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W.S. v. State (1/11/2008) ap-2140

W.S. v. State (1/11/2008) ap-2140

                             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


W.S., a minor, )
) Court of Appeals No. A-9819
Appellant, ) Trial Court No. 4FA-04-157 DL
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2140 January 11, 2008
)
          Appeal  from the Superior Court, Fourth  Judi
          cial  District,  Fairbanks, Randy  M.  Olsen,
          Judge.

          Appearances:   James  M. Hackett,  Fairbanks,
          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.

          MANNHEIMER, Judge.

          In this appeal, we are asked to construe the provisions
of law governing restitution in juvenile delinquency cases.
          W.S.  was adjudicated a delinquent minor for assaulting
a  twelve-year-old boy.  As explained in more detail  below,  the
superior court ordered W.S. and his parents to pay restitution to
the  victims  aunt  (who  was  the  boys  guardian  and  physical
custodian)  and  to  a  mental  health  counselor  who   provided
counseling  services to the victim following the  offense.   W.S.
argues  that, in a juvenile delinquency case, the superior  court
lacks  the  authority  to order restitution  payments  to  anyone
except the direct victim of the minors offense.
          In   addition,   W.S.  argues  that   any   restitution
obligation  imposed  by  the  superior  court  in  a  delinquency
proceeding should terminate when the courts disposition order  is
accomplished     i.e.,   when   the   term    of    the    minors
institutionalization or probation ends.
          Finally,  W.S.  argues  that when  the  superior  court
assesses  a minors restitution obligation in a delinquency  case,
the court is obliged to take into account not only the amount  of
the victims loss but also the minors ability to pay.
          For  the  reasons explained here, we conclude that  the
superior  court  had  the authority to order restitution  to  the
victims  aunt  and  to the mental health counselor.   We  further
conclude  that  W.S.s obligation to pay this restitution  is  not
extinguished  when  the  minors term of  institutionalization  or
probation ends.  Indeed, under Alaska law, a minors obligation to
pay  restitution is not extinguished even when the superior court
loses  its  juvenile jurisdiction over the minor  which  normally
occurs when the minor turns nineteen.1
          With regard to the argument that the superior court  is
obliged  to  consider a minors ability to pay when assessing  the
amount  of  restitution, we consider this to be a close question.
However,  we need not resolve that question in the present  case,
because the record provides no reason to believe that the  amount
of  restitution ordered in this case is beyond the means of  W.S.
and his parents.

Underlying facts

          W.S.  was accused of sexually abusing a  ten-
year-old boy and a twelve-year-old boy at a youth  club
facility  in  Fairbanks.  The two victims  stated  that
W.S.  had  penetrated them anally and had performed  or
attempted to perform oral sex on them.
          Based on these allegations, and also based on
an  earlier  incident  in  which  W.S.  broke  into   a
neighbors home and damaged a window, the State filed  a
delinquency  petition against W.S..  This petition  was
ultimately resolved  by a plea agreement.
          With  respect  to the incident involving  the
two  boys, the State dropped the charges involving  the
younger   boy,  and  the  State  reduced  the   charges
involving the other boy, Z.L., to one count of  fourth-
degree  assault  and  one count of  harassment.2   With
respect to the unlawful entry into the neighbors house,
W.S. entered an admission to first-degree trespass  and
fourth-degree  criminal  mischief.   Under   the   plea
agreement, W.S. would be placed on probation, with  the
terms  and  conditions to be decided  by  the  superior
court.
          At  the  disposition  hearing,  the  superior
court accepted the plea agreement and scheduled a later
hearing where the State could present evidence  on  the
          issue of restitution.  Based on the evidence presented
at the restitution hearing, the superior court directed
W.S.  and his parents to pay restitution in the  amount
of $3,185.
          (See  AS  47.12.120(b)(4), which directs  the
superior  court to order both the minor and the  minors
parents to pay any restitution obligation.)
          This restitution of $3,185 included $1,485 to
reimburse  Z.L.s aunt (who was his custodian)  for  the
hours  she missed from work in order to care  for  Z.L.
following  the  attack.   It also  included  $1,300  as
reimbursement  for  the  costs of  professional  mental
health counseling for Z.L..
          Because  Z.L.s  aunt  could  not  afford  the
mental  health  counselors  normal  hourly  rate,   the
counselor  agreed to provide the services at  half  her
normal  rate.  Accordingly, the superior court  ordered
restitution of $650 to Z.L.s aunt (for the  portion  of
the  fee  that  the aunt paid) and $650 to  the  mental
health counselor herself (for the remainder of the fee,
which was essentially donated).

W.S.s argument that the superior court had no authority
to  order  restitution in favor of Z.L.s aunt  and  the
mental health counselor

          W.S.  argues  that, even though the  superior
court  had the authority to order restitution  for  any
loss  suffered  by  Z.L.  (the  direct  victim  of  the
offense), the superior court had no authority to  order
restitution  for the time that Z.L.s aunt  missed  from
her  employment.  W.S. further argues that the superior
court had no authority to order restitution in favor of
Z.L.s aunt or the mental health counselor for the  cost
of Z.L.s mental health counseling.
          The  superior court clearly had the authority
to  order restitution in favor of Z.L.s aunt.  In fact,
the superior court was obliged to order restitution  in
favor of the aunt.
          Under AS 47.12.120(b)(4), [if] the [superior]
court finds that the minor is delinquent, it shall  ...
order  the minor and the minors parent to make suitable
restitution.   Moreover, subsection (A)  of  this  same
statute  declares the court may not refuse to  make  an
order  of  restitution to benefit  the  victim  of  the
[delinquent] act.
          Z.L.s  aunt  qualifies as a victim  for  this
purpose.   AS  47.12.990(16)  declares  that  the  term
victim  has  the  same meaning in juvenile  delinquency
proceedings as it does under AS 12.55.185, the  statute
that  defines  victim for purposes  of  adult  criminal
sentencing proceedings.  And under AS 12.55.185(19)(B),
the term victim includes not only the direct victim  of
the unlawful act, but also a parent, ...  guardian,  or
custodian of the direct victim if the direct victim  is
a minor.
          W.S.   concedes  that  Z.L.s  aunt  was   his
physical  custodian  and primary caretaker  during  the
pertinent  time.   Moreover, the superior  court  found
that Z.L.s aunt was effectively Z.L.s guardian  because
she had a power of attorney authorizing her to make all
parental  decisions for him.  Thus, not  only  did  the
superior  court have the authority to order restitution
in  favor  of  Z.L.s aunt, but the superior  court  was
obliged to do so.
          The   remaining  question  is   whether   the
superior  court had the authority to order  restitution
in favor of the mental health counselor.
          W.S.   interprets   AS   47.12.120(b)(4)   as
forbidding   the   superior  court   from   authorizing
restitution in favor of anyone who is not a  victim  of
the  delinquent act as defined in AS 47.12.990  and  AS
12.55.185.   This  is  an  incorrect  reading  of   the
statute.
          As   we  noted  earlier,  AS  47.12.120(b)(4)
declares  that the superior court shall ...  order  the
minor   and   the   minors  parent  to  make   suitable
restitution.  In other words, if a minor is found to be
delinquent, the superior court is under a duty to order
suitable restitution.
          Subsection  (A) of this statute  then  states
that,  in  discharging  this  duty  to  order  suitable
restitution, the superior court may not refuse to  make
an  order of restitution to benefit the victim  of  the
[delinquent] act.  In other words, restitution in favor
of  the victim is the least that the superior court can
do  when  discharging its more general  duty  to  order
suitable restitution.  This statute does not forbid the
superior  court from ordering restitution in  favor  of
other  persons, so long as the restitution falls within
the rubric of suitable restitution.
          The  delinquency  statutes offer  no  further
definition  or  explanation  of  suitable  restitution.
However,  in AS 47.12.010(12), the legislature declared
that  one  of  its  purposes in  enacting  the  current
version  of  the  delinquency laws was to  ensure  that
[the] victims ... of crimes committed by juveniles  are
afforded the same rights as [the] victims ... of crimes
committed by adults.
          With respect to court-ordered restitution  in
adult criminal proceedings, this Court has already held
that the purpose of the restitution statutes is to make
full restitution available to all persons who have been
injured  as  a  result  of criminal  behavior,  to  the
greatest  extent  possible.3  Because  the  legislature
intended  to  authorize  broad  restitution  in   adult
criminal   proceedings,  and  because  the  legislature
intended  that  the  victims  of  juvenile  delinquency
should receive the same rights as the victims of  adult
crimes,   we   conclude   that  the   phrase   suitable
          restitution as used in AS 47.12.120(b)(4) should be
interpreted  in  light  of  the  statutes  that  govern
restitution  in  adult criminal proceedings,  and  that
suitable restitution in delinquency cases presumptively
encompasses  the types of restitution that are  allowed
in adult criminal cases.
          (Indeed,  in the past, this Court has  looked
to  the  provisions of Title 12 when  interpreting  the
restitution provisions of the delinquency statutes.4)
          AS 12.55.045(a) authorizes restitution awards
to  reimburse  the cost of mental health counseling  in
adult  criminal cases.  This statute says, in  relevant
part,  that  a sentencing court shall ...  order  [the]
defendant ... to make restitution:
     
to  a public, private[,] or private nonprofit
organization that has provided or ... will be
providing  counseling,  medical,  or  shelter
services  to  the  victim  or  other   person
injured by the offense ... .

          We  have  interpreted this  statute
broadly  as authorizing restitution not  only
for  a victims past mental health counseling,
but also a victims future counseling when the
need  for  this counseling, and the projected
amount of the counseling expenses, are firmly
established.  Peratrovich v. State, 903  P.2d
1071,  1078  (Alaska  App.  1995);  Reece  v.
State,  881  P.2d  1135,  1138  (Alaska  App.
1994).
          Given  the broad authorization  for
counseling restitution that is codified in AS
12.55.045(a),   we  conclude  that   suitable
restitution  in  delinquency  cases  includes
mental health counseling for crime victims.
          In  the  present case,  the  mental
health   counselor  normally   charged   $100
per  hour  for  her services.  Because  Z.L.s
aunt  was  unable  to pay  this  amount,  the
counselor reduced her fee to $50 per hour  so
that Z.L. could get the counseling he needed.
Thus, the counselor essentially donated  half
of  her  fee  to facilitate the provision  of
counseling  services to the victim  of  W.S.s
offense.   It  was  proper for  the  superior
court  to  order  W.S.  and  his  parents  to
reimburse  the  mental health  counselor  for
this money.

W.S.s argument that his restitution obligation should
terminate when his term of probation ends

     W.S.  argues that any restitution  obligation
imposed  by  the superior court in  a  delinquency
proceeding   must   terminate   when   the   minor
successfully  completes the terms  of  the  courts
disposition   here, the period of  W.S.s  juvenile
probation.
          In  support of his position, W.S.  points  to
the  Juvenile Justice Standards promulgated by the IJA-
ABA (Institute of Judicial Administration  American Bar
Association), which state that a juveniles duty to make
restitution should be of limited duration, and that the
duration  of  this duty should in no  case  exceed  the
maximum  term  of custody or supervision permitted  for
the juveniles offense.5
          But  AS 47.12.170(a) expressly declares  that
an  order of restitution entered by the superior  court
in  a  delinquency proceeding under AS 47.12.120  is  a
civil  judgment  that  remains  enforceable  after  the
expiration  of the courts [juvenile] jurisdiction  over
the  minor.  Because the legislature has spoken on this
subject,  it does not matter what position the American
Bar   Association  endorses.   For,   as   this   Court
recognized  in  K.L.F. v. State, 790 P.2d  708,  711-12
(Alaska  App.  1990), if the statutes  enacted  by  our
legislature embody a policy that is different from  the
policy  advocated  by the IJA-ABA, we  are  obliged  to
implement the intent of our legislature.
          (See  also State v. Wentz, 805 P.2d 962,  966
n.  5  (Alaska 1991), where our supreme court  declared
that if the ABA Standards tend to conflict with the ...
sentencing  scheme established by the legislature,  the
latter will prevail.)
          In  W.S.s opening brief, he does not  mention
AS  47.12.170(a),  much  less discuss  the  discrepancy
between this statute and the position advocated by  the
IJA-ABA  standards.  However, in his reply brief,  W.S.
apparently concedes that the statute controls   because
in that brief, for the first time, W.S. argues that the
statute is unconstitutional.
          W.S.s constitutional argument is premised  on
Alaska Delinquency Rules 1(c) and 1(d).
          Delinquency   Rule  1(d)  states   that   the
Delinquency  Rules were promulgated  under  the  Alaska
Supreme Courts constitutional authority to enact  rules
of  procedure (see Article IV, Section 15 of the Alaska
Constitution)    and  that,  as  a   consequence,   the
Delinquency  Rules  supersede any inconsistent  statute
enacted  by the Alaska Legislature unless that  statute
was  passed  by a two-thirds majority for  the  express
purpose of changing the rule. And Delinquency Rule 1(c)
states  that the Delinquency Rules are to be  construed
to  promote  ... expeditious determination of  juvenile
matters [and] the best interests of the juvenile.
          W.S.  asserts  that, because AS  47.12.170(a)
calls  for  restitution obligations to  be  enforceable
          beyond the time when the superior court loses its
juvenile  jurisdiction over the minor, this statute  is
inconsistent  with [the] expeditious  determination  of
juvenile  matters  [and]  the  best  interests  of  the
juvenile.  W.S. therefore concludes that the statute is
inconsistent with Delinquency Rule 1(c).  And, based on
this  conclusion,  W.S.  argues  that  the  statute  is
unconstitutional   because it is  inconsistent  with  a
delinquency  rule, and because it was not passed  by  a
two-thirds majority for the express purpose of amending
Delinquency Rule 1(c).
          There are several flaws in W.S.s argument.
          First, W.S. never presented this argument  to
the  superior  court,  nor did he  include  it  in  his
opening  brief.  Rather, the argument is presented  for
the   first  time  in  W.S.s  reply  brief.   Arguments
presented  for  the  first time in a  reply  brief  are
waived.6
          W.S.  argues  that we should not  apply  this
rule  of  waiver to him.  He asserts that his  argument
about  the  constitutionality  of  AS  47.12.170(a)  is
merely  a  response  to the States  argument  that  the
superior  court was obliged to follow this statute,  no
matter  what  contrary position the  IJA-ABA  standards
advocated.
          It  is true that a reply brief is designed to
allow  an appellant to respond to the arguments  raised
in the appellees brief.  But here, W.S.s response is in
fact a new constitutional claim.
          In   his  opening  brief,  W.S.  omitted  all
mention of the governing statute.  He proceeded  as  if
there  were no statutory law on this point, and  as  if
this  Court were free to adopt the IJA-ABA standard  if
it  seemed  reasonable and beneficial.  Then the  State
filed  its brief, pointing out that there was indeed  a
statute  on  point, and that the courts are obliged  to
follow  this  statute despite any contradictory  policy
advocated by the IJA-ABA.  Only then did W.S. think  to
level a constitutional challenge against this statute.
          In   a   broad  sense,  W.S.s  constitutional
argument is a response to the States brief.  But it  is
a new claim, and it is waived.
          Moreover,  W.S.s  claim  is  premised  on   a
misreading  of Delinquency Rule 1(c).  This  rule  does
not  purport  to  give  the Alaska  Supreme  Court  the
authority to review all statutes dealing with  juvenile
delinquency  matters,  and to  effectively  veto  these
statutes if, in the supreme courts view, they appear to
be inconsistent with [the] expeditious determination of
juvenile  matters  [and]  the  best  interests  of  the
juvenile.   Rather, Delinquency Rule 1(c)  states  that
the  Delinquency Rules themselves are to be interpreted
in a manner that promotes these goals.
          It  remains true that, under Delinquency Rule
1(d),  the legislature is not free to alter a procedure
          specified in the Delinquency Rules unless the
legislature  does so under the procedure  specified  in
Article IV, Section 15 of our state constitution  i.e.,
by   passing  a  statute  (by  a  two-thirds  majority)
containing  a  provision  that expressly  declares  the
legislatures  intention to alter one  or  more  of  the
Delinquency Rules.
          But  none  of the Delinquency Rules specifies
whether  a  minors restitution  obligation  may  extend
past  the end of the minors probation, or past the time
when the superior court loses its juvenile jurisdiction
over the minor.  In fact, the word restitution does not
appear in the Delinquency Rules.  Thus, AS 47.12.170(a)
is not inconsistent with any of the Delinquency Rules.
          For these reasons, we reject W.S.s contention
that  a  minors  restitution obligation must  terminate
when  the  minors  probation ends,  or  even  when  the
superior court loses its juvenile jurisdiction over the
minor.

W.S.s  argument that the superior court was obliged  to
consider  his ability to pay when fixing the amount  of
his restitution obligation

          The  superior  court  ordered  W.S.  and  his
parents  to  pay restitution in the amount  of  $3,185,
which was the entire amount of the expenses verified by
Z.L.s  aunt  and  the  mental health  counselor.   W.S.
argues  that it was improper for the superior court  to
order  this restitution without first inquiring whether
W.S.  had  the financial ability to pay this amount  of
money.
          Again,  W.S.  relies on the IJA-ABA  Juvenile
Justice Standards, which declare that the amount  of  a
restitution  obligation should be directly  related  to
the  juveniles offense, the actual harm caused, and the
juveniles ability to pay.7  But as we explained earlier
in  this  opinion, the fact that the IJA-ABA  standards
advocate   a  particular  policy  may  provide   useful
guidance   when   the  statutes  and  rules   governing
delinquency  proceedings are silent or  ambiguous,  but
these  standards  can not be employed  to  supplant  or
override contrary policies enacted by our legislature.
          In  J.C.W.  v.  State, 880  P.2d  1067,  1072
(Alaska  App. 1994), this Court held that the  superior
court  must  consider the minors ability  to  pay  when
fixing  the  amount  of restitution  in  a  delinquency
proceeding.  However, our decision was based  in  large
measure   on   the  fact  that,  at  that   time,   the
corresponding   adult  restitution  statutes   likewise
required  a  sentencing court to consider a  defendants
ability  to pay.  Id.  In footnote 7 of our opinion  in
J.C.W., 880 P.2d at 1072, we noted that the legislature
had  recently amended the adult restitution statute  to
restrict    and,   in  many  instances,   prohibit    a
          sentencing court from considering a defendants ability
to  pay  when  setting the amount of restitution.   See
former  AS  12.55.045(f) & (g), enacted  by  SLA  1992,
ch. 71,  4.  In this footnote in J.C.W., we stated that
we   intended  to  express  no  view  on  whether  this
restriction  would affect [future] juvenile delinquency
proceedings.  J.C.W., 880 P.2d at 1072 n. 7.
          Nevertheless, as we noted earlier,  when  the
Alaska  Legislature enacted the current version of  the
juvenile   delinquency   statutes   in   1996,8     the
legislature  declared that one of its purposes  was  to
ensure  that  [the] victims ... of crimes committed  by
juveniles are afforded the same rights as [the] victims
... of crimes committed by adults.  AS 47.12.010(12).
          Under the current version of AS 12.55.045(g),
a  court  imposing  restitution in a criminal  case  is
prohibited  from considering the defendants ability  to
pay  when  assessing  the  amount  of  the  restitution
obligation.   In  other  words, restitution  should  be
awarded  for  the  full  amount of  the  victims  loss,
regardless of the defendants ability to pay.
          This  fact  that the legislature has  decreed
that  restitution in criminal cases is  to  be  awarded
without  regard  to  the  defendants  ability  to   pay
suggests   that  when  the  legislature  directed   the
superior   court  to  order  suitable  restitution   in
delinquency   cases   (see  AS  47.12.120(b)(4)),   the
legislature  intended superior court  judges  to  award
restitution  to the same extent that restitution  would
be  awarded  in an analogous adult criminal case  under
AS  12.55.045(g)  in other words, restitution  for  the
full amount of a victims loss, regardless of the minors
ability to pay.
          This     Court     recently    upheld     the
constitutionality  of  AS  12.55.045(g)   against   the
arguments  that due process and a defendants  right  to
rehabilitation required a sentencing court to  consider
a  defendants  ability to pay when the  court  set  the
amount  of restitution in an adult criminal  case.   In
Hodges  v.  State, 158 P.3d 864 (Alaska App. 2007),  we
held   that  the  legislature  could  lawfully   direct
sentencing  courts to order restitution  for  the  full
amount  of  a  victims  loss,  without  regard  to  the
defendants  ability to pay  although sentencing  courts
are  still obliged to consider a defendants ability  to
pay when they set the terms under which the restitution
obligation  will be enforced (i.e., the  frequency  and
amount of the defendants payments).
          Given our conclusion that AS 12.55.045(g)  is
constitutional,    and    given    the    mandate    of
AS  47.12.010(12) that the victims of  delinquent  acts
are  to  be accorded the same rights they would receive
if  they were victims of a crime committed by an adult,
it would seem that the superior court is not obliged to
consider    indeed,  the  superior  court  should   not
          consider  a delinquent minors ability to pay when the
court  sets  the  amount  of the  suitable  restitution
required by AS 47.12.120(b)(4).
          But  this tentative conclusion is clouded  by
events  that  transpired in the  2004  session  of  the
legislature.
          During  the  2004  session,  the  legislature
considered  House Bill 357, a bill that  again  amended
the  restitution  statutes, for the avowed  purpose  of
requir[ing] judges to order restitution from  criminals
in  all  cases where a victim has suffered a  financial
loss.9
          During its debates on HB 357, the legislature
considered  amending AS 47.12.120(b), the statute  that
governs  restitution  in  juvenile  delinquency  cases.
Initially,  HB  357  would  have  added  the  following
provision  to  this statute:  The court may  take  into
consideration the delinquent minors ability to pay past
age  19, or the age [at] which the court retains  [sic:
loses]  jurisdiction over the minor,  when  determining
the  amount  of the ... restitution.10  The legislature
eventually  decided  not to add this  language  to  the
statute, because they concluded that the superior court
already  had  the authority to take a minors  long-term
ability to pay into account.11
          This   discussion  obviously   supports   the
conclusion we reached in the preceding section of  this
opinion:   the conclusion that the legislature intended
a  minors restitution obligation to continue after  the
minors  term  of  probation ended, and even  after  the
superior court lost its juvenile jurisdiction over  the
minor.   But  this discussion is also premised  on  the
idea  that  the  superior court should  be  taking  the
minors  ability  to pay into account when  setting  the
amount of restitution.
          Moreover,  another provision of  the  current
delinquency code, AS 47.12.120(b)(4)(C), authorizes the
superior  court  to require the minor  and  the  minors
parents  to  submit financial information ...  for  the
purpose  of  establishing the amount of restitution  or
enforcing  an order of restitution under AS  47.12.170.
(Emphasis added)  This provision likewise suggests that
the  superior  court should be considering  the  minors
ability to pay when setting the amount of restitution.
          (The   State   argues  that   the   financial
information   required  by  AS  47.12.120(b)(4)(C)   is
intended only for the purpose of establishing a payment
schedule or otherwise fashioning the terms under  which
the  restitution order will be enforced, and that  this
financial  information  is to have  no  effect  on  the
amount   of   restitution  ordered.   But  the   States
suggested reading of the statute is contradicted by the
words  of  the statute itself, and the State  cites  no
legislative  history or other authority to support  its
view  that  the statute should be interpreted  in  this
          limited way.)
          In  sum,  while  there is some  authority  to
support the proposition that the superior court  should
not  consider a minors ability to pay when setting  the
amount of restitution, there is also authority for  the
opposite proposition  the view that the superior  court
should take the minors ability to pay into account.
          We  conclude  that we need not  resolve  this
issue  in  W.S.s case.  Even if the superior court  was
obliged to consider W.S.s ability to pay when the court
set  the  amount of restitution, the record shows  that
the  superior court at least implicitly found that W.S.
would  be  able to pay the restitution.   Further,  the
record  contains no suggestion that W.S. will be unable
to satisfy the restitution obligation.
          As  we  explained earlier, the superior court
ordered  restitution in the amount of $3,185.  Pursuant
to  AS  47.12.120(b)(4), the court made  W.S.  and  his
parents  jointly and severally liable for this  amount.
Moreover, the superior court ordered both W.S. and  his
parents to apply for the Alaska Permanent Fund Dividend
if  they  are  eligible  and there is  nothing  in  the
record to suggest that they are not eligible.
          At the hearing, the superior court noted that
W.S.   could   seemingly  pay  the  entire  restitution
obligation  from  his Permanent Fund dividends.   Thus,
the   superior   court  found  that   the   restitution
obligation appeared to be within W.S.s means.
          (The  restitution  order  in  this  case  was
entered in February 2007.  We take judicial notice that
the  Permanent  Fund  Dividend for 2007  was  $1,654.12
Assuming  that  the  amount  of  the  dividend  remains
relatively  constant, W.S. will  be  able  to  pay  the
entire  restitution  obligation in two  years,  without
contribution  from his parents, by using his  Permanent
Fund dividends.)
          In  addition, as this Court noted in  J.C.W.,
the fact that a minor is made jointly liable with other
people for the restitution means that the minors  share
of  this obligation will probably be considerably  less
than  the  whole.  J.C.W., 880 P.2d at 1072-73.   Here,
W.S. will be responsible for the entire $3,185 only  if
his  parents pay nothing.  If, on the other hand,  W.S.
contributes his dividend from the current year and  his
parents  contribute one of their dividends, this  would
satisfy the restitution obligation in a single year.
          In  other  words, the record shows  that  the
superior  court  at least implicitly  considered  W.S.s
ability  to pay, and there is nothing in the record  to
suggest  that  W.S. and his parents are ineligible  for
the  Permanent  Fund Dividend, or that  W.S.  otherwise
lacks  the means to pay.  Thus, even assuming that  the
superior  court  proceeded under  the  assumption  that
W.S.s  ability to pay was not relevant to the issue  of
how  much  restitution  should  be  ordered,  and  even
          assuming that this assumption was mistaken, any error
was harmless.

Conclusion

          The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
  1 See AS 47.12.160(a).

2 AS 11.41.230(a)(3) and AS 11.61.120(a)(1), respectively.

3 Ned v. State, 119 P.3d 438, 446 (Alaska App. 2005); Lonis v.
State, 998 P.2d 441, 447 n. 18 (Alaska App. 2000).

4 See R.I. v. State, 894 P.2d 683, 685-86 (Alaska App. 1995)
(employing  adult restitution provisions when analyzing  the
superior courts restitution authority in delinquency cases);
J.C.W.  v.  State,  880 P.2d 1067, 1072 (Alaska  App.  1994)
(likening  the  delinquency  restitution  provision  to  the
statute governing restitution for adult offenders); J.M.  v.
State, 786 P.2d 923, 923 (Alaska App. 1990) (noting that  it
was appropriate to refer to the adult criminal statutes when
interpreting  suitable  restitution  under  the  delinquency
law).

5  IJA-ABA Juvenile Justice Standards, Standards Relating to
Disposition,  3.2(B)(1)(f).

6 Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406,
411 (Alaska 1990); Hitt v. J.B. Coghill, Inc., 641 P.2d 211,
213 n. 4 (Alaska 1982).

7  IJA-ABA Juvenile Justice Standards, Standards Relating to
Disposition,  3.2(B)(1)(a).

8 SLA 1996, ch. 59,  46.

9 See the Sponsor Statement for 2004 HB 357, available at:
http://www.akrepublicans.org/samuels/23/spst/samu_hb357.php .

10See the Minutes of the House Judiciary Committee for January
30, 2004, available at:
http://www.legis.state.ak.us/basis/get_single_minute.asp?ses
sion=23-
&beg_line=00655&end_line=01132&time=1310&date=20040130&co
mm=JUD&house=H.

11Minutes  of the House Judiciary Committee for February  9,
2004   (discussion   between   Sara   Neilson,   staff    to
Representative   Ralph  Samuels,  and   Representative   Max
Gruenberg), available at:
http://www.legis.state.ak.us/basis/get_single_minute.asp?ses
sion=23-
&beg_line=01411&end_line=01743&time=1304&date=20040209&co
mm=JUD&house=H.

12See  the  Alaska  Department of  Revenues  Permanent  Fund
Dividend home page,  https://www.pfd.state.ak.us/.

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