State v. Sevastopoulos , 2020 UT App 6 ( 2020 )

2020 UT App 6THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KATHLEEN SEVASTOPOULOS,
Appellant.
Opinion
No. 20180452-CA
Filed January 3, 2020
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 161904929
Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 After Kathleen Sevastopoulos’s parents (Parents)
confronted her for making unauthorized transfers from their
bank account, they noticed a slew of additional suspicious
transactions. Parents ultimately discovered that Sevastopoulos
had stolen over $246,000 from them through over 200
unauthorized transfers to pay her credit card bills. After criminal
charges were brought against her, Sevastopoulos pled guilty to
two counts: theft and theft by deception. As a condition of
Sevastopoulos’s probation, the district court entered a restitution
order. Sevastopoulos appeals this order, arguing that the district
court made various errors in calculating restitution and that her
counsel was constitutionally ineffective. Because we conclude
that the only reversible error was the district court’s inclusion of
State v. Sevastopoulos
two of the numerous transfers in the restitution order, we affirm
in part, reverse in part, and remand this matter for entry of an
amended restitution order consistent with our opinion.
BACKGROUND
¶2 When Parents noticed suspicious transactions on their
bank statements, Sevastopoulos’s mother (Mother) asked
Sevastopoulos about the transactions. Sevastopoulos admitted to
making the transactions. After their discussion, Mother thought
they “had it all cleared up.” But unexplained charges continued
to appear on Parents’ bank statements. Parents noticed payments
for credit cards they did not own. This prompted Mother to send
Sevastopoulos a letter with an attached bank statement. On the
bank statement, Mother indicated that she had authorized two of
the transactions—totaling $657.43—but that seven of the
transactions were a mystery to her. Although Mother had given
Sevastopoulos money in the past, she had always done so
through handwritten checks. Parents would later testify that
they always used paper checks and that they did not know how
to effectuate electronic transfers. These suspicious transactions
were processed as automated clearing house transfers, which are
electronic payments made using an account number, routing
number, and often—but not invariably—a check number. The
suspicious transactions were all payments made to
Sevastopoulos’s credit card accounts with American Express,
Bank of America, Nordstrom, Chase, and U.S. Bank (Credit Card
Companies).
The Lawsuits
¶3 Parents hired an attorney, who in turn hired a forensic
accountant (Accountant) to assist the attorney with looking into
the unexplained payments. The attorney contacted the Credit
Card Companies to obtain refunds, but most of them were
“extremely difficult” to work with. The attorney then filed
20180452-CA 2 2020 UT App 6State v. Sevastopoulos
lawsuits against all the Credit Card Companies but one, which
was “easier to work with.” Most of the Credit Card Companies
settled the lawsuits by refunding Parents a portion of the
unauthorized transfers. However, the attorney dropped the
lawsuit against U.S. Bank after it produced authorized,
handwritten checks for the disputed transfers. But after further
review, the Accountant identified unauthorized electronic
transfers involving U.S. Bank, totaling $9,390. During the
lawsuits against the Credit Card Companies, the Accountant
identified numerous unauthorized electronic transfers to the
Credit Card Companies, amounting to a grand total of
$246,937.90. In all, Parents were able to recover $131,701.63 from
the Credit Card Companies. The attorney and accountant fees
associated with recouping the unauthorized transfers initiated
by Sevastopoulos were $40,000.
The Criminal Investigation
¶4 The situation was brought to the attention of law
enforcement, and a detecitve (Detective) began to investigate.
During the investigation, Detective reviewed statements from
the Credit Card Companies—some by way of subpoena—and
matched the unauthorized transfers from Parents’ bank account
with the transfers on the statements from the Credit Card
Companies. Detective also interviewed Sevastopoulos on several
occasions. In these interviews, Sevastopoulos admitted to
making approximately 200 transfers from Parents’ account to the
Credit Card Companies, but she claimed she had permission to
do so. To substantiate her claim, she showed Detective the letter
Mother had sent her. The letter included Mother’s writing: “I’m
totally confused about [some] charges which were not made by
me.” Later, Detective testified that the letter did not appear to
give Sevastopoulos permission to make the transfers, stating,
“[W]hen I read through this document . . . it didn’t seem as
though . . . there was really consent given.” Based on Detective’s
investigation, Sevastopoulos was arrested.
20180452-CA 3 2020 UT App 6State v. Sevastopoulos
¶5 The State initially charged Sevastopoulos with one count
of felony theft and two counts of exploitation of a vulnerable
adult, but Sevastopoulos ultimately pled guilty to theft and theft
by deception, both misdemeanors. The plea agreement listed the
basis for both charges as happening “[o]n or about January 17,
2015.” It also stated that Sevastopoulos pled guilty to counts one
and two, and the amended information listed the offenses as
occurring “on or about July 01, 2013, to January 17, 2015.” The
plea agreement also included a provision that Sevastopoulos
would pay “any restitution that may be owed on charges that
are dismissed as part of [the] plea agreement.” Sevastopoulos
also acknowledged, when questioned by the court, that there
could be a legal obligation for her to pay restitution to the
victims in the case for their financial loss. On August 30, 2017,
the court sentenced Sevastopoulos to serve 180 days in jail and
placed her on probation, with restitution being a condition
thereof. The court reserved the amount of restitution for later
determination.
The Restitution Order
¶6 The State subsequently filed a motion for restitution.
Sevastopoulos objected, claiming that (1) she “never agreed to
pay any amount of restitution as part of her plea,” (2) she
rightfully used the funds, and (3) the matter was at the time a
subject of civil litigation involving a family trust, and thus
“[r]estitution would be inappropriate under these
circumstances.” The district court rejected Sevastopoulos’s
objection, explaining that under State v. Ogden, 2018 UT 8, 416
P.3d 1132, there was “nothing about the pending civil action that
prevent[ed] th[e] court from going forward and having a
restitution hearing.” The court then set a restitution hearing for
March 20, 2018. On the day of the hearing, Sevastopoulos moved
for a continuance, which the court granted. The court also
ordered the parties to exchange financial declarations, witness
lists, and exhibit lists, which the parties did.
20180452-CA 4 2020 UT App 6State v. Sevastopoulos
¶7 On April 26, 2018, the court held a full-day evidentiary
hearing in which the State presented its evidence, including
testimony from Parents, Parents’ attorney, the Accountant, and
Detective, as well as substantial documentary evidence. The
witnesses testified as to their roles in discovering and identifying
the fraudulent transfers. Based on the evidence, the district court
concluded that Sevastopoulos had proximately caused Parents’
financial losses and ordered Sevastopoulos to pay $148,243.27 in
restitution. The court arrived at that number by determining that
Sevastopoulos stole $246,937.90 from Parents, which it offset by
the $131,701.63 that Parents recovered from the Credit Card
Companies, equaling $108,243.27 plus the costs of the attorney
fees ($38,000) and the accountant fees ($2,000). In its calculation,
the court included 219 transfers to the Credit Card Companies:
the later-discovered U.S. Bank transfers, 125 transfers with
associated check numbers, the two transfers Mother explicitly
authorized, 1 and numerous others.
¶8 The district court’s restitution order precipitated this
appeal.
ISSUES AND STANDARDS OF REVIEW
¶9 Sevastopoulos challenges the restitution order, raising
three issues. The first two issues are whether the district court
erred when it included the attorney and accountant fees in its
restitution order and whether the district court erred when it
included the rest of the requested restitution—all 219 transfers—
in its order. “We will not disturb a district court’s restitution
determination unless the court exceeds the authority prescribed
by law or abuses its discretion.” State v. Ogden, 2018 UT 8, ¶ 25,
416 P.3d 1132 (cleaned up); accord State v. Laycock, 2009 UT
1. We reverse the district court’s order as to these two transfers.
See infra ¶ 18.
20180452-CA 5 2020 UT App 6State v. Sevastopoulos
53, ¶ 10, 214 P.3d 104. “A restitution order will be overturned for
abuse of discretion only if no reasonable person would take the
view adopted by the trial court.” State v. Thomas, 2016 UT App
79, ¶ 4, 372 P.3d 87 (per curiam) (cleaned up).
¶10 The third issue is whether the district court violated
Sevastopoulos’s constitutional right to due process by
conducting a restitution hearing where, as Sevastopoulos argues,
“the complicated determinations would be better handled as a
civil matter.” But Sevastopoulos did not preserve this issue
below. 2 Nevertheless, she contends, in the alternative, that her
attorney rendered constitutionally ineffective assistance when
counsel failed to raise the constitutional law objection she now
advances on appeal. We therefore consider this issue under the
rubric of ineffective assistance of counsel. “When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Crespo, 2017 UT
App 219, ¶ 22, 409 P.3d 99 (cleaned up).
2. Sevastopoulos’s objection to the restitution hearing was one
paragraph long and invoked three reasons for the district court
not to proceed: (1) she “never agreed to pay any amount of
restitution as part of her plea,” (2) she rightfully used the funds,
and (3) the matter was at the time a subject of civil litigation,
which involved a family trust. Her truncated objection did not
articulate any constitutional law issue. Moreover, in discussing
State v. Ogden, 2018 UT 8, ¶ 27 n.5, 416 P.3d 1132, when
overruling Sevastopoulos’s objections, the court was not ruling
on a constitutional law issue. Rather, it was addressing exactly
the objection Sevastopoulos raised: whether the court could
move forward despite a simultaneous civil proceeding on a
separate matter.
20180452-CA 6 2020 UT App 6State v. Sevastopoulos
ANALYSIS
I. The Attorney and Accountant Fees
¶11 Sevastopoulos contends that the attorney and accountant
fees were improperly included in the district court’s restitution
order. Under the Crime Victims Restitution Act (Restitution
Statute), courts are required to order restitution when a
defendant commits a crime that “has resulted in pecuniary
damages.” Utah Code Ann. § 77-38a-302(1) (LexisNexis 2012). At
the relevant time, pecuniary damages were defined as “all
demonstrable economic injury, whether or not yet incurred,
which a person could recover in a civil action arising out of the
facts or events constituting the defendant’s criminal activities.” 3
Id. § 77-38a-102(6). Thus, what one can recover in a civil action
informs our inquiry here.
¶12 Generally, “costs or expenses incurred in the maintenance
of, or related to, litigation” are not recoverable in a civil action,
unless provided for by contract or statute. State v. Brown, 2014
UT 48, ¶¶ 23–24, 342 P.3d 239 (citing Restatement (Second) of
Torts § 914(1) (Am. Law Inst. 1979)) (holding that the lost
wages and expenses requested by the victim and her mother
would not be recoverable in a civil action against the defendant,
and therefore they were not compensable as restitution).
Likewise, criminal investigative costs are generally not
3. The legislature amended the Restitution Statute in 2016 to “all
demonstrable economic injury, whether or not yet incurred,
including those which a person could recover in a civil action.”
Utah Code Ann. § 77-38a-102(6) (LexisNexis Supp. 2016)
(emphasis added). This seems to indicate that damages are no
longer strictly limited to what one could recover in a civil action.
However, we analyze the statute as it was in effect at the time of
Sevastopoulos’s admitted thefts.
20180452-CA 7 2020 UT App 6State v. Sevastopoulos
recoverable in a civil action. E.g., State v. Depaoli, 835 P.2d 162,
165 (Utah 1992).
¶13 However, one exception to these general rules is the
“third-party tort rule.” South Sanpitch Co. v. Pack, 765 P.2d 1279,
1282–83 (Utah Ct. App. 1988) (holding that the attorney fees
were recoverable under the third-party tort rule and explaining
that “when the natural consequence of one’s negligence is
another’s involvement in a dispute with a third party, attorney
fees reasonably incurred in resolving the dispute are recoverable
from the negligent party as an element of damages”). Under the
third-party tort rule, “[o]ne who through the tort of another has
been required to act in the protection of his interests by bringing
or defending an action against a third person is entitled to
recover reasonable compensation for loss of time, attorney fees
and other expenditures.” Restatement (Second) of Torts § 914(2);
see also State v. Jamieson, 2017 UT App 236, ¶ 21, 414 P.3d 559(discussing the third-party tort rule but concluding that it was
inapplicable because the victim was compelled to participate in
the prosecution pursuant to a subpoena and did not initiate or
defend any litigation with third parties), cert. granted, 421 P.3d
439 (Utah 2018). Without this exception, the costs of protecting
victims’ interests resulting from criminal defendants’ actions
would be inappropriately allocated to the victims themselves—a
result that would contradict both equity and the very purposes
of the Restitution Statute. See State v. Ogden, 2018 UT 8, ¶ 43, 416
P.3d 1132 (explaining that the purposes of the Restitution Statute
are to compensate victims, to rehabilitate defendants, and to
deter crime).
¶14 Here, the attorney and accountant fees fall directly within
the parameters of the third-party tort rule. The fees are
recoverable, in this situation, because they were incurred in
response to Sevastopoulos’s admitted thefts and through the
pursuit of litigation against the third-party Credit Card
Companies. And although legally immaterial to whether the
20180452-CA 8 2020 UT App 6State v. Sevastopoulos
third-party tort rule applies, the rule’s equity here is relatively
easy to identify because Parents ultimately benefitted from the
third-party lawsuits. The district court reduced the figure the
Accountant identified as stolen—$246,937.90—by $131,701.63
based on the efforts of the attorney and Accountant to protect
Parents’ financial interests through recovery of a portion of the
stolen funds. 4 Thus, not only are the attorney and accountant
fees recoverable under the letter of the law, they fall within the
spirit of the third-party tort rule as well, which is to incentivize
injured parties to protect their interests and to mitigate damages.
See Restatement (Second) of Torts § 914(2).
¶15 Nevertheless, Sevastopoulos argues that the accountant
fees were indistinguishable from investigation fees. However,
the crucial distinction here is that Parents paid the Accountant to
assist in the lawsuits against the Credit Card Companies, not to
assist in Sevastopoulos’s criminal prosecution. That the
Accountant’s work was later helpful to the State in its
4. Sevastopoulos benefitted from the third-party lawsuits as
well. The State focused its restitution efforts only on Parents—
the immediate victims of her fraudulent conduct. So, the
amounts disgorged by the Credit Card Companies to Parents
were credited against the amount of their losses otherwise
recoverable from Sevastopoulos, resulting in a substantially
smaller restitution award. The State did not argue that the Credit
Card Companies were victims of Sevastopoulos’s crimes or that
she should have made restitution to the Credit Card Companies
for the losses proximately caused by her misappropriation of
Parents’ funds and ultimately borne by the Credit Card
Companies. Thus, we have no occasion to consider whether the
“demonstrable economic injury” sustained by the Credit Card
Companies could have been included in the restitution award
ordered in this case, in addition to the losses ultimately borne by
Parents.
20180452-CA 9 2020 UT App 6State v. Sevastopoulos
prosecution is beside the point of whether Parents are entitled to
restitution under the third-party tort rule for the costs that
Parents incurred.
¶16 Sevastopoulos also argues that the attorney fees are not
recoverable in a civil action for conversion, as a matter of law,
citing Broadwater v. Old Republic Surety, 854 P.2d 527, 534 (Utah
1993). This argument misapprehends Broadwater. In Broadwater,
the plaintiff was not entitled to attorney fees because she
proceeded in litigation against the original tortfeasor. Id. at 535.
However, in coming to this conclusion, our supreme court
specifically recognized the difference between the case before it
and the situation where a party has to protect its interests
through litigation with a third party based on the actions of
the original offending party—in other words, the third-party
tort rule. Id. Thus, Broadwater simply is not applicable to this
case.
¶17 Accordingly, because we conclude that the attorney and
accountant fees would be recoverable in a civil action under the
facts of this case, and thus compensable as restitution under the
Restitution Statute, we affirm the portion of the restitution order
related to the attorney and accountant fees. 5
5. In cases like this one, the district court should ensure not only
that the attorney fees were properly calculated, but that “an
allocation is made between recoverable fees incurred in litigation
with third parties and non-recoverable fees incurred in pursuing
the negligent defendant or expended on causes of action not
proximately necessitated by that defendant’s” actions. South
Sanpitch Co. v. Pack, 765 P.2d 1279, 1283 (Utah Ct. App. 1988).
Here, the attorney and accountant fees were strictly limited to
the legal work performed to recover the stolen money from the
third-party Credit Card Companies.
20180452-CA 10 2020 UT App 6State v. Sevastopoulos
II. The Remaining Portions of the Restitution Order
¶18 Sevastopoulos contends that the district court erred by
concluding that causation had been established for the entire
amount of the requested restitution. Sevastopoulos is correct—
and the State concedes—that two transactions totaling $657.43
for which the district court ordered restitution were improper
because Mother explicitly authorized them. We therefore reverse
the district court’s order as to those two transactions. However,
we disagree with Sevastopoulos that the court abused its
discretion when it included the rest of the transactions in its
restitution order.
¶19 “Proximate cause is required to find that a criminal
activity has resulted in pecuniary damages” and thus to order
restitution. State v. Ogden, 2018 UT 8, ¶ 48, 416 P.3d 1132(cleaned up). “For proximate cause to exist, the relationship
between the [particular] act and the injury must be foreseeable.”
Id. ¶ 47 (cleaned up).
¶20 Here, the record reflects that Sevastopoulos proximately
caused the pecuniary damage related to the other 217 transfers.
Sevastopoulos pled guilty to theft of the funds, and she admitted
to Detective on several occasions that she made approximately
200 transfers from Parents’ account to the Credit Card
Companies. Detective added his testimony that, based on his
investigation, the funds were indeed fraudulently transferred.
Moreover, Parents testified that the transfers were unauthorized.
Finally, the Accountant testified as to his assessment of the
fraudulent transfers and calculation of the total amount of stolen
money.
¶21 Despite her guilty plea and this evidence, Sevastopoulos
maintains that the district court erred in its restitution order. All
her arguments on this point focus narrowly on the facts
favorable to her, while ignoring important countervailing
evidence. We therefore determine that none of Sevastopoulos’s
20180452-CA 11 2020 UT App 6State v. Sevastopoulos
contentions have sufficient merit to reverse the remaining
portion of the district court’s restitution order, but we address
them in turn.
¶22 First, Sevastopoulos argues that because she pled guilty to
only two counts of theft and her plea stated that both counts
occurred “on or about January 17, 2015,” the State did not
establish proximate cause on more than two of the transfers. We
disagree. We recently addressed a similar argument in State v.
Randall, 2019 UT App 120, 447 P.3d 1232. In Randall, the
defendant pled guilty to defrauding numerous investors, but he
later argued that his guilty plea did not extend to all 156 victims
based on some similar language in his plea agreement. Id. ¶ 14.
However, we pointed out that the district court acted within its
broad discretion in ordering restitution to all 156 victims based
on other language in the defendant’s plea agreement, the
defendant’s own admissions of guilt, and the broad nature of the
crime—engaging in a pattern of unlawful activity. Id. ¶¶ 14–18.
¶23 In this case, like the defendant did in Randall,
Sevastopoulos focuses too narrowly on the favorable language in
her plea agreement. See id. ¶ 14. Sevastopoulos’s plea agreement
also included language that she pled guilty to counts one and
two in the amended information, and the amended information
listed those offenses as occurring “on or about July 01, 2013, to
January 17, 2015.” This clearly entails a broader time period than
the single date on which Sevastopoulos focuses. 6 The plea
6. Sevastopoulos argues that transfers that were made outside of
this period should not have been included in the district court’s
restitution order. However, this argument was neither raised
below nor presented to us until Sevastopoulos’s reply brief.
Other than to note that time was not an element of the offenses,
we decline to address this argument any further. Camco Constr.
Inc. v. Utah Baseball Academy Inc., 2018 UT App 78, ¶ 42 n.13, 424
(continued…)
20180452-CA 12 2020 UT App 6State v. Sevastopoulos
agreement also included Sevastopoulos’s assent to pay “any
restitution that may be owed on charges that are dismissed as
part of [the] plea agreement.” The State dismissed one count of
felony theft and two counts of exploitation of a vulnerable adult,
which indicates that there were additional counts—i.e., beyond
the two on which Sevastopoulos focuses—that had no financial
limits for which Sevastopoulos agreed to be liable. See Utah
Code Ann. § 76-6-412(1)(a)(i) (LexisNexis 2012) (providing that
theft of property is punishable as a second-degree felony when
the “value of the property . . . exceeds $5,000”); id. § 76-5-
111(4)(a) (prohibiting financial exploitation of a vulnerable adult
as to any financial amount).
¶24 And like the defendant in Randall, Sevastopoulos
acknowledged to the district court, both orally and in writing
through the plea agreement, that she would have a legal
obligation to pay restitution to the victims for their financial loss.
2019 UT App 120, ¶ 15. She also admitted to Detective that she
had made the numerous transfers, like the defendant’s
admission of defrauding the numerous investors in Randall. Id.We therefore reject Sevastopoulos’s argument that she owes
restitution for only two transfers based on her plea agreement.
Utah Code Ann. § 77-38a-302(2)(a) (“‘Complete restitution’
means restitution necessary to compensate a victim for all losses
caused by the defendant.”).
¶25 Second, Sevastopoulos argues that the district court
should not have included restitution for 125 electronic transfers
that included check numbers. But a claim that she did not make
these transfers would be directly contradicted by her admission
(…continued)
P.3d 1154 (“Issues raised by an appellant in the reply brief that
were not presented in the opening brief are considered waived
and will not be considered by the appellate court.” (cleaned up)).
20180452-CA 13 2020 UT App 6State v. Sevastopoulos
to Detective that she made approximately 200 transfers because
without these 125 transfers, the total number of transfers would
be fewer than 100. Also, Parents testified that they never made
electronic transfers, and there was evidence that many electronic
bank transfers are in fact executed by using check numbers. 7
Therefore, once again, Sevastopoulos ignores the contradictory
evidence upon which the district court appropriately based its
order.
¶26 Finally, Sevastopoulos argues that the transfers to U.S.
Bank were improperly included because even Parents’ attorney
admitted that the case against U.S. Bank was correctly dismissed.
This is only half of the story. After Parents’ attorney agreed to
dismiss the case, the Accountant looked further into the situation
and determined that there were, in fact, unauthorized transfers
to U.S. Bank, and the Accountant so testified at the restitution
hearing.
¶27 Simply put, Sevastopoulos’s arguments are unpersuasive
because they do not paint the complete factual picture.
Accordingly, because we cannot conclude that the district
court erred in determining that Sevastopoulos’s conduct
proximately caused the financial harm to Parents in connection
with the 217 transfers, we affirm its order in this regard.
However, as previously stated, we reverse the district court’s
7. Although the two explicitly authorized transfers had
associated check numbers, this does not ipso facto prove a
conflict in Parents’ testimony about never making electronic
transfers because Sevastopoulos could have easily made them
electronically with use of the check numbers. Moreover, the
“existence of a conflict in the evidence does not render the
totality of the evidence insufficient. It is the role of the factfinder
to examine and resolve such conflicts.” State v. Black, 2015 UT
App 30, ¶ 19, 344 P.3d 644.
20180452-CA 14 2020 UT App 6State v. Sevastopoulos
inadvertent inclusion of the two transfers that Mother explicitly
authorized.
III. Ineffective Assistance of Counsel
¶28 Sevastopoulos contends that her counsel was
constitutionally ineffective for not raising a constitutional due
process objection to the restitution order. To prevail on an
ineffective assistance of counsel claim, a defendant must
establish both that counsel’s performance was objectively
deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.
Wilder, 2018 UT 17, ¶ 17, 420 P.3d 1064. “Because both prongs of
the Strickland test must be met to establish ineffective assistance
of counsel, we need not always address both prongs.” State v.
Goode, 2012 UT App 285, ¶ 7 n.2, 288 P.3d 306; see also State v.
Roberts, 2019 UT App 9, ¶ 23, 438 P.3d 885 (“In practice, we often
skip the question of deficient performance when a defendant
cannot show prejudice.”). In this case, because Sevastopoulos
cannot show prejudice, we do not address the deficient
performance prong.
¶29 “To show prejudice in the ineffective assistance of counsel
context, the defendant bears the burden of proving . . . that there
is a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different.” State v.
Beverly, 2018 UT 60, ¶ 30, 435 P.3d 160 (cleaned up). It is
insufficient to show “some conceivable effect on the outcome of
the proceeding”; rather, “the likelihood of a different result must
be substantial.” Menzies v. State, 2014 UT 40, ¶ 91, 344 P.3d 581(cleaned up). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at
694.
¶30 Sevastopoulos cannot show prejudice because the
evidence against her was sufficiently robust and because she
received significant opportunities to contest the ordered
20180452-CA 15 2020 UT App 6State v. Sevastopoulos
restitution at her hearing. Compare State v. Weeks, 2002 UT 98,
¶ 21, 61 P.3d 1000 (holding that “the presentence report
sufficiently supported the sentencing court’s” restitution order,
even though it was “the only evidence presented to the
sentencing court”), with State v. Robinson, 860 P.2d 979, 982 (Utah
Ct. App. 1993) (holding that ordering restitution violated the
defendant’s right to due process because he “never had an
opportunity to raise the issues of whether his improper lane
change was the proximate cause of the victims’ injuries or
whether the victims were comparatively negligent”). The district
court based the restitution order on all the evidence outlined
above: (1) significant testimony from Parents, Detective, and the
Accountant; (2) Sevastopoulos’s own admissions and plea
agreement; and (3) documentary evidence of the bank transfers.
The court also provided Sevastopoulos with ample opportunity
to contest the State’s restitution evidence: (1) Sevastopoulos had
months to prepare; (2) she moved for a continuance on the day
of the initial restitution hearing, which the court granted; (3) the
court ensured that the parties exchanged financial declarations,
witness lists, and exhibit lists; and (4) Sevastopoulos had an
opportunity at a full-day hearing to present her case.
¶31 Nevertheless, Sevastopoulos contends that her right to
due process was violated because she did not receive the
opportunity to utilize interrogatories or depositions. We cannot
agree. She never requested to use these discovery tools during
the proceedings at the district court. Nor does she explain what
evidence they would have unearthed to benefit her cause.
¶32 Moreover, due process was afforded to Sevastopoulos.
Due Process is generally defined as providing, “at a minimum,
timely and adequate notice and an opportunity to be heard in a
meaningful way,” In re Worthen, 926 P.2d 853, 876 (Utah 1996)
(cleaned up), and is a flexible concept of fairness affording
procedural protections that a given situation demands, Dairy
Product Services, Inc. v. City of Wellsville, 2000 UT 81, ¶ 49, 13 P.3d
20180452-CA 16 2020 UT App 6State v. Sevastopoulos
581. From Sevastopoulos’s sentencing on August 30, 2017, which
included restitution as a condition of her guilty plea, to the final
restitution hearing on April 26, 2018, 239 days had passed. This
is longer than the 210 days to complete discovery in a tier 3 civil
action claiming damages of $300,000 or more. Utah R. Civ. P.
26(c)(5). Thus, she had notice and abundant time to prepare.
Furthermore, the district court afforded Sevastopoulos a full-day
evidentiary hearing and required the parties to make significant
disclosures. Finally, Sevastopoulos makes no claim that she was
precluded from calling any witnesses or offering any particular
evidence.
¶33 In short, we cannot conclude that there is a reasonable
probability that the outcome of the restitution order would have
been different, even if Sevastopoulos’s attorney had raised the
due process objection, given the strength of the evidence and the
process provided to her.
CONCLUSION
¶34 We conclude that the district court erred by including the
two transfers that Mother explicitly authorized in the restitution
order. We therefore remand the matter for the district court to
enter an amended restitution order, reducing the total amount of
restitution by $657.43. However, we conclude that the district
court did not otherwise err when it included the attorney and
accountant fees and remaining transfers in the restitution order.
Finally, we conclude that Sevastopoulos’s attorney was not
constitutionally ineffective.
¶35 Affirmed in part, reversed in part, and remanded.
20180452-CA 17 2020 UT App 6