State v. Weeks , 458 Utah Adv. Rep. 3 ( 2002 )

DURRANT, Associate Chief Justice:

¶ 1 This appeal concerns the imposition of a restitution award. At a sentencing hearing, the district court ordered that the defendant, Lance Weeks, pay restitution in the amount of $9,104.35. Although Weeks did not object to the restitution amount at that time, he later challenged the amount on the ground that no evidence justified the decision. The district court subsequently upheld its restitution ruling, and Weeks appealed to the Utah Court of Appeals. The Utah Court of Appeals affirmed, reasoning that (1) Weeks had waived his right to challenge the sentencing court’s restitution award by failing to object to the restitution decision prior to the conclusion of the sentencing hearing, (2) his waiver of this right was not resuscitated by the sentencing court’s post-sentencing actions, and (3) the sentencing court had not committed plain error by failing to make a written finding as to each of the factors listed in subsection 76-3-201(8) of the Utah Code.

¶ 2 On certiorari, Weeks claims the sentencing court erred in four respects. First, he asserts that subsection 76-3-201(4)(e)¹ of the Utah Code does not require that a request for a restitution hearing originate prior to the conclusion of the sentencing hearing. Second, he contends that even if that subsection requires such a request, the sentencing court resuscitated the issue through its post-sentencing actions. Third, he alleges that he did not receive a full hearing on restitution because the sentencing court based its restitution decision on evidence that lacked an evidentiary foundation. Finally, he contends that the sentencing court committed plain error when it failed to make written findings regarding each of the factors listed in subsection 76-3-201(8) of the Utah Code.

¶ 3 We conclude that Weeks did receive a full hearing for restitution purposes. We further conclude that Weeks waived his right to challenge the sentencing court’s failure to reference on the record each factor listed in subsection 76-3-201(8), and the court’s failure to do so did not constitute plain error. We therefore affirm.

BACKGROUND

¶ 4 On July 6, 1999, Weeks pleaded guilty to five third-degree felonies and two Class A misdemeanors. On September 10, 1999, the district court sentenced Weeks on three of those convictions (two third-degree felonies and one Class A misdemeanor) to an indeterminate period of incarceration ranging from one to five years, and ordered that he pay restitution in the amount of $9,104.35.² Weeks did not object to the restitution amount at that time.

¶ 5 Eleven days later, Weeks requested that the district court “schedule a [rjestitution hearing.” The district court complied with this request and notified the parties with a document entitled “NOTICE OF RESTITUTION HEARING.” At this restitution hearing, Weeks asked for clarification as to how the restitution amount was calculated. The district court responded that the restitution amount had been derived from a presentence investigation report (the “pre-sentence report”).

¶ 6 After receiving this explanation, Weeks argued that the restitution amount ordered by the district court did not appear to be supported by any evidence because the figures cited in the presentence report lacked an evidentiary foundation. The State countered that “even if [the figures included in the report were] estimates, they [were] probably only pennies off or probably short.” The district court subsequently upheld the restitution amount, ruling from the bench that “[g]iven what I have reviewed, that being the presentence report, as well as the orders in the matter, as well as now having heard arguments of counsel, I[am] persuaded that ... the numbers I have ordered as restitution [are] fair and reasonable.” It later entered a written order reaffirming its decision, noting that it had “heard evidence and arguments of counsel.”

¶ 7 Weeks appealed to the Utah Court of Appeals, contending that he was entitled to— but did not receive — a “full hearing” under subsection 76-3-201(4)(e)³ of the Utah Code and that the sentencing court committed plain error by not complying with the requirements of subsections 76-3-201(4)(d)(i)⁴ and (8)⁵ of the Utah Code. State v. Weeks, 2000 UT App 273, ¶ 6,12 P.3d 110. In a split decision, the court of appeals rejected both arguments. It reasoned (1) that Weeks had waived his right to a restitution hearing by-failing to object to the amount of restitution at his sentencing hearing, (2) that his waiver of this right was not subsequently resuscitated by the sentencing court at the post-sentencing hearing because the court did not receive evidence at that time, id. at ¶¶ 10-12, and (3) that the sentencing court had not committed plain error by failing to make a written finding for each factor listed in subsection 76-3-201(8) because that section merely identifies the factors that must be considered by the court and subsection 76-3-201(4)(d)(i) demands only that the court “make the reasons for its decision part of the record,”⁶ id. at ¶¶ 15-17.

¶ 8 Weeks then petitioned this court for a writ of certiorari, which we granted. We have jurisdiction pursuant to subsection 78-2-3(a) of the Utah Code.

¶ 9 On certiorari, Weeks claims the court of appeals erred in four respects. First, he asserts that subsection 76-3-201(4)(e) does not require that a request for a restitution hearing originate prior to the conclusion of sentencing. Second, he contends that even if subsection 76-3-201(4)(e) requires that a request for a restitution hearing be made before the sentencing hearing ends, the sentencing court resuscitated the issue by its post-sentencing actions. Third, he claims that he did not receive a full hearing within the meaning of subsection 76-3-201(4)(e) because the sentencing court based its restitution decision on evidence that lacked an evi-dentiary foundation. Finally, he alleges that the sentencing court committed plain error when it failed to make written findings regarding each of the factors listed in subsection 76-3-201(8) of the Utah Code.

ANALYSIS

I. STANDARD OF REVIEW

¶ 10 Three separate principles govern the standard of review applicable to this case. First, in exercising our certiorari jurisdiction, we review the court of appeals’ decision, not the opinion of the sentencing court. See Butterfield v. Okubo, 831 P.2d 97, 101 n. 2 (Utah 1992). Second, we afford the court of appeals’ ruling no deference and review for correctness. See Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 11, 48 P.3d 968. Finally, we may affirm the court of appeals’ decision on any legal ground or theory supported by the record. See Dipoma v. McPhie, 2001 UT 61, ¶ 18) 29 P.3d 1225.

II. WEEKS’S RIGHT TO A RESTITUTION HEARING

¶ 11 Weeks first argues that the court of appeals incorrectly concluded that subsection 76-3-201(4)(e) requires a defendant to request a restitution hearing prior to the conclusion of sentencing; alternatively, he claims that the court of appeals erred in finding the sentencing court did not resuscitate his right to such a hearing by its post-sentencing actions. We do not reach the merits of either contention, however, because, even if the court of appeals did err in deciding those questions, we conclude that alternative grounds exist for affirming the court of appeals’ decision. Accordingly, for purposes of this appeal, we assume that Weeks either timely requested a restitution hearing or that the sentencing court subsequently resuscitated his right to such a hearing.

III. SUBSECTION 76-3-201(4)(e)’S FULL HEARING REQUIREMENT

¶ 12 We thus turn to the question of whether the sentencing court provided Weeks with a full hearing within the meaning of subsection 76-3-201(4)(e) of the Utah Code. In relevant part, that subsection declares that “[i]f the defendant objects to the imposition, amount, or distribution of the restitution, the court shall at the time of sentencing allow the defendant a, full hearing on the issue.” Utah Code Ann. § 76-3-201(4)(e) (1999) (emphasis added).

¶ 13 Relying on this subsection, Weeks contends that the sentencing court denied him a full hearing because the presentence report it relied on as the basis for ordering restitution lacked an evidentiary foundation. Put differently, he argues that no evidence was introduced at the restitution hearing on which the sentencing court could justify its conclusion. He further asserts that this lack of evidentiary support violates the due process clauses of both the United States Constitution and the Utah Constitution. We disagree.

¶ 14 To begin with, contrary to the court of appeals’ opinion, some evidence was presented at the restitution hearing. Indeed, the State pointed to the statements in the pre-sentence report at the restitution hearing as a basis for the restitution amount. Moreover, the sentencing court stated at the restitution hearing that it had “reviewed ... the presentence report” and relied on it to determine the $9,104.35 restitution figure. Finally, in its written order regarding the restitution hearing, the sentencing court noted that it had “heard evidence.” Accordingly, the presentence report was indisputably presented as proof at the restitution hearing to support the sentencing court’s restitution award.

¶ 15 The presentence report recommended restitution in the amount of $9,104.35. This figure was based on statements made by the two victims, several police reports, and records supplied by an automobile insurance company.⁷ Although the sentencing court relied upon the presentence report at the restitution hearing, Weeks claims that the report was insufficient to sustain the sentencing court’s decision because it lacked an evi-dentiary foundation (i.e., it was based on hearsay). We disagree.

¶ 16 A full hearing under subsection 76-3-201(4)(e) of the Utah Code does not require that the State present evidence that would be admissible at trial. No such requirement exists because the rules of evidence do not apply to a restitution hearing. State v. McBride, 940 P.2d 539, 541-42 (Utah Ct.App. 1997). Rule 1101(b)(3) of the Utah Rules of Evidence explicitly declares that the evidentiary rules do not apply to sentencing proceedings, Utah R. Evid. 1101(b)(3); see also State v. Sanwick, 713 P.2d 707, 709 (Utah 1986) (stating that under Rule 1101(b)(3), “the rules of evidence in general, and the rules on hearsay exclusions in particular, are inapplicable in sentencing proceedings”), and a restitution hearing clearly qualifies as such a proceeding,⁸ McBride, 940 P.2d at 541^42.

¶ 17 There is wisdom in not applying the evidentiary rules to restitution hearings. Specifically, at the time of sentencing, a judge balances a number of different considerations and needs flexibility in issuing punishment. In fact, he or she often has the option of incarcerating a convicted defendant, fining that individual, and/or imposing a restitution amount. See State- v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct.App.1991) (noting that the trial court has broad discretion in imposing sentence and may consider many different factors in imposing punishment). Given the variety of options available, a sentencing judge may increase or decrease one form of punishment depending on other punishment imposed. The need for imposing the same evidentiary strictures required in a full-blown trial is therefore diminished because the sentencing judge may have imposed the restitution amount in place of a greater fine or incarceration term. See Utah Code Ann. § 76-3-201(8)(b) (1999) (explaining that in ordering restitution, a “court shall consider all relevant facts ” (emphasis added)); Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (affirming that there are “sound practical reasons” for not applying evidentiary rules to sentencing proceedings because a sentencing judge has the task of determining “the type and extent of punishment”).

¶ 18 For instance, in the three criminal convictions before us (two third-degree felony convictions and one Class A misdemeanor conviction), the judge could have fined Weeks up to $12,500, see Utah Code Ann. § 76-3-301(b) to (e) (1999) (stating that a person convicted of a third-degree felony may be fined up to $5,000 and that a person convicted of a class A misdemeanor may be fined up to $2,500), and incarcerated him for an indeterminate period not to exceed eleven years, see Utah Code Ann. § 76-3-203(3) (1999) (declaring that a person who has been convicted of a third-degree felony may be sentenced to imprisonment for an indeterminate period not to exceed five years); id. § 76-3-204 (providing that a person who has been convicted of a class A misdemeanor may be sentenced to imprisonment for a term not exceeding one year). The sentencing judge opted, however, not to fine Weeks, but rather, incarcerated him for an indeterminate period ranging from one to five years, however. The judge therefore may have imposed the restitution award in lieu of a fine or increased prison term.

¶ 19 In addition to assisting the sentencing judge in imposing the proper punishment, flexibility at sentencing is also beneficial to both victims and defendants. Victims benefit because they do not have to participate in a mini-trial to establish the validity of a restitution amount. Furthermore, fines that might have gone to the State may instead go to the victim in the form of restitution. Defendants benefit because they may avoid a greater incarceration term, fine amount, or both.

¶ 20 This is not to say that a defendant is limited in challenging the restitution amount proffered by the State. In the instant action, Weeks could have presented evidence challenging the figures cited in the presentence report. See State v. Starnes, 841 P.2d 712, 715 (Utah Ct.App.1992) (explaining that rule 1101(b)(3) was designed to allow more evidence, not less, and that the trial court erred when it barred the defendant from presenting witnesses on his behalf at a restitution hearing). Weeks elected, however, to simply attack the report’s evi-dentiary foundation. Moreover, as stated above, whether the presentence report had a proper evidentiary foundation is irrelevant. The dispositive question is whether the sentencing court correctly concluded that the restitution amount was justified on the basis of the evidence presented to it.

¶ 21 We hold that the presentence report sufficiently supported the sentencing court’s conclusion, especially in light of the fact that it was the only evidence presented at the restitution hearing. Indeed, regardless of the applicable burden of proof incumbent upon the State, the only evidence presented to the sentencing court showed that the restitution amount was justified. Because Weeks presented no evidence rebutting the presen-tence report and merely challenged the report’s evidentiary foundation, we see no basis on which to conclude he was denied a full healing. Nor do we see a basis for his argument that there was a violation of the due process clause of either the United States Constitution or the Utah Constitution.

IV. WEEKS WAIVED HIS RIGHT TO CONTEST THE FACTORS THE SENTENCING COURT REFERENCED ON THE RECORD IN IMPOSING RESTITUTION

¶ 22 Weeks next argues that the sentencing court erred in ordering restitution because it failed to reference on the record each factor listed in subsections 76-3-201(8)(b) and (c) of the Utah Code. Specifically, he claims that subsection 76 — 3—201(4)(d)(i) declares that “the court Shall make the reasons [for its restitution] decision a part of the court record,” Utah Code Ann. § 76-3-201(4)(d)(i) (1999), and' that this language requires a sentencing court to explicitly note on the record each of the factors listed in subsections 76-3-201(8)(b) and (c). Weeks failed to object on this ground at the restitution hearing, however, opting instead to merely challenge the evidentiary weight of the presentence report. The sentencing court thus had no opportunity to address its alleged failure to reference on the record all of the statutory factors listed in subsection 76-3-201(8). Accordingly, that argument has been waived and cannot be presented on appeal. Cf. Crookston v. Fire Ins. Exch., 817 P.2d 789, 800-01 (Utah 1991) (concluding that where an insurance company did not raise an argument before the trial court, the issue could not be presented on appeal).

¶ 23 In reaching this conclusion, we note that it was not plain error for the sentencing court to impose a restitution amount in this case without referencing on the record each factor listed in section 76-3-201 of the Utah Code. That section only requires sen-fencing courts to (1) consider the factors listed in subsections (8)(b) and (c), see Utah Code Ann. § 76-3-201(8)(b) to (c) (1999), and (2) “make the reasons for [its] decision a part of the court record,” see id. § 76-3-201(4)(d)(i). As such, there is no mandatory requirement in the language of the statute that a sentencing court make a record setting forth its reasoning as to each of the factors in its restitution, order, only that it consider each factor and make a record setting forth the reasons for its decision. In other words, the court must consider all of the factors, but need make a record only of the reasons on which it relied in reaching its conclusion.

¶ 24 Moreover, in contrast to Weeks’s assertion, our research reveals no Utah case that interprets subsection 76-3-201(4)(d)(i) as requiring a court to reference on the record each of the factors listed in subsections 76-3-201(8)(b) and (c). Weeks contends that State v. Robertson, 932 P.2d 1219 (Utah 1997), imposes such a requirement. We disagree for two reasons. First, although that case admittedly stated that a sentencing court had to consider each of the statutory factors listed in the precursor to subsection 76-3-201(8)⁹ and explicitly note “on the record the reasons for the decision it reached, reflecting the detailed factors listed in the statute,” id. at 1234, it does not stand for the proposition that a sentencing court must make findings on the record as to each of the statutory factors. Indeed, after making its initial pronouncement that the factors relied on by the sentencing court had to be included in the record, the Robertson court proceeded to create an exception to that requirement. Specifically, the Robertson court declared that “[although the [sentencing] court did not make findings relating to Robertson’s financial condition part of the record¹⁰ we can reasonably assume that the court actually made such findings.” Id. at 1235 (footnote added). Thus, despite some language to the contrary, we read Robertson as permitting an appellate court, if doing so would be reasonable, to assume that the sentencing court considered the factors set forth in subsection 76-3-201(8).

¶ 25 Second, even if our conclusion that Robertson permits an appellate court to assume such findings were made is incorrect, Robertson is, at best, ambiguous regarding whether the factors listed in subsection 76-3-201(8) have to be referenced on the record, thereby precluding any plain error on the part of the sentencing court. Indeed, for plain error to exist, we must determine, among other things, that the error should have been “obvious” to the sentencing court. State v. Brown, 853 P.2d 851, 853 (Utah 1992). An error cannot be “obvious” to a sentencing court, however, where the alleged basis for that error is an ambiguous appellate decision. Accordingly, neither the relevant statutory subsections nor any prior case unambiguously defined what the sentencing court was required to include in its restitution order.¹¹ The sentencing court therefore did not commit plain error, and Weeks is precluded from raising this argument for the first time on appeal.

CONCLUSION

¶26 We conclude that Weeks received a full restitution hearing within the meaning of subsection 76-3-201(4)(e) of the Utah Code because the rules of evidence do not apply to restitution hearings. It therefore makes no difference whether the presentence report relied on by the sentencing court had an appropriate evidentiary basis. The relevant inquiry is whether there was sufficient evidence to support the sentencing court’s conclusion. Because the presentence report was the only evidence offered at the restitution hearing, we conclude that sufficient evidence existed.

¶ 27 We further conclude that Weeks waived his right to contest the factors the sentencing court referenced on the record in reaching its decision. He did so because he failed to object on this ground at the restitution hearing and the sentencing court did not commit plain error by failing to reference on the record each factor listed in subsections 76-3-201(8)(b) and (c) of the Utah Code. We therefore affirm.

¶ 28 Chief Justice DURHAM, and Justice WILKINS concur in Associate Chief Justice DURRANT’s opinion.

1 . Regarding subsections 76-3-201(4)(e), 76-3-201(4)(d)(i), and 76-3-20l(8)(b) and (c), we reference the Utah Code as it existed in 1999. The Utah Legislature has since repealed these subsections because they duplicated several sections of the Crime Victims Restitution Act. Since no substantive modifications were made to the provisions, however, our analysis remains the same. The subsections were renumbered as follows: 76-3-20 l(4)(e) to 77-38a-302(4), 76-3-201(4)(d)(i) to 77-38a-302(3), and 76-3-201(8)(b) and (c) to 77-38a-302(5)(b) and (c).

2 . We note that the sentencing court sentenced Weeks on all seven convictions on September 10, 1999. Only the punishment imposed on three of those convictions is relevant to this appeal, however.

3 . Subsection 76-3-201(4)(e) of the Utah Code stated that "[i]f the defendant objects to the imposition, amount, or distribution of the restitution, the court shall at the time of sentencing allow the defendant a full hearing on the issue.” Utah Code Ann. § 76-3-201(4)(e) (1999).

4 . Subsection 76 — 3—201 (4)(d)(i) of the Utah Code provided as follows: "If the court determines that restitution is appropriate or inappropriate under this subsection, the court shall make the reasons for the decision a part of the court record.” Utah Code Ann. § 76-3-20l(4)(d)(i) (1999).

5 . In pertinent part, subsection 76-3-201(8) of the Utah Code declared as follows:

(b) In determining the monetary sum and other conditions for complete restitution, the court shall consider all relevant facts, including: (i) the cost of the damage or loss if the offense resulted in damage to or loss or destruction of property of a victim of the offense; (ii) the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment; the cost of necessary physical and occupational therapy and rehabilitation; and the income lost by .the victim as a result of the offense if the offense resulted in bodily injury to a victim; and (iii) the cost of necessary funeral and related services if the offense resulted in the death of a victim.

(c) In determining the monetary sum and other conditions for court-ordered restitution, the court shall consider the factors listed in

Subsection (8)(b) and: (i) the financial resources of the defendant and the burden that payment of restitution will impose, with regard to the other obligations of the defendant; (ii) the ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; (iii) the rehabilitative effect on the defendant of the payment of restitution and the method of payment; and (iv) other circumstances which the court determines make restitution inappropriate.

Utah Code Ann. § 76-3-20l(8)(b) to (c) (1999).

6 . In concluding a written finding was not required for the factors listed in subsection 76-3-201(8), the court of appeals noted that this Court’s decision in State v. Robertson, 932 P.2d 1219, 1234-35 (Utah 1997), permitted an appellate court to reasonably assume such findings were made. Weeks,2000 UT App 273 at V 17, 12 P.3d 110,.

7 . The presentence report on which the sentencing court based its restitution decision declared that one victim incurred $7,604.35 in total damages and the other victim sustained $1,500.00 in damages.

In addition, the presentence report declared (1) that Weeks's "only apparent assets [were] his youth and support from his family,” (2) that he had "no debts,” and (3) that he had “no income [or] expenses.” It also summarized his employment history and noted that he had "become a veritable crime wave as an adult” who "displayed a disregard for the laws of society.” It then recommended that the court sentence Weeks to concurrent terms and require him "to pay a $625 fine, $532 surcharge, full restitution, and [a] $200 recoupment fee upon parole.”

8 . Justice Howe contends that the "statute that guarantees the defendant 'a full hearing’ must necessarily trump the general rule contained in ... 1101(b)(3)” of the Utah Rules of Evidence. We disagree for four reasons. First, the statute referenced by Justice Howe is silent regarding the applicability of the rules of evidence to restitution hearings. See Utah Code Ann. § 76-3-201 (1999) (current version at Utah Code Ann. 77-38a-302 (Supp.2002)). Second, a restitution hearing is, as Justice Howe himself indicates, an "aspect[] of sentencing.” Third, rule 1101(b)(3) specifically states that the rules of evidence are inapplicable to sentencing proceedings. Utah R. Evid. 1101(b)(3). Finally, Justice Howe’s approach would create an anomalous result. Specifically, a defendant would receive greater evi-dentiary protection regarding the imposition of a restitution award than with respect to the imposition of a prison term.

9 . The statutory language in existence when Robertson was decided is substantially similar to the language applicable to the instant action. The only significant difference for our purposes is that section 76-3-201 was later reordered and the list of factors that the sentencing court must consider was expanded.

10 . The financial status of the defendant is one of the factors that a sentencing court must consider before ordering restitution. Utah Code Ann. § 76 — 3—201 (8)(c)(i) (1999) (declaring that the court shall consider "the financial resources of the defendant”).

11 . If we did construe Robertson in the manner suggested by Weeks, a sentencing court would have to reference on the record the specific items described in subsections 76 — 3—201(8)(b) and (c) of the Utah Code as well as every other relevant fact. Sentencing courts would incur this burdensome obligation because subsection 76-3-201 (8)(b) expressly states that in ordering restitution, “the court shall consider all relevant facts.” Utah Code Ann. § 76-3-201(8)(b) (1999).

To the extent Robertson stands for such a proposition, we expressly disavow its reasoning. In our view, subsection 76 — 3—201 (4)(d)(i) does not require that a sentencing court reference on the record the factors listed in subsections 76-3-201(8)(b) and (c). Rather, it merely states that the sentencing court set forth the reasons for its restitution decision in the record.