TPJ v. StateTPJ v. State
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[T1] The Juvenile Court of the Ninth Judicial District adjudicated TPJ, age 16, to be delinquent following his admission of committing numerous acts of burglary. Following the adjudication hearing, at a later restitution hearing the juvenile court ordered TPJ to pay a total of $1,964.59 as restitution to the victims of his delinquent acts of burglary. The restitution amount included $41.59 as the cost of a car alarm which one of TPJ‘s victims purchasеd and installed in her car after TPJ‘s burglary of her car and $300.72 as the cost of repair to a garage door allegedly damaged during TPJ‘s burglary of another victim‘s residence. TPJ challenged these particular costs at the restitution hearing and renews that challenge on appeal. As for the cost of the car alarm, TPJ asserts that it is not authorized under the statutory language “аny damage or loss caused by the
[T2] Although the State counters TPJ‘s challenge on its merits, it first contends that TPJ‘s notice of appeal is both defective and untimely filed. As we shall explain below, we hold that TPJ‘s appeal is neither defective nor untimely; the relevant statutory provision of the Juvenile Justice Act does not authorize an award of restitution for the cost of the car alarm purchased and installed by the victim of a delinquent act after the commission of that act; the State‘s evidentiary standard as to restitution under that relevant statutory provision is a preponderance standard; and, applying that evidentiary standard, the State‘s proof as to restitution for the garage door repair satisfied that standard. Consequently, we affirm the order of restitution with respect to the cost of the garage door repair and reverse the order of restitution with respect to the cost of the car alarm.
ISSUES
[13] TPJ presents the following issue for our review:
I. Did the district court abuse its disceretion by ordering the appellant to pay restitution for a car alarm and alleged damage to a garage door?
The State contends that two issues are present in this appeal:
1. Does the defective and untimely notice of appeal deprive this court of jurisdiction to consider this appeal?
2. Did the juvenile court abusе its disceretion in ordering appellant to pay restitution for the cost of a car alarm and for damage done to a garage door?
FACTS
[T4] The initial hearing upon the specific allegations in the delinquency petition filed by the county and prosecuting attorney, as authorized by
[T5] The State expressed hesitancy in proceeding in the initial hearing with disposition because it had “no idеa what the restitu-tional figure is” The juvenile court then expressed the desire to proceed with disposition without having the restitution amounts, subject to TPJ‘s and his counsel‘s consent to proceed and subject to the State‘s supplying those amounts to TPJ and his counsel within twenty days. The juvenile court required TPJ and his counsel to make written objections, if any, within fifteen days after the State supрlied the amounts to them. All agreed to the juvenile court‘s proposed procedure.
[46] The juvenile court then received the State‘s recommendation for disposition and comments about that recommendation from others present, including TPJ and his counsel. The juvenile probation coordinator, Teri Van Etten, who had prepared the disposi-tional repоrt, TPJ‘s mother and grandmother, and TPJ‘s uncle were also present. Next, the juvenile court announced its disposition which included, among other matters, TPJ‘s placement at the Wyoming Boy‘s School for an indeterminate period of time.
[17] Before adjourning the hearing, the juvenile court instructed Ms. Van Etten to acquire and deliver the restitution information to the county attorney. Following the initiаl hearing, the juvenile court entered on April 2, 2001, the Order Following Initial Hearing, approved as to form by the county attorney, TPJ‘s counsel, and Ms. Van Etten, which order expressly included a provision addressing the court‘s requirement with respect to the restitution information.
[18] In April 2001, the county attorney timely provided TPJ‘s counsel with the required restitution information which included each victim‘s name аnd address, property lost or damaged and the amounts sought in
[19] At the conclusion of the hearing, the juvenile court announced its decision, ordering TPJ to pay a total of $1,964.59 as restitution, which included the amounts of $41.59 as the cost of the car alarm and $800.72 as the cost of garage door repair. This appeal followed.
DISCUSSION
Standard of Review
[T10] Our standard of review of restitution orders is limited to a search for procedural error or a clear abuse of discretion. Alcaraz v. State, 2002 WY 57, ¶5, 44 P.3d 68, ¶5 (Wyo.2002). We will not find an abuse of discretion if sufficient evidence shows a reasonable basis for estimating the loss. Id. “Judicial discretion is a comрosite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously.” Id.
[T11] TPJ‘s first issue presents a question of statutory interpretation, and we look first to finding the answer in the language of these provisions. “Determining the lawmakers’ intent is our primary focus when we intеrpret statutes. Initially, we make an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe together all parts of the statutes in pari materia, giving effect to each word, clause, and sentence so that no part will be inoperative or superfluous. We will not construe statutes in a manner which renders any portion meaningless or produces absurd results.” - In re WJH, 2001 WY 54, ¶ 7, 24 P.3d 1147, ¶7 (Wyo.2001).
[112] In considering his second issue, we see that in his reply brief, TPJ agrees with the State that in criminal cases we review whether the amount of restitution was proved by a preponderance of the evidence and that burden of proof should be applied in juvenile restitution cases. We agree and hоld that is the burden of proof by which we review whether sufficient evidence proved the amount of damages to the garage door. See Renfro v. State, 785 P.2d 491, 493 (Wyo.1990).
[T13] The State‘s issue that the appeal was untimely is a jurisdictional challenge. To invoke appellate jurisdiction, appeals must be filed no later than thirty days after the district court enters its final order. In re Interest of BW, 12 P.3d 675, 677 (Wyо.2000); W.R.A.P. 2.01. The timely filing of a notice of appeal is jurisdictional. Holmquist v. State, 902 P.2d 217 (Wyo.1995). “A late filing of an appeal results in an incurable jurisdictional defect, leaving this Court with no authority to resolve the case.” Id. at 217-18.
The Appeal Is Neither Defective Nor Untimely
[T14] The juvenile court‘s Order Following Restitutional Hearing was entered September 4, 2001. One week later, on September 11, 2001, TPJ‘s counsel filed a notice of appeal giving notiсe of the intention to appeal the “Judgment and Sentence of the Court rendered on the 22nd day of August, 2001, by the Honorable Nancy Guthrie, District Judge, Ninth Judicial District.”
[T15] Accompanying this notice was a copy of the juvenile court‘s order following the restitutional hearing referenced above. The appellate proceeding progressed in normal course, with the pаrties submitting the case to this Court on written briefs, As earlier mentioned, although the State in its brief counters on the merits TPJ‘s enumerated errors with respect to the restitution ordered for Smith‘s car alarm and Galles’ garage door repair, the State first contends
[¥16] The State‘s contention that the notice of appeal is defective proceeds on two bases. First, focusing on the wording in the notice of appeal that references “the Judgment and Sentence of the court rendered on” August 22, 2001, the State asserts “[tThere is no judgment and sentence in juvenile cases.... Accordingly, there was no judgment and sentence in this case to appeal from.” Second, although conceding that “the tenor of [TPJ‘s appellate brief] ... strongly indicates that it was the Order Following Restitutional Hearing which he wished to contest in this Court,” the State condemns TPJ‘s notice of appeal for “failing] to identify the juvenile court‘s Order Following Resti-tutional Hearing, which was enterеd September 4, 2001.” ’
[¥17] TPJ‘s reply brief addresses the State‘s contention that the notice of appeal is defective. TPJ correctly points out that an express provision of the Juvenile Justice Act authorizes a juvenile to appeal “any final order, judgment or decree of the juvenile court ....”
[T.18] The State‘s contention that the notice of appeal is untimely filed relies upon In re Interest of BW, 12 P.3d 675 (Wyo.2000), which the State contends is сontrolling. According to the State, in BW, as here, the juvenile court left open the amount of restitution when it entered the dispositional order and the juvenile did not appeal the disposi-tional order. In BW, according to the State, the juvenile court fixed the amount of restitution three years later; BW appealed, and this Court held that the appeal was untimely, and dismissed thе appeal. Id. at 677.
[T19] TPJ addresses the untimeliness issues in his reply brief Confronting the State‘s reliance on BW, TPJ distinguishes the facts in that case from the facts in his case. He correctly points out that in BW, unlike in his case, in the initial hearing the juvenile court in fact ordered restitution in an amount to be determined after the victim of BW‘s sexual assault had received counseling and medical carе. Id. We also note that in BW, unlike here, BW‘s legal contention was that the juvenile court lacked statutory authority to delay setting restitution. Id. at 676. We find that TPJ‘s analysis of BW is correct. In that case, we found that, unlike here, the juvenile court in the dispositional phase had “entered an open-ended restitu‘tion order from which no appeal had been taken.” Id. at 677. Here, in contrast tо BW, the juvenile court, with the consent of both the State and TPJ and his counsel, reserved the restitutional order to a later time. When the juvenile court later held the restitution hearing and entered its final order on restitution, TPJ timely appealed that final order. W.R.A.P. 2.01. We hold that TPJ‘s notice of appeal is timely.
The Applicable Statutory Provision Does Not Permit Restitution For Car Alarm
[¥20] We nоw turn to TPJ‘s contention that the cost of Smith‘s car alarm, which she purchased and installed after he burglarized her car, is not authorized under the statutory language “any damage or loss caused by the child‘s wrongful act.” $ 14-6-247(a)(v). The relevant part of that statute provides:
(a) For a child at any sanction level, the juvenile court may:
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(v) Require the child and his parents or guardian to make restitution for any damage or loss caused by the child‘s wrongful act, except that the liability ofthe parent or guardian shall not exceed the limit established by W.S. 14-2-203[.]
Id. (emphasis added).
[T21] TPJ contends that the statutory language does not cover a victim‘s post-wrongful act purchase of a car alarm to be installed to prevent future car burglaries and not to replace an existing car alarm thаt was damaged or stolen during the commission of the juvenile‘s wrongful act in question. He contends that Smith‘s car was not equipped with a car alarm at the time of TPJ‘s wrongful act of burglarizing her car and TPJ did not damage or steal a car alarm in Smith‘s car when he committed the wrongful act of burglarizing Smith‘s car.
[122] TPJ asserts that the facts of his case most resemble the facts in Alcaraz v. State, 2002 WY 57, 44 P.3d 68 (Wyo.2002). There the victim store owner purchased a surveillance camera system because someone was stealing money from the store during hours when it was closed and the system identified Alcaraz as the thief Id. at 70. This Court reversed the district court‘s restitution order which ordered Alcaraz to pay for the system and remanded with directions that the district court make a reasonable аpportionment of the system cost between Alearaz and the store owner. Id. at 73. This Court reasoned that Alcaraz should not pay for the system, but only a reasonable proportion, because the store owner realized future benefits from the system, beyond those benefits realized by apprehending Alcaraz. Id. TPJ says Smith will realize no benefits from the car alarm associated with his apprehension because he was apprehended without her having a car alarm; but Smith will realize future benefits from the car alarm in the form of preventing/thwarting possible future car break-ins by other burglars.
[123] According to the State, TPJ misconceives the nature of the loss suffered by Barbara Smith as a direct consequence of TPJ‘s actions, and the State argues that although Smith bought the car alarm after TPJ‘s wrongful act, she bought it because that wrongful act made Smith insecure and afraid that her car would be broken into again. Therefore, reasons the State, her fear, which motivated her to buy the car alarm, was a direct result of TPJ‘s wrongful act; his wrongful act caused her fear, and to alleviate it, she bought the alarm, and the Juvenile court properly considered that buying the car alarm was equivalent to “damage or loss” under the statute.
[124] The juvenile court held that TPJ‘s wrongful act was “the direct cause for [Smith‘s] purchasing a car alarm,” relying on Dreiman v. State, 825 P.2d 758, 764 (Wyo.1992), a criminal burglary case in which the defendant paid restitution under
[125] The State correctly states that proceedings under the Juvenile Justice Act are not criminal, but are special proceedings. BW, 12 P.3d at 677. The proceedings are equitable and not punitive to accomplish the purpose of providing “treatment, training and rehabilitation” for children, and to “provide for the care, the protection and the wholesome moral, mental and physical development of children coming within its provisions.”
[126] Plainly, the statute limits the amount of restitution to the damagеs or losses caused by the juvenile‘s wrongful act and does not expressly extend to reimbursement of security devices added by the victim after the commission of the crime that will benefit the victim in the future. In Alcaraz, we determined that restitution should be ordered to compensate for legally recognized losses that directly resulted from the criminal act. Alcaraz, 114. To comply with this
The Damage to the Garage Door Was Proved by Sufficient Evidence
[¥27) TPJ contends that the only evidence presented to the juvenile court was hearsay testimony by Irene Martinez, the victim/witness coordinator, that Mr. Galles had told her that the damage was not present before he and his family left for the weekend. The State contends that the juvenile court had TPJ‘s admissions that he and a friend had broken into the garage and evidence showing that it was likely that whoever broke into the garage had damaged the door, and the juvenile court found TPJ and his friend jointly and severally liable for the damages caused by their burglaries. An estimate for repairing the door was presented to the juvenile court, and based on the circumstantial evidenсe, the juvenile court had sufficient evidence to find that TPJ had damaged the door during the burglary in the amount shown by the repair estimate and did not abuse its discretion in ordering restitution. We agree with this assessment and hold that the juvenile court did not abuse its discretion.
[128] We affirm the order of restitution with respect for the cost of the garage door repair and reverse the order of restitution with respect to the cost of the car alarm.