State v. Mallory Substitute ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48045
STATE OF IDAHO, )
) Filed: October 28, 2021
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) SUBSTITUTE OPINION
ANNA ANNETTE MALLORY, ) THE COURT’S PRIOR OPINION
) DATED SEPTEMBER 21, 2021,
Defendant-Appellant. ) IS HEREBY WITHDRAWN
)
) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Scott Wayman, District Judge.
Orders awarding restitution, affirmed.
Greg D. Horne; Richard K. Kuck, PLLC, Coeur d’Alene, for appellant.
Richard K. Kuck argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
________________________________________________
BRAILSFORD, Judge
Anna Annette Mallory appeals from the district court’s orders for restitution. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Mallory worked as a secretary for the Hayden Fraternal Order of Eagles, also known as
the Hayden Lake Eagles. After Mallory resigned, the Hayden Lake Eagles conducted an audit
and discovered Mallory had possibly embezzled more than $49,000. A subsequent police
investigation supported the Hayden Lake Eagles’ suspicions. During that investigation, the
police also discovered that Mallory had purchased a lawn mower using a check from the Hayden
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Lake Eagles’ account. After the police contacted Mallory about the investigation, she pawned
the lawn mower for $150.
In May 2019, the State charged Mallory with grand theft, Idaho Code § 18-2403(1), for
embezzling funds from the Hayden Lake Eagles and with burglary, I.C. § 18-1401, for pawning
the lawn mower. Further, the State alleged Mallory was a habitual offender, I.C. § 19-2514. In
September 2019, the State filed a restitution memorandum requesting $7,228.94 on behalf of the
Hayden Lake Eagles and $10,000 on behalf of Liberty Mutual Insurance, which provided the
Hayden Lake Eagles’ coverage for employee dishonesty. Subsequently, the State amended the
restitution memorandum to request $150 on behalf of the pawnshop.
In December 2019, Mallory signed a pretrial settlement offer, agreeing to plead guilty to
the burglary charge for pawning the lawn mower. In exchange, the State agreed to dismiss the
grand theft charge and the habitual offender allegation. Regarding restitution, the pretrial
settlement offer which Mallory signed stated, “Pay restitution/reimbursement: If applicable per
statute: TBD to Hayden Lake Eagles.”
During a sentencing hearing in February 2020, the State asked for restitution as set forth
in its amended restitution memorandum. Mallory opposed the request, contending that “there
wasn’t the evidence to prove those other charges” (apparently referring to the grand theft charge)
and that the parties had agreed to address the issue of restitution at “a later date.” The district
court noted that the State was requesting restitution for the Hayden Lake Eagles and their
insurance company and that most of the State’s request related to the grand theft charge. The
court quoted I.C. § 19-5304(9), which provides that “the court may, with the consent of the
parties, order restitution to the victims, and/or any other person or entity, for economic loss or
injury for crimes which are not adjudicated or are not before the court.” Because the court had
not received a copy of the written plea agreement, it continued the sentencing hearing and
encouraged the parties to reach an agreement on restitution.
In May 2020, the district court held another sentencing hearing. At the beginning of that
hearing, the court addressed the issue of restitution and stated that “the agreement of the parties
as reflected in the pretrial settlement offer required [Mallory] to make restitution to the Hayden
Lake Eagles and that the defense agrees to that.” Further, the court stated that the State’s
restitution memoranda indicated the State believed “restitution should be paid to the Hayden
Lake Eagles, even though the charges of grand theft related to that conduct have been
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dismissed.” In response, Mallory’s counsel stated that Mallory would not consent to restitution
for “alleged crimes that were dropped crimes”; she was “not agreeing to restitution for something
that was never proven”; and she was only “agreeable to pay restitution as [it] relates to the lawn
mower.”
The prosecutor then stated that Mallory’s position indicated “there was never a meeting
of the minds” on the issue of restitution, and therefore the plea agreement was “no longer valid.”
The district court agreed, stating:
[Mallory] entered into a plea agreement to plead guilty to one charge and dismiss
the other, and there was not a meeting of the minds with regard to the restitution
on the dismissed count, which then finds that the plea agreement that was entered
into really isn’t a plea agreement at all since there was never any agreement
definitively put down in writing that the parties agreed upon. And so that leaves
the parties in a position of deciding how they would like to proceed.
....
And it boils down to this. There is no plea agreement. If the State wants
to go forward and pursue those other charges, they are perfectly free to do that. If
[Mallory] wants to have her guilty plea on the burglary charge stand and go to
sentencing on that, we can do that. But the statute does not allow me to award
restitution to victims who are not the victims of the adjudicated conduct.
Then, the district court expressly inquired whether Mallory consented to restitution for the
Hayden Lake Eagles:
Does [Mallory] consent to allowing the court to determine the amount of
restitution that would be payable to the Hayden Lake Eagles for any economic
loss or injury even though those crimes, alleged crimes, were not adjudicated and
are not before the court?
Responding to this question, Mallory’s counsel stated, “No. . . . We do not consent.” The court
then asked how the State intended to proceed absent Mallory’s consent, and the prosecutor
stated, “I would want to make it very clear so that there’s no confusion later that [Mallory]
understands, I will re-file the grand theft charge and seek restitution for the entire criminal
conduct that has been disclosed.”
At that point, Mallory’s counsel requested “a minute” “to discuss things privately” with
Mallory, and the district court recessed. After that recess, the following exchange occurred
between the court and Mallory’s counsel:
[The Court]: [Y]ou’ve taken a few minutes to talk with [Mallory]. What does
[Mallory] wish to do today?
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[Counsel]: [W]hat we would be agreeable to doing is we’ll let the plea remain
and we will consent to allowing the court to determine the amount
of restitution.
....
[W]e are consenting to the court in making a determination as to
restitution, and that would include her charge of burglary for the
lawn mower and, as the court deems appropriate, other charges that
were dismissed.
....
[The Court]: All right. So let’s make sure I’m clear on this, [counsel].
[Mallory] is willing to consent to the court determining the
restitution amount for economic loss or injury for the Hayden Lake
Eagles arising out of the conduct that was charged in the count in
the complaint where they were named as the alleged victim which
has now been dismissed and they are no longer before the court; is
that correct?
[Counsel]: That is correct.
Following another recess, the district court held an evidentiary hearing to determine the
amount of restitution, including for the Hayden Lake Eagles. That hearing spanned two days,
during which the State called two supporting witnesses to testify about the funds missing from
the Hayden Lake Eagles, including the chairman of the Hayden Lake Eagles’ financial
committee. Mallory also testified. At the hearing’s conclusion, the court indicated it would
accept further evidence regarding restitution at a subsequent sentencing hearing.1 The minutes of
that sentencing hearing, however, indicate that the parties did not provide further evidence but
did present argument about the restitution issues. Further, the minutes indicate the court made
findings of fact and conclusions of law in support of its restitution orders. Thereafter, the court
entered written restitution orders of $10,000 for Liberty Mutual and $19,781.79 for the Hayden
1
The transcript of the final sentencing hearing is not in the appellate record. Mallory was
responsible for providing a sufficient record to substantiate her arguments on appeal. See Powell
v. Sellers, 130 Idaho 122, 127, 937 P.2d 434, 439 (Ct. App. 1997) (“It is the responsibility of the
appellant to provide a sufficient record to substantiate their claims on appeal.”). To the extent
the sentencing hearing is relevant to the issues Mallory raises, we will presume the missing
transcript supports the district court’s actions. See State v. Repici, 122 Idaho 538, 541, 835 P.2d
1349, 1352 (Ct. App. 1992) (ruling missing transcript presumed to support district court’s
actions).
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Lake Eagles.2 It also sentenced Mallory to a unified term of five years with one year
determinate.
Mallory timely appeals the restitution orders.
II.
STANDARD OF REVIEW
Idaho Code Section 19-5304(2) authorizes a sentencing court to order a defendant to pay
restitution for economic loss to the victim of a crime. The decision of whether to order
restitution, and in what amount, is within the discretion of a trial court, guided by consideration
of the factors set forth in I.C. § 19-5304(7) and by the policy favoring full compensation to crime
victims who suffer economic loss. State v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct.
App. 2002); State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct. App. 1989). Thus, we
will not overturn an order of restitution unless an abuse of discretion is shown. Richmond, 137
Idaho at 37, 43 P.3d at 796. When a trial court’s discretionary decision is reviewed on appeal,
the appellate court conducts a multi-tiered inquiry to determine whether the trial court:
(1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such
discretion; (3) acted consistently with any legal standards applicable to the specific choices
before it; and (4) reached its decision by an exercise of reason. Lunneborg v. My Fun Life, 163
Idaho 856, 863, 421 P.3d 187, 194 (2018). “The determination of the amount of restitution is a
question of fact for the trial court whose findings will not be disturbed if supported by substantial
evidence.” State v. Smith, 144 Idaho 687, 692, 169 P.3d 275, 280 (Ct. App. 2007).
III.
ANALYSIS
Mallory argues the district court erred “when it awarded restitution above and beyond the
burglary charge pertaining to the theft of a push lawn mower.” In support, Mallory attempts to
distinguish this Court’s opinion in State v. Shafer, 144 Idaho 370, 161 P.3d 689 (Ct. App. 2007).
In that case, Shafer’s car collided with another vehicle. Id. at 371, 161 P.3d at 690. That vehicle
was a total loss, and the driver suffered several injuries requiring medical attention. Id. The
State charged Shafer with leaving the scene of an injury accident, and he pled guilty and agreed
to pay restitution in an “amount to be determined.” Id.
2
By the time of sentencing, Mallory had already paid the restitution sought for the
pawnshop.
5
At a proceeding to address restitution, the State submitted evidence showing the other
driver suffered $18,013.95 in losses, which included the driver’s medical bills and the
replacement cost of the driver’s vehicle. Id. Shafer objected, arguing those “damages were not
attributable to the crime to which he had pleaded guilty--leaving the scene of the accident--but
rather to the accident itself.” Id. The district court agreed but found Shafer had consented to pay
the damages attributable to the accident. Id.
On appeal, Shafer argued that the district court lacked authority to order restitution
unrelated to the crime of leaving the scene of an accident and that he did not consent to pay the
requested restitution. Id. This Court noted that “Idaho’s restitution statute clearly permits
restitution orders only for ‘any crime which results in an economic loss to the victim,’ I.C. § 19-
5304(2), unless the parties consent to a broader restitution order” under I.C. § 19-5304(9).
Accordingly, the Court ruled that “a defendant cannot be required to pay restitution for damages
stemming from separate, uncharged and unproven crimes” unless “the parties have consented.”
Shafer, 144 Idaho at 372, 161 P.3d at 691.
Regarding Shafer’s argument that he did not consent to paying restitution for damages
stemming from the accident, the Court noted that “the pertinent term of Shafer’s plea bargain
was his agreement to pay restitution in an amount to be determined” and that plea agreements are
contractual in nature and are generally examined in accordance with contract laws. Id. at 374,
161 P.3d at 693. The Court also noted that “generally, an agreement to pay restitution in a
criminal case would probably be deemed to refer unambiguously to statutory restitution, i.e.,
those economic damages caused by the defendant’s criminal conduct” but that in the “unique
context of the crime of leaving the scene of an injury accident” “an agreement to pay restitution
does not unambiguously refer only to any damages directly caused by leaving the scene, but may
impliedly include the economic loss the victim suffered from the accident.” Id. As a result, the
Court concluded the restitution term in Shafer’s plea agreement was ambiguous. Id.
Construing the ambiguous term in Shafer’s plea agreement, the Court concluded
substantial and competent evidence supported the district court’s determination that the parties
intended Shafer to pay the losses the other driver incurred in the accident. Id. In reaching this
conclusion, the Court noted that “the very inclusion of the provision” in the plea agreement
suggested both parties anticipated Shafer would pay restitution in some amount; Shafer received
“an extremely lenient sentencing,” indicating the payment of restitution was in consideration for
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the State’s concessions; and “Shafer did not contest the claimed restitution as a matter of law.”
Id. at 374-75, 161 P.3d at 693-94.
Mallory argues Shafer is distinguishable from this case because “the mere inclusion of a
restitution term in the pretrial settlement offer does not suggest payment of alleged financial
losses”; Mallory’s sentence was “the opposite” of a “very lenient sentence”; and Mallory
“protest[ed] the restitution issue multiples times.” These arguments are unavailing. Most
notably, Mallory fails to address the key fact that, during the May 2020 hearing, she expressly
consented to the district court determining, as it stated, “the restitution amount for economic loss
or injury for the Hayden Lake Eagles arising out of the conduct that was charged in the count in
the complaint where they were named as the alleged victim” but which count had been
dismissed.
After Mallory consented, nothing in the record indicates she ever asserted the district
court lacked authority to order restitution for the Hayden Lake Eagles and Liberty Mutual related
to the dismissed charge. Instead, Mallory proceeded to put on evidence at the evidentiary
hearing to determine restitution and argued against restitution without raising the issue of lack of
consent. Based on these facts, Mallory cannot now inconsistently argue on appeal that she did
not consent to the court’s restitution orders. Cf. McCallister v. Dixon, 154 Idaho 891, 894, 303
P.3d 578, 581 (2013) (noting judicial estoppel precludes party from taking one position and then
subsequently taking an incompatible position). Furthermore, Mallory makes no argument and
provides no citation to supporting authority that her express consent--in response to the court’s
specific inquiry--does not satisfy the requirement in I.C. § 19-5304(9) that the parties must
consent to the court ordering restitution for crimes not adjudicated or not before the court.3
On reply, Mallory asserts the State’s argument that she is “bound by her subsequent
decision to leave her guilty plea intact and to proceed with the determination of the amount of
restitution owed” “completely misinterprets” Mallory’s position. She contends “this appeal
concerns itself with only two questions: (1) Were the Eagles entitled to restitution for the
3
Moreover, Mallory’s argument that the restitution term in the plea settlement offer does
not suggest she agreed to pay restitution to the Hayden Lake Eagles is unpersuasive. As in
Shafer, “the very inclusion of the provision” referencing the Hayden Lake Eagles in the offer
suggested both parties anticipated Mallory would pay restitution in some amount to the Hayden
Lake Eagles. Shafer, 144 Idaho at 374, 161 P.3d at 693.
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dismissed charges; and, (2) Was the amount of restitution ordered correct.” We disagree.
Mallory never raised either of these issues in her opening brief, which focuses exclusively on
whether this case is distinguishable from Shafer and whether Mallory consented to a restitution
order for the Hayden Lake Eagles--without acknowledging her express consent given during the
May 2020 hearing. Although Mallory’s statement of issues presented on appeal does include
whether substantial and competent evidence supported the court’s “restitution order,” Mallory
neither provided argument nor supporting authority for this issue.
Because Mallory did not provide argument or authority for this argument and because she
does not raise the issues of the Hayden Lake Eagles’ “entitlement” to restitution and the
appropriate amount of restitution, we decline to address these issues. See State v. Zichko, 129
Idaho 259, 263, 923 P.2d 966, 970 (1996) (ruling party waives issue on appeal if either authority
or argument is lacking); Gallagher v. State, 141 Idaho 665, 669, 115 P.3d 756, 760 (2005)
(ruling arguments and authority on reply are inadequate to preserve issue). Likewise, we decline
to address Mallory’s remaining arguments asserted for the first time in reply, including that the
district court abused its discretion by ordering restitution for Liberty Mutual and that Mallory’s
consent to the restitution orders was not voluntary, knowing, and intelligent. See Gallagher, 141
Idaho at 669, 115 P.3d at 760 (ruling arguments and authority on reply are inadequate to preserve
issue).
Finally, we reject Mallory’s assertion, raised for the first time during oral argument, that
State v. Hurles, 158 Idaho 569, 349 P.3d 423 (2015), controls this case. In that case, Hurles pled
guilty to grand theft for embezzling from her employer and agreed to pay restitution. Id. at 571,
349 P.3d at 425. At the plea hearing, the State and Hurles “had an understanding of the
parameters of the restitution agreement,” namely that the State would ask for restitution based on
certain information disclosed in discovery. Id. at 574, 349 P.3d at 428. At the restitution
hearing, however, the State introduced and relied on a spreadsheet, created by a third party who
was involved in civil litigation related to Hurles’ theft, for purposes of establishing the amount of
restitution. Id. at 574-75, 349 P.3d 428-29. The district court based its restitution order on this
spreadsheet rather than on the information produced in discovery as the parties had agreed. Id. at
575, 349 P.3d at 429.
At issue on appeal in Hurles was whether substantial and competent evidence supported
the restitution award. Id. at 572, 349 P.3d at 426. The Idaho Supreme Court noted that “there
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was no indication in the record that the parties agreed to modify the restitution agreement” by
substituting the spreadsheet for the discovery information for purposes of determining the
amount of restitution. Id. at 575, 349 P.3d at 429. The Court vacated the order and remanded
the case “[b]ecause the proof presented to support the restitution order did not conform with the
agreement made by the parties.” Id. In reaching this conclusion, the Court ruled that “where an
agreement has not been reduced to writing, and where the oral statements of that agreement on
the record are insufficient to determine the intent of the parties, it may be necessary for the
district court to make further factual findings concerning the terms of the agreement.” Id. at 573-
74, 349 P.3d at 427-28.
In accord with this rule in Hurles, the district court in this case clarified during the May
2020 hearing the parties’ agreement. Specifically, the court concluded “there was not a meeting
of the minds with regard to the restitution on the dismissed count” so “[t]here was no plea
agreement”; the prosecutor stated she intended to “re-file the grand theft charge and seek
restitution for the entire criminal conduct”; and after Mallory consulted with her attorney, he
stated “we’ll let the plea remain” and consent to the court determining restitution for the charge
of burglary and “other charges that were dismissed.” This exchange on the record was sufficient
to establish an agreement between the parties that Mallory consented to the court ordering
restitution for economic loss related to the dismissed grand theft charge. 4
IV.
CONCLUSION
Contrary to Mallory’s argument in her opening brief, the record clearly shows that she
consented to the district court ordering restitution related to the charge of grand theft.
Accordingly, we affirm those orders.
Chief Judge HUSKEY and Judge LORELLO CONCUR.
4
To the extent Mallory’s position taken during oral argument was that the district court
was required to clarify her consent to the court ordering restitution for conduct related to the
dismissed charge at the time of the plea hearing (versus during sentencing), the transcript of the
plea hearing is not in the appellate record. The appellant has the responsibility to provide a
sufficient record to substantiate her claims on appeal. State v. Murinko, 108 Idaho 872, 873, 702
P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on appeal to support the
appellant’s claims, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d
1009, 1011 (Ct. App. 1991).
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