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State v. Bagent

Supreme Court of West Virginia

April 10, 2017

STATE OF WEST VIRGINIA, Respondent
v.
CHARITY NICOLE BAGENT, Defendant Below, Petitioner

          Submitted: January 25, 2017

         Appeal from the Circuit Court of Jefferson County Honorable David H. Sanders, Judge Civil Action No. 15-F-22

          David Skillman, Esq. Bottner & Skillman Charles Town, West Virginia Attorney for Petitioner

          Brandon C. H. Sims, Esq. Assistant Prosecutor Charles Town, West Virginia Attorney for Respondent

         SYLLABUS BY THE COURT

         1. "The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syl. Pt. 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).

         2. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 416 (1995).

         3. "Under W.Va. Code, 61-11 A-1 through -8 and the principles established in our criminal sentencing jurisprudence, the circuit court's discretion in addressing the issue of restitution to crime victims at the time of a criminal defendant's sentencing is to be guided by a presumption in favor of an award of full restitution to victims, unless the circuit court determines by a preponderance of the evidence that full restitution is impractical, after consideration of all of the pertinent circumstances, including the losses of any victims, the financial circumstances of the defendant and the defendant's family, the rehabilitative consequences to the defendant and any victims, and such other factors as the court may consider." Syl. Pt. 3, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).

         4. "W.Va. Code § 61-11A-4(a) [2006] contained in the Victim Protection Act of 1984, W.Va. Code § 61-11A-1 et seq. [1984], requires a circuit court, absent a finding of impracticality, to order a defendant convicted of a felony or misdemeanor causing psychological or economic injury or loss to a victim, to make restitution to the victim of the offense. W.Va. Code § 61-11A-4 does not contain specific factors a circuit court should consider when formulating a restitution award to a victim who suffers psychological or economic injuries pursuant to W.Va. Code § 61-11A-4(a). Therefore, a circuit court formulating a restitution award to a victim who suffers psychological or economic injuries pursuant to W.Va. Code § 61-11A-4(a), should consider the factors set forth in W.Va. Code § 61-11A-5(a) [1984] of the Victim Protection Act of 1984. These factors include (1) the amount of the loss sustained by the victim as a result of the offense; (2) the financial resources of the defendant; (3) the financial needs and earning ability of the defendant and the defendant's dependents; and (4) such factors as the court deems appropriate." Syl. Pt. 3, State v. Rebecca F., 233 W.Va. 354, 758 S.E.2d 558 (2014).

         5. "For purposes of determining whether or what amount of restitution may be entered as a judgment against a defendant at the time of a criminal defendant's sentencing pursuant to W.Va. Code, 61-11A-4(a) [1984], the indigency of a defendant or the current ability or inability of a defendant to pay a given amount of restitution is not necessarily determinative or controlling as to the practicality of an award of restitution. If the court determines that there is a reasonable possibility that a defendant may be able to pay an amount of restitution, the court, upon consideration and weighing of all pertinent circumstances, is permitted but not required to determine that an award of restitution in such an amount is practical." Syl. Pt. 4, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).

          OPINION

          WORKMAN, JUSTICE

         This is an appeal by Charity Nicole Bagent (hereinafter "the Petitioner") from a restitution order entered by the Circuit Court of Jefferson County. Subsequent to her conviction for receiving or transferring stolen property, daytime burglary, and conspiracy to transfer or receive stolen property, the circuit court entered an order indicating that the Petitioner was jointly and severally liable, with two co-defendants, for restitution in the amount of $46, 592.00. The Petitioner appeals the circuit court's determination of restitution, arguing the circuit court erred by ordering restitution for the victim's lost earnings, rather than solely out-of-pocket expenses. She further contends the circuit court erred by failing to adequately consider her limited financial resources. Upon thorough evaluation of the facts, arguments of counsel, and applicable precedent, this Court affirms, in part; vacates, in part; and remands with directions.

         I. Factual and Procedural History On April 10, 2014, the Petitioner and four other individuals stole forty-two iron tractor weights belonging to Mr. Ralph Moler. Mr. Moler had used the tractor weights in his farming business. The Petitioner subsequently pled guilty to receiving or transferring stolen property, daytime burglary, and conspiracy to transfer or receive stolen property. She was sentenced to concurrent sentences of not less than one nor more than ten years for the first two offenses and not less than one nor more than five years for the third offense, to be served consecutively to the concurrent one to ten year sentences. Pursuant to the plea agreement, all three sentences were suspended, and the Petitioner was placed on supervised probation for five years. The plea agreement also contained a provision requiring the Petitioner to "pay full restitution in an amount to be determined by the Probation Department." Moreover, the plea agreement reflected the State's concomitant dismissal of two felony charges and one misdemeanor charge against the Petitioner, as well as her agreement to cooperate in the prosecution of her co-defendants.

         The Petitioner was sentenced on October 19, 2015, and required to pay $46, 592.00 in restitution to the victim. Based upon the Petitioner's objection to the amount of restitution determined by the circuit court, a restitution hearing was held on November 30, 2015. The victim, Mr. Moler, testified that the theft of the tractor weights prevented him from planting fields for approximately two weeks, while he waited for insurance proceeds and the purchase of new weights. He further testified that he had lost profits of $46, 592.00, based upon the acres not planted, the dollar amount lost per acre not planted, and the total planting days lost attributable to the theft.[1]

         The Petitioner also testified at the restitution hearing. She explained her financial status as an unemployed twenty-four-year old woman with a ninth grade education and three children by two different fathers. According to the Petitioner, she does not receive any child support from either father. She testified that she has a drug addiction and is entirely reliant on her mother and public assistance for support.

         The circuit court entered a restitution order on December 20, 2015, making the Petitioner liable for $46, 592.00 in losses to the victim. This appeal followed.

         II. Standard of Review

         This Court has enunciated the following applicable standard of review: "The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syl. Pt. 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997); see also Syl. Pt. 1, State v. McGill, 230 W.Va. 85, 736 S.E.2d 85 (2012), State v. Head, 198 W.Va. 298, 301, 480 S.E.2d 507, 510 (1996). We are also mindful of this Court's standard for reviewing issues involving statutory interpretation. In syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995), this Court held: "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." With those standards as guidance, we proceed to an evaluation of this matter.

         III. Discussion

         The Petitioner appeals the restitution decision and advances two arguments in support of her position. First, she contends the circuit court erred in ordering restitution where the reimbursement sought by the victim is for a type of loss not specifically mentioned in West Virginia Code § 61-11A-4 (2014). Second, she contends the circuit court erred in failing to consider her financial resources and her alleged inability to pay the ordered restitution.

         A. Statutory Authority

         We first address the Petitioner's contention that the applicable statute does not contemplate restitution for the type of injury the victim sustained in this case. She maintains the statute's reference to "income lost by the victim" is encompassed exclusively within its reference to crimes causing "bodily injury."[2] She consequently argues the statute does not contemplate reimbursement for "income lost" where, as in the present case, there is no bodily injury to the victim.[3] This Court has previously observed that determinations of appropriate restitution are "governed by the West Virginia Victim Protection Act of 1984, West Virginia Code §§ 61-11A-1 through -8 (1984) (Repl. Vol. 2000), which codifies the statutory law of this state regarding court-ordered restitution by an individual convicted of a crime." State v. Cummings, 214 W.Va. 317, 320, 589 S.E.2d 48, 51 (2003).

         The Victim Protection Act provides very explicit explanations of its purpose and goals, as this Court recognized in State v. Rebecca F., 233 W.Va. 354, 758 S.E.2d 558 (2014).

W.Va. Code § 61-11A-1 of the Victim Protection Act provides an extensive statement of the Legislature's intention "to enhance and protect the necessary role of crime victims and witnesses in the criminal justice process and to ensure that the state and local governments do all that is possible within the limits of ...

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