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Lapp v. State (11/20/2009) ap-2244

Lapp v. State (11/20/2009) ap-2244

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-9778
Appellant, ) Trial Court No. 4FA-94-3065 CR
v. )
) O P I N I O N
Appellee. )
) No. 2244 November 20, 2009
Appeal    from    the
          Superior  Court,  Fourth Judicial  District,
          Fairbanks, Niesje J. Steinkruger, Judge.

          Appearances:  Kenneth L. Covell,  Fairbanks,
          for  the  Appellant.   Diane  L.  Wendlandt,
          Assistant   Attorney  General,   Office   of
          Special Prosecutions and Appeals, Anchorage,
          and  Talis  J.  Colberg,  Attorney  General,
          Juneau, for the Appellee.

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

          BOLGER, Judge.

          In  1995,  Barry Lee Lapp was convicted of manslaughter
and  five  counts  of assault.  Superior Court  Judge  Niesje  J.
Steinkruger  entered an order requiring Lapp to pay approximately
$85,000 in restitution to the victims of his crimes, and  to  pay
10%  of his wages toward restitution until all victims are  fully
paid.   When  Lapp failed to pay the full restitution during  his
probation,  the judge entered a civil judgment for  the  balance.
Lapp  asserts that the superior court had no authority  to  enter
this  civil judgment for the remainder of the restitution because
the  judgment violated his rights to due process, his  protection
against  double jeopardy, and constitutional restrictions  on  ex
post  facto  laws.  Lapp also argues that the civil judgment  was
barred  by the doctrine of equitable estoppel.  We conclude  that
the  2001  amendment  to the restitution  statute  was  merely  a
procedural change that did not violate the restriction on ex post
facto  laws, and that the judgment itself did not increase  Lapps
punishment  in a way that violated due process or the  protection
against  double  jeopardy.  We also conclude  that  the  superior
courts failure to sua sponte recognize the issue of estoppel  was
not plain error.

          On  September  16,  1994,  Lapp  recklessly  caused  an
automobile collision that killed one person and seriously injured
several  others.  Lapp pleaded no contest under a plea agreement,
and  on  April 20, 1995, he was convicted of manslaughter,1  five
counts of felony assault,2 and driving while intoxicated.3   Lapp
was  then  sentenced  to  10  years  imprisonment  with  2  years
suspended.  A hearing was scheduled to determine the amount  that
Lapp  would  have to pay for restitution, but before the  hearing
began,  Lapp agreed to a stipulation to pay restitution  totaling
$86,455.87  to his four victims.  This stipulation  was  used  by
Judge Steinkruger as a basis for a restitution order.
          The  restitution  order included a  stipulated  payment
schedule and stated that the restitution provisions shall be part
of  the  sentencing judgment previously entered in  this  matter.
The  judgment incorporated this restitution order, but also  made
restitution a condition of Lapps probation.
          On  May  4,  2000, Lapp began serving his  5  years  of
probation.  During his probation, Lapp presented pay stubs to his
probation  officers, who then told Lapp the amount he should  pay
in  restitution.  Lapp complied with the terms of his  probation,
which  included making all of the payments his probation officers
directed  him  to  pay.  By May 4, 2005, Lapp had  completed  his
probation.   However, during that five-year span, Lapp  had  only
paid  $15,750  in restitution.  By September 16, 2005,  Lapp  had
stopped making his restitution payments.  He was contacted by his
probation officer about his failure to make payments, and a  week
later   the   State   petitioned   to   revoke   his   probation.
On  February 24, 2006, Judge Steinkruger scheduled an evidentiary
hearing  to  determine whether  Lapp had violated his  probation.
The  judge  suggested that it might be possible to convert  Lapps
restitution  order into a civil judgment.  The  judge  wrote  the
following notation on the scheduling order:
          It  appears that the States only  remedy  is
          for  the  remaining restitution owed  to  be
          treated  as a civil judgment.  This  assumes
          the  State  does not contest  the  defendant
          paid 10% of wages as the State and defendant
          agreed  to.  Therefore, at the above hearing
          the court will consider whether the State is
          in  agreement, i.e., that the State does not
          contest  the defendant was not in  violation
          regarding restitution during the five  years
          of probation.
          At  the April 5, 2006 hearing, the State requested that
the  restitution  order  be  converted  into  a  civil  judgment.
Despite Lapps objections, Judge Steinkruger allowed the State  to
lodge a civil judgment to enforce the total amount of restitution
still owed.  In her ruling, Judge Steinkruger relied on the  2001
amendment  to the restitution statute, particularly including  AS
12.55.045(l),  which  provides that  a  restitution  order  in  a
criminal  case  is  a  civil  judgment  for  the  amount  of  the
restitution.   Judge  Steinkruger  also  ruled  that   the   2001
amendment did not violate any constitutional principles or breach
Lapps plea agreement.
          Pursuant   to   this   ruling,  the   State   submitted
accounting  records which detailed Lapps payments and established
that   Lapp   still   owed  $70,705.87  in  restitution.    Judge
Steinkruger  then issued a civil judgment for that amount,  which
Lapp now appeals.

     Did the Civil Judgment Violate Double Jeopardy?
          Under  the  double jeopardy clauses of  the  state  and
federal  constitutions,  once a sentence  has  been  meaningfully
imposed,  it  may  not,  at a later time,  be  increased.4   Lapp
contends that the 1995 judgment of conviction only obligated  him
to  make  restitution as a condition of his  probation,  so  that
entering  a  civil judgment in 2006 for the remaining restitution
was  an  increase in his punishment.  Citing Shagloak v.  State,5
Lapp  also argues that the same circumstances violated his  right
to substantive due process.
          Thus,  we  must  examine  the judgment  and  associated
documents   to   determine  whether  Lapps  obligation   to   pay
restitution was only a condition of his probation, or whether  it
was  also  an  independent component of his  sentence.   When  we
construe   a  judgment,  we  primarily  seek  to  ascertain   the
sentencing  judges  intention as stated  in  the  contemporaneous
sentencing   record.6    When  we   review   the   judgment   and
contemporaneous sentencing documents in this case, it is apparent
that restitution was not only a condition of Lapps probation, but
also an independent component of the judgment.
          Analyzing  the judgment itself, the list  of  probation
conditions includes the following items:
               15.     The    defendant   shall    pay
          restitution  as set forth in the Restitution
          Order   entered  in  this  case   which   is
          incorporated herein by reference.
               16.   The  restitution  ordered  is   a
          condition  of probation and a part  of  this
Thus, the judgment explicitly states that, in addition to being a
condition of probation, the restitution was also intended  to  be
an independent part of the judgment.
          This construction is also supported by the language  of
the  separate restitution order, which requires the payment of  a
stated  amount of restitution to each victim using the  following
language:   It  is  hereby ordered that the defendant  shall  pay
restitution  under  Count  [X]  to  [Victim  A]  in  the  sum  of
[$XX,XXX].   In  a separate section, the order requires  Lapp  to
make monthly payments of 10% of his gross wages.
          Another  section of the restitution order provides  for
the   distribution  of  the  restitution  payments.   The   order
specifies  that  the restitution payments will be distributed  in
equal  amounts  to each victim until the first  victim  is  fully
paid, and then continues,
          Thereafter,    the   payments    shall    be
          distributed to the remaining unpaid victims,
          on  an  equal  percentage  basis,  until  an
          additional  victim  is  fully  paid.    Such
          procedure  of  distribution  shall  continue
          until all victims are fully paid.[7]
Finally,  the  order  provides that these  provisions  concerning
restitution  shall be part of the sentencing judgment  previously
entered in this matter.
          Thus,  the  language of the order is inconsistent  with
the  idea  that  restitution would be  limited  to  the  term  of
probation.   There is no mention of probation in the  restitution
order.  Restitution was not scheduled to terminate after the term
of  probation,  but  rather, was ordered to  continue  until  all
victims  are  fully  paid.  And the explicit direction  that  the
order is part of the sentencing judgment shows that the order was
not only a probation condition, but was specifically intended  to
be a separate component of the judgment.
          Furthermore, this construction is also consistent  with
the  language  of  the  stipulation between  the  parties.   When
construing   an  agreement  between  parties,  we  use   ordinary
principles of contract interpretation,8 attempting to give effect
to  the  reasonable expectations of the parties  considering  the
language of the contract as well as relevant extrinsic evidence.9
          Here,  the  parties  agreed  in  the  stipulation  that
payments  should  be  made  to each victim  using  the  following
language:  The victim should pay restitution under Count  [X]  to
[Victim  A]  in the sum [$XX,XXX].  The stipulation included  the
agreement  that the defendant would make restitution payments  in
monthly amounts of  10% of his gross wages.  The stipulation also
included the parties agreement to the same distribution that  was
ordered  by  the court, which specified that:  Such procedure  of
distribution should continue until all victims are fully paid.10
          Like the terms specified in the restitution order,  the
terms of the stipulation are inconsistent with the termination of
restitution  after probation has been completed.  The stipulation
does   not  mention  probation,  and  the  parties  agreed   that
restitution should continue until all victims are fully paid.
          Lapp  argues that the superior court did not  have  the
authority  to  impose restitution as an independent component  of
the  1995 judgment.  He relies on R.I. v. State,11 where we  held
that the 1995 juvenile delinquency statutes did not authorize the
          superior court to enter a civil judgment for restitution.12  But
in  R.I., we expressly recognized that, in criminal prosecutions,
a  sentencing  court  could order a convicted  defendant  to  pay
restitution  either as an independent component of the  sentence,
or  as a condition of  probation.13  We also recognized that  the
restitution statute authorized crime victims to pursue  execution
on  a  restitution order as if it were a civil  judgment.14   The
superior court was therefore acting within its authority when  it
imposed  Lapps restitution order as an independent  component  of
his judgment.
          In  summary, under the 1995 stipulation and restitution
order, the restitution obligation was intended to operate  as  an
independent component of Lapps sentence, not just as a  condition
of his probation, and Lapps obligation continued until all of the
victims were fully paid.
          We  now turn to the validity of the civil judgment that
the  superior court entered in 2006.  The civil judgment required
Lapp  to  pay  the  balance of restitution to the  two  remaining
victims.  The first paragraph of the judgment provided:
          1.   The defendant shall pay restitution  to
          the  following recipient(s) for the  amounts
          shown below:

          Restitution                       Recipients
          A.                Robert               White
          B.                 Bryan                Wade
          TOTAL               AMOUNT               DUE
The  civil  judgment thus required Lapp to pay no more  than  the
original  restitution order required  that is, to pay restitution
to the victims until they were paid in full.
          Lapp  argues  that the superior courts  entry  of  this
judgment  violated the prohibition against double jeopardy  based
on  our  decision  in Kelly v. State.15  In Kelly,  the  superior
court  originally  imposed restitution only  as  a  condition  of
probation.16   But after revoking the defendants  probation,  the
court  also  tried  to enforce the restitution  condition  as  an
independent component of the judgment.17  We concluded  that  the
imposition of the civil judgment independent of Kellys  probation
was  an  increase  in punishment in violation of  the  protection
against double jeopardy.18
          But  in  Kelly, we also recognized that it  would  have
been  permissible  for the original sentencing judge  to  require
payment of restitution both as a condition of probation and  also
as  an independent component of the judgment.19  That was exactly
what  happened in Lapps case:  the obligation to make restitution
to  his  victims  was an independent component  of  his  judgment
imposed  at  the time he was originally sentenced.   Accordingly,
the  entry  of  the  2006 civil judgment did not  increase  Lapps
punishment.   At  most, it altered the procedures  by  which  the
victims  could  enforce  the preexisting restitution  obligation.
Thus,  Lapps right to protection against double jeopardy has  not
          been violated because the 2006 civil judgment did not create any
new restitution obligation.

     Was the 2001 Restitution Statute an Ex Post Facto Law?
          Judge  Steinkruger relied on the 2001 amendment to  the
restitution  statute when she entered the civil judgment  against
Lapp  in  2006.   Lapp now argues that application  of  the  2001
statute  to  his case violates the ex post facto clauses  of  the
state  and  federal  constitutions  because  his  offenses   were
committed before 2001.20
          The  ex  post  facto clauses forbid a legislature  from
          any statute which punishes as a crime an act
          previously  committed,  which  was  innocent
          when  done; which makes more burdensome  the
          punishment   for   a   crime,   after    its
          commission;  or which deprives  one  charged
          with   a  crime  of  any  defense  available
          according  to law at the time when  the  act
          was committed.[21]

This provision forbids the retrospective application of laws that
alter  the  definition of crimes or increase the  punishment  for
criminal  acts.22   But the ex post facto  clause  does  not  bar
retrospective application of merely procedural amendments.23   So
the  initial  question that we must address is whether  the  2001
amendment  to  the restitution statute increased the  substantive
quantum of punishment Lapp received for his conviction.24
          Lapps argument  assumes that the restitution order  was
unenforceable  after  he completed his  term  of  probation.   To
address this argument, we must analyze the restitution statute in
effect  when Lapp committed his several felonies in  1994.     At
the  time  of  Lapps  offenses in 1994, the  restitution  statute
          [A]   restitution  recipient   may   enforce
          payment  of  a restitution order  against  a
          defendant  under AS 09.35 as  if  the  order
          were   a   civil  judgment  enforceable   by
          execution.  This subsection does  not  limit
          the  authority of the court to  enforce  ...
          orders of restitution to victims.[25]
          In  1994, civil judgments were enforceable by execution
under AS 09.35.010.  Nothing in the execution statute limited the
enforcement  of  a  restitution obligation to  the  term  of  the
debtors probation.26  So when former AS 12.55.051(d) stated  that
restitution orders could be enforced as if the orders were  civil
judgments,  that  provision  implied that  restitution  could  be
enforced beyond the period of probation.
          This  aspect of the Alaska statute was consistent  with
the preexisting common law principle that the government may seek
civil execution of a fine in a criminal case.27  Under this rule,
a  court  could  enforce the payment of a  fine  even  after  the
expiration of a sentence of imprisonment.28  Following this  same
common  law  principle,  courts  interpreting  similar  statutory
schemes   have  held  that  the  sentencing  court  can   enforce
          restitution as an independent component of the judgment even
after  the  defendants terms of imprisonment and  probation  have
expired.29   We likewise conclude that there was nothing  in  the
1994   restitution  statute  that  limited  the  enforcement   of
restitution  to  the defendants term of probation if  restitution
was ordered as an independent component of the judgment.
          We  now  turn  to the 2001 amendment to the restitution
statute.  In 2001, the legislature amended the statute by  adding
a  section  that provided in part, that [a]n order by  the  court
that  the defendant pay restitution is a civil judgment  for  the
amount  of  the  restitution.30  This  language  took  effect  on
January  1,  2002, and was intended to apply to all judgments  or
orders of restitution entered in adjudications of delinquency  of
minors  or  in criminal cases before, on, or after the  effective
date of the legislation.31
          In  summary, before the 2001 amendment, the restitution
statute stated that a restitution order could be enforced  as  if
the order were a civil judgment.32  After the 2001 amendment, the
statute  stated  that a restitution order is a civil  judgment.33
It  is  unclear  why the legislature believed that this  language
should  be  changed.  But it is clear that the new  language  was
intended  to reaffirm crime victims preexisting right to  enforce
restitution  obligations  through  civil  execution.    If   this
amendment  changed the law in any fashion, it  was  a  procedural
change in the enforcement mechanism for the judgment; it was  not
a substantive increase in the quantum of punishment.
          To   argue  that  applying  the  2001  statute  was  an
improper  ex  post facto application of the law, Lapp  relies  on
Ortiz  v.  State,34 where we ruled that retrospective application
of an amendment to the restitution statute constituted an ex post
facto  law.35   At the time that Ortiz committed  his  crime,  AS
12.55.045 allowed the sentencing judge to consider the defendants
ability  to  pay restitution.36  But this statute was amended  in
2004 by removing the judges discretion to consider the defendants
ability  to  pay.37  We  concluded that retrospective application
of this amendment to the restitution statute violated the ex post
facto clause.38
          In   Lapps   case,   however,  the  enactment   of   AS
12.55.045(l) did not operate to change the amount of  restitution
or  the  nature of Lapps obligation to his victims,  nor  did  it
alter  the  factors that the superior court was to consider  when
setting  restitution.  Both before and after the 2001 amendments,
a restitution order was enforceable as a civil judgment.
          In  People  v.  Lowe,39 the Colorado Court  of  Appeals
addressed   a   similar   case  considering   the   retrospective
application  of  a  law  allowing for the  civil  enforcement  of
criminal  restitution orders.40  In Lowe, the defendant had  been
imprisoned  for  eight years when the Colorado  General  Assembly
enacted a restitution statute allowing the Colorado Department of
Corrections  to  collect or withhold 20%  of  the  deposits  into
inmates   accounts   to  satisfy  their  delinquent   restitution
obligations.41   The Colorado court held that this  amendment  to
the  restitution statute did not constitute an ex post facto  law
because  the  amendment   simply  facilitate[d]  collection  from
defendant  of the sums he was ordered to pay at the time  of  his
          Likewise,  the  2001 amendment to AS 12.55.045  was  at
most  a  procedural  change  to  facilitate  the  collection   of
restitution  rather than a substantive change in  the  amount  or
nature  of  the  restitution obligation.  The amendment  did  not
alter the definition of criminal conduct or increase the penalty,
and  therefore applying this amendment to Lapp does  not  violate
the ex post facto clause.43

     Did the Civil Judgment Violate Due Process?
          Lapp  also  makes three arguments that the judges  2006
entry  of  the civil judgment amounted to a denial of  procedural
due process.  First, Lapp argues that the judge was not impartial
because  she  suggested that the State abandon  its  petition  to
revoke   probation  and  request that the  restitution  order  be
converted to a civil judgment.  Although Lapp does not  cite  any
cases  in  support  of  this argument, a judges  comments  during
litigation  will  generally not disqualify the judge  unless  the
comments  display  clear  inability to  render  fair  judgment.44
Judge  Steinkrugers suggestion in this case is not  the  sort  of
comment  that  would violate this standard.  Indeed,  the  judges
comment  also  favored Lapp because she clearly  discouraged  the
States request to revoke Lapps probation.
          Second,  Lapp  argues that the superior  court  ignored
his  request for discovery.  But Lapps request did not include  a
request  for  any  specific  information  about  the  restitution
calculation.   Ordinarily, a party must move for  a  court  order
compelling discovery in order to preserve this type of request as
an  issue  for appeal.45  We conclude that Lapp has  waived  this
claim by failing to request a ruling from the superior court.
          Third, Lapp argues that the superior court entered  the
restitution  judgment  without holding  a  hearing.   This  issue
requires some review of the trial court record.  The State  filed
a  motion  to  set  the  restitution amount  at  $72,105.87.   In
response, Lapp filed a motion to strike, arguing that the  States
motion  was unsupported.  Then, the State filed an opposition  to
the  motion  to strike supported by records from Lapps  probation
officer  detailing  Lapps payments and the resulting  restitution
balance.   A  few  days  later  the State  amended  its  request,
proposing  a  judgment requiring distributions to  the  remaining
victims in the total amount of $70,705.87.
          After  the  State filed the records that supported  its
restitution request, Lapp could have filed an opposition  to  the
motion  to  set  the  restitution amount, a reply  memorandum  in
support  of  his motion to strike, or a request for a  hearing.46
But  Lapp  did not file anything with the superior court  (or  in
this   appeal)  indicating  that  he  contested  the  amount   of
restitution that the State requested.  We conclude that Lapp  has
waived  his  right to a hearing on this issue by his  failure  to
request a hearing when he had the opportunity to do so,47 as well
as  by  his failure to show any grounds for disputing the  States
proposed amount of unpaid restitution.
          Accordingly,  we reject Lapps arguments on  this  point
and conclude that Lapp was not denied due process.

     Was  the  States Claim for Restitution Barred  by  Equitable
          Lapp  also argues that the States claim for restitution
is barred by equitable estoppel.  To establish equitable estoppel
against  the  State,  the  defendant  must  show  that  (1)   the
governmental body assert[ed] a position by conduct or words;  (2)
the private party act[ed] in reasonable reliance thereon; (3) the
private  party  suffer[ed]  resulting  prejudice;  and  (4)   the
estoppel  serves  the interest of justice so as to  limit  public
injury.48   Lapp  argues that the State has made three assertions
justifying  estoppel:  (1) the prosecutor drafted the restitution
order  after negotiations with defense counsel; (2) during  Lapps
probation,  his  probation  officer  determined  Lapps   required
restitution  payments  based  on  his  pay  stubs;  and  (3)  the
probation  officer did not move for modification of  the  payment
schedule.  Because Lapp did not assert equitable estoppel in  the
superior court, he has waived the issue on appeal unless  it  was
plain  error  for  the superior court to fail to  recognize  this
          Lapp  has  not  established plain error.   Governmental
decisions not to pursue prosecution or enforcement generally  are
not assertions sufficient to support a defense of estoppel.50  In
other  words,  the  fact  that the probation  officer  calculated
restitution payments consistent with Lapps restitution order  was
not an assertion that the State would give up the provisions that
required  Lapp to continue his payments until all of the  victims
were  paid  in  full.51   Thus, Lapp cannot  establish  that  the
superior  courts  failure to recognize the defense  of  equitable
estoppel was a plain or obvious error.

          We  conclude that the entry of a civil judgment for the
unpaid  portion  of  the  restitution  did  not  increase   Lapps
punishment for his offenses or alter Lapps legal position in  any
way  that  violated  due process, the protection  against  double
jeopardy,  or the ex post facto clauses of the state and  federal
constitutions.  We therefore AFFIRM the superior courts judgment.
     1 AS 11.41.120(a)(1).

     2 AS 11.41.210(a) and AS 11.41.220(a)(1)(A) & (B).

     3 AS 28.35.030(a)(1) & (2).

4 Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971).

     5 597 P.2d 142, 145 (Alaska 1979).

     6 Alvin v. State, 42 P.3d 1156, 1159 (Alaska App. 2002).

7 Emphasis added.

     8 Logghe v. Jasmer, 686 P.2d 694, 697 (Alaska 1984).

     9 Sowinski v. Walker, 198 P.3d 1134, 1143-44 (Alaska 2008).

     10   Emphasis added.

     11   894 P.2d 683 (Alaska App. 1995).

12   Id. at 686.

     13   Id. at 685.

     14   Id. at 685 n.2.

     15   842 P.2d 612 (Alaska App. 1992).

     16   Id. at 613.

     17   Id.

     18   Id. at 614.

     19   Id. at 613-14.

20     We  must  apply  our  independent  judgment  to  determine
whether  a statute violates the constitution.  Doe v. State,  189
P.3d 999, 1003 (Alaska 2008).

     21    Ortiz  v. State, 173 P.3d 430, 431 (Alaska App.  2007)
(quoting State v. Anthony, 816 P.2d 1377, 1378 (Alaska 1991)).

     22    Amin  v.  State, 939 P.2d 413, 416 (Alaska App.  1997)
(quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715,
2719, 111 L. Ed. 2d 30 (1990)).

     23    Stoneking  v.  State, 39 P.3d 522,  524  (Alaska  App.

     24   See Ortiz, 173 P.3d at 431-32.

     25   Former AS 12.55.051(d) (1994) (emphasis added).

     26   See former AS 09.35.020 (1994).

     27    See Hudmon v. Coonfield, 396 S.W.2d 296, 296-97  (Ark.
1965);  Smith  v. Whatcom County Dist. Court, 52  P.3d  485,  490
(Wash. 2002) (citing The King v. Woolf, 1 Chit. 401, 438-39 (K.B.

     28    See  Ex  parte Vendetti, 6 Alaska 381, 383 (D.  Alaska
Terr. 1921).

29    State  v.  Brown, 182 P.3d 75, 79 (Mont.  2008);  State  v.
Joseph,  569  A.2d 819, 821 (N.J. Super. 1990);  Commonwealth  v.
Mourar, 504 A.2d 197, 208 (Pa. Super. 1986); State v. Gullickson,
659  N.W.  2d 388, 390-91 (S.D. 2003); State v. Dickey, 841  P.2d
1203, 1207-08 (Utah App. 1992).

     30     AS   12.55.045(l).   The  legislature  also   amended
subsection  AS  12.55.051(c), which authorizes the Department  of
Law to collect restitution on behalf of a recipient.

     31   Ch. 92,  45, 50, SLA 2001.

     32   Former AS 12.55.051(d) (1994) (emphasis added).

     33   AS 12.55.045(l) (emphasis added).

     34   173 P.3d 430.

     35   Id. at 433.

     36   Id. at 431.

     37   Id.

     38   Id. at 433.

     39   60 P.3d 753 (Colo. App. 2002).

     40   Id. at 757-58.

     41   Id. at 757.

     42   Id.

     43   See Stoneking, 39 P.3d at 524.

     44    Hanson  v.  Hanson, 36 P.3d 1181, 1184  (Alaska  2001)
(quoting Liteky v. United States, 510 U.S. 540, 551, 114  S.  Ct.
1147, 1155, 127 L. Ed. 2d 474 (1994)).

     45    Marino  v.  State, 934 P.2d 1321,  1327  (Alaska  App.

     46   See Alaska R. Crim. P. 42(c) & (e).

     47   See DeNardo v. Maassen, 200 P.3d 305, 315 (Alaska 2009)
(A  party  may  waive  the  right to an  evidentiary  hearing  on
disputed  material questions of fact by failing  to  request  one
before the court rules on the matter.).

     48    Boyd  v. State, Dept of Commerce and Econ.  Dev.,  977
P.2d  113,  116-17 (Alaska 1999) (quoting Crum v. Stalnaker,  936
P.2d 1254, 1256 (Alaska 1997)).

     49    See  Kaiser v. Umialik Ins., 108 P.3d 876, 881 (Alaska

     50    See State, Dept of Commerce and Econ. Dev. v. Schnell,
8  P.3d  351,  356  (Alaska 2000); Grunert v.  State,  Commercial
Fisheries Entry Commn, 735 P.2d 118, 122-23 (Alaska 1987).

     51    Cf.  Hodges v. State, 158 P.3d 864, 866  (Alaska  App.
2007) ([A] sentencing judge must consider a defendants ability to
pay ... when the judge determines the schedule and the amount  of
the defendants payments.).

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