State Crime Lab and the Boise Police Department (BPD). Chongphaisane objected to the amount requested by the BPD, which comprised all but $100 of the restitution request and included requests for reimbursement for hours spent by nine BPD employees on the case. At the restitution hearing, held in February 2012, two BPD employees, Officer Steve Keely and Technician Laura Weddle, testified in support of the State's request. Officer Keely testified he spent approximately twenty-five hours investigating Chongphaisane's criminal activity and that his rate of pay was approximately $38 an hour (which Weddle later testified did not include benefits). The State introduced Exhibit 1 through Weddle, who prepared the document: it listed each BPD employee who worked on the investigation, the number of hours they had done so, and the total restitution amount requested by the BPD. It did not list the employees' individual rates of pay. Weddle testified she calculated the restitution amount after collecting the number of hours worked on the investigation from the participants; identifying which hours qualified as overtime; and then, requesting the employees' "rate of pay and benefits" applicable to the time the search took place. She then multiplied the hours spent on the investigation by the employees' applicable rate of pay, which, for the purposes of the restitution request, included the cost of benefits received by the employees. If the hours worked were considered overtime, the calculation was increased to time and a half. Weddle testified her rate of pay, including benefits, was $20 an hour. Neither she nor Officer Keely testified to the rate of pay for the other employees listed in the restitution request. The State then rested.
In argument at the conclusion of the restitution hearing, Chongphaisane pointed out that the State provided no evidence of the rate of pay for any of the BPD employees besides Officer Keely and Weddle; therefore, he argued, there was insufficient evidence to award restitution for those employees. The State agreed it did not elicit testimony from Weddle concerning the employees' specific rate of pay, but pointed out it did ask Weddle how she calculated the amounts requested. The State asked that, if the district court did not believe the evidence was sufficient, it be allowed to reopen its case. Without discussion, the court allowed the case to be reopened, and the State again called Weddle, who testified she did not have the officers' rates of pay with her, but approximated the rates based on a comparison with Officer Keely's rate of pay. The district court took the matter under advisement.
Several days after the hearing, the State submitted an affidavit from Weddle wherein she included the rates of pay (including benefits) for the remaining employees. Chongphaisane objected to the court's consideration of the affidavit on the grounds that it was untimely because the State had rested its case and because it violated his constitutional rights to confront an adverse witness. Although Chongphaisane indicated he did not want a hearing, the district court scheduled a hearing to allow Chongphaisane to cross-examine Weddle regarding her statements in the affidavit. The court also indicated it would include the time Weddle spent at the hearing in the restitution award. Chongphaisane strenuously objected. The hearing was held, but Chongphaisane declined to question Weddle. On March 26, Weddle submitted a second affidavit listing the time spent by Officer Keely and herself at the two restitution hearings, their rate of pay, and the resulting additional amount of restitution requested.
The district court entered a written order of restitution, indicating, in relevant part, it was within its discretion to reopen the matter and take additional evidence, even on its own motion, and that benefits could be included in the restitution amount. It awarded $2, 918.21 to the BPD and ...