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Lapp v. State

Court of Appeals of Alaska

November 20, 2009

Barry Lee LAPP, Appellant,
STATE of Alaska, Appellee.

Page 535

[Copyrighted Material Omitted]

Page 536

Kenneth L. Covell, Fairbanks, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.


BOLGER, Judge.

In 1995, Barry Lee Lapp was convicted of manslaughter and five counts of assault. Superior Court Judge Niesje J. Steinkruger entered an order requiring Lapp to pay approximately $85,000 in restitution to the victims of his crimes, and to pay 10% of his wages toward restitution " until all victims are fully paid." When Lapp failed to pay the full restitution during his probation, the judge entered a civil judgment for the balance. Lapp asserts that the superior court had no authority to enter this civil judgment for the remainder of the restitution because the judgment violated his rights to due process, his protection against double jeopardy, and constitutional restrictions on ex post facto laws. Lapp also argues that the civil judgment was barred by the doctrine of equitable estoppel. We conclude that the 2001 amendment to the restitution statute was merely a procedural change that did not violate the restriction on ex post facto laws, and that the judgment itself did not increase Lapp's punishment in a way that violated due process or the protection against double jeopardy. We also conclude that the superior court's failure to sua sponte recognize the issue of estoppel was not plain error.


On September 16, 1994, Lapp recklessly caused an automobile collision that killed one person and seriously injured several others. Lapp pleaded no contest under a plea agreement, and on April 20, 1995, he was convicted of manslaughter,[1] five counts of felony assault,[2] and driving while intoxicated.[3] Lapp was then sentenced to 10 years' imprisonment with 2 years suspended. A hearing was scheduled to determine the amount that Lapp would have to pay for restitution, but Before the hearing began, Lapp agreed to a stipulation to pay restitution totaling $86,455.87 to his four victims. This stipulation was used by Judge Steinkruger as a basis for a restitution order.

The restitution order included a stipulated payment schedule and stated that the restitution provisions " shall be part of the sentencing judgment previously entered in this matter." The judgment incorporated this restitution order, but also made restitution a condition of Lapp's probation.

On May 4, 2000, Lapp began serving his 5 years of probation. During his probation, Lapp presented pay stubs to his probation officers, who then told Lapp the amount he should pay in restitution. Lapp complied with the terms of his probation, which included making all of the payments his probation officers directed him to pay. By May 4, 2005, Lapp had completed his probation. However, during that five-year span, Lapp had only paid $15,750 in restitution. By September 16, 2005, Lapp had stopped making his restitution payments. He was contacted by his probation officer about his failure

Page 537

to make payments, and a week later the State petitioned to revoke his probation.

On February 24, 2006, Judge Steinkruger scheduled an evidentiary hearing to determine whether Lapp had violated his probation. The judge suggested that it might be possible to convert Lapp's restitution order into a civil judgment. The judge wrote the following notation on the scheduling order:

It appears that the State's only remedy is for the remaining restitution owed to be treated as a civil judgment. This assumes the State does not contest the defendant paid 10% of wages as the State and defendant agreed to. Therefore, at the above hearing the court will consider whether the State is in agreement, i.e., that the State does not contest the defendant was not in violation regarding restitution during the five years of probation.

At the April 5, 2006 hearing, the State requested that the restitution order be converted into a civil judgment. Despite Lapp's objections, Judge Steinkruger allowed the State to lodge a civil judgment to enforce the " total amount of restitution still owed." In her ruling, Judge Steinkruger relied on the 2001 amendment to the restitution statute, particularly including AS 12.55.045( l ), which provides that a restitution order in a criminal case " is a civil judgment for the amount of the restitution." Judge Steinkruger also ruled that the 2001 amendment did not violate any constitutional principles or breach Lapp's plea agreement.

Pursuant to this ruling, the State submitted accounting records which detailed Lapp's payments and established that Lapp still owed $70,705.87 in restitution. Judge Steinkruger then issued a civil judgment for that amount, which Lapp now appeals.

Did the Civil Judgment Violate Double Jeopardy?

Under the double jeopardy clauses of the state and federal constitutions, " once a sentence has been meaningfully imposed, it may not, at a later time, be increased." [4] Lapp contends that the 1995 judgment of conviction only obligated him to make restitution as a condition of his probation, so that entering a civil judgment in 2006 for the remaining restitution was an increase in his punishment. Citing Shagloak v. State, [5] Lapp also argues that the same circumstances violated his right to substantive due process.

Thus, we must examine the judgment and associated documents to determine whether Lapp's obligation to pay restitution was only a condition of his probation, or whether it was also an independent component of his sentence. When we construe a judgment, we primarily seek to ascertain the sentencing judge's intention as stated in the contemporaneous sentencing record.[6] When we review the judgment and contemporaneous sentencing documents in this case, it is apparent that restitution was not only a condition of Lapp's probation, but also an independent component of the judgment.

Analyzing the judgment itself, the list of probation conditions includes the following items:

15. The defendant shall pay restitution as set forth in the Restitution Order entered in this case which is ...

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