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upholding restitution for injured victim’s lost wages
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Court of Appeals No. A-11001 Trial Court No. 3AN-08-13175 CR No. 6047
04-23-2014
DAVID ANTHONY YANNELLO, Appellant, v. STATE OF ALASKA, Appellee.
Hanley Robinson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge.
Appearances: Hanley Robinson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
David Anthony Yannello pleaded guilty to second-degree assault for shooting and severely injuring Brad Phelps. As part of his sentence, the court ordered Yannello to pay restitution. In this appeal, Yannello challenges several aspects of the superior court's restitution order: He argues first that the court erred by ordering restitution to Phelps's parents for their expenses traveling from Germany to Alaska to care for Phelps. He argues next that the court should not have ordered him to pay the portion of Phelps's medical expenses that his medical providers had "written off" as unrecoverable. Finally, he argues that the court erred by ordering restitution for the wages Phelps would have earned if he had been physically able to work for the five months following the shooting.
AS 11.41.210(a)(1).
For the reasons explained below, we conclude that the superior court had the authority to order restitution for each of these expenses and that the court did not abuse its discretion in determining the restitution amounts. We therefore affirm the superior court's order.
Background facts
At about midnight on November 23, 2008, Yannello and Phelps encountered one another on the street as they walked to their respective homes in Girdwood. An altercation ensued, which ended with Yannello shooting Phelps three times in the torso and once in the arm with a semi-automatic handgun.
Phelps sustained injuries to his kidney, duodenum, stomach, and pancreas. He had emergency surgery that day and another surgery a few days later. Phelps was not discharged from the hospital for almost a month, and after his discharge he continued to have serious complications requiring additional treatments and, eventually, another hospitalization and surgery.
Following the shooting, Phelps's parents flew to Anchorage from their home in Germany to care for him. Phelps also incurred significant medical bills that he was unable to pay. A number of Phelps's medical providers made the decision to "write off" some of these costs.
Phelps's doctors originally told him that he should not work for a year. However, about five months after the shooting, Phelps decided his financial situation was dire and that he had to work. With his doctors' approval, he began light-duty work in Homer for Alaskan Coastal Freight and North Star Terminal, earning approximately $5,000 a month. Phelps worked from May 2009 to September 2009, when he was re-hospitalized for another surgery related to the shooting. Because of these medical complications, Phelps was not able to work again until the end of April 2010.
As part of his plea agreement with the State, Yannello agreed to pay restitution as determined by the trial court. The State asked the court to order Yannello to pay the following restitution: (1) $7,582.65 for the cost of Phelps's parents' travel from Germany to Alaska to care for Phelps; (2) $381,818.23 for Phelps's medical expenses, some of which had been "written off" because of Phelps's demonstrated financial hardship; (3) $53,135.37 in lost wages for the eleven months Phelps could not work following the shooting and his subsequent re-hospitalization; and (4) $40,000 to reimburse the State of Alaska Violent Crimes Compensation Board for funds they provided to Phelps.
Yannello objected to the proposed restitution order on various grounds, including: (1) Phelps's parents should not be reimbursed for their travel expenses because they did not qualify as "victims" under the restitution statutes; (2) Yannello should not have to pay for medical expenses that were "written off" by the medical providers; and (3) Yannello should not have to pay for Phelps's lost wages because Phelps was not working at the time he was shot.
Superior Court Judge Michael Spaan found the claimed expenses were compensable under the restitution statutes and ordered Yannello to pay a total of $445,501.45 in restitution. Yannello appeals.
Why we uphold the restitution to Phelps's parents for travel-related expenses
Yannello argues that the superior court erred by ordering him to reimburse Phelps's parents for costs related to their travel to Alaska to care for Phelps. He argues that Phelps's parents were not entitled to this reimbursement because they did not qualify as "victims" under the restitution statutes and because their expenses were not proximately related to the shooting.
Alaska Statute 12.55.045(a) gives sentencing courts authority to order a defendant convicted of an offense "to make restitution ... to the victim or other person injured by the offense." In determining the amount of restitution, courts are directed to consider the "public policy that favors requiring defendants to compensate for damages and injury to their victims," and the "financial burden placed on the victim and those who provide services to the victim and other persons injured by the offense as a result of the criminal conduct of the defendant." The legislature declared that its intent in enacting this statute was "to make full restitution available to all persons who have been injured as a result of criminal behavior, to the greatest extent possible, by ... allowing courts to order that restitution be made to all persons who have suffered a loss as a result of a defendant's conduct[.]"
AS 12.55.045(a)(2).
Lonis v. State, 998 P.2d 441, 447 n.18 (Alaska App. 2000) (quoting ch. 71, § 1, SLA 1992).
The legislature has since underscored that the restitution statutes should be construed broadly. In Demers v. State, a majority of this Court held that the trial court erred by ordering restitution to board members who volunteered their time to audit and reconstruct the financial records of a non-profit organization following the defendant's embezzlement. Chief Judge Robert G. Coats dissented, asserting that it was inconsistent with the legislature's policy of granting restitution "to the greatest extent possible," and arguing that victims should not have to increase the amount of their actual losses by hiring outside help in order to receive appropriate and fair restitution. The legislature agreed with Judge Coats's interpretation of the restitution statutes and subsequently amended AS 12.55.045(a) to directly overturn the Demers decision.
42 P.3d 1 (Alaska App. 2002).
Id. at 1-2.
Id. at 5 (Coats, C.J., dissenting).
Ch. 26, § 1, SLA 2003; Maillelle v. State, 276 P.3d 476, 479 (Alaska App. 2012).
Here, the superior court found that Phelps's parents spent the funds at issue to travel to Alaska to care for Phelps after the shooting. Phelps's mother was prepared to testify at the restitution hearing that if they had not come to Alaska, they would have spent considerably more money to hire professionals to provide the same services. Additionally, according to briefing filed in the superior court on behalf of Phelps's parents, the amount the parents claimed in restitution "[did] not begin to cover the expenses they ... actually incurred, including lost wages." In the proceedings below, Yannello did not dispute these facts. Instead, he simply asked the court to decide that Phelps's parents were not entitled to restitution as a matter of law — a contention we reject.
We have previously held that the definition of "victim or other person injured by the offense" should be broadly construed. In Lonis v. State, we rejected the defendant's claim that an insurance company did not qualify as a "victim or other person injured by the offense." In reaching that conclusion, we observed that the court could have awarded the restitution directly to the victim, even though the victim had already been paid by the insurance company.
998 P.2d 441 (Alaska App. 2000).
Id. at 447-48.
Id. at 448.
Likewise in Maillelle v. State, we rejected the defendant's claim that the State of Alaska was not a "victim or other person injured by the offense" and therefore was not entitled to reimbursement for Medicaid benefits paid to the victim. We observed that Medicaid was a form of insurance; the funds had been used to pay for the victim's medical expenses; the defendant did not dispute that the victim required the treatment; and the sentencing court could have ordered the defendant to pay the restitution directly to the hospital, doctors, nurses, and pharmacists who provided the victim's care.
276 P.3d 476 (Alaska App. 2012).
Id. at 478.
Id.
Based on this prior authority and the legislative policy underlying the restitution statutes, we conclude that Phelps's parents were compensable as "victim[s] or other person[s] injured by the offense" and that it was reasonable for the superior court to attribute the parents' expenses to Yannello's conduct. We note that in Riley v. State, we approved restitution for the cost of the victim's plane ticket from Alaska to his parents home in Ohio, where he went to recover from a shooting. We concluded that the trial court reasonably found that this travel expense was attributable to the defendant's crime, and thus reimbursable under the restitution statute. Similarly, in Reece v. State, we approved restitution to cover the reasonable moving expenses of the mother of a sexual abuse victim where the trial court found that the family's move was prompted by the sexual abuse.
60 P.3d 204 (Alaska App. 2002).
Id. at 223.
Id.
881 P.2d 1135 (Alaska App. 1994).
Id. at 1138.
We therefore reject Yannello's claim that the superior court lacked authority to order restitution to Phelps's parents for their travel-related expenses and that those expenses were not a sufficiently direct consequence of Yannello's crime to justify the order of restitution.
Why we uphold the restitution to medical providers for "written off" medical services
Yannello claims that the trial court erred by ordering him to pay restitution to medical providers who had already "written off" Phelps's debts. Yannello does not dispute that these providers normally would be entitled to compensation for their services. Rather, he argues that because Phelps was no longer obligated to pay these expenses, the court should not have ordered Yannello to pay them. He contends that ordering restitution gave the providers a potential windfall because they may have received "tax benefits" from writing off the unpaid costs of Phelps's treatment.
We disagree. When these medical providers forgave Phelps's debts, they essentially donated their services to him. Yannello has offered no evidence that they received some financial benefit from doing so. We addressed a similar claim in W.S. v. State. In W.S., a mental health counselor agreed to charge half her normal rate for counseling a child who had been the victim of an assault because the child's family could not afford to pay more. The superior court ordered restitution to the family for the fees it paid for the services, as well as to the mental health counselor for the remainder of the fee she donated. We held that it was proper for the court to award restitution to the counselor, even though the victim had not paid these expenses, because the counselor "essentially donated half of her fee to facilitate the provision of counseling services."
174 P.3d 256 (Alaska App. 2008).
Id. at 258.
Id.
Id. at 260.
Providing restitution to the victims of crimes serves two goals: restoring victims and making defendants pay the costs of their criminal conduct. As we explained in Mahan v. State, "[t]his second goal would not be served if defendants received credit for money that crime victims received from sympathetic members of the community." We find no error in the court's order requiring Yannello to provide restitution for the fees "written off" by Phelps's medical providers.
Mahan v. State, 51 P.3d 962, 969 (Alaska App. 2002).
Id. at 969.
Why we uphold the restitution for Phelps's lost wages
Yannello argues that the trial court erred by ordering him to pay restitution for the wages Phelps would have earned if he had been able to work during the five months following the shooting. Yannello contends that, because Phelps was unemployed at the time of the shooting, there was insufficient evidence for the court to find that Phelps would have earned any income during these five months if he had not been physically disabled by the shooting. He also argues that the amount of restitution the court ordered for this period was based on impermissible speculation.
Yannello did not make either of these arguments in the superior court. At the restitution hearing, Yannello broadly opposed the "almost $5,000 per month for eleven months" that the State proposed as restitution for Phelps's lost wages. But when Yannello submitted briefing after the restitution hearing (at the court's invitation), he did not challenge the proposed restitution for lost wages. Nor did he address this issue in his motion for reconsideration of the court's restitution order.
Given these circumstances, the superior court could have concluded that Yannello abandoned his challenge to the proposed restitution for lost wages. However, the superior court treated the issue as preserved. We will therefore treat it as preserved as well, but our analysis of whether the superior court abused its discretion in determining the amount of restitution is necessarily informed by Yannello's failure to provide the trial court with any explanation for the basis of his objection, as well as his failure to suggest any alternative restitution amount.
At the restitution hearing, Phelps testified that he moved to Alaska in November 2008, seventeen days before the shooting. At that time, he had worked as a welder for four years, most recently earning $20 per hour with a $100 per diem in Vermont. Phelps had also worked as a snow-making supervisor and rock-climbing instructor in 2008, earning between $12.50 and $30 per hour.
Phelps had an interview for a welding job lined up for the Monday after the shooting. He also had spoken with a manager at the Alyeska Resort about working in the snow-making department. Phelps acknowledged that a job interview does not necessarily lead to a job, but he stated that, in his experience, he was usually offered a job following an interview. He said he found work easily.
Although Phelps's doctors urged him not to work for a full year after the shooting, Phelps convinced them to allow him to return to work on light duty after about five months. He then got a job with Alaskan Coastal Freight, earning $35 per hour. Phelps had to leave that job in September 2009 because of medical complications related to the shooting. He resumed working again at the end of April 2010, and he reported earning between $20 and $46 per hour as a welder.
The trial court ordered Yannello to pay Phelps $53,135.37 to compensate for the eleven months of income Phelps lost as a result of the shooting — five months after the shooting and six months following his subsequent re-hospitalization and surgery. That figure was based on the wages Phelps earned ($4,830.47 per month) at Alaskan Coastal Freight during the interim period when he was able to work.
On appeal, Yannello argues that this amount should be reduced by $24,152.35. He contends that because Phelps was unemployed at the time of the shooting, the superior court's assumption that Phelps would have worked during the five months after the shooting — and would have received wages equivalent to those he later earned at Alaskan Coastal Freight — was too speculative to support the order of restitution.
Under Alaska law, the courts are limited to awarding restitution only for actual damages or losses arising from a defendant's crime. When the losses are estimated, the estimate must be "based on substantial evidence of monetary loss or expense, not mere speculation. By statute, an award of restitution "may include compensation for loss of income."
Welsh v. State, 314 P.3d 566, 568 (Alaska App. 2013) ("restitution ... should be assessed according to the damages or loss arising from the defendant's crime").
Peratrovich v. State, 903 P.2d 1071, 1078 (Alaska App. 1995) (original citations omitted).
AS 12.55.045(d).
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Here, the superior court found that Phelps had a "very strong work ethic" and that it was "not likely he would have been unemployed for long absent the shooting." This finding was well supported by Phelps's work history and his testimony that he was actively seeking employment prior to the shooting: Phelps testified that he was at the Job Center filling out job applications for approximately ten of the seventeen days he had been in Alaska. By the time of the shooting, he had met with one prospective employer and lined up an interview with a second. Although Phelps's doctors advised him not to work for a year after the shooting, he went back to work after about five months. Phelps had to leave that job because of medical complications related to the shooting, but he resumed work as a welder at the end of April 2010, and he was still working at the time of the restitution hearing in February 2011. This was sufficient evidence for the superior court to conclude that Phelps would have worked during the five months immediately following the shooting if he had been physically able to work.
On appeal, Yannello also argues that there was insufficient evidence to support the superior court's finding that Phelps would have earned a wage equivalent to the $35 per hour rate he earned at Alaskan Coastal Freight. We agree that the superior court could not know with certainty what Phelps's income would have been because Phelps did not have a job at the time of the shooting. But the court's estimate of Phelps's hourly wage was not based on mere speculation, but on actual evidence of Phelps's earning capacity. We note that the amount used by the court approximated the midrange of the $20 to $46 per hour income Phelps reportedly earned as a welder since the end of April 2010.
We acknowledge that additional evidence to support the proposed restitution — such as Phelps's tax records, the testimony of his potential employers, and the testimony of individuals familiar with the job market for welders — might have been helpful to the superior court. But as we already noted, Yannello never pointed to these weaknesses in the State's proof in superior court; nor did he articulate any specific objection to the State's proposed restitution for lost wages or suggest that the court base its calculation on a shorter time period or a lower hourly wage. Given this record, we conclude that court did not abuse its discretion when it declined to reduce the State's proposed restitution for lost wages.
Conclusion
We AFFIRM the decision of the superior court.