Appeal
from the Superior Court No. 3AN-14-111 DL, Third Judicial
District, Anchorage, Kevin M. Saxby, Judge, and Sidney
Billingslea, Magistrate Judge.
Laurence Blakely, Assistant Public Defender, and Quinlan
Steiner, Public Defender, Anchorage, for the Appellant.
Eric
A. Ringsmuth, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Craig W. Richards, Attorney General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
OPINION
ALLARD
JUDGE
When
R.C. was fifteen years old, he and another juvenile started a
fire on the playground of an elementary school in Anchorage,
causing extensive damage. R.C. returned to the playground
later that same day and started another fire by himself.
R.C.
admitted his conduct and was adjudicated a delinquent minor.
Following a restitution hearing, the court ordered R.C. to
pay $ 159, 161.17 in restitution to the school district and
its insurance company.
On
appeal, R.C. argues that the trial court erred in failing to
consider his ability to pay when it ordered this restitution
amount. R, C.'s case requires us to resolve a question of
statutory interpretation that we discussed (but did not
resolve) in W.S. v. State-whether AS 12.55.045(g),
the statutory provision in Title 12 that prohibits trial
courts from considering a criminal defendant's ability to
pay when determining the amount of restitution in a criminal
case, applies equally to restitution determinations in
juvenile court.[1]
For the
reasons explained here, we conclude that AS
12.55.045(g)'s prohibition does not apply to juvenile
delinquency cases. The trial court was therefore authorized
to consider R.C.'s ability to pay when setting the amount
of restitution that R.C. would personally be obligated to
pay. Because the record does not establish that the trial
court understood it could take R, C.'s limited ability to
pay into account when determining the amount of restitution
that R.C. would owe, we vacate the current restitution
judgment, and we remand this case to the trial court for
further proceedings consistent with this decision.
Background
facts and prior proceedings
Early
on the morning of July 26, 2014, fifteen-year-old R.C. and
his friend, L.G. started a fire on the playground of
Willowcrest Elementary School in Anchorage. Later that
afternoon, R.C. returned and started a second fire on the
playground by himself. Both R.C. and L.G. admitted the
charges of attempted third-degree criminal mischief and
second-degree criminally negligent burning, and they were
adjudicated delinquent minors.[2]
During
the restitution proceedings, the State argued that each
juvenile (and their respective parents) should be jointly and
severally liable for the full amount of damages caused by
their actions. The State therefore asked the court to find
L.G. and his parents jointly and severally liable for $ 108,
325.92 (the amount of damage caused by the first fire), and
to find R.C. and his parents jointly and severally liable for
$159, 161.17 (the amount of damage caused by both
fires).[3]
R.C.'
s attorney objected to R.C. being personally liable for the
full amount of restitution. The attorney argued, in
particular, that R.C. did "not have any savings or the
ability to earn any money," and he asserted that
restitution should be set at an amount that R.C. could
"realistically" pay during his juvenile
probationary period. In support of his attorney's
argument, R.C. testified at the restitution hearing that he
had never held a job before and he was not sure how much
money was in his bank account. (It was later determined that
the bank account contained around $ 100.) R.C. indicated that
he wanted to pay restitution, and he thought he might be able
to get a job at Subway. R.C. also indicated that eventually
he hoped to work in construction, doing drywall.
Magistrate
Judge Sidney Billingslea presided as a master over the
restitution hearing. At the conclusion of the hearing, she
issued a report and recommendation on restitution for R.C.
This report detailed R, C.'s limited assets in a section
entitled "Minor's ability to pay." The report
also recommended that the superior court order the Department
of Law to set up a payment schedule that addressed R.C.'s
ability to pay. But the report otherwise adopted the
State's proposed restitution orders, and made no
adjustment to the amount of restitution that R.C. would
personally owe.
The
superior court adopted the magistrate judge's
recommendation and ordered the full restitution requested by
the State.
Thus,
under the current restitution order, R.C. is jointly and
severally liable with his parents for $ 15 9, 161.17 in
restitution. He also shares joint and several liability with
L.G. and L.G.'s parents for $108, 325.92 of that amount.
Although R.C.'s liability is joint with these other
parties, R.C. will remain personally liable for whatever
remains to be paid until the full amount is
paid.[4] This personal liability will continue into
R, C.'s adult life, and when R.C. reaches adulthood the
restitution judgment can be enforced through the civil
process.[5]
R.C.
now appeals, arguing that the trial court erred when it
failed to consider his limited ability to pay when setting
the amount of restitution R.C. would personally owe. We note
that R, C.'s parents filed a separate appeal challenging
their restitution judgment. But this appeal was dismissed
after R, C.'s parents negotiated a private settlement
with the school district for an undisclosed restitution
amount. It is unknown whether L.G. or L.G.' s parents
have negotiated similar settlements. However, for purposes of
our analysis here, R.C.'s liability for the full $159,
161.17 remains unchanged.[6]
The
State's waiver arguments
Before
we reach the merits of R.C.' s claim on appeal, we must
first address the State's argument that R.C. waived this
claim by failing to adequately argue it in the restitution
proceedings.
The
purpose of the rule requiring parties to preserve an argument
in the trial court is to ensure that the trial court has the
opportunity to respond to the argument, and to ensure that
there is a sufficient legal ruling and factual record to
allow meaningful review by the appellate court.[7]
Here,
R.C. argued that he did not have the ability to pay the full
restitution amount requested by the State, and he requested
that restitution be set in an amount that he could
realistically be expected to pay. This same argument was also
presented, in more detail, in his co-defendant L.G.'s
brief. L.G.'s attorney also raised many of the same legal
arguments raised here. Although R.C. did not explicitly join
L.G.'s "ability to pay" argument, R.C.'s
parents did. Moreover, the magistrate judge issued nearly
identical restitution reports for R.C. and L.G., documenting
their assets in sections entitled "Minor's ability
to pay." Given all this, we conclude that the trial
court had adequate notice of the arguments that R.C. now
raises in this appeal, and there is a sufficient record for
us to meaningfully review this question of law.
The
State also argues that we should reject R. C.' s claim
under the doctrine of invited error. We find no merit to this
argument. The State's invited error argument is based on
one sentence in R, C.'s opposition to the State's
restitution memorandum, in which R.C. stated that
"suitable restitution" for purposes of the juvenile
delinquency statutes "is essentially the restitution
imposed in adult criminal cases." As we have previously
emphasized, the invited error doctrine only comes into play
"when the trial court takes erroneous action at the
request of the party claiming error on
appeal."[8] From our review of the restitution record,
it is apparent that the court did not interpret this sentence
in R.C.'s pleading as a concession by R.C. that his
ability to pay could not be considered in determining the
amount of restitution. The invited error doctrine is
therefore inapplicable.
Lastly,
the State argues that R.C.' s claim is moot because
(according to the State) the court did properly
consider R, C.'s ability to pay in setting the
restitution amount. The State points out that the magistrate
judge was clearly aware of R.C.'s limited ability to pay
because she documented R.C.'s limited earning potential
in her report, and because she recommended that payment
schedules be set up for each party in accordance with their
individual ability to pay.
But the
question before us in this appeal is whether the trial court
had the authority to take into account R.C.' s limited
financial resources when setting the amount of
restitution that R.C. would personally owe, not just how that
limited ability to pay should impact his payment
schedule.[9] We previously addressed this question in
W.S. v. State, a decision from 2008.[10] However, in
that case, we concluded that we did not need to resolve this
question of statutory interpretation because the restitution
at issue in W.S. - $3, 185 - was well within the
minor's ability to pay.[11]
The
same cannot be said of the restitution amount in R.C.' s
case. Here, the restitution amount is $159, 161.17, far above
what R.C. could ever realistically be expected to pay in the
discernible future given the evidence R.C. submitted
regarding his financial status and limited future earning
potential. Accordingly, we do not find the question of
whether the trial court has any authority to reduce this
amount based on R.C.'s demonstrated inability to pay a
moot question.
Why
we conclude that the statutory prohibition against
considering a criminal defendant's ability to pay does
not apply to restitution judgments in juvenile delinquency
cases
When we
interpret a statute, our task is "to ascertain the
legislature's intent and then to construe the statute so
as to implement that intent."[12] To ascertain that intent,
we are required to look at the plain meaning of the
statute's language, its legislative history, and its
purpose.[13] Moreover, where there is an ambiguity in
the definition of a word or phrase, "Alaska courts apply
a sliding scale approach to statutory interpretation, which
considers the legislative history of a statute and whether
that history reveals a legislative intent and meaning
contrary to the plain meaning of the
statute."[14]
Chapter
AS 12.55 governs sentencing in criminal proceedings in
Alaska. Chapter AS 47.12 governs juvenile delinquency
proceedings. Alaska Statute 12.55.-045(g) declares, "The
court may not, in ordering the amount of restitution,
consider the defendant's ability to pay." This
prohibition was enacted in 2004, and it has since been upheld
as constitutional by this Court.[15] Prior to the enactment of
this provision, Chapter 12.55 permitted courts to consider a
defendant's ability to pay when setting the amount of
restitution in certain situations.[16]
There
is no provision equivalent to AS 12.55.045(g) in AS 47.12.
Instead, AS 47.12.120(b)(4) provides that a court shall order
a minor and the minor's parents to make "suitable
restitution" following the adjudication of a minor as
delinquent. The term "suitable restitution" is not
defined in the statute. However, there is some statutory
guidance regarding how "suitable restitution"
should be determined in this context.
Under
AS 47.12.120(b)(4)(A), "the court may require the minor
to use the services of a community dispute resolution center
that has been recognized by the commissioner under AS
47.12.450(b) to resolve any dispute between the minor and the
victim of the minor's offense as to the amount
of or manner of payment of the restitution."
(Emphasis added). Similarly, under AS 47.12.120(b)(4)(C), the
court has the authority to obtain financial information from
the minor and the minor's parents ...