Opinion
A-13761
10-19-2023
EMILIO RICARDO GREEN, Appellant, v. STATE OF ALASKA, Appellee.
Catherine Bliss Boruff, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-18-11262 CR Andrew Peterson, Judge.
Catherine Bliss Boruff, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Emilio Ricardo Green pleaded guilty, pursuant to a plea agreement, to one count of fourth-degree assault for recklessly causing physical injury to an Anchorage police officer during his arrest. The superior court later ordered Green to pay restitution to the Municipality of Anchorage for workers' compensation payments related to the injuries of both officers involved in the arrest, i.e., the officer who initially responded and a second officer who came to the first officer's aid and was hurt while attempting to subdue Green.
AS 11.41.230(a)(1). Green also pleaded guilty to one count of third-degree weapons misconduct, AS 11.61.200(a)(1), but that conviction is not relevant to his claims on appeal.
On appeal, Green argues that the superior court erred in awarding restitution for the second officer's injuries because the injuries were not actually or proximately caused by the conduct underlying his assault of the first officer. We disagree. It was reasonably foreseeable that a second officer would come to the first officer's aid and would be injured in the process. Green does not argue that the terms of his plea agreement precluded restitution for the second officer's injuries.
See Peterson v. Anchorage, 500 P.3d 314, 321 (Alaska App. 2021) ("Alaska employs a test of proximate causation in evaluating claims for restitution in a criminal case." (citing Ned v. State, 119 P.3d 438, 446 (Alaska App. 2005))).
Cf. Shorty v. State, 214 P.3d 374, 384-85 (Alaska App. 2009) (upholding a conviction for fourth-degree assault [recklessly causing physical injury to another person] based on a police officer's injuries incurred when the officer struck Shorty while trying to subdue him); State v. Malone, 819 P.2d 34, 37-38 (Alaska App. 1991) (concluding that defendant who initiated a high-speed chase may be held criminally liable for injuries to police officers and third party motorists after officer's car collided with third party's car "even if it can be demonstrated that the officers or motorists themselves acted negligently"); see also Winschel v. Brown, 171 P.3d 142, 148 (Alaska 2007) ("[W]e have emphasized that, under the Restatement's approach, 'an action of a third person which intervenes to injure the plaintiff will shield a negligent defendant only where after the event and looking back from the harm to the actor's negligent conduct, it appears . . . highly extraordinary that it should have brought about the harm.'" (alteration in original) (quoting Griffith v. Taylor, 12 P.3d 1163, 1168 (Alaska 2000))).
Green notes that he was also charged with resisting arrest, but this charge was dismissed as part of the plea agreement. He argues that, to the extent the injuries to the second officer were related to this charge, the superior court erred by ordering restitution for a dismissed charge.
See Kimbrell v. State, 666 P.2d 454, 455 (Alaska App. 1983).
But in cases where Alaska appellate courts have reversed restitution awards for dismissed charges, the awards were for damages or loss caused by conduct other than the conduct underlying the conviction. We have held that restitution may be awarded when the loss or damages "were unquestionably the consequence of precisely the same conduct and intent . . . as the conduct and intent" for which the defendant was convicted. Because the conduct underlying Green's assault conviction actually and proximately caused the second officer's injuries, restitution is appropriate.
See Nelson v. State, 628 P.2d 884, 895-96 (Alaska 1981) (in a case where the defendant was convicted of burglary, reversing an award of restitution for other, uncharged burglaries); Schwing v. State, 633 P.2d 311, 313-14 (Alaska App. 1981) (in a case where the defendant was convicted of selling cocaine, reversing an award of restitution for other sales of cocaine alleged in charges that were dismissed); see also Peterson, 500 P.3d at 319 ("[A] court cannot award restitution for uncharged conduct that is distinct from the conduct that resulted in the conviction, unless the parties have agreed that the defendant will be subject to such a restitution order." (citations omitted)).
Pena v. State, 664 P.2d 169, 178 (Alaska App. 1983), rev'd on other grounds, 684 P.2d 864 (Alaska 1984); cf. Miller v. State, 312 P.3d 1112, 1118 (Alaska App. 2013) (upholding restitution award for injuries caused by conduct that was not separately charged but trial court found was part of single, continuous assault for which defendant was convicted).
Green also argues that the superior court erred by awarding restitution for the amount the Municipality paid to an outside company to process the workers' compensation claims for the officers. We disagree. The processing fees at issue involved expenses that were properly awarded as restitution under AS 12.55.045(a).
See Demers v. State, 42 P.3d 1, 2 (Alaska App. 2002) (affirming a restitution award for the cost of accounting services to address a defendant's embezzlement), abrogated on other grounds by SLA 2003, ch. 26, §§ 1-2; Beans v. State, 2020 WL 567281, at *2-3 (Alaska App. Feb. 5, 2020) (unpublished) (affirming a restitution award for overhead costs associated with employees' overtime to repair damages the defendant caused).
The restitution judgment of the superior court is AFFIRMED.