State v. Conry

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
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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.”
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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
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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
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