State v. Conry , 2020 ND 247 ( 2020 )


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  •                                                                         20200101
    FILED NOVEMBER 19, 2020
    CLERK OF THE SUPREME COURT
    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2020 ND 247
    State of North Dakota,                                Plaintiff and Appellant
    v.
    Levi T. Conry,                                       Defendant and Appellee
    No. 20200101
    Appeal from the District Court of McKenzie County, Northwest Judicial
    District, the Honorable Daniel S. El-Dweek, Judge.
    DISMISSED.
    Opinion of the Court by Crothers, Justice.
    Kelly J. Moe, Assistant State’s Attorney, Watford City, ND, for plaintiff and
    appellant.
    Philip Becher (argued) and Elisabeth E. Hewett (on brief), Minot, ND, for
    defendant and appellee.
    State v. Conry
    No. 20200101
    Crothers, Justice.
    [¶1] The State appeals from a district court order, arguing the district court
    erred by not ordering restitution. Because this Court does not have
    jurisdiction, we dismiss the appeal.
    I
    [¶2] Conry was charged with leaving the scene of an accident involving
    damage to a motor vehicle. Conry entered into a plea agreement with the State
    and pleaded guilty. As part of the agreement Conry received a deferred
    imposition of sentence on the charge of leaving the scene of an accident
    involving damage to a motor vehicle. The district court accepted the plea
    agreement and imposed conditions on Conry according to the terms of the plea
    agreement. The order deferring imposition of sentence stated: “The Court
    reserves jurisdiction to determine restitution within 90 days.”
    [¶3] The State subsequently submitted a statement seeking $11,352.93 in
    restitution. Conry requested a hearing after which the district court entered
    an order denying the restitution claim in its entirety. The court found the
    terms of the plea agreement allowed the court to order no restitution. The State
    appeals from that order.
    II
    [¶4] The State argues the district court abused its discretion by applying the
    restitution statute to Conry’s plea agreement. The State argues the court
    abused its discretion by denying a term of the plea agreement after entering a
    judgment based on the agreement.
    [¶5] “The right of appeal in this state is purely statutory and is a
    jurisdictional matter which we will consider sua sponte.” Jassek v. North
    Dakota Workforce Safety & Ins., 
    2013 ND 69
    , ¶ 6, 
    830 N.W.2d 582
    . We must
    have jurisdiction before an issue can be considered on appeal. Rahn v. State,
    
    2007 ND 121
    , ¶ 7, 
    736 N.W.2d 488
     (citing City of Grand Forks v. Lamb, 2005
    
    1 ND 103
    , ¶ 5, 
    697 N.W.2d 362
    ). “[I]f a right to appeal does not exist, this Court
    is without jurisdiction to consider the merits and we must dismiss the appeal.”
    City of Dickinson v. Etienne, 
    2015 ND 193
    , ¶ 6, 
    867 N.W.2d 673
     (quoting City
    of Williston v. Werkmeister, 
    2015 ND 172
    , ¶ 4, 
    865 N.W.2d 429
    ).
    [¶6] The State’s right to appeal in criminal cases is laid out in N.D.C.C. § 29-
    28-07. The State may take appeal from:
    “1. An order quashing an information or indictment or any count
    thereof.
    2. An order granting a new trial.
    3. An order arresting judgment.
    4. An order made after judgment affecting any substantial right of
    the state.
    5. An order granting the return of property or suppressing
    evidence, or suppressing a confession or admission, when
    accompanied by a statement of the prosecuting attorney asserting
    that the appeal is not taken for purpose of delay and that the
    evidence is a substantial proof of a fact material in the proceeding.
    The statement must be filed with the notice of appeal.”
    N.D.C.C. § 29-28-07.
    [¶7] Whether the State possesses a substantial right to restitution is an issue
    of first impression for this Court. The Nebraska Supreme Court recently
    answered a similar question in the context of whether an order appointing
    indigent counsel was appealable:
    “Numerous factors determine whether an order affects a
    substantial right for purposes of appeal. The inquiry focuses on
    whether the right at issue is substantial and whether the court’s
    order has a substantial impact on that right. Whether an order
    affects a substantial right depends on whether it affects with
    finality the rights of the parties in the subject matter. It also
    depends on whether the right could otherwise effectively be
    vindicated. An order affects a substantial right when the right
    would be significantly undermined or irrevocably lost by
    postponing appellate review.”
    2
    State v. Fredrickson, 
    939 N.W.2d 385
    , 390 (Neb. 2020) (citations omitted). In
    Frederickson, the court concluded the order appointing counsel was neither a
    judgment nor a final appealable order. Id. at 392.
    [¶8] While no state has determined whether restitution is a substantial right
    of the state, most courts strictly limit the state’s ability to appeal restitution
    orders based on whether that right is included in their appealability statute.
    See State v. Maddex, 
    159 So.3d 267
    , 269 (Fla. Dist. Ct. App. 2015) (the State’s
    right to appeal in criminal cases must be expressly granted by statute and 
    Fla. Stat. § 924.07
    (1)(k) provides State with right to appeal order denying
    restitution); State v. Sosebee, 
    382 S.E.2d 681
    , 681-82 (Ga. Ct. App. 1989)
    (statute providing grounds for State appeals in criminal cases must be strictly
    construed against the State and did not provide for right to appeal restitution
    orders, leaving court without jurisdiction to review order denying restitution);
    State v. Crespo, 
    1997 WL 206797
     (Tenn. Crim. App. 1997) (State had no right
    to appeal restitution order where statute did not provide for that right at the
    time); State v. Stirba, 
    972 P.2d 918
    , 920 (Utah 1998) (overturned on other
    grounds) (citing 
    Utah Code Ann. § 77
    -18a-1(2), explaining statute precluded
    State from filing appeal based on restitution order).
    [¶9] Here, the State argues it possesses a substantial right to restitution.
    However, we find the Fredrickson factors useful and, using them, conclude the
    State’s right to restitution is less substantial than it attempts to assert. Under
    those factors, whether the State possesses a substantial right to restitution
    depends on: (1) whether an order affects the right to restitution with finality;
    (2) whether the right could otherwise effectively be vindicated; and (3) whether
    the right is significantly undermined or indefinitely lost without appellate
    review.
    [¶10] Considering the factors, an order for restitution affects with finality the
    State’s ability to obtain recompense for a crime victim. Thus, the first factor is
    satisfied in favor of recognizing a substantial right. The second factor
    regarding whether restitution is otherwise available is resolved against
    recognizing a substantial right. As noted by the district court, the victim can
    seek recovery of damages independent from any action by the State. See State
    3
    v. Kostelecky, 
    2018 ND 12
    , ¶ 12, 
    906 N.W.2d 77
     (explaining N.D. Const. art. I,
    § 25(1)(n) does not change the restitution a district court may order in a civil
    action); N.D.C.C. § 32-03-09.1 (providing the measure of damages for injury to
    property not arising from contract). The state obtaining restitution on behalf
    of the victim does not prohibit the victim from commencing a civil action to
    recover other or additional damages suffered as a result of the crime, although
    any recovery received through restitution must be deducted from damages
    awarded in a civil action for the same incident. See State v. Leingang, 
    2009 ND 38
    , ¶ 13, 
    763 N.W.2d 769
     (explaining payments under a restitution order must
    be deducted from damages awarded in a civil action arising from the same
    incident). Therefore, the victim’s ability to recover damages weighs against
    concluding the denial of restitution requested by the State is an order affecting
    the State’s substantial right. The final inquiry is whether the right of
    restitution will be undermined or lost without appellate review. Because the
    victim can maintain a civil action seeking recovery of damages, we conclude for
    the third factor, as we did for the second factor, that the State does not have a
    substantial right to vindicate on appeal.
    [¶11] The State has no statutory right to appeal a restitution order in a
    criminal case. We therefore dismiss the appeal from the district court order.
    [¶12] Jon J. Jensen, C.J.
    Gerald W. VandeWalle
    Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    4
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    JUDGMENT
    Supreme Court No. 20200101
    McKenzie County Case No. 2018-CR-01404
    Appeal from the district court for McKenzie County.
    State of North Dakota,                   Plaintiff and Appellant
    v.
    Levi T. Conry,                           Defendant and Appellee
    [¶1]   This appeal having been heard by the Court at the October 2020 Term before:
    [¶2] Chief Justice Jon J. Jensen, Justice Gerald W. VandeWalle, Justice Daniel J.
    Crothers, Justice Lisa Fair McEvers, and Justice Jerod E. Tufte;
    [¶3] and the Court having considered the appeal, it is ORDERED AND ADJUDGED that
    the appeal is DISMISSED.
    [¶4] This judgment, together with the opinion of the Court filed this date, constitutes the
    mandate of the Supreme Court on the date it is issued to the district court under
    N.D.R.App.P. 41.
    Dated: November 23, 2020
    By the Court:
    Jon J. Jensen
    Chief Justice
    ATTEST:
    Petra H. Mandigo Hulm
    Clerk