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Ortiz v. State (11/16/2007) ap-2123

Ortiz v. State (11/16/2007) ap-2123

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ADRIAN RAMON ORTIZ, )
) Court of Appeals No. A-9611
Appellant, ) Trial Court No. 3AN-03-10739 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 2123 - November 16, 2007]
)
Appeal    from     the
          Superior   Court,  Third  Judicial  District,
          Anchorage, Philip R. Volland, Judge.
                                                  
          Appearances:  Brian T. Duffy, Anchorage,  and
          Joshua  P.  Fink, Public Advocate, Anchorage,
          for   the  Appellant.   Diane  L.  Wendlandt,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.

          Adrian  Ramon  Ortiz  was convicted  of  one  count  of
robbery  in  the  first  degree,1  and  he  was  ordered  to  pay
restitution to the victims of this robbery.
          Superior  Court Judge Philip R. Volland  conducted  the
restitution hearing.  In a written motion, Ortiz argued that  his
restitution  obligation should be governed by the version  of  AS
          12.55.045 that was in effect at the time he committed his
offense.
          In 2003, when Ortiz committed the robbery, AS 12.55.045
gave  a  sentencing  judge discretion  as  to  whether  to  order
restitution,  and  it  further allowed  the sentencing  judge  to
consider, if certain conditions were met, the defendants  ability
to  pay  the  proposed restitution.2    But in 2004,  the  Alaska
Legislature  amended  the statute in two key  ways.   First,  the
legislature  removed a sentencing judges discretion to  grant  or
withhold restitution; the statute now requires the judge to order
restitution  unless  the  victim expressly  waives  restitution.3
Second,  the legislature eliminated a sentencing judges authority
to  consider the defendants ability to pay when setting the total
amount of restitution.4
          Ortizs  attorney  argued that application  of  the  new
statutory  provisions to Ortiz would violate the  ex  post  facto
clause.   Thus,  the  attorney asserted that  Judge  Volland  was
required to apply the 2003 version of the statute and, therefore,
Ortizs  ability  to  pay was relevant to setting  the  amount  of
restitution.
          Judge Volland rejected this argument and concluded that
he  was  obliged  to apply the current version of  the  statute.5
That   is,  Judge  Volland  ruled  that  he  was  precluded  from
considering  Ortizs ability to pay restitution when  setting  the
amount  of  the  restitution.  Ultimately, Judge Volland  ordered
that  Ortiz and his co-defendants be jointly and severally liable
for $103,226.85 in restitution.
          Ortiz appeals this decision, renewing his argument that
the  ex  post facto clause prohibited Judge Volland from applying
the 2004 version of the restitution statute.

          Why  we conclude that application of the 2004
          statute  to Ortiz violates the ex post  facto
          clause
          The  United States Constitution forbids any state  from
passing   an   ex  post  facto  law.6   Similarly,   the   Alaska
Constitution  forbids  the imposition of  ex  post  facto  laws.7
Ortiz  does  not  specify which constitutional  provision  he  is
claiming  the  benefit  of, but that is immaterial   because  the
Alaska  Supreme  Court  has held that  there  is  no  distinction
between state and federal law on this issue.8
          The  ex  post  facto clause forbids a legislature  from
enacting  any statute which punishes as a crime an act previously
committed,  which  was  innocent  when  done;  which  makes  more
burdensome  the punishment for a crime, after its commission;  or
which  deprives one charged with a crime of any defense available
according  to  law at the time when the act was  committed.9   We
have  summarized this definition as forbidding the  retrospective
application  of  laws  that alter the  definition  of  crimes  or
increase the punishment for criminal acts.10
          The  fact that a criminal statute is retrospective does
not necessarily mean that it is a prohibited ex post facto law.11
The  threshold  question we must answer when  deciding  if  [this
statute]  is  an  ex  post  facto law is whether  [the  statutes]
provisions ... increase the quantum of punishment Ortiz  received
          for his conviction.12
          Several federal circuit courts of appeal have addressed
the  question of whether the ex post facto clause is violated  by
retrospective application of a restitution statute that forbids a
sentencing court from considering the defendants ability to  pay.
In 1996, Congress passed the Mandatory Victims Restitution Act of
1996  (MVRA).13   The MVRA made restitution mandatory for certain
offenses,  and it also required a sentencing court to order  full
restitution   for  the  victims  losses,  irrespective   of   the
defendants ability to pay.14
          Because the MVRA superseded a prior restitution statute
that  required sentencing courts to consider a defendants ability
to pay, application of the MVRA to defendants whose offenses pre-
dated  the enactment of this statute raised a question under  the
ex  post  facto  clause.  The federal circuits reached  differing
answers to this question.
          The  majority  of the circuits15  have  concluded  that
retrospective application of the MVRA violates the ex post  facto
clause  of  the  United States Constitution, because  restitution
imposed  as part of a defendants sentence is criminal punishment,
not  a  civil  sanction,  and  the shift  from  discretionary  to
mandatory restitution increases the punishment  meted  out  to  a
particular defendant.16
          The  minority  view  is set out  in  United  States  v.
Newman.17    In Newman, the Seventh Circuit concluded that,  even
though  the  new restitution provision operated to the defendants
detriment,  this  detriment  did not  create  an  ex  post  facto
violation.18   The  court concluded that the primary  purpose  of
restitution  under  the  MVRA was not to  punish  criminals,  but
rather to compensate victims and to force wrongdoers to surrender
ill-gotten  gains.19  Thus, the court held that  restitution  was
not  a  criminal  punishment for purposes of the  ex  post  facto
clause    and,   therefore,  retroactive   application   of   the
restitution provisions of the MVRA did not violate this clause.20
          Thus,  the  majority of the federal courts  which  have
addressed this question have held that the provision of the  MVRA
which  forbids a sentencing judge from considering the defendants
ability  cannot  be applied retroactively, while  a  minority  of
federal courts have concluded that this provision is not punitive
and  therefore can be imposed retroactively without violating the
ex post facto clause.
          The   State  urges  us  to  adopt  the  minority   view
represented  by the Newman decision.  The State argues  that  the
intent of the 2004 amendments to Alaskas restitution statute  was
primarily to compensate victims of a crime rather than to  punish
the  defendant, and to make restitution orders in criminal  cases
equivalent  to the civil judgments that victims might  obtain  if
they sued the defendants.
          We  reject the States argument because we conclude that
restitution  is  a  hybrid remedy.  It  is  true,  as  the  State
asserts, that one primary purpose of restitution is to compensate
victims for the harm done by the defendants criminal act.  But  a
restitution order in a criminal case differs significantly from a
judgment  that  a victim might obtain against a  defendant  in  a
civil lawsuit.
          The  most  obvious  difference is that,  when  a  court
orders  a  defendant  to  pay restitution,  the  defendant  faces
imprisonment  for  willful  failure  to  pay  the  restitution.21
Unless  the  defendant can establish that he was  unable  to  pay
despite having made continuing good faith efforts to pay the  ...
restitution,  the  court  has  the  authority  to  imprison   the
defendant by revoking his probation, finding him in contempt,  or
ordering  him  imprisoned  until  the  order  of  the  court   is
satisfied.22
          Moreover,  the sentencing courts authority to  imprison
the defendant for willful non-payment is directly proportional to
the amount of restitution that the defendant has been ordered  to
pay.   Subsection (a) of AS 12.55.051, which governs  enforcement
of  restitution  orders, declares that the  sentencing  court  is
authorized  to  imprison the defendant for a term  that  may  not
exceed  one  day for each $50 of the unpaid portion  of  the  ...
restitution or one year, whichever is shorter.23
          Additionally,  when  a  defendant  is  imprisoned   for
willful  non-payment of a restitution order, the  defendant  must
receive  [c]redit  ... toward satisfaction of  the  [restitution]
order  ...  for  every  day [the defendant] is  incarcerated  for
nonpayment.24    This provision most strikingly demonstrates  the
underlying  penal nature of the restitution order.  A  victim  is
not  compensated by having the defendant spend time in jail.   In
fact,  because  the defendant must receive credit for  every  day
spent  in  jail,  the very opposite occurs:  the victim  actually
loses  compensation when the defendant is imprisoned for  willful
non-payment of the restitution obligation.
          These  provisions  of  AS 12.55.045  and  AS  12.55.051
demonstrate that, even though restitution orders may further  the
aim  of  compensating the victim, these orders  also  have  penal
characteristics  that cannot be ignored.  Under Alaska  law,  the
restitution  order in a criminal case differs substantially  from
the  money  judgment  that  a victim might  obtain   against  the
defendant in a civil lawsuit.
          We therefore conclude that retrospective application of
the Alaska restitution statute violates the ex post facto clause.
          Accordingly, we VACATE the restitution order in  Ortizs
case,  and  we  direct  the  superior court  to  re-evaluate  the
question  of restitution, applying the version of the restitution
statute that existed at the time Ortiz committed his offense.
          We do not retain jurisdiction of this case.

_______________________________
     1 AS 11.41.500(a)(1) and/or (3).

2  Former  AS  12.55.045(a)  (2003)  &  former  AS  12.55.045(f),
(g) (2003), respectively.

     3 AS 12.55.045(a), as amended by ch. 17,  1, SLA 2004.

     4 AS 12.55.045(g), as amended by ch. 17,  3, SLA 2004.

     5 Id.

     6  U.S. Const. art. I, 10.

     7  Alaska Const. art. I, 15.

     8  State v. Creekpaum, 753 P.2d 1139, 1143 (Alaska 1988).

     9   State  v.  Anthony, 816 P.2d 1377,  1378  (Alaska  1991)
(quoting  Dobbert v. Florida, 432 U.S. 282, 292, 97 S. Ct.  2290,
2298, 53 L. Ed. 2d 344 (1977)).

     10     Amin  v. State, 939 P.2d 413, 416 (Alaska App.  1997)
(quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715,
111 L. Ed. 2d 30 (1990)).

     11     See Anthony, 816 P.2d at 1378 (The mere fact that  [a
statute]  alters a convicted felons circumstances to his  or  her
disadvantage does not in itself invalidate the statute as ex post
facto.);  see also Stoneking v. State, 39 P.3d 522,  524  (Alaska
App.  2002)  (a  statute  is not illegally  retrospective  merely
because it upsets expectations or operates to the disadvantage of
individual defendants.).

     12     Patterson v. State, 985 P.2d 1007, 1011 (Alaska  App.
1999),  overruled  on other grounds by Doe  v.  State,  Dept.  of
Public Safety, 92 P.3d 398 (Alaska 2004).  See also Smith v. Doe,
538  U.S.  84, 92, 123 S. Ct. 1140, 1146-47, 155 L.  Ed.  2d  164
(2003)  (stating  that the framework for this  inquiry  is  well-
established by United States Supreme Court precedent).

     13    Title 2, Subtitle A of the Antiterrorism and Effective
Death  Penalty Act of 1996, Pub. L. No. 104-132, 110  Stat.  1214
(codified in relevant part at 18 U.S.C.  3663A, 3664).

     14    18  U.S.C.   3663(A)(1) & 18 U.S.C.   3664  (f)(1)(A),
respectively.

     15    See United States v. Edwards, 162 F.3d 87, 88 (3d Cir.
1998);  United States v. Siegel, 153 F.3d 1256, 1260  (11th  Cir.
1998);  United States v. Bapack, 129 F.3d 1320, 1327  n.13  (D.C.
Cir.  1997); United States v. Williams, 128 F.3d 1239, 1241  (8th
Cir.  1997); United States v. Baggett, 125 F.3d 1319,  1322  (9th
Cir.  1997); United States v. Thompson, 113 F.3d 13, 15  n.1  (2d
Cir. 1997).

     16   Edwards, 162 F.3d at 89 (citations omitted).

     17   144 F.3d 531 (7th Cir. 1998).

     18   Id. at 537, 542.

     19   Id. at 542.

     20    Id.  See also United States v. Bach, 172 F.3d 520, 523
(7th Cir. 1999); United States v. Nichols, 169 F.3d 1255, 1279-80
(10th Cir. 1999).

     21   AS 12.55.051(a).

     22   Id.

     23   Id.

     24   Id.

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