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R.C., a minor v. State (11/23/2018) ap-2625

R.C., a minor v. State (11/23/2018) ap-2625

                                                     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 @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



R.C., a minor,  

                                                                    Court of Appeals No. A-12323  

                                    Appellant,                    Trial Court No. 3AN-14-111 DL  



                           v.  

                                                                               O P I N I O N  

STATE OF ALASKA,  



                                    Appellee.                     No. 2625 - November 23, 2018  



                                                                  

                  Appeal  from  the  Superior  Court,   Third  Judicial  District,  

                                                                                    

                  Anchorage,  Kevin  M.  Saxby, Judge,  and  Sidney Billingslea,  

                  Magistrate Judge.  



                  Appearances: Laurence Blakely, Assistant Public Defender, and  

                                                                                  

                  Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                  Eric  A.  Ringsmuth,  Assistant  Attorney  General,  Office  of  

                                                                         

                  Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                  General, Juneau, for the Appellee.  



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

                                                       

                  Superior Court Judge. *  

                                                 



                  Judge ALLARD.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                                                  When R.C. was fifteen years old, he and another juvenile started a fire on                                                                                                                                                                                         



 the playground of an elementary school in Anchorage, causing extensive damage.                                                                                                                                                                                                                             R.C.  



 returned to the playground later that same day and started another fire by himself.                                                                                                                                                                                           



                                                  R.C.   admitted   his   conduct   and   was   adjudicated   a   delinquent   minor.   



 Following a restitution hearing, the court ordered R.C. to pay $159,161.17 in restitution                                                                                                                                                                                               



 to the school district and its insurance company.                                                                                            



                                                  On appeal, R.C. argues that the trial court erred in failing to consider his                                                                                                                                                                                     



 ability to pay when it ordered this restitution amount.                                                                                                                                            R.C.'s case requires us to resolve                                                              



 a question of statutory interpretation that we discussed (but did not resolve) in                                                                                                                                                                                                                  W.S. v.   



 State  - whether AS 12.55.045(g), the statutory provision in Title 12 that prohibits trial                                                                                                                                                                                                                    



 courts from considering a criminal defendant's ability to pay when determining the                                                                                                                                                                                                                               



 amount of restitution in a criminal case, applies equally to restitution determinations in                                                                                                                                                                                                                            

juvenile court.                                        1  



                                                                                                                                                                                                                                                                      

                                                  For  the  reasons  explained  here,  we  conclude  that  AS  12.55.045(g)'s  



                                                                                                                                                                                                                                                                                             

 prohibition does not apply to juvenile delinquency cases.  The trial court was therefore  



                                                                                                                                                                  

 authorized to consider R.C.'s ability to pay when setting the amount of restitution that  



                                                                                                                                                                                                                                                                              

 R.C. would personally be obligated to pay.  Because the record does not establish that  



                                                                                                                                                                                                                                                                                                          

 the trial court understood it could take R.C.'s limited ability to pay into account when  



                                                                                                                                                                                                                                                                                                  

 determining  the  amount  of  restitution  that  R.C.  would  owe,  we  vacate  the  current  



                                                                                                                                                                                                                                                                                 

 restitution judgment, and we remand this case to the trial court for further proceedings  



                                                                          

 consistent with this decision.  



              1           W.S. v. State, 174 P.3d 256, 262-63 (Alaska App. 2008).  



                                                                                                                                                       - 2 -                                                                                                                                             2625
  


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

              Background facts and prior proceedings                         



                             Early on the morning of July 26, 2014, fifteen-year-old R.C. and his friend,                                                                                     



L.G.  started a fire on the playground of Willowcrest Elementary School in Anchorage.                                                                                                         



Later that afternoon, R.C. returned and                                                    started a second fire on the playground by                                                 



himself.   Both R.C. and L.G. admitted the charges of attempted third-degree criminal                                                                                     



mischief and second-degree criminally negligent burning, and they were adjudicated                                                                                

delinquent minors.                       2  



                                                                                                                                                                                   

                             During the restitution proceedings, the State argued that each juvenile (and  



                                                                                                                                                                     

their respective parents) should be jointly and severally liable for the full amount of  



                                                                                                                                                                                      

damages caused by their actions. The State therefore asked the court to find L.G. and his  



                                                                                                                                                                                      

parents jointly and severally liable for $108,325.92 (the amount of damage caused by the  



                                                                                                                                                                 

first fire), and to find R.C. and his parents jointly and severally liable for $159,161.17  



                                                                                                  3  

                                                                                      

(the amount of damage caused by both fires). 



                                                                                                                                                                            

                             R.C.'s attorney objected to R.C. being personally liable for the full amount  



                                                                                                                                                                                       

of restitution.  The attorney argued, in particular, that R.C. did "not have any savings or  



                                                                                                                                                                            

the ability to earn any money," and he asserted that restitution should be set at an amount  



                                                                                                                                                                    

that R.C. could "realistically" pay during his juvenile probationary period.  In support  



                                                                                                                                                                                   

of his attorney's argument, R.C. testified at the restitution hearing that he had never held  



                                                                                                                                                                                   

a job before and he was not sure how much money was in his bank account. (It was later  



                                                                                                                                                                             

determined that the bank account contained around $100.) R.C. indicated that he wanted  



       2      AS 11.46.482(a)(1) and AS 11.46.430, respectively.  



       3       The State actually requested that R.C. and his parents be jointly and severally liable  



for $159, 179.17. It is unclear how the State reached this total, as the damage from both fires  

                                                                                                                                                                         

actually totals $159,161.17 ($108,325.92 for the first fire and $50,835.25 for the second).  

                  

The total restitution is correctly noted in Appellant's opening brief. The restitution judgment  

                                                                                                                                          

lists the damages from each fire separately.  

                                                                                             



                                                                                         -  3 -                                                                                2625
  


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

to pay restitution, and he thought he might be able to get a job at Subway.                                                                                                                                                                                                                                                                          R.C. also   



indicated that eventually he hoped to work in construction, doing drywall.                                                                                                                                                                                                                             



                                                            Magistrate   Judge   Sidney  Billingslea  presided  as   a   master over the  



restitution   hearing.     At   the   conclusion   of   the   hearing,   she   issued   a   report   and  



recommendation on restitution for R.C.                                                                                                                                              This report detailed R.C.'s limited assets in a                                                                                                                                                                     



 section entitled "Minor's ability to pay." The report also recommended that the superior                                                                                                                                                                                                                                                                     



court order the Department of Law to set up a payment schedule that addressed R.C.'s                                                                                                                                                                                                                                                                                                                    



ability to pay.                                                But the report otherwise adopted the State's proposed restitution orders,                                                                                                                                                                                                                            



and made no adjustment to the amount of restitution that R.C. would personally owe.                                                                                                                                                                                                                                                                                     



                                                            The superior court adopted the magistrate judge's recommendation and                                                                                                                                                                                                                                                  



ordered the full restitution requested by the State.                                                                                                                                                



                                                            Thus, under the current restitution order, R.C. is jointly and severally liable                                                                                                                                                                                                                                



with his parents for $159,161.17 in restitution.                                                                                                                                                                He also shares joint and several liability                                                                                                       



with L.G. and L.G.'s parents for $108,325.92 of that amount.                                                                                                                                                                                                                      Although R.C.'s liability                                                     



is joint with these other parties, R.C. will remain personally liable for whatever remains                                                                                                                                                                                                                                                                      

to be paid until the full amount is paid.                                                                                                                                 4  

                                                                                                                                                                                                                                                                                                                                                                       

                                                                                                                                                                                   This personal liability will continue into R.C.'s  



                                                                                                                                                                                                                                                                                                                                                           

adult life, and when R.C. reaches adulthood the restitution judgment can be enforced  



                                                                                                                  5  

                                                                            

through the civil process. 



                                                                                                                                                                                                                                                                                                                                                                                        

                                                            R.C.  now  appeals,  arguing  that  the  trial  court  erred  when  it  failed  to  



                                                                                                                                                                                                                                                                                                                                                                      

consider his limited ability to pay when setting the amount of restitution R.C. would  



                                                                                                                                                                                                                                                                                                                                                                              

personally owe.  We note that R.C.'s parents filed a separate appeal challenging their  



               4              See Thompson v. State, 64 P.3d 132, 134-35 (Alaska App. 2003) (holding that in   



 situations of joint and several liability, ability to pay has to be analyzed in terms of full                                                                                                                                                                                                                                                                                     

amount of potential restitution, not just the portion that defendant would have to pay if                                                                                                                                                                                                                                                                                                  

accomplice paid his portion).  



               5              AS 47.12.170(a).  



                                                                                                                                                                                       - 4 -                                                                                                                                                                              2625
  


----------------------- Page 5-----------------------

restitution judgment.                     But this appeal was dismissed after R.C.'s parents negotiated a                                                         



private settlement with the school district for an undisclosed restitution amount.                                                                         It is   



unknown whether L.G. or L.G.'s parents have negotiated similar settlements. However,                                                              



for   purposes   of our                 analysis here,               R.C.'s   liability   for   the full $159,161.17                                 remains  

unchanged.6  



                                                  

             The State's waiver arguments  



                                                                                                                                                      

                         Before we reach the merits of R.C.'s claim on appeal, we must first address  



                                                                                                                                                               

the State's argument that R.C. waived this claim by failing to adequately argue it in the  



                     

restitution proceedings.  



                                                                                                                                                             

                         The purpose of the rule requiring parties to preserve an argument in the trial  



                                                                                                                                                              

court is to ensure that the trial court has the opportunity to respond to the argument, and  



                                                                                                                                              

to ensure that there is a sufficient legal ruling and factual record to allow meaningful  



                                                        7  

                                              

review by the appellate court. 



                                                                                                                                                 

                         Here, R.C. argued that he did not have the ability to pay the full restitution  



                                                                                                                                                             

amount requested by the State, and he requested that restitution be set in an amount that  



                                                                                                                                                                

he could realistically be expected to pay.  This same argument was also presented, in  



                                                                                                                                                              

more detail, in his co-defendant L.G.'s brief.  L.G.'s attorney also raised many of the  



                                                                                                                                                      

same legal arguments raised here.  Although R.C. did not explicitly join L.G.'s "ability  



                                                                                                                                          

to pay" argument, R.C.'s parents did.   Moreover, the magistrate judge issued nearly  



                                                                                                                                  

identical restitution reports for R.C. and L.G., documenting their assets  in sections  



                                                                                                                                                             

entitled "Minor's ability to pay."  Given all this, we conclude that the trial court had  



      6      See Thompson, 64 P.3d at 134-35.  



      7     Moreno v. State , 341 P.3d 1134, 1139 (Alaska 2015);  see also Pierce v. State, 261  



P.3d 428, 433 (Alaska App. 2011).  



                                                                             -  5 -                                                                      2625
  


----------------------- Page 6-----------------------

adequate notice of the arguments that R.C. now raises in this appeal, and there is a                                                                                                                                                              



sufficient record for us to meaningfully review this question of law.                                                                                                                



                                      The State also argues that we should reject R.C.'s claim under the doctrine                                                                                                              



of invited error.                              We find no merit to this argument.                                                                  The State's invited error argument                                      



is based on one sentence in R.C.'s opposition to the State's restitution memorandum, in                                                                                                                                                          



which R.C. stated that "suitable restitution" for purposes of the juvenile delinquency                                                                                                                             



statutes "is essentially the restitution imposed in adult criminal cases."                                                                                                                                       As we have             



previously emphasized, the invited error doctrine only comes into play "when the trial                                                                                                                                                    



                                                                                                                                                                                                                                  8  

court takes erroneous action at the request of the party claiming error on appeal."                                                                                                                                                  From  



                                                                                                                                                                                                                                           

our review of the restitution record, it is apparent that the court did not interpret this  



                                                                                                                                                                                                                                               

sentence in R.C.'s pleading as a concession by R.C. that his ability to pay could not be  



                                                                                                                                                                                                                                                

considered  in  determining  the  amount  of  restitution.                                                                                                        The  invited  error  doctrine  is  



                            

therefore inapplicable.  



                                                                                                                                                                                                                                              

                                      Lastly, the State argues that R.C.'s claim is moot because (according to the  



                                                                                                                                                                                                                        

State) the court did properly consider R.C.'s ability to pay in setting the restitution  



                                                                                                                                                                                                                                   

amount.                       The State points out that the magistrate judge was clearly aware of R.C.'s  



                                                                                                                                                                                                                                            

limited ability to pay because she documented R.C.'s limited earning potential in her  



                                                                                                                                                                                                              

report, and because she recommended that payment schedules be set up for each party  



                                                                                                                                

in accordance with their individual ability to pay.  



                                                                                                                                                                                                                                             

                                      But the question before us in this appeal is whether the trial court had the  



                                                                                                                                                                                                                                 

authority to take into account R.C.'s limited financial resources when setting the amount  



                                                                                                                                                                                                                                           

of restitution that R.C. would personally owe, not just how that limited ability to pay  



          8        Frankson v. State, 282 P.3d 1271, 1273 (Alaska App. 2012); see also Muller v. State,  



478 P.2d 822, 828 (Alaska 1971).  



                                                                                                                    -  6 -                                                                                                            2625
  


----------------------- Page 7-----------------------

                                                                           9  

should impact his payment schedule.                                            We previously addressed this question in                                             W.S. v.   



                                                         10  

State, a decision from 2008.                                                                                                                                             

                                                              However, in that case, we concluded that we did not need  



                                                                                                                                                                         

to resolve this question of statutory interpretation because the restitution at issue in W.S.  



                                                                                                                   11  

                                                                                                           

- $3,185 - was well within the minor's ability to pay. 



                                                                                                                                                                             

                            The same cannot be said of the restitution amount in R.C.'s case. Here, the  



                                                                                                                                                                             

restitution  amount  is  $159.161.17,  far  above  what  R.C.  could  ever  realistically  be  



                                                                                                                                                                             

expected to pay in the discernible future given the evidence R.C. submitted regarding his  



                                                                                                                                                                            

financial status and limited future earning potential.  Accordingly, we do not find the  



                                                                                                                                                                             

question of whether the trial court has any authority to reduce this amount based on  



                                                                                            

R.C.'s demonstrated inability to pay a moot question.  



                                                                                                                                                                  

              Why  we  conclude  that  the  statutory  prohibition  against  considering  a  

                                                                                                                                                

              criminal defendant's ability to pay does not apply to restitution judgments  

                                                                

              in juvenile delinquency cases  



                                                                                                                                                                       

                            When we interpret a statute, our task is "to ascertain the legislature's intent  



                                                                                                                              12  

                                                                                                                                                                      

and then to construe the statute so as to implement that intent."                                                                  To ascertain that intent,  



                                                                                                                                                             

we are required to look at the plain meaning of the statute's language, its legislative  



       9      See   Hodges   v.   State,    158    P.3d   864,   866   (Alaska   App.   2007)   (upholding  



constitutionalityof AS 12.55.045(g)'s prohibition against considering a criminal defendant's                     

ability to pay when assessing the amount of restitution in a criminal case but emphasizing       

that the court must still consider defendant's ability to pay when determining the payment                            

schedules).  



       10     W.S. v. State, 174 P.3d 256, 258 (Alaska App. 2008).  



       11     Id. at 258, 264.  



       12     Williams v. State, 2015 WL 4599554, at *3 (Alaska App. July29, 2015) (unpublished)  

                                                                                                                                     

(citing Y.J. v. State, 130 P.3d 954, 959 (Alaska App. 2006)).  



                                                                                    -  7 -                                                                             2625
  


----------------------- Page 8-----------------------

                                                          13  

history, and its purpose.                                       Moreover, where there is an ambiguity in the definition of a                                                                                   



word or phrase, "Alaska courts apply a sliding scale approach to statutory interpretation,                                                                                      



which considers the legislative history of a statute and whether that history reveals a                                                                                                                        

legislative intent and meaning contrary to the plain meaning of the statute."                                                                                                          14  



                                                                                                                                                                                                                    

                                Chapter AS 12.55 governs sentencing in criminal proceedings in Alaska.  



                                                                                                                                                                                                

Chapter AS 47.12 governs juvenile delinquency proceedings.  Alaska Statute 12.55.- 



                                                                                                                                                                                                          

045(g) declares, "The court may not, in ordering the amount of restitution, consider the  



                                                                                                                                                                                                      

defendant's ability to pay."  This prohibition was enacted in 2004, and it has since been  



                                                                                          15  

                                                                                                                                                                                               

upheld as constitutional by this Court.                                                        Prior to the enactment of this provision, Chapter  



                                                                                                                                                                                                

 12.55 permitted courts to consider a defendant's ability to pay when setting the amount  



                                                                                  16  

                                                         

of restitution in certain situations. 



                                                                                                                                                                                               

                                There is no provision equivalent to AS 12.55.045(g) in AS 47.12. Instead,  



                                                                                                                                                                                                             

AS 47.12.120(b)(4) provides that a court shall order a minor and the minor's parents to  



                                                                                                                                                                                                                    

make "suitable restitution" following the adjudication ofaminor as delinquent. Theterm  



                                                                                                                                                                                            

"suitable restitution" is not defined in the statute.   However, there is some statutory  



                                                                                                                                                                                       

guidance regarding how "suitable restitution" should be determined in this context.  



        13      ARCTEC Servs. v. Cummings , 295 P.3d 916, 920 (Alaska 2013).  



        14      Liddicoat v. State , 268 P.3d 355, 360 (Alaska App. 2011).  



        15      AS 12.55.045(g), as amended by SLA 2004, ch. 17,  3; Hodges v. State, 158 P.3d  



864 (Alaska App. 2007).  



        16      See former AS 12.55.045(f) (pre-2004 versions).  From 2000 until repealed in 2004,   



the statutory provision read:  

                If a court proposes to order a defendant to pay restitution under this section of                          

                more  than  $5,000,  and   the   defendant's  sentence  includes  a  period  of  

                unsuspended incarceration exceeding 90 days, the court may take into account   

                at the time of sentencing the defendant's present and future ability to pay the                                                                                            

                restitution proposed.  



                                                                                                   -  8 -                                                                                           2625
  


----------------------- Page 9-----------------------

                                             Under AS 47.12.120(b)(4)(A), "the court may require the minor to use the                                                                                                                                                                     



services of a community dispute resolution center that has                                                                                                                                                        been  recognized by the                                               



commissioner under AS 47.12.450(b) to resolve any dispute between the minor and the                                                                                                                                                                                                       



victim   of   the   minor's   offense   as   to   the   amount   of   or   manner   of   payment   of   the  



restitution."   (Emphasis added).                                                                            Similarly, under AS 47.12.120(b)(4)(C), the court has                                                                                                                       



the authority to obtain financial information from the minor and the minor's parents "for                                                                                                                                                                                              



the purpose of establishing                                                               the amount of                                  restitution or enforcing an order of restitution."                                                                                                             



(Emphasis added).   



                                             Thus, theplainlanguageofAS47.12suggests that,                                                                                                                           unlikeincriminal                                           cases,  



the legislature expects courts to consider a minor's ability to pay when determining the                                                                                                                                                                                                  



amount of restitution in a juvenile case.                                                                                               



                                             This interpretation is supported by the legislative history that accompanied                                                                                                                               



the various legislative changes to AS 47.12.120(b)(4) and AS 12.55.045(g) over the last                                                                                                                                                                                                  



three decades.                                    Prior to 1988, Alaska law required trial courts to affirmatively inquire                                                                                                                                                  



                                                                                                                                                                                                                                                        17  

into a defendant's ability to pay when setting restitution in a criminal case.                                                                                                                                                                                                 

                                                                                                                                                                                                                                                                The public  



                                                                                                                                                                                         18 

                                                                                                                                           

policy behind this rule was addressed in Karr v. State.                                                                                                                                                                         

                                                                                                                                                                                                In Karr, the Alaska Supreme  



                                                                                                                                                                                                                                                                                          

Court held that a defendant's ability to pay restitution should be taken into account at the  



                                                                                                                                                                                                                                                                

initial sentencing hearing, not just at a later requested hearing or probation revocation  



                                                                                                                                                                                                                                                                             19  

                                                                                                                                                                                                                                                                                    

where the defendant asserted their inability to meet the restitution obligation.                                                                                                                                                                                                       The  



                                                                                                                                                                        

Alaska Supreme Court explained its reasoning as follows:  



            17         Former AS 12.55.045(a) (pre-1988 version) required sentencing judges to "take into  



account the financial resources of the defendant and the nature of the burden its payment will  

                                                                                                                                                                                                               

impose" in ordering restitution.  



            18        Karr v. State, 686 P.2d 1192, 1197 (Alaska 1984).  



            19        Id. at 1196-97.  



                                                                                                                                          -  9 -                                                                                                                                 2625
  


----------------------- Page 10-----------------------

                                Restitution should not only compensate the victim for the                                                                  

                               harm   inflicted   by   the   offender,   but   should   further   the  

                               rehabilitation of the offender.                                         If restitution is ordered in an                                

                                amount that is clearly impossible for the offender to pay, the                                                                       

                                offender's rehabilitation will be inhibited and not furthered.                                                       

                                If   the   offender   is   haled   into   court   for   nonpayment   of  

                               restitution under AS 12.55.051(a), or if the offender petitions                                                          

                                the court under AS 12.55.051(c) to avoid this sanction, his                                                                          

                               reintegration into society will be disrupted. Also, an offender                                                           

                               might simply give up and make no payments at all if the                                                                              

                               restitution ordered is clearly impossible to pay.                                                              20  



                                                                                                                                                                                                             

                                Thus,  restitution  orders  were  viewed  as  serving  the  dual  purposes  of  



                                                                                                                                                                                                  

compensating the victim and furthering the rehabilitation of the offender.  These two  



                                                                                                                                                                                                      

goals were traditionally viewed as mutually reinforcing.  Paying restitution was seen as  



                                                                                                                                                                                                

helpful to thevictimand to therehabilitativeprocess, whilesetting restitution above what  



                                                                                                                                                                                     

couldever bepaid was seen as detrimental to the rehabilitative process without providing  



                                                                                                                                                                                   

any additional advantage to the victim, who cannot recover restitution that a defendant  

cannot pay.21  

                                                                                                                                                          

                                  As the California Court of Appeal noted in People v. Kay :  "to subject a  



                                                                                                                                                                                           

defendant to a judgment which he cannot pay and has no reasonable prospect of paying  



                                                                                                                                                                      

 ... is of little use to the victim of the crime, and is apt to be either frustrating to a  



                                                                                                                                                            22  

                                                                                                                                                

repentant probationer or perversely satisfying to a rebellious one." 



        20      Id.   at  1197;  see  also  Paroline  v.  United  States,  572   U.S.   434,  453-54  (2014)  



(explaining  that,  "aside  from   the    manifest  procedural  differences  between  criminal  

 sentencing and civil tort lawsuits," restitution serves different purposes than the purposes of  

tort law, for example, as "an effective rehabilitative penalty" (quoting Kelly v. Robinson                                                                                                      , 479  

U.S. 36, 49 n.10 (1986))).  



        21  

                                                                                                          

                Kelly, 479 U.S. at 49 n.10 (citing Note, Victim Restitution in the Criminal Process:  

A Procedural Analysis , 97 Harv. L. Rev. 931, 937-41 (1984)).  



        22  

                                                                                                                                                                                

                People v. Kay, 36 Cal.App.3d 759, 763, 111 Cal.Rptr. 894, 896 (Cal. App. 1973),  

                                                                                                                                                                             (continued...)  



                                                                                               -  10 -                                                                                        2625
  


----------------------- Page 11-----------------------

                         This same reasoning is evident in a 1994 decision by this Court,                                                        J.C.W. v.   



State.   In  J.C.W., we held that trial courts were required to consider a minor's ability to                                                                  



pay before determining the amount of "suitable restitution" in a juvenile delinquency                                                       



         23 

                                                                                                                                                   

case.         We based this decision, in large part, on the fact that, at that time, the criminal  



                                                                                                                                                         

code still required sentencing courts to inquire into a defendant's ability to pay when  



                                  24  

                                                                                                                                                           

setting restitution.                    We also noted that other states appeared to require inquiry into  



                                                                                                                                                                

earning capacity in delinquency cases and to prohibit restitution orders exceeding a  



                                          25  

                                   

minor's ability to pay. 



                                                                                                                                                     

                         By the time J.C.W. was issued, the Alaska legislature had amended Chapter  



                                                                                                                                                  

 12.55 to partially restrict a trial court's consideration of an adult defendant's ability to  



                                                                               26  

                                                                                                                                                     

pay when setting the amount of restitution.                                        We noted this legislative change in J.C.W.,  



      22     (...continued)  



quoted in Karr, 686 P.2d at 1197 n.14.  

                   



      23    J.C.W. v. State , 880 P.2d 1067, 1072 (Alaska App. 1994).  



      24    Id.  



      25  

                                                                                              

            Id.  A review of current juvenile delinquency codes in other states indicates that there  

                                                                                          

are at least ten states that either cap the amount of restitution that a juvenile can be required  

                                                                                                                                   

to pay, or require the court to affirmatively take a juvenile's ability to pay into account when  

                                                                                                               

setting the amount of restitution in a juvenile case.  See, e.g., Conn. Gen. Stat. Ann.  46b- 

                                                                                                            

 140(d) (ability to pay); Fla. Stat. Ann.  985.437(2) (ability to pay); Md. Code Ann., Crim.  

                                                                                                                                            

Proc.  11-604(b) (cap of $10,000); N.J. Stat. Ann.  2A:4A-43(b)(9) (ability to pay); N.Y.  

                                                    

Fam. Ct. Act  353.6 (cap of $1500); In re Laurence S. , 742 N.W.2d 484 (Neb. 2007) (ability  

                                                                                                                                                 

to pay); see also  S.D. Codified Laws  26-8B-6(4); In re M.D.D. , 774 N.W.2d 793 (S.D.  

                                                                                                                                            

2009) (juvenile bears the burden of raising inability to pay).   Additionally, a substantial  

                                                                                                                                     

number of states authorize courts to impose non-financial performance of restitution in lieu  

                                                                                               

of financial restitution, such as through community service. See, e.g., 705 Ill. Comp. Stat.  

Ann. 405/5-710(4); Kan. Stat. Ann.  38-2361(d)(1); Mont. Code Ann.  41-5-103(35).  



      26     Compare former AS 12.55.045(a) (1991 version) with former AS 12.55.045(a), (f),  



                                                                                                                                          (continued...)  



                                                                            -  11 -                                                                     2625
  


----------------------- Page 12-----------------------

but we also made clear that we expressed no view "on whether this restriction would                                                           



                                                                           27  

 affect juvenile delinquency proceedings."                                                                                             

                                                                                In the years since J.C.W., the legislature  



                                                                                                                                          

 continued to amend AS 12.55 to further restrict a trial court's consideration of a criminal  



                                                                                                                                      28  

                                                                                                                                                    

                                                                                                                                           But, for  

defendant's ability to pay when setting restitution amounts in criminal cases. 



                                                                                                                                             

the most part, the legislature did not make the parallel changes to the statutes that govern  



                                                                                  

restitution judgments in juvenile delinquency cases.  



                                                                                                                                        

                        The substantive changes to the statutory provisions that govern restitution  



                                                                                                                                            

in  juvenile  cases  occurred  in  1996,  1998,  2001,  and  2002.                                                 In  1996,  the  Alaska  



                                                                                                                                             

legislature enacted AS 47.12.120(b)(4), which was nearly identical to former AS 47.10.- 



                   29  

 080(b)(4).                                                                                                                                         

                         The legislature  specifically retained  the term "suitable restitution" for  



                                                                                                                                                

juvenile delinquency cases - a term that does not appear in the criminal code. In 1998,  



                                                                                                                                           

the legislature added language permitting a court to require a minor to use the services  



                                                                                                                                                   

 of a community dispute resolution center to resolve any dispute between the minor and  



                                                                                                                               30  

                                                                                                                                                   

                                                                                                                                    In 2001 and  

the victim "as to the amount of or manner of payment of the restitution." 



                                                                                                                                       

2002 the legislature amended both the criminal code and the juvenile code to address  



                                                                                                                                                    

how restitution judgments become executable as civil judgments once the offender has  



                                                    31  

                                  

 finished his or her probation. 



      26    (...continued)  



 (g) (1992 version).  



      27    J.C.W. , 880 P.2d at 1072 n.7.  



      28    See, e.g., SLA 2004, ch. 17  3; SLA 2001, ch. 92 10; SLA 1992, ch. 71  3, 4.  



      29    SLA 1996, ch. 59,  46.  



      30    SLA 1998, ch. 108,  2.  



      31    SLA 2001, ch. 92,  10, 37; SLA 2002, ch. 23,  1, 4.  



                                                                       -  12 -                                                                 2625
  


----------------------- Page 13-----------------------

                     In 2002,      thelegislaturealsoamended AS47.12.120(b)(4) to add                                    subsection  



      32  

(C).                                                                  

           Subsection (C) provides, in relevant part:  



                                                                                                             

                      [A]t the request of the department, the Department of Law,  

                                                                                                             

                     the victims' advocate, or on its own motion, the court shall,  

                                                                                                                  

                     at  any  time,  order  the  minor  and  the  minor's  parent,  if  

                                                                                                            

                     applicable,  to  submit  financial  information  on  a  form  

                                                                                                                

                     approved  by  the  Alaska  Court  System  to  the  court,  the  

                                                                                                                  

                     department, and the Department of Law for the purpose of  

                                                                                   

                     establishing the amount of restitution or enforcing an order  

                                                                                                 

                     of restitution under AS 47.12.170.  (Emphasis added).  



                                                                                                                                     

The legislative history that accompanied the enactment of this provision makes clear that  



                                                                                                                                       

the legislature intended to streamline the restitution process in juvenile cases and to  



                                                                                            

require full financial disclosures from the minor and the minor's parents only in those  



                                                                                                                                   

cases where there were legitimate concerns that the restitution amount was beyond what  



                           33  

                     

either could pay. 



                                                                                                                                     

                     Subsection (C) was an addition to House Bill 297, a 2002 legislative bill  



                                                                                                                        

that primarily dealt with statutory aggravating factors in criminal cases. This amendment  



                                                                                                                                        

to the juvenile code was included as one of several "non-controversial" amendments to  



                                                                          34  

                                                                                                                                

the restitution statutes in Title 12 and Title 47.                            A staff member to Rep. Kevin Meyer  



                                                                                                                          

(the sponsor of the bill) explained the purpose of AS 47.12.120(b)(4)(C) as follows:  



                                                                                                               

                     Current  law  requires  juveniles  and  parents  to  submit  full  

                                                                                                              

                     financial statements when restitution is being decided.  This  

                                                                                                              

                     amendmentwillrequirefull financial statements only in cases  

                                                                                                                  

                     where one party requests them, that being the Department of  



     32    SLA 2002, ch. 23,  3.  



     33    See, e.g., Minutes of Senate Rules Comm., House Bill 297,                                       statements of Lorali   



Carter, staff to Rep. Kevin Meyer (Apr. 23, 2002).  



     34    See Minutes of Senate Rules Comm., House Bill 297 (Apr. 23, 2002).  



                                                                -  13 -                                                          2625
  


----------------------- Page 14-----------------------

                           Law, the court, or the defendant. Full financial statements, in                                                        

                           most   cases,   are   usually   unnecessary   if   the amount                                                of   the  

                           restitution is comparable to the permanent fund dividend.                                                             If  

                           damage is in the tens of thousands, one of those parties would                                                

                           likely request full financial disclosure.                                     35  



                                                                                                                                                               

Thus, as of 2002, it appears that the legislature expected courts to continue to consider  



                                                                                                                                                                          

a minor's ability to pay when setting restitution amounts that would likely exceed the  



                                                                                                                                                                   

minor's ability to pay, despite the additional restrictions that the legislature had placed  



                                                                                                          

on considerations of ability to pay in adult criminal cases.  



                                                                                                                                                                  

                           The same legislative intent can also be seen in the 2004 legislative history  



                                                                                                                                                                       

that accompanied the enactment of AS 12.55.045(g), the statutory provision that now  



                                                                                                                                                                   

expressly prohibits trial courts fromconsidering a defendant's ability to paywhen setting  



                                                                                                                                                                 

the amount of restitution in a criminal case.  As part of the same legislative bill (House  



                                                                                                                                                                        

Bill  357),  the  legislature  amended  AS  47.12,  but  the  legislature  did  not  make  any  



                                                                                                                                                             

amendments to AS 47.12 that would have paralleled the statutory prohibition contained  



                                         36  

              

in AS 12.55.045(g). 



                                                                                                                                                            

                           Instead, areviewofthe2004legislativehistory indicates that the legislature  



                                                                                                                                                                     

expected that juvenile courts would continue to consider a minor's ability to pay when  



                                                                                                                                                                          

setting restitution amounts in juvenile cases.  During the debate on House Bill 357, the  



                                                                                                                                                

members of the House Judiciary Committee considered amending AS 47.12.120(b)(4)  



                                                                                                                                                                            

to explicitly authorize courts to take into consideration a delinquent minor's ability to  



                                                                                                                                                                       

pay past the age of nineteen (the age at which the juvenile court loses jurisdiction over  



                                                                                                                                                                         

a minor).               This amendment to House Bill 357  was ultimately rejected  because the  



                                                                                                                                                                     

legislators were reassured that courts "already had the authority to take a minor's long- 



       35     Minutes of Senate Rules Comm., House Bill 297, statements of Lorali Carter, staff                                                          



to Rep. Kevin Meyer (Apr. 23, 2002).  



       36     SLA 2004, ch. 17,  3, 6; compare AS 12.55.045(g) with AS 47.12.120(b)(4).  



                                                                                  -  14 -                                                                           2625
  


----------------------- Page 15-----------------------

                                                                   37  

term ability to pay into account."                                      As we previously observed in                                   W.S. v. State             , this   



legislative history strongly suggests that the 2004                                                     legislature intended to retain the                          



authority of courts to consider a minor's ability to pay in establishing the amount of                                                                                 



restitution, while simultaneously prohibiting consideration of this factor in setting the                                                                            

restitution amount for adult offenders.                                    38  



                                                                                                                                                              

                          Despite this legislative history, the State takes the position that the Alaska  



                                                                                                                                                                    

legislature intended courts to treat adult offenders and juvenile offenders the same, and  



                                                                                                                                                                       

that the legislature intended the same prohibition against considering ability to pay to  



                                                                                                                                                            

apply  equally  to  both.                           In  support  of  this  claim,  the  State  points  to  the  Alaska  



                                                                                                                                                                       39  

                                                                                                                                                                             

Constitution, which grants victims the right to receive "restitution from the accused." 



                                                                                                                                                                        

The State argues that if the drafters of this constitutional provision had intended a  



                                                                                                                                                            

victim's right to restitution to be limited by an offender's ability to pay, the drafters  



                                                                                                          

would have included that limitation in the text of the provision.  



                                                                                                                                                                   

                          We are unpersuaded by this argument.  A victim's right to restitution was  



                                                                                                                                                                             

added to the Alaska Constitution in 1994 as part of a larger victims' right amendment.  



                                                                                                                                                      

At that time, the criminal code still permitted courts to consider an adult offender's  



                                                                                                                                                                     

ability to pay when setting the amount of restitution.   It was not until 2004 that the  



                                                                                                                                                    

Alaska legislature amended AS 12.55.045(g) to prohibit consideration of a defendant's  



                                                                                                                                                                       

ability to pay in criminal cases.  Thus, contrary to the State's claim, there is nothing to  



                                                                                                                                                                  

suggest that a victim's constitutional right to restitution was seen as incompatible with  



                                                                                                                                                             

setting restitution at an amount that the defendant could actually pay. Indeed, as already  



       37    See W.S. v. State, 174 P.3d 256, 263 (Alaska App. 2008) (citing Minutes of House                                                                  



Judiciary Comm., House Bill 357 (Feb. 9, 2004)).  



       38     W.S., 174 P.3d at 263.  



       39    Alaska Const. art. I,  24.  



                                                                                -  15 -                                                                         2625
  


----------------------- Page 16-----------------------

 noted, as a purely practical matter, a victim cannot recover restitution that an offender   



 will never be able to pay.                          



                                  The State's briefing also relies on AS 47.12.010(b)(12), which states that                                                                                                 



 one of the purposes of AS 47.12 is to "ensure that victims ... of crimes committed by                                                                                                                          



juveniles are afforded the same rights as victims ... of crimes committed by adults." The                                                                                                                    



 State argues that this provision requires courts to apply the prohibition contained in                                                                                                                          



 AS   12.55.045(g)   to   juvenile   delinquency   cases.     We   disagree.     Alaska   Statute  



 47.12.010(b)(12) was added to AS 47.12 in 1998, as part of a comprehensive revision  

 of the juvenile delinquency code that began in 1996.40  

                                                                                                                                                                                  

                                                                                                                                          The goal of this larger revision  



                                                                                                                              41 

                                                                                                                                            

 was to create a "balanced" juvenile justice system.                                                                                In accordance with this goal, the  



                                                                                                                                                                                                                         

 legislature announced multiple purposes for the juvenile justice system, demonstrating  



                                                                                                                                                                                                         

 an intent to balance the rehabilitative needs of juvenile offenders with the rights of crime  



                    42  

 victims.                                                                                                                                                                                                 

                            At the time this revision was enacted, the law was clear that courts were  



                                                                                                                                                                                       

 required to consider a minor's ability to pay when ordering restitution in a delinquency  



                              43  

proceeding.                                                                                                                                                                               

                                      There is nothing in the 1996 legislation or in any of the subsequent  



                                                                                                                                                                                                             

 amendments to AS 47.12 to suggest that the legislature intended to change the law  



                                                                                                                                                                                                             

 allowing  consideration  of  a  minor's  ability  to  pay.                                                                                Nor  is  there  anything  in  the  



                                                                                                                                                                                                       

 legislative history to suggest that the legislature viewed considering a juvenile's ability  



                                                                                                                                                              

 to pay as incompatible with protecting a crime victim's right to restitution.  



         40      See  Minutes of House Health, Education and Social Services Standing Comm., House   



 Bill 387, statement by Rep. Pete Kelly, bill sponsor (Feb. 22, 1996).  



         41      See id.; AS 47.12.010(a).  



         42      AS 47.12.010(b).  



         43      See J.C.W. v. State, 880 P.2d 1067, 1072 (Alaska App. 1994).  



                                                                                                    -  16 -                                                                                             2625
  


----------------------- Page 17-----------------------

                         As already mentioned, when we interpret a statute, our task is "to ascertain                                              



                                                                                                                                                               44  

the legislature's intent and then to construe the statute so as to implement that intent."                                                                           



                                                                                                                                                     

Here, the plain language of the relevant statutes, the accompanying legislative history,  



                                                                                                                                                              

andthe underlying purposes of the juvenile justice systemindicate that the legislature did  



                                                                                                                                                      

not intend to prohibit courts from considering a juvenile's ability to pay when setting  



                                                                                                                                                               

restitution amounts in juvenile cases. The courts are therefore authorized to consider all  



                                                                                                                                                      

relevant factors when setting restitution orders in juvenilecases, including butnot limited  



                                                                                                                                          

to the minor's ability to pay, the detrimental effect of setting restitution at an amount  



                                                                                                                                                   

beyond  what the minor  could  ever  realistically  be expected  to  pay,  and a victim's  



                                                                                                                                                       

constitutional right to restitution.   In cases such as the present one, where the minor  



                                                                                                                                                               

affirmatively  presents  evidence  of  inability  to  pay  and  the  amount  of  damages  is  



                                                                                                                                                             

substantially beyond what could be paid anytime in the foreseeable future, the court has  



                                                                                                                                                              

the responsibility to take the minor's limited ability to pay into account when setting the  



                                                                                                                                     45  

                                                                                                                             

amount of restitution that the minor will personally be required to pay. 



                                                                                                                                                            

                         Because the trial court does not appear to have recognized that it had this  



                                                                                                                                                             

responsibility in the current case, we vacate the restitution order entered against R.C. and  



                                                                                                                                                            

we  remand  this  case  to  the  trial  court  for  further  proceedings  consistent  with  this  



decision.  



      44     Williams v. State, 2015 WL 4599554, at *3 (Alaska App. July29, 2015) (unpublished)   



(citing Y.J. v. State, 130 P.3d 954, 959 (Alaska App. 2006)).  



      45  

                                            

             Contrast W.S. v. State, 174 P.3d 256, 263 (Alaska App. 2008) (concluding that any  

                                                                                              

error in failing to consider a minor's ability to pay is harmless in a case where restitution  

                                                                      

could   likely   be   paid   through   the   minor's   permanent   fund   dividends);   see   also  

                                                                                                                                              

AS 47.12.120(b)(4)(C) (authorizing court to obtain financial information from a minor and  

                                                                                                                                                  

a minor's parents "for the purpose of reestablishing the amount of restitution or enforcing  

                       

an  order  of  restitution"  in  a  juvenile  case);  AS  47.12.120(b)(4)(A)  (authorizing  use  of  

                                                                                                                                                 

community dispute resolution centers to resolve disputes about the amount of restitution  

                                 

and/or manner of payment).  



                                                                            -  17 -                                                                     2625
  


----------------------- Page 18-----------------------

          Conclusion  



                   The  restitution  judgment  against  R.C.  is  VACATED  and  this  case  is  

                                                                                                                         



REMANDED to the trial court for further proceedings consistent with this decision.  

                                                                                                            



                                                         -  18 -                                                   2625
  

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