State v. WolffState v. Wolff
- Reporters:
- , ,
- Before:
- Henderson
PROCEDURAL HISTORY/ISSUES
This is a case of first impression in South Dakota.
For purposes of clarity and convenience, we shall refer to Defendant/Appellant Robert Allen Wolff as Wolff. He was originally charged with two counts of attempted removal of property subject to security interest (
1) The trial court lacked authority to order restitution, together with a Penitentiary term where no probation or suspеnsion of sentence was ordered;
2) The trial court violated due process by ordering restitution for offenses which Wolff did not admit and for which he was not convicted;
3) Procedures outlined in SDCL ch. 23A-28 were not followed; and
4) Seizure of his property for sale, the proceeds of which were to be applied toward restitutiоn, constituted a forfeiture in violation ofSDCL 23A-27-2 .
We reverse the restitutional aspect of the sentence, and remand for resentencing on the restitution for failure to observe due process requirements; the conviction and thirteen-year sentence is not set aside.
FACTS
On October 25, 1987, at 9:30 p.m., Dan Peterson, an investigator for the Rapid City Police Department, arrived at Mr. Wolffs place of business to investigate possible fraud involving a $5,700 check issued by Wolff. The business in possession of the check reported that its personnel had seen Wolff loading property into a U-Haul truck, and was concerned that he might be skipping out on his debts. Such provеd to be the case. Peterson discovered that Wolff had loaded three vehicles with property he had acquired purportedly for use in a new business he was opening. Wolffs home and business were stripped of most moveable property items. Wolff explained that he was taking some locally rented items with him to Colоrado for safekeeping, as he feared his home would be broken into. Investigation revealed $15,-550.40 in NSF checks. Wolff entered into a plea bargain by which a potential life sentence and $25,000 in fines was eventually reduced to $15,550.40 in restitution, and thirteen years (of a possible fifteen years under the charges pleaded to) imprisonment in the Penitentiary. He admitted, specifically, only the charges in Count I, to which he pleaded guilty. He stated, generally, that he had been in debt and tried to leave town until he could repay the debts.
DECISION
I. AUTHORITY TO ORDER RESTITUTION
Wolff first argues that there is no statutory authority for sentencing courts to order restitution when a defendant is sentenced to the penitentiary and receives neither a suspended sentence, suspended imposition of sentence, probation, nor a sentence to be served in county jail, pursuant to
Statutes on restitution in criminal cases appear in SDCL chs. 22-6, 23A-27, and 23A-28, which are respectively titled: “Authorized Punishments,” “Sentence and Judgment,” and “Restitution to Victims of Crime.”
Some judges had viewed restitution and incarceration as mutually exclusive alternatives. Responding to the hesitancy of the judiciary to order restitution in conjunction with incarceration, the South Dakota Legislature passed SDCLsections 22-6-1 and 22-6-2. According to those laws, the court could order that the defendant make restitution in addition to the sentence that was imposed, including imprisonment. This freed restitution from the historical province of probation undersection 23A-28-3 . It also heightened restitution to a status commensurate to or above that held by the conventional punitive sanctions of imprisonment and fines.
Crime and Punishment: The Propriety and Effect of South Dakota’s Victim Restitution Legislation, 31 S.D.L.Rev. 783, 785 (1986) (footnotes omitted). This is consistent with other jurisdictions which allow restitution in conjunction with imprisonment. See Commonwealth v. Reed, 374 Pa.Super. 510, 543 A.2d 587 (1988); Eatherton v. State, 761 P.2d 91 (Wyo.1988).
We reject Wolff’s argument that 1987 amendments to SDCL сh. 23A-28 (see 1987 S.D.Sess.L. ch. 179) deprived courts of authority to order defendants imprisoned in the penitentiary to make restitution. The amendments referred to by Wolff concern allocation of responsibility for preparation of plans of restitution, not authority to order restitution in the first place. For those persons serving time in thе State Penitentiary, the Board of Pardons and Paroles has the responsibility of preparing and administering plans of restitution.
II. ORDERING RESTITUTION FOR OFFENSES FOR WHICH WOLFF NEITHER ADMITTED NOR STOOD CONVICTED (ALLEGED DUE PROCESS VIOLATION)
The trial court ordered Wolff to make restitution for $15,550.40 in NSF checks, although the sole criminal count he actually pleaded guilty to was theft by embezzlement of property received in trust. This consisted of twо television sets, one disk player, one stereo, and two freezers, of a value exceeding $200. We note, in the presentence report, that no less than fourteen different businesses were reported as victimized by Wolffs NSF checks, in a total amount of $15,550.40. These NSF charges were not prosecuted as a result of
At his plea hearing, Wolff told the court: I got into a bind and in debt over my head and I was hoping to do enough business on that Saturday and Sunday, and deposit enough money Monday, and make everything good and Saturday and Sunday came around and the business didn’t look good and I got scared Sunday night because of the debt that I was in and knowing what I was going to face Monday, and got scared and loaded up what I could and left.
This statement is general in nature. The trial court examined him only with regard to the specific property involved in Count I. The trial court also did not address the matter of restitution in any form at the plea hearing. Wolff was not, apparently, informed that he would be liable for the NSF checks if he pleaded guilty to Count I of the Information. The penalties discussed were imprisonment, not restitution. We therefore hold that his duе process rights, guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution and Article VI, § 2, of the South Dakota Constitution, were violated.
In context of a plea bargain in conjunction with probation, the Eighth Circuit Court of Appeals has observed: “[A] plea bargain severely limits the discretion of a sentencing judge. The amount of restitution required in this case is substantial and should have been articulated in the plea bargain or in a proposed amended plea bargain that the accused could accept or reject.” United States v. Runck, 601 F.2d 968, 970 (8th Cir.1979). A large amount of restitution should be part of a plea bargain, as it materially alters the expеctation of the parties. Id. Here, where the plea hearing contains no hint of restitution, and the court discussed only potential imprisonment terms and fines with Wolff, the restitution ordered is beyond the scope of Wolff’s agreement.
Earlier, we alluded to a law review article, found at 31 S.D.L.Rev. 783, and we note that this law review artiсle suggests guidelines to protect the constitutional rights of defendants affected by our restitution statutes.
Supra,
at 792. Our statutes, in SDCL
In summary, the restitution ordered did not pertain to offenses to which Wolff pleaded guilty or specifically admitted, and the trial court did not inform him of, or otherwise discuss, potential restitution at his plea hearing. This should have been done. The trial court’s order of restitution is, therefore, reversed. We limit our holding to a prospective application.
III. PROCEDURES UNDER SDCL CH. 23A-28
Wolff next asserts that the trial court did not follow procedures required by SDCL ch. 23A-28 in the following regards: 1) No plan of restitution was preрared in cooperation with the court services officer; 2) no determination was made that Wolff was presently unable to make restitution; 3) no determination was made as to whether he could make restitution during probation or parole; and 4) he was given no opportunity to contest whether any victim actually suffеred any pecuniary loss or to oppose recommendations of the court services officer. The trial court instructed Wolff, the court
The true procedural problem is that the Legislature changed SDCL ch. 23A-28 in 1987 and thereby reallocated the responsibility of preparing plans of restitution for defendants serving their sentence in the penitentiary.
See
1987 S.D.Sess.L. ch. 179 (H.B. 1100). Prior to these amendments,
SDCL ch. 23A-28, as currently formulated, places the responsibility for preparing and distributing plans of restitution within the board of pardons and paroles. This is consistent with the principle of sеparation of powers enunciated in
State v. Oban,
372 N.W.2d 125, 129 (S.D.1985): “[0]nce an offender is within the jurisdiction of the executive branch of government, the judicial branch — the circuit court — loses jurisdiction and control” subject to certain exceptions irrelevant to this case.
See also State v. Huftile,
367 N.W.2d 193, 196 (S.D.1985). Here, Wolff was sentenced at a hearing on January 4, 1988, and was received at the penitentiary on January 7, 1988. Once Wolff entered the penitentiary, any plan of restitution, under
IV. RESTITUTION AS FORFEITURE
Wolffs last argument is that the restitution ordered constituted an illegal forfeiture under
Notes
. Wolff relies primarily on the following parts of
If the sentencing court orders the defendant to the county jail, suspended impоsition of sentence, suspended sentence, or probation, the court may require as a condition that the defendant, in cooperation with the court services officer assigned to the defendant, promptly prepare a plan of restitution, including the name and address of each victim, a specific amount of restitution to each victim and a schedule of restitution payments. ... If the sentencing court orders the defendant to the state penitentiary and does not suspend the sentence, the board of pardons and paroles may require as a condition of parole that the defendant, in cooperation with the executive director of the board of pardons and paroles, prepare the plan of restitution as described in this section.
.