Filed 1/22/18 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
State of North Dakota, Plaintiff and Appellee
v.
Lukas Jeremy Kostelecky, Defendant and Appellant
No. 20170291
Appeal from the District Court of Mountrail County, North Central Judicial District, the Honorable Stacy Joan Louser, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Jensen, Justice.
Amber J. Fiesel, Assistant State’s Attorney, Powers Lake, ND, for plaintiff and appellee.
Markus A. Powell, Dickinson, ND, for defendant and appellant.
State v. Kostelecky
No. 20170291
Jensen, Justice.
[¶1] Lukas Kostelecky appeals a district court’s restitution order reflected within the judgment. Kostelecky argues the district court abused its discretion in ordering restitution in the amount of $3,790. We reverse and remand, concluding the district court misapplied the law in determining that N.D. Const. art. I, § 25(1)(n) requires restitution beyond what is necessary to make the victim whole.
I
[¶2] On February 27, 2017, Kostelecky was arrested for criminal mischief, a class C felony, after damaging property at the New Town High School. Kostelecky pleaded guilty to criminal mischief, a class A misdemeanor, on July 27, 2017. The district court held a restitution hearing and determined Kostelecky owed $3,790 to the New Town school district for the damage to a ten-year-old copy machine.
[¶3] At the restitution hearing, the State presented evidence showing the school was quoted a price of $3,790 to replace the copy machine. The quote to replace the copy machine also provided the depreciated value of the damaged copy machine was $400. The State argued Kostelecky willfully damaged the school’s property, and under N.D.C.C. § 32-03-09.2, he should be responsible for any actual damages to real and personal property. The State contends the actual damage equals the quote to replace the copy machine: $3,790.
[¶4] Kostelecky provided evidence showing a refurbished model of the copy machine would cost between $1,111 and $1,795, and he noted the depreciated value of the damaged copy machine was $400. Kostelecky argued restitution does not mean the victim is entitled to buy newer, more expensive items.
[¶5] The district court determined:
As far as the issue of restitution, I understand your argument perfectly well . . . but the problem is I believe that Marsy’s Law does require full restitution. And in this event the amount of restitution that is going to be ordered is the $3,790.
Now, if, in fact, that makes the school district beyond whole, I can’t make that determination. However, that was the amount that was expended to replace the item that was damaged and ultimately destroyed by Mr. Kostelecky. So that will be the amount of restitution.
Kostelecky appeals the district court’s order for restitution in the amount of $3,790.
II
[¶6] Kostelecky argues the district court abused its discretion in ordering restitution in the amount of $3,790. This Court has concluded:
This Court’s review of a restitution order is limited to whether the district court acted within the limits set by statute, which is similar to an abuse of discretion standard.
State v. Bingaman
,
State v. Tupa
,
A
[¶7] In 2016, North Dakota voters enacted an initiated measure, N.D. Const. art. I, § 25, referred to by the district court as Marsy’s Law. The district court interpreted N.D. Const. art. I, § 25(1)(n) as requiring restitution in the amount expended by the victim, without considering other evidence presented regarding the amount necessary to make the school whole. In determining whether this addition to the constitution alters the existing analysis required for ordering restitution, there is one constitutional and two statutory provisions to consider: N.D. Const. art. I, § 25(1)(n), N.D.C.C. § 12.1-32-08(1), and N.D.C.C. § 32-03-09.2.
[¶8] This Court has noted, “[i]n construing constitutional provisions, we apply general principles of statutory construction. In construing statutory and constitutional provisions, we will attempt to give meaning to every word, phrase, and sentence, and, if necessary, we will attempt to reconcile and harmonize potentially conflicting provisions.”
State Bd. of Univ. & Sch. Lands v. City of Sherwood
,
[¶9] Article I, § 25(1)(n), N.D. Const., provides victims, “[t]he right to full and timely restitution in every case and from each offender for all losses suffered by the victim as a result of the criminal or delinquent conduct.” The legislature has also addressed the determination of restitution in a criminal case and directed the district court to take into account, “[t]he reasonable damages sustained by the victim . . . limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’s criminal action.” N.D.C.C. § 12.1-32-08(1). Additionally, under the civil tort statute, “[a]ny person convicted of criminal mischief shall be responsible for the actual damages to real and personal property and such damages may be recovered in a civil action.” N.D.C.C. § 32-03-09.2.
[¶10] Between these three provisions, there are three different descriptions of restitution. In N.D. Const. art. I, § 25(1)(n), a victim is entitled to “full and timely restitution . . . for all losses.” Under N.D.C.C. § 12.1-32-08(1), a victim is entitled to “reasonable damages . . . actually incurred.” Pursuant to N.D.C.C. § 32-03-09.2, a victim is entitled to “actual damages.”
[¶11] This Court has previously concluded there is a connection between N.D.C.C. § 32-03-09.2, the civil tort statute, and N.D.C.C. § 12.1-32-08, the criminal restitution statute.
Tupa
,
[¶12] Construing the plain language of each together, the purpose of the statutory scheme is to ensure the victim of a crime is made whole. The constitutional provision providing for “all losses” is not modified by the terms “actual” or “reasonable” damages. However, the word “all,” means “the whole amount, quantity, or extent of.” Merriam-Webster’s Collegiate Dictionary 31 (11th ed. 2005). The word “actual” means “existing in act and not merely potentially.” Merriam-Webster’s Collegiate Dictionary 13 (11th ed. 2005). Lastly, the word “reasonable” is defined as “being in accordance with reason.” Merriam-Webster’s Collegiate Dictionary 1037 (11th ed. 2005). Construing the three phrases together, N.D. Const. art. I, § 25(1)(n) does not change the restitution that a district court may order under N.D.C.C. §§ 32-03-09.2 and 12.1-32-08. Instead, harmonizing these constitutional and statutory provisions together, we conclude a victim is entitled to be made whole through a reasonable restitution amount based on the entirety of his or her actual losses.
B
[¶13] The district court misapplied N.D. Const. art. I, § 25(1)(n) by failing to find facts relevant to determining restitution. The district court is the finder of fact in ordering restitution.
See State v. Gates
,
a. The reasonable damages sustained by the victim or victims of the criminal offense, which damages are limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’s criminal action. This can include an amount equal to the cost of necessary and related professional services and devices relating to physical, psychiatric, and psychological care. The defendant may be required as part of the sentence imposed by the court to pay the prescribed treatment costs for a victim of a sexual offense as defined in chapters 12.1-20 and 12.1-27.2.
b. The ability of the defendant to restore the fruits of the criminal action or to pay monetary reparations, or to otherwise take action to restore the victim’s property.
c. The likelihood that attaching a condition relating to restitution or reparation will serve a valid rehabilitational purpose in the case of the particular offender considered.
N.D.C.C. § 12.1-32-08(1).
[¶14] In
Tupa
, the district court ordered the defendants to pay restitution after they pleaded guilty to felony criminal mischief for the destruction of a farmstead.
[¶15] The district court is required to consider the factors listed above when ordering restitution. Here, the district court said, “[n]ow, if, in fact, that makes the school district beyond whole, I can’t make that determination.” The district court failed to take the factors into account and consider the facts presented to it. Additionally, the district court misapplied the law when it determined N.D. Const. art. I, § 25(1)(n) precluded it from considering whether the amount of restitution made the school “beyond whole.” The district court’s elimination of any factual analysis due to N.D. Const. art. I, § 25(1)(n) was an abuse of discretion.
[¶16] As noted in
Tupa
, replacement costs can be an acceptable measure for restitution.
[¶17] Neither of the parties has requested that we determine whether or not N.D. Const. art. I, § 25(1)(n) eliminates from the district court’s consideration of restitution subsections b and c of N.D.C.C. § 12.1-32-08(1). Those subsections require, in general, a district court to consider a defendant’s ability to pay and the likelihood that a condition of restitution or reparation will serve a rehabilitative purpose. This opinion therefore does not address that question.
III
[¶18] We reverse that portion of the judgment related to restitution and remand, concluding the district court abused its discretion and misapplied the law in determining that N.D. Const. art. I, § 25(1)(n) requires restitution beyond what is necessary to make the victim whole.
[¶19] Jon J. Jensen
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Gerald W. VandeWalle, C.J.