McEwan v. State

419 P.3d 881
CourtWyoming Supreme Court
DecidedJune 14, 2018
DocketS-17-0284
StatusPublished
Cited by2 cases

This text of 419 P.3d 881 (McEwan v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McEwan v. State, 419 P.3d 881 (Wyo. 2018).

Opinion

FOX, Justice.

[¶1] After Debora McEwan pleaded no contest to obtaining welfare benefits by misrepresentation, the district court fixed restitution at $18,733, but did not order Ms. McEwan *882to pay it. Nevertheless, the district court allowed the State to reduce $18,733 to a civil judgment, which Ms. McEwan challenges. We vacate the erroneous portions of the district court's order and remand for entry of an order conforming to statutory guidelines.

ISSUES

[¶2] 1. Did the district court erroneously allow the State to reduce $18,733 to a civil judgment?

2. Was the district court required to find that Ms. McEwan lacked an ability to pay restitution in the future in order to avoid ordering restitution?

FACTS

[¶3] In 2010, the State charged Ms. McEwan with three felonies for obtaining public welfare benefits by misrepresentation.1 The facts supporting the charges are set out in our first review of this case, McEwan v. State , 2013 WY 158, ¶¶ 4-16, 314 P.3d 1160, 1163-65 (Wyo. 2013), and need not be repeated here. Following Ms. McEwan's no-contest plea to one of the three charges, the district court fixed restitution at $18,733. Ms. McEwan filed a motion requesting that the district court find she was unable to pay the restitution. At a hearing on the motion, Ms. McEwan presented evidence that the Social Security Administration had declared her to be disabled, she lived on a fixed income, and she had recently been granted a discharge in Chapter 7 bankruptcy proceedings. The prosecutor acknowledged that the State had no evidence to rebut Ms. McEwan's current inability to pay restitution. However, the prosecutor pointed out that Ms. McEwan may have the ability to pay restitution in the future:

... certainly the State would ask that Ms. McEwan be required to pay [restitution] ... [and] if the Court determines that there is an inability to pay, at this time, certainly the State would ask that this be reduced to a judgment, that the victim could be given a right to any type of civil remedy at any later date, that would include whether it was garnishment or seizure of property, if that were to come available.

[¶4] At the end of the hearing, the district court stated:

I don't think it is probably unreasonable to [find Ms. McEwan unable to pay]; but likewise, I don't think the State's request is unreasonable.
Situations change all the time and in the event that it does, I think the State should clearly have the right to come back civilly and attempt to collect that. So I am going to grant your request but I am also going to allow the State to reduce that to a civil judgment and leave it at that.

[¶5] Six weeks later, the district court issued an "Order on Sentencing and Reconsideration of Defendant's Inability to Pay Restitution." The order fixed the amount of Ms. McEwan's restitution at $18,733 but did not require her to pay it, finding that she lacked the ability to do so. Ms. McEwan appeals the district court's oral pronouncement allowing the State to reduce $18,733 to a civil judgment.

DISCUSSION

[¶6] Ms. McEwan argues that the district court exceeded its statutory authority when it allowed the State to reduce $18,733 to a civil judgment. She contends that only an order to pay restitution may be executed as a civil judgment, and the district court did not issue one. Ms. McEwan thus urges us to strike the portion of the district court's oral ruling that allows the State to seek a civil judgment. The State argues that the district court was statutorily required to order restitution, and we should remand the case to the district court to enter an order for restitution. With an order in place, the State would *883be permitted to execute it as a civil judgment against Ms. McEwan. See infra ¶9.

[¶7] We generally confine our review of restitution orders to a search for procedural error or a clear abuse of discretion. Aldridge v. State , 956 P.2d 341, 343 (Wyo. 1998). Here, however, we must consider the extent of a district court's statutory authority to order restitution, which is a question of law that we review de novo. Pinker v. State , 2008 WY 86, ¶ 16, 188 P.3d 571, 577 (Wyo. 2008) ; see also Aldridge , 956 P.2d at 343 ("The trial court's exercise of discretion in ordering restitution does not spring from any inherent authority. Rather that exercise, like our review, is circumscribed by the statutes empowering the trial court to order restitution." (citations omitted) ).

I. Did the district court erroneously allow the State to reduce $18,733 to a civil judgment?

[¶8] At the end of the hearing on Ms. McEwan's motion, the district court orally pronounced that the State may reduce $18,733 to a civil judgment.2 Execution of restitution as a civil judgment is authorized by Wyo. Stat. Ann. § 7-9-103(d) (LexisNexis 2017):

Any order for restitution under this chapter constitutes a judgment by operation of law on the date it is entered. To satisfy the judgment, the clerk, upon request of the victim, the division of victim services or the district attorney, shall issue execution in the same manner as in a civil action.

[¶9] A judgment that may be executed as a civil judgment plainly must originate as an "order for restitution."3 Because the district court did not order restitution, it erred as a matter of law when it allowed the State to reduce $18,733 to a civil judgment.

II. Was the district court required to find that Ms. McEwan lacked an ability to pay restitution in the future in order to avoid ordering restitution?

[¶10] In determining restitution, the district court must "fix" an amount owed for each claim of restitution presented by the prosecuting attorney and record it as a special finding in the judgment of conviction (or probation order). Wyo. Stat. Ann. § 7-9-103(b) (LexisNexis 2017).

The court shall order the defendant to pay all or part of the restitution claimed or shall state on the record specific reasons why an order for restitution was not entered.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ty Putnam v. The State of Wyoming
2020 WY 133 (Wyoming Supreme Court, 2020)
Kite v. State
424 P.3d 255 (Wyoming Supreme Court, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
419 P.3d 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcewan-v-state-wyo-2018.