Opinion
Court of Appeals No. A-11897 No. 6358
07-13-2016
WYATT L. GOWER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Robert John, Law Office of Robert John, Fairbanks, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4FA-12-173 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael P. McConahy, Judge. Appearances: Robert John, Law Office of Robert John, Fairbanks, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Pursuant to a plea agreement, Wyatt L. Gower was convicted of second-degree misconduct involving a controlled substance for manufacturing methampheta- mine. As part of the plea agreement, Gower and his co-defendants (Joseph Barnes and Aaron Woodward) agreed that they would be jointly and severally liable for restitution for any "meth lab clean-up costs" — up to a cap of $5,000. Pursuant to this provision, the State later submitted a request for $5,000 in restitution to be paid to Robert Nash, the owner of the mobile home where the defendants manufactured methamphetamine.
AS 11.71.020(a)(2)(A).
Gower objected to the proposed restitution order on two grounds. First, he claimed that the plea agreement only provided for restitution to the State and he argued that any award to Mr. Nash would constitute a breach of the plea agreement and/or a violation of his rights under the double jeopardy clause. Second, Gower claimed that Mr. Nash had failed to provide the necessary documentation showing that he had incurred at least $5,000 in "meth lab clean-up costs." The superior court issued the restitution order over Gower's objections, implicitly rejecting both of Gower's claims.
Gower now appeals. On appeal, the State argues that Gower's interpretation of the plea agreement is not supported by the record and his claim of breach is without merit. The State concedes, however, that the court erred in awarding $5,000 in restitution to Mr. Nash without an itemized justification for that amount.
The State made a similar concession of error in the appeal filed by Gower's co-defendant Joseph Barnes. We concluded in Barnes's case that the State's concession was well founded, and we vacated the restitution award and remanded Barnes's case to the superior court for further proceedings.
See Barnes v. State, Court of Appeals No. A-11967.
We provided Gower's attorney and the State's attorney with a copy of our order in Barnes's case prior to oral argument in Gower's case.
We would ordinarily be inclined to resolve Gower's appeal by issuing a similar order. But, at oral argument, Gower's attorney insisted that we first reach the merits of his breach-of-the-plea-agreement claim because resolution of that claim in his favor would end this case. The State's attorney also urged us to reach the merits of this claim, arguing that it would streamline the issues before the superior court on remand.
At that point in the oral argument, we again suggested that Gower might want us to remand this case to the superior court without resolving this question on the existing record. But Gower's attorney again insisted that we decide his claim (whether for or against him) on the existing record.
Accordingly, we have reviewed the record and we conclude that the State is correct and there is nothing in the record to suggest that the specific recipient of the restitution award was a material term of Gower's plea agreement with the State. The written plea agreement specifies only that the restitution will be for "meth lab clean up costs," and that the restitution amount will not exceed $5,000; it does not specify the recipient(s) of the restitution. Nor was there any discussion of restricting the potential recipient(s) at Gower's change of plea hearing.
Indeed, the only time the identity of the recipient of the restitution appears to have come up was during the change of plea hearing for Gower's co-defendant Joseph Barnes. During that hearing, the trial judge asked the prosecutor to whom the restitution was payable and the prosecutor answered, "Your Honor, at the moment, I'll say it's going to be the State of Alaska." (Emphasis added.)
This exchange between the trial judge and the prosecutor at Barnes's change of plea hearing indicates that identifying the specific recipient of the restitution was viewed as an administrative matter that could be worked out later — not as a material term of the plea agreement.
Moreover, as the State points out, most restitution awards are technically payable to "the State" because Alaska Criminal Rules 32.6(b) and (f) contemplate that, in most cases, the Department of Law's Collections Unit will be in charge of collecting the restitution from criminal defendants and forwarding it to the victims (although the rules also permit victims to "pursue collection without the assistance of the Collections Unit").
See Alaska R. Crim. P. 32.6(b)(3) & (f)(2). --------
We therefore find no support for Gower's interpretation of the plea agreement and no merit to Gower's claim of a material breach. And because we find that the plea agreement was not materially breached, Gower's double jeopardy claim is moot.
Conclusion
The restitution judgment is VACATED, and this case is REMANDED to the superior court for a new restitution hearing in which Mr. Nash will be required to document his claim that he incurred $5,000 in "meth lab clean-up costs." We do not retain jurisdiction.