State v. Becker

2015 UT App 304THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DARRON LAVEN BECKER,
Appellant.
Memorandum Decision
No. 20131151-CA
Filed December 24, 2015
Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 131902981
Debra M. Nelson and Lacey C. Singleton, Attorneys
for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES MICHELE M. CHRISTIANSEN and JOHN A. PEARCE
concurred.
ROTH, Judge:
¶1 Darron Laven Becker appeals an order of restitution. We
dismiss the appeal for lack of jurisdiction.
¶2 Becker was charged with third degree felony aggravated
assault based on allegations that he had attacked and struck his
neighbor. Becker entered into a plea-in-abeyance agreement on a
reduced charge of class A misdemeanor attempted aggravated
assault. The agreement described the factual basis for the assault
to be that ‚on or about March 2, 2013, . . . Becker attempted to hit
his neighbor with the handle of a shovel during an argument
regarding loose dogs.‛ Among other things, the plea agreement
State v. Becker
required Becker to pay restitution for damages suffered by the
neighbor. The parties agreed to reserve the amount of restitution
for a later hearing. The district court accepted the plea and held
it in abeyance for twenty-four months. It also ordered the State
to submit documentation supporting an order of restitution
within ninety days.
¶3 Two months later, the State filed a motion for restitution,
to which it attached a ‚Restitution/Subrogation Notice‛ from the
Utah Office for Victims of Crime (OVC). The notice listed Becker
as the defendant and identified the date, location, and type of
crime. It then stated that OVC had paid the neighbor $663.01 to
replace a ‚Medically Necessary Device‛ and that OVC requested
reimbursement for that pay-out. Attached to the notice was a list
of payments indicating that OVC had paid the neighbor $39 for a
‚Medically Necessary Device‛ received on March 4, 2013, and
$624.01 for a ‚Medically Necessary Device‛ received on March 6,
2013. No other documentation or description of the damages
was included with the motion for restitution. Becker objected to
the motion, arguing that the documentation was insufficient to
support the requested restitution. The court set the matter for a
restitution hearing.
¶4 At the hearing, the State explained to the court that the
medically necessary devices listed in OVC’s notice appeared to
be for an eye exam and eyeglasses, respectively. In support, the
State presented a handwritten document submitted by the
neighbor. The document, which was addressed to the
prosecutor, identified Becker’s case number and then listed two
categories of ‚Monetary Damages‛: $39 for an eye exam and
$624 for eyeglasses.1 After the State represented that OVC had
1. These figures total $663, and the breakdown very nearly aligns
with OVC’s itemization of the medically necessary devices. It is
not apparent why OVC paid an additional $0.01 on the
eyeglasses.
20131151-CA 2 2015 UT App 304State v. Becker
paid the claim ‚just based on *the handwritten documentation
before the court+ in conjunction with the police report,‛ Becker
‚strenuously object*ed+,‛ arguing that restitution, whether paid
by OVC or not, could not be ‚based on a handwritten piece of
notebook paper.‛ Accordingly, Becker argued that there was not
‚enough information right now . . . [to] know what exactly this
claim was‛ and how it related to his attempted aggravated
assault charge.
¶5 Although the district court expressed doubt that the State
would be able to produce more restitution information, it agreed
to set another restitution hearing six weeks later ‚to give *the
parties] some time to see if in fact [the OVC payment] is not
what it claims to be.‛ The court explained that unless Becker
came up with something that undercut OVC’s decision to
reimburse the neighbor, it planned to order restitution in the
amount of $663.01.
¶6 By the time of the second restitution hearing, the State
had not received any further documentation. Over Becker’s
objection that there was insufficient evidence to find that the
‚damage was directly caused by Mr. Becker’s criminal conduct,‛
the court determined that the documentation included
‚sufficient foundation and nexus‛ between the requested
damages and the criminal conduct. Accordingly, the court
ordered Becker to pay restitution in the amount of $663.01 plus
interest. Becker appeals.
¶7 As a threshold matter, we must determine whether we
have jurisdiction to consider Becker’s appeal. See Robinson v.
Baggett, 2011 UT App 250, ¶ 12, 263 P.3d 411. The State contends
that this court does not have jurisdiction to consider Becker’s
appeal because ‚a plea in abeyance does not result in a final
judgment unless and until a conviction is entered or a case is
dismissed.‛ Generally, ‚*a+n appeal is improper if it is taken
from an order or judgment that is not final . . . .‛ Bradbury v.
Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649 (citation omitted). ‚Where
20131151-CA 3 2015 UT App 304State v. Becker
an appeal is not properly taken, [an appellate] court lacks
jurisdiction and . . . must dismiss.‛ Id. ¶ 8.
¶8 While this case was under advisement, another panel of
this court decided State v. Mooers, 2015 UT App 266, petition for
cert. filed, Dec. 2, 2015 (No. 20150996). Mooers held that we lack
jurisdiction to consider appeals regarding restitution orders
under the Crime Victims Restitution Act (the Act) when a
defendant appeals that restitution order during the plea-in-
abeyance period. Id. ¶ 19; see also Utah Code Ann. §§ 77-38a-101
to -601 (LexisNexis 2012). In Mooers, the defendant appealed a
trial court’s determination that all of the ordered restitution fell
within the scope of amounts recoverable, contending that over
$1,000 of the ordered restitution monies did not constitute
‚pecuniary damages‛ under the Act. Mooers, 2015 UT App 266,
¶¶ 5–6; see also Utah Code Ann. § 77-38a-102(6). The defendant
in Mooers filed his appeal while his plea-in-abeyance
probationary period was still in effect. Mooers, 2015 UT App 266,
¶¶ 3–6. A panel of this court determined that we lacked
jurisdiction to consider the appeal because there was no final
judgment, particularly holding that a restitution order under the
Act, as a condition of the plea-in-abeyance agreement, was not
an exception to the final order rule. Id. ¶ 19. The court reasoned
first, that the plain language of the Utah Code, corroborated by
our cases, precludes a plea in abeyance from generally operating
as or being considered a final adjudication, id. ¶¶ 8–10, and,
second, that the plain language of the Act prevented a restitution
order entered as a condition of a plea-in-abeyance agreement
from being an exception to the final judgment rule, id. ¶¶ 11–17.
In particular, Mooers concluded that the language in the Act that
might have suggested that a restitution order is final—a
restitution order ‚‘shall be considered a legal judgment,
enforceable under the Utah Rules of Civil Procedure’‛ with ‚‘the
same [e]ffect . . . as a judgment in a civil action’‛—referred to the
enforceability of a restitution order ‚by the victim, the court, or
creditors,‛ not the order’s appealability by a defendant. Id.
20131151-CA 4 2015 UT App 304State v. Becker
¶¶ 16–17 (alteration and omission in original) (quoting Utah
Code Ann. § 77-38a-401(2), (4)). Additionally, Mooers determined
that statements from State v. Gibson, 2009 UT App 108, 208 P.3d
543, and Meza v. State, 2015 UT 70, 359 P.3d 592, which suggest
that a restitution order entered as a condition of a plea in
abeyance under the Act is final and appealable are dicta and
therefore not binding. Mooers, 2015 UT App 266, ¶¶ 12–14.
¶9 The circumstances in this case are indistinguishable from
Mooers. Becker has appealed a restitution order entered by the
district court under the Act as a condition of his plea in
abeyance, and he has appealed during his plea-in-abeyance
period. Thus, Mooers controls the outcome here: Because Becker
has not been sentenced and a conviction has not yet been entered
against him, there is no final order from which Becker may
appeal.
¶10 Though Becker contends that Mooers is inconsistent with
prior case law, Mooers analyzed the plea-in-abeyance statute and
the Act in light of relevant precedent, and we are bound to
follow Mooers as a matter of stare decisis. See State v. Thurman,
846 P.2d 1256, 1269 (Utah 1993) (‚*S+tare decisis has equal
application when one panel of a multi-panel appellate court is
faced with a prior decision of a different panel.‛); id. (stating that
horizontal stare decisis requires that ‚the first decision by a court
on a particular question of law governs later decisions by the
same court‛); State v. Tenorio, 2007 UT App 92, ¶ 9, 156 P.3d 854(explaining that the Utah Court of Appeals is ‚bound by [its]
previous decisions as well as the decisions of the Utah Supreme
Court.‛); see also State v. Shoulderblade, 905 P.2d 289, 292 (Utah
1995) (per curiam) (‚Stare decisis forges certainty, stability, and
predictability in the law. It also reinforces confidence in judicial
integrity and lays a foundation of order upon which individuals
and organizations in our society can conduct themselves.‛
(citations omitted)). Accordingly, we have no choice but to
dismiss for lack of jurisdiction.
20131151-CA 5 2015 UT App 304State v. Becker
¶11 We note, as did Mooers, that a defendant desiring to
challenge a restitution order in the context of a plea in abeyance
is not left entirely without options. He or she may seek
interlocutory review pursuant to rule 5 of the Utah Rules of
Appellate Procedure or file a petition for extraordinary relief
under rule 65B of the Utah Rules of Civil Procedure. 2 We
recognize that both these avenues of relief are discretionary and
may not be had as a matter of right. However, as Mooers points
out, in the absence of a final, appealable order, these avenues
place the burden on the defendant to show that ‚‘review prior to
the full adjudication of the case is justified or that the order will
escape review altogether if an appeal is not allowed.’‛ Mooers,
2015 UT App 266, ¶ 18 (quoting Tyler v. Department of Human
Servs., 874 P.2d 119, 120 (Utah 1994) (per curiam)).
¶12 The appeal is dismissed for lack of jurisdiction.
2. Mooers also noted that rule 54(b) of the Utah Rules of Civil
Procedure may provide another possible avenue of relief but
that rule 54(b) did not appear to apply to the circumstances in
that case. See State v. Mooers, 2015 UT App 266, ¶ 18 n.4, petition
for cert. filed, Dec. 2, 2015 (No. 20150996); cf. Tyler v. Department of
Human Servs., 874 P.2d 119, 120 (Utah 1994) (per curiam).
20131151-CA 6 2015 UT App 304