Burriesci v. Commonwealth
717 S.E.2d 140
Va. Ct. App.2011Background
- Burriesci pled guilty to one count of obtaining money by false pretenses, over $200, under Code § 18.2-178, pursuant to a plea agreement.
- He owned Alliance for Seniors, a Medicaid provider in the Richmond area, and entered into a provider agreement with DMAS.
- DMAS requires PCAs to be fully trained (minimum 40 hours) and prohibits testing-out or grandfathering in; untrained PCAs are not qualified.
- Burriesci employed untrained/unqualified PCAs, billed DMAS, and received reimbursement for those services.
- At restitution, the Commonwealth showed $180,082 in DMAS reimbursements for services provided by untrained PCAs; Burriesci contested the loss amount as not proven.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restitution of $180,082 was within the trial court’s discretion | Burriesci argues loss/amount not proven; restitution reflects profit | DMAS loss equates to actual overpayments caused by offense | No abuse of discretion; amount supported by evidence |
| Applicability of Howell v. Commonwealth | Howell controls damages not directly caused by offenses | Howell not controlling; direct loss proven here | Howell not controlling; direct causation shown; restitution proper |
| Sufficiency of proof for DMAS loss under preponderance standard | Loss amount speculative; no value from untrained PCAs | DMAS evidence established loss; no contrary evidence from Burriesci | Loss amount supported by preponderance; reasonably related to offense |
Key Cases Cited
- Howell v. Commonwealth, 274 Va. 737 (2007) (loss may include only damages directly caused by the offense; abuse of discretion if misapplied)
- McCullough v. Commonwealth, 38 Va.App. 811 (2002) (restitution determinations reviewed for reasonableness and preponderance of the evidence)
- Deal v. Commonwealth, 15 Va.App. 157 (1992) (sentencing discretion; restitution must be reasonable in relation to offense)
- Slayton v. Commonwealth, 185 Va. 357 (1946) (judicial discretion implies conscientious judgment, not arbitrary action)
- Williams v. Oklahoma, 358 U.S. 576 (1959) (trial courts may consider relevant out-of-court information in sentencing)
- Robinson v. Commonwealth, 273 Va. 26 (2007) (trial court findings reviewed for plain support by evidence)
- Smith v. Commonwealth, 52 Va.App. 26 (2008) (restitution amount determined by preponderance of evidence)
- Grattan v. Commonwealth, 278 Va. 602 (2009) (standard for evaluating restitution decisions)
- Waiters v. Commonwealth, 33 Va.App. 739 (2000) (restitution as a means to prevent profiting from crime)
- Martin v. Commonwealth, 274 Va. 733 (2007) (sentencing discretion; substantial evidence standard)
- Alger v. Commonwealth, 19 Va.App. 252 (1994) (recognizes use of victim impact in calculating restitution)