Nevada v. United States
No. 15-192
Supreme Court of Vermont
August 26, 2016
2016 VT 83 | 152 A.3d 462
Reiber, CJ., Dooley, Skoglund, Robinson and Eaton, JJ.
all amounts due in both complaints, as well as to miss the status conference that led the trial court to dismiss the initial action. Borrowers have been subjected to ongoing litigation in this matter since 2008; our judicial system has borne the burden and costs associated with lender‘s “inadvertence or mistake[s].” Lender and its counsel are sophisticated entities, well-versed in the Vermont foreclosure process, and have shown no justification for a deviation from long-standing principles of claim preclusion, the enforcement of which is “essential to the maintenance of social order,” to securing the “peace and repose of society,” and to enhancing public confidence in judicial tribunals. Nevada v. United States, 463 U.S. 110, 129 (1983). “[P]ublic policy dictates that there be an end [to this] litigation.” Faulkner v. Caledonia Cty. Fair Ass‘n, 2004 VT 123, ¶ 10, 178 Vt. 51, 869 A.2d 103 (quotation omitted).
¶ 61. I dissent.
State of Vermont v. Toby Charbonneau
No. 15-192
Supreme Court of Vermont
August 26, 2016
2016 VT 83 | 152 A.3d 462
Reiber, CJ., Dooley, Skoglund, Robinson and Eaton, JJ.
James A. Hughes, Franklin County State‘s Attorney, St. Albans, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Ashton Roberts, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.
¶ 1. Eaton, J. Defendant pleaded guilty to felony possession of stolen property in violation of
¶ 2. On March 9, 2014, the victims notified the St. Albans City Police that their private residence had been burgled on March 7 or 8. The victims reported thousands of dollars’ worth of property as having been stolen and filed claims with two insurance companies for the stolen items: one for $28,274 and one for $23,956.97, amounting to a total of $52,230.97 in claimed losses. The victims’ insurance providers made payments of $9172.30 and $12,000, for a total of $21,172.
¶ 3. The victims subsequently notified the police that defendant and his partner had posted some of the items reported as stolen from their residence on the Franklin County Facebook website, “Buy, Sell, or Trade.” The police applied for and received a search warrant for defendant‘s residence. During a search, the police recovered fifteen items identified by the victims as stolen from their residence during the burglary, and these items were later returned to the victims.
¶ 4. On March 25, 2014, defendant was charged with felony possession of stolen property valued in excess of $900 in violation of
¶ 5. The trial court subsequently held a restitution hearing, where neither defendant nor the State objected to the trial court adopting the findings of fact relative to the loss amount and value of the items stolen from the victims as derived from testimony and findings at defendant‘s partner‘s restitution hearing.2 This included testimony that defendant and his partner had purchased the items from an individual offering them for sale out of the back of his car, and that they then advertised the items for sale on the Franklin County Facebook website “Buy, Sell, or Trade.” At defendant‘s partner‘s hearing, the trial court determined that the recovered and returned items had a collective actual cash value (ACV) of $6765.70, but that because they had been returned to the victims, there was no material loss. For this reason, the trial court did not order defendant‘s partner to pay restitution.
¶ 6. At defendant‘s restitution hearing, the State sought restitution for the victims’ total uninsured loss as a result of the burglary, which it argued to be $35,791. This figure included the value of the items that were recovered and returned to the victims, as well as the value of the remaining items reported as stolen
¶ 7. Considering findings from defendant‘s partner‘s restitution hearing, as well as the victims’ testimony and that of Detective Sergeant, the trial court found by a preponderance of the evidence that defendant was seen in some proximity to the victims’ residence a week before the burglary, possessed a shoe with a similar print left at the scene of the burglary, and possessed and offered for sale a TV reported as stolen during the burglary but which was not among the property defendant alleged was purchased out of the back of a car. Based on these findings, the court concluded that defendant had committed the burglary of the victims’ home in early March 2014. Based on the findings and conclusions, and after noting that “no evidence was offered regarding defendant‘s ability to pay” restitution, the trial court calculated the victims’ material loss as the value of the items claimed under both insurance policies ($52,230.97), minus the amount paid by the insurance companies ($21,172), for a total of $35,791.3 Defendant appealed.
¶ 8. On appeal, defendant challenges the trial court‘s restitution order. Specifically, defendant contends that the trial court erred in ordering restitution for losses attributed to an offense other than the charged offense; that the trial court erred in failing to make findings as to defendant‘s ability to pay; and that the trial court improperly included in its restitution order items recovered and returned to the victim, which were not material losses as defined under the statute. “We review restitution orders for an abuse of discretion, and interpret controlling statutes de novo.” State v. Gorton, 2014 VT 1, ¶ 8, 195 Vt. 460, 90 A.3d 901.
¶ 9. We first address defendant‘s assertion that the trial court erred in ordering restitution for losses attributable to the burglary of the victims’ residence, because the burglary and resulting losses were not directly related to defendant‘s offense of possession of stolen property. It is undisputed that the factual basis for defendant‘s plea was that several items of the victims’ property were recovered from defendant‘s residence; that defendant‘s plea did not include the possession of any items other than those recovered; and that defendant was not charged with, nor did he admit to, the underlying burglary of the victims’ residence. Nonetheless, the trial court‘s order included both the value of those items recovered from defendant‘s residence and the value of the property reported as stolen from the victims’ residence during the March 2014 burglary but not found at defendant‘s residence. Defendant contends that the trial court erred in finding that he had committed the burglary,
¶ 10. Vermont‘s restitution statute is intended to compensate victims for their “material loss,”
¶ 11. In VanDusen, 166 Vt. at 244, 691 A.2d at 1055, this Court upheld an order of restitution after the State proved that the defendant had stolen an amount greater than supported by his conviction for misdemeanor possession of stolen property, which involved property not exceeding $500 in value. We reasoned that the value of the stolen property ($4500) was directly related to the conduct for which the defendant had been convicted — possession of stolen property — and that the fact that the amount varied from the conviction was immaterial. Id. We further noted that the difference in value need only be established by a preponderance of the evidence as it pertained to a sentencing matter. Id. at 245, 691 A.2d at 1055. We cautioned, however, that a restitution order may not be based on conduct that was not covered by the defendant‘s conviction, citing this Court‘s holding in State v. Stimpson, 151 Vt. 645, 563 A.2d 1001 (1989) (mem.). Id. at 244, 691 A.2d at 1055. In Stimpson the defendant pleaded nolo contendere to several burglary offenses and the court ordered that he pay restitution, a portion of which corresponded to an incident that was not covered by the plea agreement and for which defendant was not convicted. We held that “[a]n order of restitution must relate to the damage caused by the criminal conduct for which the defendant was convicted,” and that the link was absent. 151 Vt. at 645-46, 563 A.2d at 1001 (quotation omitted).4
¶ 12. More recently, in State v. Rollins, 2007 VT 127, ¶ 8, 182 Vt. 644, 944 A.2d 218 (mem.), we vacated a restitution order based on conduct that was not covered by the defendant‘s conviction. In Rollins the defendant was convicted of attempted assault and robbery after the State proved that the “defendant was involved in a scheme to rob the victim” and “took a significant step in that direction.” Id. After the victim claimed that he lost $420 and a CD player during the robbery, the trial court ordered restitution of $460. Id. ¶ 6. On appeal, this Court concluded that “[d]espite the victim‘s testimony that he lost $420 as a result of the robbery, the conviction was based solely on evidence of the plan to rob and the identification of [the]
¶ 13. Here, we similarly find that a conviction of possession of stolen property cannot support a connection between defendant and the claimed loss due to burglary. Unlike in VanDusen, the trial court did not simply find that defendant stole property valued at an amount greater than supported by his conviction — it found, to a lesser standard than required for a criminal conviction, that he had committed the entirely separate criminal offense of burglary. Defendant was not charged with burglary, and pleaded only to possession of stolen property, a plea based on the recovery of some of the victims’ stolen property from his residence. The restitution order, however, was based on the value of the property burgled from the victims’ residence.
¶ 14. In VanDusen we held that the trial court acts within the scope of
¶ 15. The trial court‘s findings at the restitution hearing sought to establish causation between the victims’ losses, not only concerning the items found in defendant‘s possession, but also for losses from items reported as stolen during the burglary and not found in defendant‘s possession. Other than the trial court‘s own findings at the restitution hearing, there is no connection between the crime for which defendant was convicted — possession of stolen property — and the crime that resulted in the victims’ loss — burglary. That defendant had in his possession some of the property stolen from the victims’ home does not mean the criminal act for which defendant was convicted included the burglary of the victims’ home. Possession of stolen property and burglary are entirely separate crimes. Thus, the expenses ordered as restitution related to the burglary cannot be viewed as the direct result of defendant‘s crime of possession of stolen property, the criminal act for which he was convicted. Forant and VanDusen require this conclusion.
¶ 16. We need not consider whether the trial court could have ordered restitution for additional items reported as stolen during the burglary had it found, by a preponderance of the evidence, that defendant was in possession of such items. Because the trial court failed to make such findings, defendant cannot now be found liable for restitution for those items.
¶ 17. The only losses directly resulting from the criminal conduct for which defendant was convicted would necessarily relate to the items underlying that plea: the fifteen items recovered from the defendant‘s residence, valued at $6765.70. Because it is undisputed that those items were returned to the victims, there can be no finding of material loss. See
Reversed. The restitution order is vacated.