State of Vermont v. Lucas Dwight

Defendant Lucas Dwight appeals the trial court’s restitution order requiring him to pay dental expenses resulting from defendant’s conviction for simple assault. Defendant raises two main issues: (1) whether the court erred in awarding restitution for expenses that complainant’s father paid on complainant’s behalf; and (2) whether the ordered repayment schedule, which considered defendant’s earning capacity, was impermissibly punitive. We affirm. ¶ 2. The following facts are undisputed. Connor Richards, a student at the University of Vermont, was assaulted in May 2016. He sustained substantial injury to his mouth, including losing four teeth. Defendant was charged with aggravated assault for the attack, which was later amended to simple assault pursuant to 13 V.S.A. § 1023(a)(1). In May 2016, defendant pled nolo 2 contendere to the charge of simple assault. The court entered a judgment of guilty and sentenced defendant to four to twelve months, all suspended except for three days on work crew, and defendant was placed on probation for fifteen months. The probation conditions included anger management counseling, no contact with complainant, and restitution as ordered by the court. ¶ 3. The court held two restitution hearings to determine the amount of restitution and defendant’s ability to pay. See 13 V.S.A. § 7043(c) (requiring, when ordering restitution, court must hold hearing if parties contest restitution amount and make findings regarding restitution amount and defendant’s ability to pay); 28 V.S.A. § 252(b)(6) (permitting court to order restitution as probation condition and requiring court to “fix the amount [of restitution] thereof, which shall not exceed an amount the defendant can or will be able to pay, and shall fix the manner of performance”). The court found that as of August 2016, the date of the first restitution hearing, complainant had incurred $21,441.15 in dental expenses due to the assault that were not covered by insurance or the State of Vermont Restitution Unit. Complainant’s father paid for these expenses by credit card. Complainant’s father “told his son that he would be required to make a choice—have his severely damaged teeth and gums repaired, or go to school.” Complainant has taken out a $28,000 loan for school expenses, an expense previously paid for by his parents. The court ordered defendant to pay $21,441.15 in restitution to complainant. ¶ 4. In assessing defendant’s ability to pay, the court found that as of February 2017, the date of the second restitution hearing, defendant was a high school graduate with no college or trade school education. Defendant worked seasonally, mowing lawns in summer and snowplowing in winter. A paystub dated November 18, 2016, showed he earned $14.00 per hour, worked 35.25 hours per week, and earned a gross income of $493.50 per week, and his year-to date earnings were $10,785.25. Defendant reported his monthly income was $1,012.00, and his monthly expenses were $1,155.00. The court noted that defendant “appears to be a very fit and healthy young individual” and that “defendant offered no reason why” he could not work forty 3 hours per week. The court calculated that if defendant worked forty hours per week at $14.00 per hour, he would earn $2,424.00 per month. If he earned the weekly wage on his paystub every week, he would earn $2,136.00 per month. The court concluded that defendant “should be required to work a standard work week in order to make the restitution amount meaningful,” and “[g]iven the number of hours worked per week by the defendant and the absence of any reason for not working a standard work week, . . . the defendant is earning less than he could through reasonable effort.” Relying on this calculation of defendant’s earning potential, the court ordered defendant to pay $500 by March 1, 2017, $200 by April 1, 2017, and $200 by May 1, 2017. Starting June 1, 2017, defendant was required to pay $300 per month. Defendant timely appealed. ¶ 5. On appeal, defendant argues that because complainant’s father paid the dental expenses, the loss was father’s, not complainant’s, placing it outside the reach of the restitution statute. He also argues that the purpose of restitution is to compensate the victim, rather than to punish the defendant, and the restitution payment schedule was unnecessarily and impermissibly punitive. ¶ 6. An order to pay restitution as a condition of probation falls within the sentencing discretion of the court. State v. Hughes, 2010 VT 72, ¶ 8, 188 Vt. 595, 5 A.3d 926 (mem.) (citing 28 V.S.A. § 252 and “noting that conditions of probation, including award and amount of restitution, lie within discretion of trial court”). Accordingly, “[w]e review restitution orders for an abuse of discretion.” State v. Gorton, 2014 VT 1, ¶ 8, 195 Vt. 460, 90 A.3d 901. We will uphold the trial court’s order unless “the trial court has withheld its discretion entirely or . . . it was exercised for clearly untenable reasons or to a clearly untenable extent.” Unifund CCR Partners v. Zimmer, 2016 VT 33, ¶ 15, 201 Vt. 474, 144 A.3d 1045 (quotation omitted). To the extent the court’s order relies on statutory interpretation or a question of law, we review the matter de novo. State v. Blake, 2017 VT 68, ¶ 8, __ Vt. __, 174 A.3d 126 (“When we review issues of law or engage in statutory interpretation” involved in restitution orders, “we do so de novo.”). 4 I. Expenses Paid by Father ¶ 7. Our first question is whether the court erred in ordering defendant to pay restitution to complainant for the dental expenses when complainant’s father, not complainant, paid the expenses. This is a question of law that we review de novo. Id. ¶ 8. The restitution statute requires the court to consider restitution “in every case in which a victim of a crime . . . has suffered a material loss.” 13 V.S.A. § 7043(a)(1). This statute is narrowly drawn. State v. Stewart, 2017 VT 82, ¶ 7, __ Vt. __, 176 A.3d 1120. “Victim” is defined as “a person who sustains physical, emotional, or financial injury or death as a direct result of the commission or attempted commission of a crime.” 13 V.S.A. § 5301(4). The “direct result” requirement means that restitution is only available for “direct victims of crime.” State v. Thomas, 2010 VT 107, ¶ 17, 189 Vt. 106, 14 A.3d 961 (“The Legislature’s use of the words ‘direct result’ indicates that it intended to provide restitution only to direct victims of crime.”). “Material loss” refers to “uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.” 13 V.S.A. § 7043(a)(2). “[T]here must be a direct link between the crime and the restitution.” State v. LaFlam, 2008 VT 108, ¶ 11, 184 Vt. 629, 965 A.2d 519 (mem.) (quotation omitted); see also State v. Baker, 2017 VT 91, ¶¶ 12, 14, __ Vt. __, 177 A.3d 1093 (explaining restitution statute requires criminal act to be proximate cause of material losses). ¶ 9. There is no question that if complainant had paid the dental expenses directly, such as through a bank account or by a credit card in his name, then the expenses would qualify for restitution under the statute.1 The dental expenses were incurred by the direct victim of the crime; they were proximately caused by defendant’s criminal act; and the expenses meet the statutory 1 At oral argument, defendant questioned whether complainant’s dental expenses were “uninsured medical expenses,” given that complainant’s insurance company said the dental expenses were not medically necessary. This argument was not raised in the briefing, and we do not consider it here. See In re Boardman, 2009 VT 42, ¶ 20, 186 Vt. 176, 979 A.2d 1010 (per curiam) (explaining we will not consider issues not adequately briefed on appeal). 5 definition of a material loss. See 13 V.S.A. § 7043(a)(2) (defining material loss); cf. Stewart, 2017 VT 82, ¶ 6 (stating bank that reimbursed account holder for fraudulent check was “direct victim” of crime of embezzlement because it was “harmed financially as a direct result of defendant’s crime”); Baker, 2017 VT 91, ¶ 20 (holding that negligent operation of car could proximately cause car damages, but did not proximately cause lost wages due to car co-owner’s decision to leave work to help family deal with car accident); State v. Kenvin, 2011 VT 123, ¶ 13, 191 Vt. 30, 38 A.3d 26, overruled on other grounds by State v. Aubuchon, 2014 VT 12, 195 Vt. 571, 90 A.3d 914 (stating decedent was “sole victim of defendant’s crime” of negligently operating vehicle, so decedent’s medical expenses qualified for restitution, but family members’ travel expenses for decedent’s funeral did not). ¶ 10. The question is whether the fact that father paid for the expenses, rather than complainant, renders the dental expenses ineligible for restitution. It does not. The loss incurred was complainant’s loss, not father’s. Complainant incurred the dental expenses, and uninsured medical expenses constitute material losses without regard to who paid them or whether they have been paid at all. 13 V.S.A. § 7043(a)(2) (defining “material loss” to mean “uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses”). The court did not err in ordering defendant to pay restitution for complainant’s dental expenses. II. Repayment Schedule ¶ 11. Next we address the repayment schedule. First, we review whether it was within the court’s discretion to consider defendant’s future earning capacity in ordering restitution. This is a question of law that we review de novo. Blake, 2017 VT 68, ¶ 8. Second, we review whether the court abused its discretion in ordering this repayment schedule, specifically considering whether the repayment schedule was impermissibly punitive, as defendant asserts. Gorton, 2014 6 VT 1, ¶ 8; see also Unifund CCR Partners, 2016 VT 33, ¶ 15 (defining abuse-of-discretion standard). ¶ 12. The restitution statute prescribes how a court orders restitution. 13 V.S.A. § 7043. Before issuing the restitution order, the court must make findings regarding the “amount of material loss incurred by the victim.” Id. § 7043(d)(1). The court also must make findings regarding the defendant’s “current ability to pay restitution, based on all financial information available to the court, including information provided by the [defendant].” Id. § 7043(d)(2); see also Kenvin, 2011 VT 123, ¶ 16 (stating that restitution statute “mandates that the trial court determine whether a defendant will be able to pay the amount of restitution”). If the defendant “is unable to pay the restitution judgment order at the time of sentencing,” the court is authorized to “establish a restitution payment schedule” for the defendant. 13 V.S.A. § 7043(e)(1). This payment schedule should be “based on the [defendant’s] current and reasonably foreseeable ability to pay.” Id. In addition, a restitution amount that is a condition of probation “shall not exceed an amount the defendant can or will be able to pay.” 28 V.S.A. § 252(b)(6). ¶ 13. “The primary objective in interpreting statutes is to give effect to the intent of the legislature.” State v. Jarvis, 146 Vt. 636, 637, 509 A.2d 1005, 1006 (1986). To understand the legislative intent, we “must examine and consider fairly, not just isolated sentences or phrases, but the whole and every part of the statute.” Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38, ¶ 20, 194 Vt. 12, 72 A.3d 346 (quotation omitted). Where the statute’s language is unambiguous, we “look at the plain, ordinary meaning of the statute” and “enforce the statute according to its terms.” Blake, 2017 VT 68, ¶ 8 (quotation omitted). “We look also to other relevant or related statutes for guidance, because a proper interpretation must further the entire statutory scheme.” Id. (quotation omitted). ¶ 14. We conclude that the Legislature intended the court to consider not only a defendant’s immediate ability to pay, but also his or her earning capacity. While the statute directs 7 a court to consider the defendant’s “current ability to pay”—a focus on the defendant’s current income, not future income or capacity for income—the statute also contemplates that the defendant may not be able to pay the restitution order immediately. 13 V.S.A. § 7043(d)(2), (e)(1). Where that is the case, the Legislature explicitly directed the court to establish a payment schedule based not only on the defendant’s current ability to pay, but also on his or her “reasonably foreseeable ability to pay.” Id. § 7043(e)(1). In addition, when ordering restitution as a condition of probation, the statute explicitly requires the court to determine what amount “the defendant can or will be able to pay.” 28 V.S.A. § 252(b)(6). Thus, the statutory language indicates a restitution payment order does not necessarily have to be based only on the income a defendant actually is earning at the time of the sentencing hearing. On the contrary, the Legislature directed the court to base that order in part on a defendant’s earning capacity—the defendant’s “reasonably foreseeable ability to pay” and the amount “the defendant can or will be able to pay.” 13 V.S.A. § 7043(e)(1); 28 V.S.A. § 252(b)(6). ¶ 15. Other state courts have interpreted similar restitution statutes in the same way. Alaska’s courts interpreted a statute that required courts to “ ‘take into account the financial resources of the defendant’ ” as demanding “inquiry” into defendant’s “past earning capacity and potential in the future as a wage earner, based on her experience, training, and any other relevant factors.” Karr v. State, 686 P.2d 1192, 1197 (Alaska 1984) (quoting Alaska Stat. § 12.55.045(a) (1980))2; see also Bain v. State, 642 So. 2d 578, 580 (Fla. Dist. Ct. App. 1994) (basing restitution order on defendant’s work history, earning capacity, and professional licenses, rather than her current unemployment, in keeping with Florida restitution statute that required courts to assess “ ‘the present and potential future financial needs and earning ability of the defendant’ ” (quoting 2 The Alaska legislature amended this statute in 1992 to take out the “financial resources” clause and add a clause authorizing the court to take into account the defendant’s “present and future ability to pay.” 1992, Alaska Sess. Laws No. 71, §§ 3-4. 8 Fla. Stat. § 775.089(6) (1993)); State v. Cottrell, 271 P.3d 1243, 1247, 1253 (Idaho Ct. App. 2012) (affirming that statute requiring court to consider “ ‘financial resources, needs and earning ability of the defendant’ ” permitted courts to “fashion a restitution award based on contemplation of future earning capacity regardless of the earning capacity or assets of the defendant at the time of the restitution award” (quoting Idaho Code § 19-5304(7)); State v. Meeks, 415 P.3d 400, 404 (Kan. 2018) (interpreting statute that requires restitution unless shown to be “ ‘unworkable’ ” as authorizing courts to consider “present and future earning capacity” (quoting Kan. Stat. Ann. § 21 6604(b)(1)).3 ¶ 16. Further, implicit in the court’s authority to order restitution is the court’s authority to address whether it is reasonable to expect the restitution order will be carried out, including the power to consider the defendant’s reasonably foreseeable earning capacity. See In re Girouard, 2014 VT 75, ¶ 12 n.2, 197 Vt. 162, 102 A.3d 1079 (stating “court also has inherent authority to ensure compliance with its own decree”). Otherwise, such a result would “deprive” the restitution judgment “of much, if not all, of its force” and “frustrate the larger purpose of ensuring that courts have the power to enforce their own valid orders to avoid unjust results.” Aither v. Estate of Aither, 2006 VT 111, ¶¶ 9-10, 180 Vt. 472, 913 A.2d 376 (addressing court’s jurisdiction to enforce order arising in divorce proceeding after abatement); cf. Blake, 2017 VT 68, ¶ 11 (stating that statute “would lose significant meaning” if the court had authority to “raise the theoretical possibility of restitution” but was unable to order restitution because of victim’s release of right to restitution). 3 The dissent argues that these cases either undermine our analysis or fail to support it. Post, ¶ 28. We acknowledge that some of these cases construed statutes that more explicitly authorized the court to consider earning capacity. See, e.g., Bain, 642 So. 2d at 580. But other cases relied on statutes with less explicit authorization. See, e.g., Meeks, 415 P.3d at 404. While these statutes are not identical to Vermont’s, they are similar, and the courts interpreted them in a similar way as we do here. 9 ¶ 17. The dissent suggests that in affirming the court’s authority to consider a defendant’s reasonably foreseeable earning capacity, we hold that the court has equal power to impute income in the restitution context that it holds in the child-support context. See 15 V.S.A. § 653 (authorizing court to consider “the potential income of a parent who is voluntarily unemployed or underemployed” when ordering child support). We do not. We hold here that when the statute authorizes the court to consider a defendant’s “reasonably foreseeable ability to pay,” this includes a defendant’s reasonably foreseeable earning capacity. As in this case, a defendant’s reasonably foreseeable earning capacity includes the income the defendant could earn at the same rate of pay the defendant currently receives if she or he were working full time in the occupation in which she or he is already employed. Whether that authority extends any further—such as to holding a defendant responsible for higher wages than she or he earns based on a credential for a higher paying profession in which the defendant is not currently employed—we do not decide. ¶ 18. Having addressed as a matter of a law whether the court may consider a defendant’s earning capacity in ordering restitution, we review whether the court abused its discretion in ordering this restitution payment schedule. See Unifund CCR Partners, 2016 VT 33, ¶ 15. We conclude that the court did not. The record supports the court’s findings regarding defendant’s current ability to pay and what he could pay if he worked full time at his current rate. Basing the restitution payment schedule on those findings is reasonable and is not an abuse of discretion. ¶ 19. Defendant argues that in this case, the court’s assessment of ability to pay was unnecessarily and impermissibly punitive. “The purpose of restitution is to compensate the victim, rather than to punish the defendant.” State v. Bohannon, 2010 VT 22, ¶ 6, 187 Vt. 410, 996 A.2d 196. “But restitution, as part of sentencing and in terms of its effects and consequences, is not purely compensatory.” Blake, 2017 VT 68, ¶ 16. Restitution furthers the criminal justice goals of rehabilitation and deterrence. Baker, 2017 VT 91, ¶ 12 (“[W]hen restitution is ordered, it addresses, to some degree, the goals of sentencing and, more broadly, criminal justice. Those 10 goals include rehabilitation and deterrence.”); see also Meeks, 415 P.3d at 404 (“In all circumstances, the district court should keep in mind the ultimate goals of restitution: compensation to the victim and deterrence and rehabilitation of the guilty.”). ¶ 20. Here the trial court found that if it based the restitution payment schedule on defendant’s current ability to pay, without considering his earning capacity, it would take defendant twelve years to repay the victim. The court did not find this acceptable, given complainant’s loss and defendant’s earning capacity. The court concluded that “the defendant should be required to work a standard work week in order to make the restitution amount meaningful.” Defendant understands this language to indicate the court’s intention to punish him through “meaningful” restitution.4 We understand this language to indicate the court’s intention to ensure defendant pays restitution within a reasonable period of time. This reasoning is fully consistent with the rehabilitative and deterrent goals of restitution, and it is not punitive. See State v. Breeden, 932 P.2d 936, 939 (Idaho Ct. App. 1997) (“A restitution requirement facilitates rehabilitation by confronting the defendant with the consequences of his or her criminal conduct . . . [and] promotes public safety by exacting a price for the crime, which may deter the defendant and others from such offenses.”).

We conclude that the court did not err in awarding restitution for expenses that complainant’s father paid on complainant’s behalf. We also hold that it is within the court’s discretion to consider reasonably foreseeable earning capacity in determining an appropriate restitution schedule, and here the court’s ordered schedule was not punitive.



Affirmed.