from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Deborah A. Bail, District
for restitution, reversed; and case remanded.
D. Fredericksen, State Appellate Public Defender; Kimberly A.
Coster, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Jeff Nye, Deputy
Attorney General, Boise, for respondent.
Lowell Hess appeals from the district court's award of
restitution entered pursuant to Idaho Code § 37-2732(k).
Hess asserts there was not substantial evidence to support
the restitution ordered by the district court. Because the
costs associated with the Ada County Prosecutor's Office
and the Boise Police Department were not sufficiently
presented in the State's restitution requests, we reverse
the restitution order and remand this case to the district
court for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
was charged with felony trafficking in heroin, I.C. §
37-2732B(a)(6)(C), which involved knowing possession of more
than twenty-eight grams of heroin. Pursuant to a plea
agreement, Hess pleaded guilty to an amended charge of felony
trafficking in heroin, I.C. § 37-2732B(a)(6)(B), which
involved knowing possession of seven grams or more of heroin.
the parties did not discuss restitution during the plea
hearing, Hess acknowledged in the guilty plea advisory form
that he agreed to pay the costs of prosecution and
investigation. The State filed written requests for
restitution pursuant to I.C. § 37-2732(k). The
restitution request totaled $8, 116.35 and included the
following documents: (1) An Idaho State Police request for
$200 for lab tests; (2) a second Idaho State Police request
for $200 for lab tests; (3) an Ada County Prosecutor's
Office request for $391.95; and (4) a Boise Police Department
request of $7, 324.40, containing: $5, 603.20 for
investigative hours, $121.20 for overtime hours, and $1, 600
for evidence purchases. Police reports and other documents
submitted with the presentence investigation report provided
some information as to the scope of the investigatory work.
sentencing hearing, the State asked the district court for
$8, 116.35 for the Ada County, Boise City, and Idaho State
Police restitution requests. The State explained:
In this case, Judge, we have submitted a restitution request,
and I know Your Honor has concerns about on occasion the cost
of prosecution and cost of investigation, but this does
include the investigation costs for the buy program in which
the defendant was paid $1, 100, plus all the time that went
into that, as well as the investigation in this case, and the
drug prosecution is $391.95, so that's not just this
case, but the other case as well, which was presented to the
grand jury and then $400 for the lab costs, and so the total
restitution the state is seeking is $8, 116.35 as indicated
in the proposed order, and I'm not asking for more than
the mandatory minimum fine of [$]15, 000 that is required
pursuant to the amended count on the second tier of
objected to most of the State's restitution request, with
the exception of $1, 100 that was used as buy
money. Hess objected to both the prosecution and
investigation costs but only specifically argued that there
was insufficient detail supporting the request for the
investigation costs. The district court overruled Hess's
objection and granted the State's restitution request in
its entirety. The district court explained:
[I]t seems to me in looking at the police reports and the
other materials submitted in connection with the presentence
report, that there is sufficient documentation to warrant the
state's restitution order, and I think in this case,
where there's so much dealing done that it's entirely
appropriate, even though I have some of the concerns that I
often have about feasibility, and I think this is a situation
where it's entirely appropriate.
district court imposed a unified sentence of twenty-five
years, with ten years determinate. The district court also
entered an order for restitution and judgment, which required
Hess to make restitution to law enforcement agencies in the
amount of $8, 116.35. Hess timely appeals.
we note that Hess does not request that we vacate the entire
restitution amount. Hess concedes he did not object at trial
to the $1, 100 of buy money used by the Boise Police
Department. In addition, Hess does not challenge the $400
used for the Idaho State Police lab tests. Thus, Hess
requests that this Court reverse the $8, 116.35 restitution
order and remand this case to the district court for entry of
an order awarding $1, 100 to the Boise Police Department for
restitution for evidence purchases and $400 to the Idaho
State Police for lab tests. As to the rest of the restitution
requested, Hess argues there was not substantial evidence to
support the restitution amount ordered by the district court.
may be ordered by the district court under I.C. §
37-2732(k) once a defendant is convicted of, or pleads guilty
to, a crime under the Uniform Controlled Substances Act,
Title 37, Chapter 27 of the Idaho Code. State v.
Gomez, 153 Idaho 253, 257-58, 281 P.3d 90, 94-95 (2012).
Idaho Code § 37-2732(k) provides, in relevant part:
Upon conviction of a felony or misdemeanor violation under
this chapter . . . the court may order restitution for costs
incurred by law enforcement agencies in investigating the
violation. Law enforcement agencies shall include, but not be
limited to . . . county and city prosecuting attorney
offices. Costs shall include, but not be limited to . . . any
other investigative or prosecution expenses actually
incurred, including regular salaries of employees. . . . A
conviction for the purposes of this section means that the
person has pled guilty or has been found guilty,
notwithstanding the form of the judgment(s) or withheld
under I.C. § 37-2732(k) is discretionary. State v.
Cunningham I, 161 Idaho 698, 700, 390 P.3d 424, 426
(2017). When a trial court's discretionary
decision is reviewed on appeal, the appellate court conducts
a multi-tiered inquiry to determine whether the lower court
correctly perceived the issue as one of discretion, acted
within the boundaries of such discretion, acted consistently
with any legal standards applicable to the specific choices
before it, and reached its decision by an exercise of reason.
State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149,
158 (2018). In order to satisfy the requirements of the
inquiry, the district court must base the amount of
restitution upon the preponderance of evidence submitted by
the prosecutor, defendant, victim, or presentence
investigator. State v. Weaver, 158 Idaho 167, 170,
345 P.3d 226, 229 (Ct. App. 2014). The determination of the
amount of restitution is a question of fact for the trial
court whose findings will not be disturbed if supported by
substantial evidence. Id. Substantial evidence is
"relevant evidence as a reasonable mind might accept to
support a conclusion." State v. Straub, 153
Idaho 882, 885, 292 P.3d 273, 276 (2013).
Cunningham I, the Idaho Supreme Court analyzed a
district court's award of restitution under I.C. §
37-2732(k). There, the State sought $2, 240 for
prosecution costs, and the district court held a restitution
hearing. Cunningham I, 161 Idaho at 699, 390 P.3d at
425. As evidence of its prosecution costs, the State
submitted an unsworn written statement entitled
"Statement of Costs and Request for Restitution in a
Drug Case." Id. The statement of costs stated:
I . . . Deputy Prosecuting Attorney for State of Idaho,
County of Ada, am aware that the Ada County Prosecutor's
Office keeps records regarding the attorney time spent
prosecuting drug cases in anticipation of submitting a
request for restitution pursuant to I.C. § 37-2732(k). I
have reviewed the time log in this case, which documents the
prosecutor time spent prosecuting the above referenced drug
case. The Ada County Prosecutor's Office spent 16
attorney hours at an attorney rate of $140 per hour
prosecuting this case, not including preparation and argument
for the sentencing hearing. Pursuant to Idaho Code §
37-2732(k), the State requests restitution in the amount of
Cunningham I, 161 Idaho at 699 n.1, 390 P.3d at 425
n.1. The Supreme Court held that the restitution award in
Cunningham I was not supported by substantial
evidence. Id. at 701, 390 P.3d at 427. The Court
determined the State's unsworn statement of costs did not
satisfy the definition of substantial evidence. Id.
at 702, 390 P.3d at 428. The Court concluded: "We
therefore hold that unsworn representations, even by an
officer of the court, do not constitute 'substantial
evidence' upon which restitution under section 37-2732(k)
may be based." Cunningham I, 161 Idaho at 702,
390 P.3d at 428. As guidance in interpreting I.C. §
37-2732(k), the Supreme Court explained: "At a minimum,
measuring up to section 37-2732(k)'s burden to prove
expenses actually incurred will generally require sworn
statements that delineate the time spent performing specific
tasks." Cunningham I, 161 Idaho at 702, 390
P.3d at 428.
Supreme Court vacated the restitution award for lack of
evidence and remanded the case for further proceedings
consistent with the opinion. Id. On remand, the
district court held a second restitution hearing at which the
State called an administrative specialist as a witness.
State v. Cunningham II, 164 Idaho 759, 761, 435 P.3d
539, 541 (2019). The specialist testified as to the expenses
on the timesheet for the Ada County Prosecutor's Office.
Id. The timesheet delineated the number of hours
worked by the attorneys, described the activity of the
attorneys, and contained the initials of each attorney next
to the date worked. Id. The timesheet had a blank
column for the billing rate of each attorney, and the
timesheet was not signed or certified to be accurate.
Id. In addition, the State sought to admit a signed and sworn affidavit by
the witness that explained the witness had reviewed the
timesheet and "applied the appropriate payroll rate for
said attorneys and calculated the aggregate actual
prosecution costs to be a total of $906.75."
Id. at 762, 435 P.3d at 542. Over defense
counsel's objection, the district court admitted the
timesheet and the affidavit under Idaho Rule of Evidence
803(6), commonly known as the business records exception to
the hearsay rule. Cunningham II, 164 Idaho at 762,
435 P.3d at 542.
appeal, the Supreme Court in Cunningham II vacated
the district court's restitution award. Id. at
765, 435 P.3d at 545. The Court concluded that restitution
proceedings under I.C. § 37-2732(k) are subject to the
rules of hearsay set forth in the Idaho Rules of Evidence.
Cunningham II, 164 Idaho at 763, 435 P.3d at 543.
The Court also concluded that neither the timesheet nor the
affidavit was properly admitted under I.R.E. 803(6), and
thus, the district court erred when it ordered restitution
because there was no substantial evidence upon which to base
the restitution. Cunningham II, 164 Idaho at 765,
435 P.3d at 545.
Costs for the Boise Police Department
State requested $7, 324.40 in restitution to pay the Boise
Police Department. The district court granted the State's
restitution request. Hess argues the restitution ...