Opinion
Court of Appeals No. A-9582.
May 2, 2007.
Appeal from the District Court, Third Judicial District, Kenai, David S. Landry, Judge, Trial Court No. 3KN-01-1130 CR.
Appearances: John Richard, Assistant Public Defender, Kenai, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Angela G. Jamieson, Assistant District Attorney, June Stein, District Attorney, Kenai, and David W. MÁ rquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Katherine A. Torreano was convicted of third-degree criminal mischief for destroying the personal property of a woman who was living with her estranged husband. One of the conditions of Torreano's probation required that she pay more than $4000 in restitution to the victim of her offense before the end of her 3-year term of probation.
After Torreano's probationary term expired, the State learned that Torreano had not paid any restitution, and it filed a petition to revoke her probation. Torreano moved to dismiss the State's petition, arguing that the district court had no jurisdiction over her case because she was no longer on probation. The court denied Torreano's motion and extended her term of probation. Torreano now appeals that decision.
We conclude that the district court had the authority to extend Torreano's probation and to order her to pay the restitution she failed to pay during her original term of probation. We therefore affirm the decision of the district court.
Facts and proceedings
On August 18, 2001, Torreano went to a cabin in Sterling that her estranged husband, David Torreano, was sharing with Robin Smith. Torreano destroyed what she could of Smith's belongings in the cabin's wood burning stove; the rest of Smith's belongings she placed in the middle of the driveway, soaked with paint thinner, and burned.
For this conduct, Torreano pleaded no contest to third-degree criminal mischief and was sentenced to 180 days in jail with 170 days suspended and placed on probation for 3 years. She was also ordered to pay $4323.05 in restitution to the victim "before probation terminate[s]."
Former AS 11.46.484.
On January 4, 2005, almost four months after Torreano's probationary period ended, the State received notice from Smith that she had not received any restitution. On March 9, 2005, the State filed a petition to revoke Torreano's probation based on this failure to pay restitution.
Torreano moved to dismiss the petition to revoke, arguing that the district court had no jurisdiction over her case because her term of probation had expired on September 7, 2004 — six months before the State's petition was filed.
Kenai District Court Judge David S. Landry held a hearing on the petition to revoke. At that hearing, the State offered evidence that Torreano had not paid any restitution. Torreano did not present any evidence as to why she had not paid restitution. Instead, she argued that the district court had no authority to revoke her probation because she was no longer on probation and because the State had not been diligent in filing its petition to revoke.
Judge Landry denied Torreano's motion to dismiss. He found that Torreano had violated her probation by failing to pay restitution and he extended her probation for 3 more years or until restitution was paid in full. He ordered her to make restitution payments of $50 a month and to assign her Permanent Fund Dividend checks to the court until restitution was paid.
Torreano appeals.
Torreano's claim that the court had no authority to revoke her probation
In Galaktionoff v. State, we addressed the question of whether courts have authority to revoke probation after a defendant's probationary term has expired based on conduct that took place during the probationary term.
733 P.2d 628 (Alaska App. 1987).
Id. at 629-30.
The defendant in Galaktionoff was charged with a second assault while he was still on probation, but that charge did not come to the attention of the Division of Corrections, and no petition to revoke was filed, until about eight days after his probationary term had expired. Galaktionoff argued that the court lost jurisdiction to revoke his probation when his probationary term ended. We disagreed, relying on AS 33.05.070. We ruled that this statute, by its plain terms, provided that a petition to revoke probation may be filed at any time within the maximum probation period authorized by statute, as long as the petition is based on conduct that took place during the defendant's probationary term. (At the time we decided Galaktionoff, the maximum probation period authorized by statute was five years; it is now ten years. )
Id. at 628. At the time Galaktionoff was decided, the Department of Corrections was called the Division of Corrections.
Id.
Id. at 629-30. AS 33.05.070 provides in relevant part:
(a) At any time within the probation period, the probation officer may for cause arrest the probationer whenever found, without a warrant. At any time within the probation period, or within the maximum probation period permitted by AS 12.55.080 and 12.55.090, the court for the district in which the probationer is being supervised or, if the probationer is no longer under supervision, the court for the district in which the probationer was last under supervision may issue a warrant for the probationer's arrest for violation of probation occurring during the probation period. . . .
(b) As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over the probationer. Thereupon the court may revoke the probation and require the probationer to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed, subject to the limitation specified in AS 12.55.086(c) [dealing with suspended imposition of sentence].
Galaktionoff, 733 P.2d at 629.
Id. (citing former AS 12.55.090).
AS 12.55.090(c).
Galaktionoff would seem to resolve Torreano's appeal because there is no dispute that (1) Torreano failed to pay restitution during her probationary term and (2) the State's petition to revoke was filed within the maximum probation period authorized by statute. But Torreano urges us to limit Galaktionoff to the facts of that case.
In support of that claim, Torreano points out that AS 33.05.070 was modeled after a federal statute that has since been repealed. She notes that the new federal statute allows probation to be revoked after the probationary period has ended only if the delay was reasonably necessary and a warrant or summons for the violation was issued before the probationary term expired. Torreano appears to be arguing that we should ignore the plain language of AS 33.05.070 — the statute enacted by the Alaska legislature, which remains unchanged — and instead adopt the new federal statute as a matter of state law. If that is Torreano's argument, we find it unpersuasive.
See 18 U.S.C. § 3583(i).
Torreano next argues that Galaktionoff should be limited to cases in which the defendant is charged with violating probation by committing a second criminal offense. We do not agree. The legislature has specifically authorized courts to revoke probation based on a failure to pay restitution. And, as we ruled in Galaktionoff, AS 33.05.070 permits courts to revoke probation at any time during the maximum probation period permitted by statute, as long as the revocation is based on conduct that took place while the defendant was on probation. There is no language in AS 33.05.070 limiting that authority to revocations based on the commission of a criminal offense.
AS 12.55.051(a).
Lastly, Torreano argues that Galaktionoff should not control her case because the State did not act diligently in filing the petition to revoke. As noted earlier, the State did not file its petition to revoke until six months after Torreano's probationary term had ended. In Galaktionoff, the State's petition was filed about eight days after the defendant's probationary period had ended — as soon as the violation came to the attention of the Division of Corrections.
In Galaktionoff, we did not address whether there are due process limits on how long the State may wait to file a petition to revoke probation if, as permitted by AS 33.05.070, the petition is ultimately filed within the maximum probation period. We need not resolve that question here either. Torreano did not violate her probation until her 3-year term of probation had expired. That is because her conditions of probation allowed her to pay restitution at any time "before probation terminate[s]." The victim did not alert the State to Torreano's violation for another four months. Given these circumstances, we do not believe the State's delay of two months in filing the petition to revoke was so unreasonable as to violate due process. We note that Torreano has not alleged that her ability to answer the State's petition was prejudiced by the State's delay.
We conclude that Galaktionoff controls this appeal and that the district court had jurisdiction to extend Torreano's probation based on her failure to pay restitution.
Torreano's claim that the district court applied the wrong legal test in revoking her probation
Torreano argues that the district court should have applied the test in Trumbly v. State in deciding whether to revoke her probation. Because she raises this claim for the first time on appeal, she must show plain error.
515 P.2d 707 (Alaska 1973).
See Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988).
In Trumbly, our supreme court held that probation revocation is a two-step process. First, the court must find that there was a violation of probation. Second, the court must find "good cause" to revoke probation. In Trumbly, the court stated that this second step "requires the trial judge to find that continuation of probationary status w ould be at odds with the need to protect society and society's interest in the probationer's rehabilitation."
Trumbly, 515 P.2d at 709.
Id. (citing AS 12.55.110 and Morrissey v. Brewer, 408 U.S. 471, 479-80, 92 S. Ct. 2593, 2599, 33 L. Ed. 2d 493 (1973)).
Id.
The question raised in Trumbly was whether the court erred by revoking the defendant's probation and imposing a term of imprisonment. The supreme court's definition of "good cause" — a judicial finding that continued probation would not protect society or aid the probationer's rehabilitation — must be understood in that context. That definition is inapplicable in this case because Judge Landry did not impose a prison term; rather, he extended Torreano's probation for 3 more years.
Id. at 708.
AS 12.55.090.
Judge Landry had ample cause to extend Torreano's probation based on her failure to pay restitution. The legislature has directed courts ordering restitution to "take into account the . . . public policy that favors requiring criminals to compensate for damages and injury to their victims." One of the goals of this provision is "to make full restitution available to all persons who have been injured as a result of criminal behavior, to the greatest extent possible." Other goals of restitution are rehabilitation of the offender, deterrence, and expressing community condemnation of the crime.
AS 12.55.045(a)(1).
Ch. 71, § 1, SLA 1992.
Noffsinger v. State, 850 P.2d 647, 650-51 (Alaska App. 1993).
The State presented evidence that Torreano had paid no restitution during her original term of unsupervised probation. Torreano did not dispute this evidence or claim that she was financially unable to pay. From this record, Judge Landry could reasonably conclude that Torreano was able to pay restitution but made no good faith effort to do so. He could also reasonably conclude that extending Torreano's probation and imposing a less open-ended payment plan was the best way to further her rehabilitation, deter her and others from future similar conduct, express community condemnation, and ensure restitution for the victim of her crime. We conclude that Torreano has not shown that Judge Landry erred in his legal analysis or in extending her probationary term.
Torreano also claims that Judge Landry should not have revoked her probation because she had no notice of the proposed judgment for restitution. The original judgment, effective September 7, 2001, ordered Torreano to pay "reasonable restitution" and provided that the State would file a restitution schedule within sixty days. A revised judgment was issued within that sixty-day period ordering Torreano to pay "restitution in the amount of $4,323.05 to [the] Court before probation terminates." The amended judgment indicates that it was served on Torreano's public defender.
At Torreano's revocation hearing, Judge Landry found that Torreano was properly advised of the restitution amount when the revised judgment was served on her public defender. Torreano did not dispute this finding in district court. Nor has she discussed or refuted this finding in her brief on appeal. Her claim that she received no notice of the restitution amount therefore was not preserved in district court and is inadequately briefed on appeal. Hence, we do not address it.
See L. E. Spitzer Co. v. Barron, 581 P.2d 213, 218 (Alaska 1978); Moran v. Holman, 501 P.2d 769, 770 n. 1 (Alaska 1972).
Torreano's claim that civil remedies, not probation revocation, are appropriate when a defendant fails to pay restitution
Lastly, Torreano argues that civil remedies, not probation revocation, are appropriate when a defendant fails to pay restitution. She argues that extending her probationary term after it had already expired based on a failure to pay restitution was unduly harsh, particularly since the victim made no effort to collect the money through civil means. To support this claim, Torreano points to the legislative history of an unrelated bill which, she claims, shows a legislative preference for using civil remedies to collect fines from drunk driving offenders.
As Torreano acknowledges, her argument is more appropriately directed to the legislature. As we explained above, the legislature has expressed its preference for "requiring criminals to compensate for damages and injury to their victims." In furtherance of this goal, the legislature has authorized courts to revoke probation and impose a term of imprisonment for failure to pay restitution. Moreover, by statute, revocation may take place at any time within the ten-year maximum period of probation — so long as the conduct that justifies the revocation took place within the probationary term. Given these legislative directives, Judge Landry acted well within his discretion in extending Torreano's probation and ordering her to pay restitution. Conclusion
AS 12.55.045(a)(1).
AS 12.55.051(a).
Galaktionoff, 733 P.2d at 629.
The decision of the district court is AFFIRMED.