Opinion
A-13992
07-03-2024
DOW JORDAN WAGGONER, Appellant, v. STATE OF ALASKA, Appellee.
Lindsey Bray, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. RuthAnne Beach, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Erin B. Marston, Judge. Trial Court No. 3AN-17-08109 CR
Lindsey Bray, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
HARBISON Judge
Dow Jordan Waggoner agreed to pay restitution as part of a plea agreement. After the State submitted its restitution request, the superior court entered a restitution order for the requested amount without conducting an evidentiary hearing. Waggoner now appeals, contending that the superior court erroneously failed to give him an opportunity to request an evidentiary hearing. We agree, and we therefore vacate the restitution order.
Background facts and proceedings
Waggoner was convicted, pursuant to a plea agreement, of first-degree assault and misdemeanor driving under the influence. As part of the agreement, Waggoner agreed to pay restitution to the victim, Jennifer Russell, in an amount to be decided within 120 days from the date of conviction. On the same day that Waggoner entered his pleas, the superior court imposed the agreed-upon sentence and entered a written judgment of conviction. The written judgment ordered Waggoner to pay restitution to Russell in an amount to "be determined as provided in Criminal Rule 32.6(c)(2)." Under this rule, the State has ninety days after sentencing to "file and serve" a proposed restitution judgment, and the defense has thirty days from "receipt" of the proposed restitution judgment to object.
AS 11.41.200(a)(1) and AS 28.35.030(a)(2), respectively.
The State did not comply with this deadline. Instead, the State filed a proposed restitution judgment and motion to accept late filing 134 days after sentencing. As part of its proposed judgment, the State requested restitution to Russell in the amount of $81,938.14.
Waggoner filed a timely objection to these filings. Waggoner argued that the State's proposed restitution judgment should be rejected as untimely, and alternatively, that the claim for Russell's lost wages was not supported by adequate documentation. Waggoner noted that, on a restitution claim form dated in 2018, Russell estimated her lost wages as totaling $51,631.71, but in an email dated in 2021, Russell estimated her lost wages as totaling $16,214.63. Based on this discrepancy, Waggoner asked the court to either deny the request for lost wages or to require the State to provide additional support for it.
The superior court accepted the late-filed request for restitution and ordered the State to provide additional support for its request. With respect to the restitution request, the court ordered:
The State has 30 days to provide proof of wage loss. The defendant shall be entitled to request a hearing after receiving the wage loss information. Such hearing must be requested within 30 days of receiving the proof of wage loss.
The State failed to file any additional proof of wage loss within thirty days of this order. Nevertheless, five days after this deadline elapsed, the superior court signed the State's proposed restitution judgment, which included an order requiring Waggoner to pay $81,938.14 in restitution to Russell, including $51,631.71 in lost wages.
The restitution judgment also required Waggoner to pay $148,016.12 to The Rawlings Company LLC, and $20,978.75 to the Violent Crimes Compensation Board. Neither the parties' written plea agreement nor the judgment of commitment and probation stated that Waggoner was required to pay restitution to any victims other than Russell, but on appeal, Waggoner does not challenge the award of restitution to the other two victims.
Waggoner moved for reconsideration, arguing (1) that the court had overlooked its own order instructing him to request a hearing within thirty days after the State provided proof of lost wages, and (2) that the court had overlooked the State's failure to provide documentation to support $51,631.71 in lost wages. The State filed an opposition to this motion. After this, the superior court did not rule on Waggoner's motion for reconsideration, and the motion was therefore taken as denied.
See Alaska R. Crim. P. 42(k)(4) ("If the motion for reconsideration has not been ruled upon by the court within 30 days from the date of the filing of the motion, or within 30 days of the date of filing of a response requested by the court, whichever is later, the motion shall be taken as denied.).
This appeal followed.
Why we vacate the superior court's restitution order
On appeal, Waggoner asserts that the superior court erred by not affording him an opportunity to request a restitution hearing. The State contends that Waggoner could have requested a restitution hearing at any point during the three months after the State filed its motion to accept late filing.
But, as Waggoner pointed out in his motion for reconsideration, during this time, the superior court ordered the State to provide additional proof of wage loss and gave Waggoner until thirty days after the State provided this additional proof to request a hearing. But the State never provided additional proof of wage loss, and the court entered a restitution judgment just five days after the day the State's additional proof was due. This shortened Waggoner's window for requesting a hearing by twenty-five days and effectively eliminated any opportunity Waggoner would have to make such a request.
We conclude that the superior court abused its discretion by entering the restitution judgment without affording Waggoner the opportunity to request a restitution hearing. As Waggoner noted in his superior court filings, the documents provided by the State appeared to be inconsistent with regard to the total amount of Russell's lost wages. Given this, and the State's failure to file any additional information despite the court's order requiring it to do so, the court's entry of the restitution order without providing Waggoner with an opportunity to request a hearing was reversible error.
See Smith v. Groleske, 196 P.3d 1102, 1105-06 (Alaska 2008) (stating that a court's denial of a motion for reconsideration is reviewed for an abuse of discretion and that "[d]ue process requires that a party be given an opportunity for a hearing on issues of consequence").
See Stinson v. Holder, 996 P.2d 1238, 1241-42 (Alaska 2000) (finding reversible error where the trial court denied a motion without holding an evidentiary hearing that the defendant had requested, given that the motion papers revealed a genuine factual dispute).
Conclusion
We VACATE the restitution judgment and REMAND this matter to the superior court so that it may conduct a restitution hearing.