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State v. Hess

Court of Appeals of Idaho

June 20, 2019

STATE OF IDAHO, Plaintiff-Respondent,
v.
RICHARD LOWELL HESS, Defendant-Appellant.

          Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.

         Order for restitution, reversed; and case remanded.

          Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Jeff Nye, Deputy Attorney General, Boise, for respondent.

          HUSKEY, JUDGE

         Richard 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Hess 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.

         Although 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.

         At the 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 trafficking.

         Hess objected to most of the State's restitution request, with the exception of $1, 100 that was used as buy money.[1] 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.

         The 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.

         II. ANALYSIS

         Preliminarily, 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.

         Restitution 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 judgment(s).

         Restitution under I.C. § 37-2732(k) is discretionary. State v. Cunningham I, 161 Idaho 698, 700, 390 P.3d 424, 426 (2017).[2] 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).

         In Cunningham I, the Idaho Supreme Court analyzed a district court's award of restitution under I.C. § 37-2732(k).[3] 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 $2, 240.

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.

         The 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.

         On 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.[4]

         A. Costs for the Boise Police Department

         The State requested $7, 324.40 in restitution to pay the Boise Police Department.[5] The district court granted the State's restitution request. Hess argues the restitution ...


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