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Welsh v. State (12/13/2013) ap-2405

Welsh v. State (12/13/2013) ap-2405

                                                 NOTICE
  

        The text of this opinion can be corrected before the opinion is published in the  

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        errors to the attention of the Clerk of the Appellate Courts:   



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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



LORI S. WELSH,  

                                                              Court of Appeals No. A-11197  

                                 Appellant,                 Trial Court No. 3PA-11-2403 CR  



                         v.  

                                                                      O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                 Appellee.                  No. 2405  -  December 13, 2013  



                 Appeal  from  the  District  Court,  Third  Judicial  District,  

                 Palmer, John W. Wolfe, Judge.  



                 Appearances:    Hannah  E.  King  (briefs)  and  Hanley  R.  

                 Robinson (oral argument), Assistant Public Defenders, and  

                 Quinlan   Steiner,   Public   Defender,   Anchorage,   for   the  

                 Appellant.  Mary Gilson, Assistant Attorney General, Office  

                 of   Special   Prosecutions   and   Appeals,   Anchorage,   and  

                 Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  the  

                                                                                   

                 Appellee.  



                 Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,  

                                              

                                  * 

                 Senior Judge  .  



                  Judge MANNHEIMER.  



        *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  11   of  the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

                    Lori  S.  Welsh  was  convicted  of  third-degree  theft  for  stealing  pain  

                                                                                                



medication pills from the veterinary clinic where she worked.  As part of her sentence,  

                                                                                                



the district court ordered Welsh to pay restitution to the clinic for the retail value of the  



pills - i.e., the amount of money that these pills would have sold for, if the clinic had  

                                                                                                                



sold them to paying customers. In this appeal, Welsh argues that the district court should  

                                                                                           



have ordered her to pay restitution for the wholesale value of the pills - i.e., the amount  



of money that the clinic paid for the pills.  



                    There was a significant difference between the retail value of the pills and  

                                                                         



the wholesale value of the pills.  According to the testimony, the clinic bought the pills  

                                                                             



for 3 cents apiece, but the clinic sold the pills for an average of 76 cents apiece.  



                    The  district court ordered Welsh to pay the higher figure based on the  



rationale that Welsh had been unjustly enriched in an amount equal to 76 cents per pill.  

                                                                                                                



The court reasoned that Welsh "should not obtain a better result" by stealing the pills  

                                                                                                                        



than  if  she  had  purchased  the  pills  as  a  retail  customer.    But  we  conclude  that  this  

                                                                                                                       



reasoning is inconsistent with Alaska's restitution statutes.  



                    Two statutes govern awards of restitution in criminal cases, because these  

                                                                                     



awards can be imposed in two different ways:  as a direct provision of the defendant's  

                                                                        



sentence, or as a condition of the defendant's probation.   



                    The statute that governs restitution as a condition of probation, AS 12.55.- 

                                                                              



100(a)(2), specifies that the restitution should be "for actual damages or loss caused by  

                                                                                            



the crime for which [the] conviction was had."   



                    The  statute  that  governs  restitution  as  a  direct  provision  of  a  sentence,  



AS 12.55.045(a), does not explicitly declare that the restitution should be for "actual  



damages or loss".  However, the statute does specify that the restitution should be paid  

                                                                      



"to the victim or other person injured by the offense" (emphasis added), and the statute  

                                                                                                  



                                                              - 2 -                                                         2405
  


----------------------- Page 3-----------------------

 declares that, when the sentencing court determines the amount of restitution, the court  

                                                                                                     



 "shall take into account the ... public policy that favors requiring criminals to compensate  

                                     



for damages and injury  to their victims", as well as "[the] financial burden  placed on the  

                                         



 victim ... and other persons injured by the offense".  (Again, emphasis added)   



                     These phrases suggest that AS 12.55.045(a), like its sibling AS 12.55.- 

                                



 100(a)(2), was intended to authorize courts to impose restitution for the actual damages  

                                                         



 or loss suffered by the victim or other injured person.   



                     Moreover, it would be anomalous to construe the two statutes differently  

                                                                                                 



 - to limit restitution orders to the amount of actual damages or loss when the restitution  

                                                                                                      



 is imposed as a condition of the defendant's probation under AS 12.55.100(a)(2), but  



 allow  the sentencing court to order the defendant to pay a greater amount when the  

           



 restitution is a direct provision of the defendant's sentence under AS 12.55.045(a).   



                     We also note that even though the district court's stated intention was to  



 negate any unjust enrichment for Welsh, there remains an element of unjust enrichment  

                                                               



 in the district court's decision to award restitution to the veterinary clinic based on the  

                                                                                                                



 retail value of the pills (76 cents apiece) rather than the wholesale value (3 cents apiece).  

                       



 By ordering Welsh to pay the clinic 76 cents for every stolen pill, the district court has  

                     



 essentially ordered Welsh to fund the clinic's future purchase of twenty-five times as  



 many pills as were stolen.  



                     In past decisions, this Court has noted the differing wording of the two  



 statutes, and we have suggested - but never directly held - that the two statutes should  

                                                                                            



 be construed  in pari materia, so that restitution in criminal cases would be limited to  

                                                                                                     



 actual  damages  regardless  of  whether  the  restitution  was  made  a  direct  part  of  the  



 defendant's sentence or a condition of the defendant's probation.  See Noffsinger v. State ,  

                                                                                                        



 850 P.2d 647, 650 (Alaska App. 1993); Fee v. State , 656 P.2d 1202, 1206 (Alaska App.  



 1982).   



                                                              - 3 -                                                        2405
  


----------------------- Page 4-----------------------

                      We  now  hold  that  restitution  under  either  statute  should  be  assessed  



according to the damages or loss arising from the defendant's crime, and not the amount                 



of the defendant's unjust gain.  Accordingly, we reverse the district court's restitution  



order  in  this  case,  and  we  direct  the  court  to  enter  a  restitution  order  based  on  the  

                                                                                               



veterinary clinic's loss.  



                      We do not say that the revised amount of restitution must be limited to the  

                                                                                                                             



wholesale cost of the stolen pills - because that amount of restitution might not wholly  

                                                                           



cover the clinic's actual damages or loss.  See State v. Hall, 304 P.3d 677 (Kan. 2013)  

                                                                                                       



(discussing the proper amount of restitution in a similar case of theft from an animal  



clinic).  But the restitution order must be based on the clinic's loss, not Welsh's gain.  



                       This  portion  of  the  district  court's  judgement  is  REVERSED,  and  the  



district court is directed to re-assess the amount of restitution in accordance with this  

                            



opinion.  



                                                                     - 4 -                                                                2405
  

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