author: MORTENSEN, Judge:

text:
    STATE of Utah, Appellee, v. Viliamu SEUMANU, Appellant.
    No. 20150593-CA
    Court of Appeals of Utah.
    Filed May 23, 2019
    Brett J. DelPorto, Attorney for Appellant
    Sean D. Reyes and Kris C. Leonard, Salt Lake City, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Diana Hagen concurred.
    Opinion
   MORTENSEN, Judge:

¶1 In retaliation for a drug deal gone sideways, Chris Leech orchestrated the kidnapping of two individuals (Middleman and Victim). Leech and several other individuals-including defendant Viliamu Seumanu-held, bound, and transported Middleman and Victim to a remote location in Weber Canyon. There, Leech shot Victim and then told Middleman to shoot Victim or else Leech would kill Middleman. Middleman complied. Seumanu, under the orders of Leech, later destroyed all physical evidence of the murder. Seumanu was charged with murder, aggravated kidnapping of Victim and Middleman, and obstruction of justice. A jury convicted Seumanu on all charges. He appeals one of the aggravated kidnapping convictions for which he was sentenced to life without parole. We affirm.

BACKGROUND

The Murder

¶2 Middleman was supposed to deliver four ounces of methamphetamine to a distributor (Soules) waiting at a local residence (Residence). Middleman could not reach his supplier and, therefore, could only procure two ounces. During the additional two-day wait to get more methamphetamine, Middleman confided his problem to Victim, who offered to get the remaining two ounces for a little more money. After Middleman was yet again unable to reach his supplier, he accepted Victim's offer to get the additional two ounces without notifying Soules of the deal or the price increase.

¶3 Middleman waited at a friend's house while Victim went to get the drugs. Victim took longer than expected and stopped answering his phone when Middleman called. This caused Middleman to begin ignoring Soules's repeated requests for an update on where the drugs were.

¶4 After waiting several hours, Middleman had Soules pick him up. Together, they went to the Residence, where Middleman told Soules about Victim and how Victim was now in charge of procuring the additional two ounces of methamphetamine. Soules complained that she had customers waiting and urged Middleman to get the problem taken care of before Leech arrived. Soon thereafter, Leech arrived at the Residence.

¶5 Upon arrival, Leech pulled out a gun and asked Middleman what was going on. Middleman tried to assure Leech that he was dealing with it, to which Leech replied that he had better get it done "or it was [Middleman's] ass." After this exchange, Leech left a man with a gun in the garage with Middleman and refused to let Middleman leave. Around this time, Seumanu and several others arrived at the Residence.

¶6 In an effort to find and punish Victim, four men-Leech, Seumanu, Middleman, and one other (Myore)-left the Residence and went to an apartment where Victim was supposed to meet Soules. When Victim arrived at the apartment, Leech pulled a gun out and ordered Victim and Middleman to lie face down, side-by-side, on the floor. Leech then frisked them both, removed their shoes, and emptied their pockets. Victim tried to explain that he had the additional two ounces of drugs, but Leech told him to shut up. Leech then ordered Myore to blindfold both men and tie their hands behind their backs, which he did. While there were other people present in the room, including Seumanu, no one tried to stop Leech.

¶7 In the early morning hours, Myore transferred Middleman and Victim to the backseat of Myore's truck. Seumanu sat in the backseat next to Middleman and Victim. Myore then drove Leech, Seumanu, Victim, and Middleman to an abandoned road in Weber Canyon, stopping once for gas. During their travels, Victim pleaded for his life and asked them not to follow through with their plan. He promised not to say anything to anyone, but Leech said it was already "too late."

¶8 Leech asked Myore for his firearm, and Myore complied. On Leech's order, Seumanu opened the door of the truck and escorted Middleman and Victim approximately 100 yards down a hill. There, after their faces were uncovered, Middleman looked to Victim, who said, "I guess this is it," and, "I'm sorry, bro." Leech then shot Victim in the back.

¶9 Next, Leech unbound Middleman's hands. He then handed his gun to Middleman and said, "There's your home boy, you finish it or I'm going to kill you." Middleman attempted to fire a single shot at Victim, but the gun jammed. Middleman quickly gave the gun back to Leech, who ordered Seumanu to point a different gun at Middleman's head. Seumanu did so, and once the original gun was unjammed, Leech gave it back to Middleman. With a gun pressed against the back of Middleman's head, Middleman shot Victim.

¶10 Victim was left alone where he was shot, and the four other men-Leech, Seumanu, Myore, and Middleman-left in the truck. On the way back to the Residence, Leech directed everyone to pretend they were still trying to find Victim. Leech further ordered Myore to clean, vacuum, and shampoo the truck, and he told Seumanu to burn everything belonging to Victim and Middleman. Myore and Seumanu complied.

The Investigation

¶11 Several months later, detectives from the West Valley City Police Department discovered Victim's body. Police interviewed many of the people present the night of the murder, including Seumanu. During Seumanu's interview, he claimed that he did not know what the officers were talking about and stated that "it had been a while since he'd seen" Middleman; and he last saw Victim three or four months earlier smoking outside an apartment complex in Taylorsville. When pressed further, Seumanu changed his story, admitting that he had been at the Residence with Soules, Myore, Leech, Middleman, and Victim.

¶12 Seumanu then admitted that he waited for Victim at the Residence along with Soules, Myore, Middleman, and Leech; he got into Myore's truck and went into the mountains; the group stopped for gas on the way to Weber Canyon; they drove about an hour; and they parked near a gate and everyone else got out while he remained at the truck. Seumanu eventually told police that Leech and Myore walked Middleman and Victim down a hill while he followed, that he watched Leech shoot Victim, saw Leech and Middleman walk toward Victim's body, and saw Middleman shoot Victim. Finally, Seumanu stated that when they returned from Weber Canyon, Myore and Leech took care of destroying evidence while he went home.

The Proceedings

¶13 Over a year before trial, the State filed charges against Seumanu as an accomplice to one count of murder, two counts of aggravated kidnapping, and one count of obstruction of justice (Information). Count 3 in the Information is titled "AGGRAVATED KIDNAPPING" and makes specific reference to the aggravated kidnapping statute: Utah Code section 76-5-302. The Information also contains the State's probable cause statement describing Seumanu's role in the kidnapping and that during the course of Middleman's kidnapping, Victim was shot and killed.

¶14 On the morning of trial, Seumanu received the State's proposed verdict form (Verdict Form), proposed special verdict form (Special Verdict Form), and proposed jury instruction 40 (Instruction 40). The Verdict Form listed the charges-including count 3 for aggravated kidnapping-and required the jury to indicate whether Seumanu was guilty or not guilty on each charge. The Special Verdict Form required the jury to indicate whether it found "beyond a reasonable doubt" that "[d]uring the course of the commission of the Aggravated Kidnapping of [Middleman,] [Seumanu], as a party, caused serious bodily injury to [Victim]"-which, if found, could result in a sentence of life without parole. Instruction 40 defined the "as a party" language used in the Special Verdict Form. Specifically, Instruction 40 stated that "a person can commit a criminal offense even though that person did not personally do all of the acts that make up the offense" if "(1) the defendant had the mental state required to commit the offense, and (2) the defendant solicited, requested, commanded, encouraged, or intentionally aided another to commit the offense, and (3) the offense was committed." When Seumanu's counsel received the Verdict Form, the Special Verdict Form, and Instruction 40, he did not object, request a continuance, or indicate that he was unprepared to proceed with trial.

¶15 At trial, Seumanu claimed that his presence at the murder was coerced by Leech and that his actions did not contribute to the murder. His wife (Wife) also testified that she attempted to persuade Leech not to do anything, but he was "gone in his mind" and would not listen. She claimed that she attempted to prevent Leech from taking Seumanu with him, but in response, Leech pointed his gun at her and insisted that Seumanu would be leaving with him. And only then did Seumanu agree to go. Finally, she testified that Seumanu returned the next morning and called her to pick him up at the Residence.

¶16 At least two accomplice witnesses also testified that (1) Seumanu had a gun at some point on the night of the murder; (2) Leech handled two guns at the murder scene while Seumanu stood close by; (3) Seumanu was present for the drive up Weber Canyon; (4) Seumanu hiked to the murder scene with Leech, Middleman, and Victim; (5) Seumanu returned to the Residence with the others; and (6) Leech ordered Seumanu to burn everything belonging to Middleman and Victim. The trial court did not specifically provide a cautionary instruction on accomplice testimony, but it did provide a general credibility instruction educating jurors generally on witness credibility, including explicit instructions to consider whether any witnesses had a personal interest in the outcome of the trial or had some other bias or motive to testify a certain way.

¶17 After the evidence phase of trial, the parties discussed the jury instructions and verdict forms. This time, Seumanu objected to the Special Verdict Form on the grounds that he had not received notice in the Information that the State was seeking a life without parole sentence. The court overruled the objection and allowed the State's Special Verdict Form to be submitted to the jury. The court also allowed the Verdict Form and Instruction 40 as proposed by the State to be submitted to the jury.

¶18 The jury convicted Seumanu on all charges and further found, beyond a reasonable doubt, that Seumanu had caused serious bodily injury to Victim during the commission of the aggravated kidnapping of Middleman. The judge ultimately imposed the statutory indeterminate sentences for three of the four felony convictions and life without parole for one of the aggravated kidnapping convictions. Seumanu appeals.

ISSUES AND STANDARDS OF REVIEW

¶19 Seumanu raises three issues on appeal. First, he asserts that he is entitled to a new trial because his Sixth Amendment right to be given fair notice of the charges against him was violated when the State failed to provide adequate notice that it would seek a factual finding of "serious bodily injury" under the aggravated kidnapping statute. "A claim of inadequate notice presents a question of law that we review for correctness." State v. Bragg , 2013 UT App 282, ¶ 17, 317 P.3d 452.

¶20 Second, Seumanu argues that his defense counsel provided ineffective assistance by not objecting to the "as a party" language in the Special Verdict Form and/or Instruction 40, which defined the term. When a defendant argues that his counsel was ineffective for the first time on appeal, there is no ruling for this court to review and the issue presents a question of law. See State v. Ott , 2010 UT 1, ¶ 16, 247 P.3d 344.

¶21 Third, Seumanu argues that the trial court plainly erred by not sua sponte providing a cautionary jury instruction on accomplice testimony. Ordinarily, claims regarding alleged errors in the jury instructions are reviewed for correctness. See State v. Malaga , 2006 UT App 103, ¶ 7, 132 P.3d 703. But because Seumanu failed to preserve the issue, we review for plain error. Id.

ANALYSIS

I. Notice of Intent to Seek a Finding of "Serious Bodily Injury"

¶22 Seumanu contends that the State violated his Sixth Amendment right to fair notice of the charges against him because it failed to provide adequate notice that it intended to seek a factual finding of "serious bodily injury" which, if found beyond a reasonable doubt by the jury, would result in a sentence of life without parole. After oral argument, we ordered supplemental briefing for clarification on two key issues: (A) whether a finding of "serious bodily injury" is an element of the offense under Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its progeny Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and if so, whether the State was required to allege it in the Information; and (B) whether the State was required to give Seumanu pre-trial notice that it would seek a finding of "serious bodily injury." We discuss each in turn.

A. Element of the offense under Apprendi and Alleyne

¶23 The United States Supreme Court, in Apprendi , held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. This holding was expanded to mandatory minimum sentences in Alleyne , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314.

¶24 Seumanu argues that "[a] finding of serious bodily [injury] is an element of aggravated kidnapping because it increases the penalty from 15-years-to-life to life without parole." Seumanu continues, "Because a finding that Seumanu 'caused serious bodily injury to another' is a factual finding ... that extended Mr. Seumanu's prison stay from a minimum of 15 years-with the possibility of parole-to life without parole, Apprendi and Alleyne require ... it to be a factual finding that must be determined by a jury."

¶25 Even assuming that Seumanu is correct, and without directly deciding the issue, he has conceded that the finding of serious bodily injury was submitted to the jury and found beyond a reasonable doubt as required by Apprendi and Alleyne . First, it is undisputed that the Special Verdict Form required the jury to indicate whether it found "beyond a reasonable doubt" that "[d]uring the course of the commission of the Aggravated Kidnapping of [Middleman,] [Seumanu], as a party, caused serious bodily injury to [Victim]." Second, Seumanu concedes that he was "convicted of aggravated kidnapping" and that "jurors also found ... [that] he actually caused serious bodily injury." (Emphasis added.) Thus, Seumanu was not deprived of his due process right to have elements of the crime charged submitted to a jury and proved beyond a reasonable doubt.

¶26 To be clear, while Seumanu asserts on appeal that serious bodily injury is an element under Apprendi and Alleyne , he does not contend that it is an element that must be alleged in the Information. The parties were ordered to provide supplemental briefing on the issue of whether serious bodily injury is an "element of the offense" under Apprendi and Alleyne , and if so, whether it must be alleged in the Information. To the direct question posed in our order for supplemental briefing-must an element of serious bodily injury be alleged in the information-Seumanu answered, "No." We therefore consider the issue conceded and decline to address it further.

B. Pre-Trial notice

¶27 Seumanu does contend, however, that the "State should have-and did not-apprise [him] of its intent to seek a factual finding of serious bodily injury under [ Utah Code section 76-5-302(3)(b) ]." We disagree.

¶28 "The right of an accused to know the nature of the offense with which he is charged is a fundamental right guaranteed by both our federal and state constitutions." State v. Nelson-Waggoner , 2004 UT 29, ¶ 17, 94 P.3d 186. These constitutional protections "ensure that the accused is given sufficient information so that he or she can know the particulars of the alleged wrongful conduct and can adequately prepare his or her defense." State v. Klenz , 2018 UT App 201, ¶ 34, 437 P.3d 504 (cleaned up). Thus, "ultimately, as long as a defendant is sufficiently apprised of the State's evidence upon which the charge is based so that the defendant can prepare to meet that case, the constitutional requirement is fulfilled." Id. ¶ 35 (cleaned up).

¶29 Here, Seumanu's contention that only "after the close of evidence, [was] defense counsel ... told in court that he should have prepared a defense to a different crime, i.e., that Seumanu caused serious bodily injury," is not supported by the record. The record shows that Seumanu was given adequate notice of his charges, first in the Information and second in the Special Verdict Form-both of which were received before trial.

¶30 Seumanu was provided sufficient pre-trial notice of the serious bodily injury element in the Information. Count 3 in the Information identifies aggravated kidnapping by both name and section of the Utah Code. And where the aggravated kidnapping statute provides that "[a]ggravated kidnapping is ... punishable by a term of imprisonment of ... life without parole, if the trier of fact finds that during the course of the commission of the aggravated kidnapping the defendant caused serious bodily injury to another," Utah Code Ann. § 76-5-302(3)(b) (LexisNexis 2017), Seumanu was unmistakably provided with sufficient pre-trial notice of his possible sentence if convicted, see State v. Preece , 971 P.2d 1, 6 (Utah Ct. App. 1998) (holding that "an information was not defective where it specifically provided the offense's statutory name and the section proscribing the relevant conduct" because a defendant is responsible for "familiarizing himself with the actual language of the statute under which he had been charged").

¶31 Further, Seumanu was provided with pre-trial notice vis-à-vis the factual allegations in the Information. Specifically, the serious bodily injury attributed to Seumanu was the murder of Victim, which occurred during the commission of the joint kidnapping. The probable cause statement appended to the Information elaborated on this allegation by describing the kidnapping, the fact that Victim was shot twice, and when and where during the kidnapping Victim was shot. Thus, the State provided Seumanu with ample written notice in the Information that the State intended to prove that serious bodily injury was inflicted during the commission of the kidnapping. See State v. Martinez , 896 P.2d 38, 41 (Utah Ct. App. 1995) ("[T]he State need only allege the circumstance necessary to invoke the enhancement statute in order to provide adequate due process."); see also State v. Pham , 2016 UT App 105, ¶ 26, 372 P.3d 734 ("Because being shot can lead to death, it is not inherently unreasonable for a jury to find that a particular shooting resulted in serious bodily injury by creating a substantial risk of death.").

¶32 Seumanu was also provided sufficient notice of the State's intent to seek a finding of serious bodily injury in the Special Verdict Form, which he received prior to trial.

The Verdict Form listed each charge-including count 3-and required the jury to indicate whether Seumanu was guilty or not guilty of each. The Special Verdict Form further required the jury to indicate whether it found "beyond a reasonable doubt" that "[d]uring the course of the commission of the Aggravated Kidnapping of [Middleman,] [Seumanu], as a party, caused serious bodily injury to [Victim]." The Verdict Form and Special Verdict Form, taken together, provide clear notice that the State intended to seek a conviction of aggravated kidnapping under count 3 and a finding of serious bodily injury.

¶33 In sum, we hold that the serious bodily injury component was properly submitted to the jury and proved beyond a reasonable doubt. We further hold that Seumanu was given adequate pre-trial notice of the State's intention to pursue a factual finding of serious bodily injury.

II. Ineffective Assistance

¶34 Next, Seumanu argues that his trial counsel was ineffective for not objecting to (1) the "as a party" language in the Special Verdict Form and/or (2) Instruction 40, which defined the phrase "as a party" in terms of accomplice liability. His position is grounded on the premise that the aggravated kidnapping statute requires that he personally cause serious bodily injury to another during the kidnapping to be subject to a sentence of life without parole. In other words, Seumanu argues that accomplice liability cannot attach to aggravated kidnapping because that statute is phrased in terms of direct liability, not indirect liability. And therefore, his counsel's failure to object constitutes ineffective assistance. We disagree.

¶35 First, we reject Seumanu's argument that accomplice liability cannot attach to criminal statutes that are phrased in terms of direct, rather than indirect, liability. See, e.g. , Utah Code Ann. § 76-5-302(3)(b) (LexisNexis 2017) (providing that aggravated kidnapping is punishable by a term of life without parole "if the trier of fact finds that during the course of the commission of the aggravated kidnapping the defendant caused serious bodily injury to another" (emphasis added)); id. § 76-5-202(1) ("Criminal homicide constitutes aggravated murder if the actor ... causes the death of another." (emphasis added)). Indeed, as a general matter, accomplice liability can, and does, attach to criminal liability arising from statutes that are phrased only in terms of direct liability. See State v. Clark , 2014 UT App 56, ¶ 55, 322 P.3d 761 (affirming convictions of an accomplice to "one count of aggravated murder, two counts of attempted aggravated murder, three counts of aggravated kidnapping, one count of aggravated burglary, one count of aggravated robbery, and one count of aggravated cruelty to animals").

¶36 Second, because accomplice liability can attach to aggravated kidnapping, the Special Verdict Form and Instruction 40 accurately instructed the jury on the law. The general rule is that an accurate instruction upon the basic elements of an offense is required. State v. Beckering , 2015 UT App 53, ¶ 23, 346 P.3d 672. "To determine if jury instructions correctly state the law, we look at [them] in their entirety and will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case." Id. (cleaned up).

¶37 Instruction 40 correctly instructed the jury that Seumanu could be found guilty on an accomplice liability theory. Utah's accomplice liability statute provides that a defendant is liable for criminal conduct if, "acting with the mental state required for the commission of an offense," he "solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense." Utah Code Ann. § 76-2-202 (LexisNexis 2017). Instruction 40 stated that "a person can commit a criminal offense even though that person did not personally do all the acts that make up the offense" if "(1) the defendant had the mental state required to commit the offense, and (2) the defendant solicited, requested, commanded, encouraged, or intentionally aided another to commit the offense, and (3) the offense was committed." In our view, Instruction 40 properly instructed the jury that Seumanu could be found guilty, "as a party," under the theory of accomplice liability.

¶38 Similarly, the Special Verdict Form correctly instructed the jury on aggravated kidnapping. The aggravated kidnapping statute, in relevant part, provides that the crime is "a first degree felony punishable by a term of imprisonment of ... life without parole, if the trier of fact finds that during the course of the commission of the aggravated kidnapping the defendant caused serious bodily injury to another." Utah Code Ann. § 76-5-302(3)(b). The Special Verdict Form stated that the jury was required to indicate whether it found "beyond a reasonable doubt" that "[d]uring the course of the commission of the Aggravated Kidnapping of [Middleman,] [Seumanu], as a party, caused serious bodily injury to [Victim]." Thus, aside from the "as a party" phrase, the Special Verdict Form is a verbatim recital of the serious bodily injury clause of the aggravated kidnapping statute.

¶39 Taken as a whole, Instruction 40 and the Special Verdict Form correctly instructed the jury on accomplice liability as applied to aggravated kidnapping. In light of the fact that accomplice liability can, and does, extend criminal liability arising from statutes that are phrased in terms of direct liability, see Clark , 2014 UT App 56, ¶ 55, 322 P.3d 761, and that Instruction 40 adequately describes the theory of accomplice liability, see Utah Code Ann. § 76-2-202, the phrase "as a party" as used in the Special Verdict Form and Instruction 40 was not erroneous.

¶40 Accordingly, we also reject Seumanu's claim of ineffective assistance. "To succeed on an ineffective assistance of counsel claim, [Seumanu] must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense." See Beckering , 2015 UT App 53, ¶ 21, 346 P.3d 672 (cleaned up). It is well established, however, that the "failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." State v. Whittle , 1999 UT 96, ¶ 34, 989 P.2d 52 (cleaned up); see also State v. Ricks , 2013 UT App 238, ¶ 22, 314 P.3d 1033 ("The Sixth Amendment does not require counsel to make futile objections."). Thus, Seumanu's ineffective assistance claim must fail if objections to the Special Verdict Form and Instruction 40 would have been futile if raised. As shown above, there was no error in the Special Verdict Form or Instruction 40, as to the "as a party" language, so objections to either would have been futile.

III. Cautionary Instruction

¶41 Finally, Seumanu argues that the trial court plainly erred by not sua sponte providing an accomplice instruction. Specifically, Seumanu argues that the trial court erred by ignoring its "obligat[ion] to properly apprise the jury of the potentially unreliable nature of the accomplices' testimony by means of a special cautionary instruction." (cleaned up). An accomplice instruction is required only when (1) an accomplice (2) gives uncorroborated testimony, and (3) the judge finds the testimony "to be self contradictory, uncertain or improbable." State v. Dunn , 850 P.2d 1201, 1226 (Utah 1993) (quoting Utah Code section 77-17-7(2) ). Otherwise, "the giving of a cautionary instruction is left to the trial court's discretion." State v. Neeley , 748 P.2d 1091, 1096 (Utah 1988).

¶42 This issue is not preserved, and we therefore review it for plain error. See State v. Ringstad , 2018 UT App 66, ¶ 32, 424 P.3d 1052. To demonstrate plain error, Seumanu must show that "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined." Dunn , 850 P.2d at 1208-09.

¶43 Here, Seumanu cannot show error-let alone obvious error-because no accomplice instruction was required for two reasons. First, any accomplice testimony of Seumanu's whereabouts on the night of the kidnapping and murder was corroborated by non-accomplice testimony. Specifically, Seumanu admitted, and Wife testified at trial, that he was at the Residence while Victim and Middleman were held at gunpoint and tied-up; he left the Residence with Leech, Myore, Victim, and Middleman; and Wife picked him up at the Residence in the morning. Thus, accomplice testimony placing Seumanu at the scene of the crime was sufficiently corroborated.

¶44 Second, Seumanu has not demonstrated that other accomplice testimony relevant to Seumanu's conduct and participation in the kidnapping and murder, supra ¶ 16, was so obviously self-contradictory, uncertain, or improbable that the court's decision not to give an accomplice instruction was plainly in error. Seumanu's sole argument on this point is that each accomplice admitted generally to not being completely honest with police during the investigation. This falls short of showing that an accomplice instruction was obviously required. Cf. State v. Marquina , 2018 UT App 219, ¶ 49, 437 P.3d 628 (holding that uncorroborated accomplice testimony was sufficient when "as to the core issue-[the defendant's] involvement in the [crime]-the stories were consistent" and that "it was for the jury to weigh the evidence and to determine the credibility of the witnesses" (cleaned up)). Indeed, Seumanu's general argument that accomplices were not honest with police during their initial investigation does not demonstrate that the accomplice testimony at trial was inconsistent as to any specific fact, let alone a "core issue." And certainly, the nuance of the argument Seumanu now makes on appeal would not have been obvious to the trial court.

¶45 Because the aforementioned material testimony was either corroborated by Seumanu and his own witness, or otherwise not so obviously inconsistent that a cautionary accomplice instruction was required, see Utah Code Ann. § 77-17-7(2) (LexisNexis 2017), we conclude that the court did not commit plain error by not providing such an instruction.

¶46 Moreover, even if the trial court's decision not to give an accomplice instruction was obvious error, Seumanu cannot show that the error was harmful. See Dunn , 850 P.2d at 1208-09. Our supreme court has held that denying an accomplice instruction was harmless when the court instructed the jury to evaluate the witnesses' credibility and those credibility concerns were addressed at trial. Id. at 1226 (holding that any error was harmless where the jury had evidence of the accomplice's motivation to lie but received a general credibility instruction); Neeley , 748 P.2d at 1096 (holding that the court was within its discretion to deny a cautionary instruction where an accomplice witness was thoroughly cross-examined and testimony was corroborated).

¶47 Here, the court instructed the jury on general witness credibility, and its decision to not provide an accomplice instruction therefore did not result in harm. Specifically, the trial court instructed jurors generally on witness credibility, including explicit instructions to consider whether any witnesses had a personal interest in the outcome of the trial or had some other bias or motive to testify a certain way. Under these circumstances, an accomplice instruction "was simply not necessary to prompt the jury to question [the] veracity" of the accomplice witnesses, because the testimony, the arguments, and the general instructions had already "alerted the jury to [their] possible motives[s] for testifying with less than total candor." State v. Guzman , 2004 UT App 211, ¶ 37, 95 P.3d 302.

¶48 Seumanu cannot show that an accomplice instruction was required, that the need to so instruct was obvious, or that the trial court's failure to provide such an accomplice instruction sua sponte caused any harm. Therefore, under a plain error analysis, Seumanu's claim fails.

CONCLUSION

¶49 The State did not fail to provide adequate notice of its intent to seek a finding of "serious bodily injury," which could result in a sentence of life without parole, and such a finding was submitted to the jury and proved beyond a reasonable doubt. Additionally, Seumanu's trial counsel was not ineffective for failing to object to the Special Verdict Form and/or Instruction 40 because those instructions correctly informed the jury of accomplice liability theory potentially applicable to this appeal. Finally, the trial court did not commit plain error by not providing a cautionary accomplice instruction.

¶50 Affirmed.

      The State filed a first amended Information on March 18, 2015, and a second amended Information on March 24, 2015. Neither amendment contains significant changes to the aggravated kidnapping charge or facts relevant to that charge.

      Seumanu does not challenge his conviction of aggravated kidnapping, which is punishable by a term of imprisonment of fifteen years to life. Utah Code Ann. § 76-5-302(3)(a) (LexisNexis 2017). Rather, he argues that the State failed to provide adequate notice that if "the trier of fact finds that during the course of the commission of the aggravated kidnapping the defendant caused serious bodily injury to another," he could be sentenced to life without parole. Id. § 76-5-302(3)(b). Thus, if we were persuaded on this issue, Seumanu would, at best, be entitled to resentencing for his aggravated kidnapping conviction. See State v. Helmick , 2000 UT 70, ¶ 12, 9 P.3d 164 ; see also State v. Bryant , 2012 UT App 264, ¶ 20, 290 P.3d 33 (holding that because "life without parole was not an available sentencing option" the defendant was entitled only to be "resentenced on his aggravated kidnapping conviction").

      Seumanu further contends that pursuant to rule 23B of the Utah Rules of Appellate Procedure, a remand is necessary for the trial court to make findings on whether a cautionary instruction on accomplice testimony was required. "The purpose of Rule 23B is for appellate counsel to put on evidence he or she now has, not to amass evidence that might help prove an ineffectiveness of counsel claim. To this end, appellate counsel is required to submit affidavit evidence setting forth nonspeculative facts showing the alleged deficient performance of trial counsel." State v. Bragg , 2013 UT App 282, ¶ 24 n.6, 317 P.3d 452 (cleaned up). Seumanu has failed to file both a separate motion and an affidavit and instead attempts to bring this motion by simply adding his rule 23B argument to the body of his appellate brief. This is insufficient. See id. For this reason, we decline to address this issue further.

      The Supreme Court in Apprendi and Alleyne reasoned that requiring such facts to be considered elements of the offense "enables the defendant to predict the legally applicable penalty from the face of the indictment." Alleyne , 570 U.S. 99, 114, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (citing Apprendi , 530 U.S. 466, 478-79, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ). Here, however, Seumanu has conceded that the element of "serious bodily injury" was not required on the face of the Information. See infra ¶ 26. Therefore, we limit our analysis to whether a finding of "serious bodily injury" should have been submitted to the jury and proved beyond a reasonable doubt.

      The State argues that "neither Apprendi nor Alleyne applies to transform the [finding of serious bodily injury] into an element" because it is merely a "sentencing factor" that establishes a presumptive sentence for a particular type of aggravated kidnapping. The State cites LeBeau v. State , 2014 UT 39, 337 P.3d 254, to support its argument that "[t]he sentencing scheme does not enhance a sentence for a conviction but, based on two identified sentencing factors, determines which sentence in the range of possible sentences is the appropriate presumptive sentence to be assigned to a particular conviction." However, because Seumanu has conceded that the element of serious bodily injury was submitted to a jury and proved beyond a reasonable doubt, we decline to address the State's argument.

      The State notes that "the question of whether Apprendi -type elements must be alleged in an Information has not been decided in this jurisdiction." While we need not address the issue on the merits, we note that in practice it would be prudent for prosecutors to provide as express a notice as possible in order to be more clear to defendants and to avoid attacks on the sufficiency of the notice.

      Because the statutory provision in effect at the relevant time does not differ in any material way from the provision now in effect, we cite the current version of the Utah Code.

      Seumanu, in his briefing, infers that defense counsel was not made aware of the Special Verdict Form until after the close of evidence. However, the record reflects that defense counsel received the Special Verdict Form at 7:25 a.m. on March 30, 2015-more than six hours before court convened for jury selection. Importantly, having received this notice in writing before the commencement of trial, Seumanu cannot claim he would have conducted trial differently had he known that the State would be submitting the Special Verdict Form.

      Seumanu also argued that his defense counsel was ineffective for failing to object to the Special Verdict Form on the ground that notice was inadequate. However, we conclude that Seumanu's counsel was not ineffective because pre-trial notice was adequate, and therefore any objection on that ground would have been futile. See State v. Christensen , 2014 UT App 166, ¶ 10, 331 P.3d 1128 ("The failure to raise futile objections does not constitute ineffective assistance of counsel." (cleaned up)).

      A nearly identical challenge to the application of accomplice liability was rejected by our supreme court in State v. Briggs , 2008 UT 75, 197 P.3d 628. The court in Briggs held that the State was not required to prove constructive possession before the defendant could be convicted as an accomplice to the crime of possession. Id. ¶ 20 ("If we were to hold that it is necessary for an accomplice to be in actual possession of the contraband before accomplice liability could be established, the State could charge someone as an accomplice only when he or she had acted as a principal. Accomplice liability would cease to have any independent function.").

      Seumanu made several admissions to police during an interview. Those statements were admitted-without objection-when police later testified at trial. See Utah R. Evid. 801(d)(2).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Utah, Appellee, v. Lee Evan HEDGCOCK, Appellant.
    No. 20170040-CA
    Court of Appeals of Utah.
    Filed May 31, 2019
    Andrea J. Garland, Attorney for Appellant
    Sean D. Reyes, Salt Lake City, and Jonathan S. Bauer, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.
    Opinion
   MORTENSEN, Judge:

¶1 Instead of paying $ 701 per month in child support for the relevant five years (totaling $ 51,883 with interest) as stipulated and adopted in a divorce decree, Defendant Lee Evan Hedgcock paid $ 780 total. He was charged with and pled no contest to a single count of criminal nonsupport. Hedgcock now challenges the district court's restitution determination. Because we agree that the district court did not make separate findings as to complete restitution and court-ordered restitution as required by statute and precedent, we vacate the restitution determination and remand for further proceedings consistent with this opinion. Further, Hedgcock challenges the district court's refusal to reduce complete restitution by amounts Hedgcock claims he would not have owed had he filed a petition to modify the divorce decree in the intervening years. We affirm the district court on this point of law.

BACKGROUND

¶2 Following his divorce, Hedgcock was ordered to pay $ 701 per month in child support (Decree). The child support amount was based on an imputed wage that was allegedly more than Hedgcock's actual wage. Hedgcock, however, stipulated to the higher imputed wage and child support amount. The Decree provided that "[t]he current Child Support amount shall remain in effect unless modified by [the Office of Recovery Services (ORS) ]" and that "each party to this action may request that [ORS] review the Court's child support order for this action to determine whether a modification of the Court ordered child support be pursued." ORS was also joined as a party to the divorce action to clarify and determine Hedgcock's child support obligations moving forward. Although ORS appeared, it did not seek to modify the child support as ordered in the Decree.

¶3 In December 2014, Hedgcock moved the divorce court to "address the issue of his child support." A commissioner declined to set a hearing on the motion but outlined the correct procedure for pursuing an adjustment of child support in a minute entry. The minute entry noted that Hedgcock could seek an adjustment by filing a petition to modify and a financial declaration pursuant to rules 101 and 106 of the Utah Rules of Civil Procedure. Hedgcock did not object to the minute entry and never filed a petition to modify.

¶4 In January 2016, Hedgcock was charged with criminal nonsupport based on an alleged total arrearage, with interest, of $ 61,310. In other words, from the time the Decree was entered in 2011, to the time he was charged in January 2016 (Charged Period), Hedgcock paid a total of $ 780 in child support-rather than the $ 701 per month ordered in the Decree.

¶5 At a preliminary hearing, Hedgcock argued that the total arrearage for the Charged Period was incorrect because ORS should have modified the child support amount when it was joined as a party. But a representative for ORS testified that despite being joined as a party, it typically "would not ... modify a child support order unless [it had] a written request from one of the parties to do so." And although ORS received written requests from Hedgcock, "the determination was made ... not to proceed with a modification review because [Hedgcock's] circumstances had not changed from the date that the initial order had been stipulated to." Hedgcock did not petition the divorce court to review ORS's determination.

¶6 The State filed a motion in limine seeking to exclude from trial-among other things-evidence that Hedgcock disagreed with the amount of child support ordered in the Decree. The district court granted the motion, concluding that Hedgcock's "disagreement with the amount of child support he has been ordered to pay is not a relevant issue in this case, and therefore any argument regarding this matter is inadmissible." The court further explained that the Decree is a final order and the only way that Hedgcock's arguments would be relevant is if he had filed a petition to modify in the divorce proceeding. But the court noted, "[T]hat's not what's happened. That's not the facts that are before this court. The facts before this court are there's an order for $ 701, and that's the existing order [the State is] claiming criminal nonsupport on."

¶7 Hedgcock pled no contest to a single count of criminal nonsupport in return for the State's recommendation of no jail time and a 402 reduction "upon successful completion of payment of restitution." At sentencing, Hedgcock requested a restitution hearing, "not necessarily to question the amounts ... but because he would like the Court to consider some of the same things ... discussed when arguing the motion in limine as toward restitution." The court responded that the criminal proceeding was "not the appropriate place" to challenge the Decree. And because there was no pending petition to modify the Decree, the court clarified that the only permissible arguments at the restitution hearing would be to establish the amounts that Hedgcock already paid against the existing arrearage. After a brief recess, Hedgcock entered his no-contest plea, and requested to be sentenced immediately without a pre-sentencing report (PSR) or review of his financial declaration.

¶8 The district court held a restitution hearing in December 2016. At the outset, Hedgcock renewed his objection to the amount owed during the Charged Period. The court responded that, absent a pending petition to modify the Decree, Hedgcock's past-due child support obligation was a fixed amount and "there's no possibility this order is going to be anything different than what it is." Hedgcock then submitted to the court that the parties had reached a stipulation on the amount of arrearage based on the operative Decree-which was determined to be $ 51,833. The court asked the parties if there was anything else that needed to be taken care of at the hearing, and Hedgcock's counsel replied, "I don't believe so." Specifically, Hedgcock did not ask the district court to consider anything other than (1) whether child support had actually ever been ordered under the Decree and (2) whether the support order should have been modified at some point in the past.

¶9 The district court entered a stipulated sentencing order on December 27, 2016. The order provided that "[r]estitution ... owed to [Hedgcock's ex-wife] as of December 8, 2016, is entered for $ 51,883." The district court did not indicate whether the ordered amount was for complete restitution, court-ordered restitution, or both.

¶10 Hedgcock appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Hedgcock raises two issues on appeal. He first contends that the district court misapplied the Crime Victims Restitution Act (Restitution Act) when it merged complete restitution with court-ordered restitution without making separate findings. "We will not disturb a district court's restitution order unless it exceeds that prescribed by law or otherwise abused its discretion." State v. Hamilton , 2018 UT App 202, ¶ 15, 437 P.3d 530 (cleaned up). "But we review a district court's interpretation of restitution statutes for correctness." Id. (cleaned up). Hedgcock did not preserve this issue and therefore asks us to review for plain error. See State v. Johnson , 2017 UT 76, ¶¶ 15, 19, 416 P.3d 443. "To demonstrate plain error, a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the [district] court; and (iii) the error is harmful." Id. ¶ 20 (cleaned up).

¶12 Next, Hedgcock argues that the district court erred in determining the restitution amount because it refused to consider factors-such as the actual income of Hedgcock and his ex-wife-that could have changed the child support owed during the Charged Period. We review the district court's determination of restitution for abuse of discretion. Hamilton , 2018 UT App 202, ¶ 15, 437 P.3d 530.

ANALYSIS

I. The Restitution Act

¶13 Hedgcock argues that the district court erred "by conflating complete restitution with court-ordered restitution." Generally, complete restitution is "necessary to compensate a victim for all losses caused by the defendant" and is determined by taking into account "all relevant facts" of the case. State v. Mooers , 2017 UT 36, ¶ 9, 424 P.3d 1 (cleaned up) (listing relevant facts to be considered in determining complete restitution). Court-ordered restitution, on the other hand, is a subset of complete restitution that the court "orders the defendant to pay as a part of the criminal sentence." See id. ¶ 10 (cleaned up). To determine the amount of court-ordered restitution, courts consider the facts for complete restitution and additional factors set forth in the Restitution Act. Id. Finally, "[t]he plain language of the Restitution Act contains a clear directive that district courts are to make two separate restitution determinations, one for complete restitution and a second for court-ordered restitution," id. ¶ 8 (cleaned up), and failure to do so, or even "merg[ing] them into one order," is error, id. ¶ 12.

¶14 Here, the district court did not make separate findings, nor did it indicate whether it was ordering complete restitution or court-ordered restitution. Simply put, the district court's failure to engage in this analysis was error. Id. However, because Hedgcock failed to preserve this issue, he must also show that the court's error was obvious and harmful. See State v. Johnson , 2017 UT 76, ¶¶ 20-21, 416 P.3d 443. We discuss each element in turn.

¶15 "For an error to be obvious ... the law governing the error [must be] clear or plainly settled at the time the alleged error was made." State v. Jamieson , 2017 UT App 236, ¶ 27, 414 P.3d 559 (cleaned up), cert. granted , 421 P.3d 439 (Utah 2018). Here, the law governing restitution is both clear and plainly settled. First, relevant portions of the Restitution Act-which was enacted in 2001-mandate that "[i]n determining restitution the court shall determine complete restitution and court-ordered restitution," Crime Victims Restitution Act, ch. 137, § 8, 2001 Utah Laws 699, 704; "the court shall make the reasons for the decision part of the court record," id. ; and "[i]n determining the monetary sum and other conditions for court-ordered restitution, the court shall consider the factors" for complete restitution as well as:

(i) the financial resources of the defendant and the burden that payment of restitution will impose, with regard to the other obligations of the defendant; (ii) the ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; (iii) the rehabilitative effect on the defendant of the payment of restitution and the method of payment; and (iv) other circumstances which the court determines may make restitution inappropriate.

Id. at 705. Second, our supreme court settled the law governing complete restitution and court-ordered restitution, see State v. Laycock , 2009 UT 53, ¶¶ 20-24, 214 P.3d 104 (holding that district courts are "clearly required to determine ... restitution, as set out in [the Restitution Act]"), seven years prior to entry of the stipulated sentencing order. In light of the plain language in the Restitution Act and the holding in Laycock , we conclude that the requirement to make separate and distinct findings for complete restitution and court-ordered restitution was obvious.

¶16 Next, Hedgcock argues that the district court's error was harmful. We agree. As Hedgcock contends, the entire portion of restitution in this case is being treated as court-ordered, and he faces "criminal enforcement mechanisms" such as contempt of court or the imposition of a sentence for failure to pay. See Mooers , 2017 UT 36, ¶ 18 n.3, 424 P.3d 1. Conversely, had the court conducted the proper analysis and determined that any portion of the amount owed was complete restitution, rather than court-ordered restitution, that portion would be enforceable only as a civil judgment. See id. We conclude that the district court's error is at least potentially harmful because it exposes Hedgcock to criminal penalties for amounts of restitution that may not have been court-ordered restitution.

¶17 We are unpersuaded by the State's argument that Hedgcock invited this error by stipulating to the amount of restitution and/or failing to object to the stipulated sentencing order. Even where, as here, a defendant stipulates to "complete" restitution, the plain language of the Restitution Act still requires that the court make separate findings for complete restitution and court-ordered restitution. Accordingly, Hedgcock's failure to object to the stipulated sentencing order is a preservation defect but nothing more.

¶18 We readily understand that, given the sentencing stipulation made by the parties, the district court may well have intended to order complete and court-ordered restitution in the same amount. But the court did not articulate that. And given the bright-line precedent of Mooers and Laycock , we conclude that the district court's failure to indicate what type of restitution was being ordered-and its failure to justify its conclusion with adequate factual findings-was plain error. Therefore, we vacate the restitution order and remand to the district court to clarify the amount of complete restitution and court-ordered restitution it imposed in this case.

II. Restitution Amount

¶19 Relatedly, Hedgcock argues that the district court erred when it calculated restitution, whether complete or court-ordered, without considering whether the child support owed during the Charged Period should have been adjusted in the domestic case. In other words, Hedgcock contends that the district court should have allowed him to launch, in his criminal case, essentially, a petition to modify the Decree retroactively for the Charged Period. We disagree.

¶20 When Hedgcock entered his no-contest plea, he effectively conceded that the State had sufficient evidence to prove the elements of criminal nonsupport. See Utah R. Crim. P. 11(e)(4)(A) ("The court ... may not accept the plea until the court has found ... the defendant understands the nature and elements of the offense to which the plea is entered ...."). In other words, Hedgcock conceded that during the Charged Period he had children under the age of eighteen, for whom he knowingly failed to provide support; his children would have been in needy circumstances but for support received from a source other than him; and the total arrearage was in excess of $ 10,000. See Utah Code Ann. § 76-7-201(3) (LexisNexis 2017) (listing the elements of criminal nonsupport).

¶21 Given that Hedgcock knew of his child support obligations, he could have filed a petition to modify in the divorce proceedings prior to being charged with criminal nonsupport. His failure to do so does not alleviate his obligation to pay child support under the Decree, nor does it change the fact that his children were dependent on his support, which he nevertheless failed to pay. See id. § 78B-12-112(3) ("Each payment or installment of child ... support under any support order ... is, on and after the date it is due: a judgment with the same attributes and effect of any judgment of a district court ... [and] not subject to retroactive modification by this or any other jurisdiction ...."). And even if Hedgcock had filed a petition to modify, any change to the Decree would apply only after the date of the petition. See id. § 78B-12-112(4) ("A child or spousal support payment under a support order may be modified with respect to any period during which a modification is pending, but only from the date of service of the pleading ....").

¶22 Thus, the total arrearage for the Charged Period in this case was a final judgment, see id. § 78B-12-112(3), and even a successful petition to modify the amount of child support would, at best, change only the amount owed retroactively to the date the petition was filed, see id. § 78B-12-112(4). Accordingly, we conclude that the district court did not abuse its discretion in refusing to consider the potential merits of a petition to modify that was never filed and was therefore legally irrelevant.

CONCLUSION

¶23 We conclude that the district court erred in neglecting to make separate and distinct findings for complete restitution and court-ordered restitution, and on this basis, we vacate the restitution order and remand for further proceedings consistent with this opinion. But, we conclude the district court did not err in refusing to consider whether the amount of child support ordered by the Decree should have been changed prior to Hedgcock being charged with criminal nonsupport.

      A "402 reduction" refers to a reduction of the degree of a criminal conviction under Utah Code section 76-3-402.

      Hedgcock did not reserve his right to appeal the ruling on the motion in limine under rule 11(j) of the Utah Rules of Criminal Procedure.

      The Restitution Act is codified at Utah Code sections 77-38a-101 to -601.

      These portions of the Restitution Act were essentially unchanged when the stipulated sentencing order was entered in this case. See Utah Code Ann. § 77-38a-302(1) -(5) (LexisNexis 2017). Because the statutory provision in effect at the relevant time does not differ in any material way from the provision now in effect, we cite the current version of the Utah Code.

      The stipulated sentencing order is silent as to whether the restitution ordered in this case was "complete" or "court-ordered." The State contends that the restitution amount set by the district court represented court-ordered restitution. In support of its position, the State relies on the district court's statement at sentencing that if Hedgcock fails to pay the amount of restitution ordered "[it was] not going to have any qualms about locking [him] up for a substantial period of time."

      This is not to say that a district court cannot conclude that complete restitution and court-ordered restitution should be in the same amounts, so long as the court considers the factors contemplated by the Restitution Act. State v. Laycock , 2009 UT 53, ¶ 28, 214 P.3d 104.

      On remand, if the district court finds that its ability to consider some of the factors under the Restitution Act is limited because Hedgcock has waived the PSR and its associated financial declaration and did not offer any evidence concerning his present ability to pay, it would be appropriate for the court to articulate those facts. However, the district court must still undertake its best efforts to consider the factors even in the face of missing information. Id. ¶¶ 22-23.


author: Per Curiam Opinion

text:
    STATE of Utah, IN the INTEREST OF A.R., R.R., and V.R., persons under eighteen years of age.
    E.R., Appellant, v. State of Utah, Appellee.
    No. 20190245-CA
    Court of Appeals of Utah.
    Filed May 16, 2019
    Colleen K. Coebergh, Attorney for Appellant
    Sean D. Reyes, Carol L. C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee
    Martha Pierce, Salt Lake City, Guardian ad Litem
    Before Judges Michele M. Christiansen Forster, David N. Mortensen, and Ryan M. Harris.
   Per Curiam Opinion

PER CURIAM:

¶1 E.R. (Father) appeals a decision awarding permanent custody and guardianship of his children to their paternal grandmother. Father asks this court to reverse the grant of permanent custody and guardianship and remand with a direction to enter an order of temporary custody and guardianship in the paternal grandmother pending further proceedings. We affirm the juvenile court's decision.

¶2 Father does not challenge the juvenile court's determination of his unfitness as a parent due to his untreated mental illness. The sole issue raised on appeal is a claim that the juvenile court's award of permanent custody and guardianship of the children to their paternal grandmother was erroneous because In re B.T.B. , 2018 UT App 157, 436 P.3d 206, required the court to preserve the possibility of rehabilitation of the parent-child relationship as well as a future restoration of custody to Father.

¶3 The case was before the juvenile court on the Guardian ad Litem's (GAL) petition to terminate Father's parental rights to allow the children to be adopted. In contrast, the State advocated for an award of permanent custody and guardianship to the paternal grandmother with whom the children had resided throughout the child welfare case. The paternal grandmother wanted to be the children's permanent guardian rather than adopt them. The State had withdrawn its earlier petition to terminate Father's parental rights and thereafter requested an award of permanent custody and guardianship to the paternal grandmother. Father joined in the State's recommendation. During the trial on the termination petition, Father's counsel stated, "I would submit that at the very least what this court could do [is] grant permanent custody and guardianship in the grandmother and close the case." Father's counsel also acknowledged that, under current Utah law, "if my client loses permanent custody and guardianship in this case, he cannot [petition to] get his children back." See Utah Code Ann. § 78A-6-1103(3)(b) (LexisNexis 2018). Father would, however, retain residual rights that would include rights to visitation. The court awarded permanent custody and guardianship of the children to their paternal grandmother.

¶4 Notwithstanding his position at the termination trial, Father asserts that he has preserved a challenge to the permanent custody and guardianship award by filing an appeal. This is insufficient to preserve the issue for consideration on appeal. An issue is preserved for appeal when it has been presented to the juvenile court in such a way that the court has the opportunity to rule on it. See In re D.B. , 2012 UT 65, ¶ 17, 289 P.3d 459. "To provide the court with this opportunity, the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority." Id. (quotation simplified). Although the record reflects that the juvenile court and the parties discussed the requirement of B.T.B. to consider alternatives other than terminating Father's parental rights, Father did not raise the argument that he makes in this appeal. In fact, Father's counsel specifically requested an award of permanent custody and guardianship in the paternal grandmother in opposing the GAL's petition to terminate his parental rights.

¶5 But even assuming that Father did preserve the issue, Father's argument is based upon a mistaken interpretation of B.T.B. Father relies on this court's statement in B.T.B. that the juvenile court should "consider whether other less-permanent arrangements ... might serve the child's needs just as well in the short term, while preserving the possibility for rehabilitation of the parent-child relationship in the longer term." In re B.T.B. , 2018 UT App 157, ¶ 55, 436 P.3d 206. Father claims that B.T.B. required the juvenile court to make the award of custody and guardianship only temporary to allow him the possibility to regain custody in the future. B.T.B. contains no such requirement; remedies short of termination, that preserve the parent-child relationship in some fashion, can take any one of several forms, including the one the juvenile court selected in this case: a permanent guardianship arrangement in which the parent retains the right to visitation, even if the parent no longer has the right to petition for a restoration of custody. Indeed, as this court recently clarified, " B.T.B. simply stands for the proposition that juvenile courts must consider or explore alternatives to termination of parental rights before they may find that termination is 'strictly necessary' to the best interests of the child." In re C.T. , 2018 UT App 233, ¶ 16, 438 P.3d 100 (quotation simplified). "After this consideration, if a juvenile court determines that no such alternatives are available or articulates supported reasons for rejecting alternatives that do exist, such findings are entitled to deference on appeal." Id. In this case, the juvenile court not only considered alternatives to termination, the court selected one of those alternatives by awarding permanent custody and guardianship to the paternal grandmother. In this case, the juvenile court complied with B.T.B. 's requirement that it consider alternatives to termination, and the juvenile court's well-articulated reasons supporting its award of permanent custody and guardianship in a relative are entitled to deference. See id. , ¶ 17.

¶6 Accordingly, we affirm the award of permanent custody and guardianship of the children to their paternal grandmother.


text:
    Linda Lee NAVE-FREE, Appellee, v. Wenlock Duane FREE Jr., Appellant.
    No. 20170751-CA
    Court of Appeals of Utah.
    Filed May 16, 2019
    Russell W. Hartvigsen, Salt Lake City, Attorney for Appellant
    Aaron D. Banks, Attorney for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.
    Opinion
   MORTENSEN, Judge:

¶1 After nearly twenty-five years of marriage, Wenlock Duane Free Jr. (Husband) and Linda Lee Nave-Free (Wife) divorced. They agreed to a division of their assets and an upward deviation in the amount of child support based on the medical needs of two of their children. Wife eventually remarried and began renting out a house she was awarded in the divorce. Alleging a substantial change in material circumstances, Husband petitioned to modify the amount of child support he was required to pay. The trial court denied the petition, and Husband appeals. We affirm.

BACKGROUND

¶2 Wife and Husband were married in 1990 and had four children together. They separated in 2012 and divorced in August 2013. The parties did not use attorneys in their divorce negotiations. Pursuant to the divorce decree, Wife was awarded a house in Heber City, Utah, and Husband received a house in Pleasant Grove, Utah. Frequent flier miles and the proceeds of a sale of land in Eureka, Utah, were to be divided equally. Wife also received $ 24,050 as compensation for any interest she might have in business ventures developed during the course of the marriage.

¶3 The parties agreed that Wife was to receive $ 7,629 per month as support for the three minor children. The amount decreased to $ 6,586 per month when the first child reached eighteen years of age. See Utah Code Ann. § 78B-12-219 (LexisNexis 2018). The amount further decreased to $ 5,043 per month when the second child reached eighteen, and it was to remain at that amount until April 2023. The amount of child support represented an upward deviation of about $ 4,558 per month from the guidelines. At the time of the divorce, the parties agreed that the "increased amount [was] based on the ongoing medical needs of two of the children born to this marriage. Both parties ... determined this amount to be fair and necessary." At trial, Wife clarified that the increased amount was designated for the "medical needs" of the two children in a broad sense, eclipsing actual expenses:

[The deviated amount allowed Husband] to go and do his thing, and I needed to maintain raising and taking care of the children, medical needs, corresponding doctor's appointments ... and accommodating ... raising children, which then therefore entailed me not having the right to go and pursue a career where I could ... travel and earn more money. ... [I]t was so that I would create a home base, so that I would have a solid foundation for these kids. Be there. Raise them. Create that sense of family. You know, and not put my career first, but put my children first.

¶4 In November 2014, Husband filed a petition to modify the divorce decree, alleging that substantial changes merited an adjustment in the amount of child support he was required to pay. Specifically, he argued that Wife's income had substantially increased because she had remarried and moved out of the house in Heber City and subsequently received rental income from that property. Husband contended that, by this move, Wife had "voluntarily completely changed her circumstances and those of the parties' minor children." Husband testified that his income had "gone down just slightly" since the divorce decree was entered.

¶5 At trial, in addition to arguing that Wife's income and relative wealth had substantially increased, Husband asserted that the medical expenses of the two oldest children had substantially changed. To support his claim of a substantial change in the medical needs of the children, Husband offered evidence that Wife's out-of-pocket expenses relating to the children's medical needs had decreased.

¶6 The trial court determined that there had been no material changes in Wife's income or in her relative wealth. Regarding the amount of child support, the trial court concluded that the deviated amount was "compensation for the ongoing medical needs of the two oldest children and compensation for the marital estate acquired over 23 years of marriage." The trial court, having concluded that there had been no substantial changes, denied Husband's petition. It further awarded attorney fees to Wife as the prevailing party. Husband appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 The first issue on appeal is whether the trial court erred in determining Wife had not benefited from a substantial change in income when she started receiving rental income after the divorce. The second issue is whether the trial court erred when it determined that Wife had not experienced a material change in relative wealth when she remarried after the divorce and began living in a two-income home. The third issue is whether the trial court erred when it concluded that there had been no substantial changes in the medical needs of the children to warrant a modification of child support.

¶8 These three issues share a common standard of review. "We generally review a [trial] court's determination to modify or not to modify a divorce decree for an abuse of discretion. However, we review for correctness any challenges to the legal adequacy of findings of fact or to the legal accuracy of the [trial] court's statements underlying such a determination." Fish v. Fish , 2016 UT App 125, ¶ 5, 379 P.3d 882 (cleaned up). Furthermore, a trial "court's determination regarding whether a substantial change of circumstances has occurred is presumptively valid, and our review is therefore limited to considering whether the [trial] court abused its discretion." Earhart v. Earhart , 2015 UT App 308, ¶ 5, 365 P.3d 719.

ANALYSIS

I. Change in Wife's Income

¶9 Husband's primary contention is that because Wife's income substantially increased, the amount of child support should be adjusted in his favor. The Utah Child Support Act (Act), see generally Utah Code Ann. §§ 78B-12-101 to -403 (LexisNexis 2018), allows a parent to petition the court to adjust the amount of child support for, among other circumstances, "material changes of 30% or more in the income of a parent," id. § 78B-12-210(9)(b)(iii). "However, to succeed on a petition to modify, the moving party must first show that a substantial material change of circumstance has occurred since the entry of the decree and second, that the change was not contemplated in the decree itself." Diener v. Diener , 2004 UT App 314, ¶ 7, 98 P.3d 1178 (cleaned up). Because Husband has failed to show that a material change has occurred, we limit our analysis to the first prong.

¶10 "An appellant [who] fails to devote adequate attention to an issue is almost certainly going to fail to meet [his] burden of persuasion." Bank of Am. v. Adamson , 2017 UT 2, ¶ 13, 391 P.3d 196. In this regard, Husband "must cite the legal authority on which [his] argument is based and then provide reasoned analysis of how that authority should apply in the particular case, including citations to the record where appropriate." Id. "[Husband] cannot carry [his] burden by simply listing or rehashing the evidence and arguments [he] presented during trial." Taft v. Taft , 2016 UT App 135, ¶ 43, 379 P.3d 890. Nor can he "persuasively carry [his] burden by merely pointing to evidence that might have supported findings more favorable to [him]; rather, [Husband] must identify flaws in the evidence relied on by the trial court that rendered the trial court's reliance on it, and the findings resulting from it, clearly erroneous." Id. ; accord Shuman v. Shuman , 2017 UT App 192, ¶ 8, 406 P.3d 258. Thus, Husband "has the burden of showing a substantial change in circumstances. It is insufficient to show that there has been some change, without a showing that such change was substantial." Diener , 2004 UT App 314, ¶ 7, 98 P.3d 1178 (cleaned up). Under this standard, Husband has failed to carry his burden of persuasion.

¶11 Husband contends that "[i]t is undisputed that Wife's income increased by more than 40% from the time of the decree of divorce to the time the petition to modify was filed." But a 40% increase in income is undisputed only if one buys into Husband's flawed logic. Using Wife's income at the time of the decree of divorce ($ 4,084 per month) as a base, Husband adds $ 1,750 per month of rental income from the house in Heber City, resulting in a monthly income of $ 5,834, a 43% increase in income. But Husband ignores a key fact in his ciphering: Wife's income was only $ 3,000 per month at the time of the petition to modify. Even if we credit $ 1,750 per month in rent as income, Wife made $ 4,750 per month at the time of the petition to modify, an increase of only 16% from her income at the time of the divorce. Thus, Husband has failed to carry his burden of persuasion to show that Wife's income has increased sufficiently (i.e., 30% or more) under section 78B-12-210(9)(b)(iii).

II. Change in the Relative Wealth or Assets of the Parties

¶12 Next, Husband argues that Wife has had a change in relative wealth because she has remarried and now lives in a two-income household. The Act allows a parent to petition the court to adjust the amount of child support for "material changes in the relative wealth or assets of the parties." Utah Code Ann. § 78B-12-210(9)(b)(ii) (LexisNexis 2018).

¶13 As with our analysis of the alleged material change in income, Husband "has the burden of showing a substantial change in circumstances" with respect to the parties' relative wealth. Diener v. Diener , 2004 UT App 314, ¶ 7, 98 P.3d 1178 (cleaned up). "It is insufficient to show that there has been some change, without a showing that such change was substantial." Id. (cleaned up).

¶14 Husband has failed to carry his burden of persuasion because he has not established by evidence a change in relative wealth. Although Wife's income has increased-if we include the rental income-from $ 4,084 to $ 4,750 per month, her monthly expenses, owing largely to a mortgage taken on the house in Heber City, have also increased. Husband testified that his income has slightly decreased. Far from a material change in the parties' relative wealth, the evidence supports the conclusion that their relative wealth has remained roughly the same. Accordingly, Husband has also failed to carry his burden on this issue.

III. Change in the Medical Needs of the Children

¶15 Husband also contends that a change in the medical needs-as expressed in reduced expenses-of the two oldest children justifies a decrease in the amount of child support he owes. The Act allows a parent to petition the court to adjust the amount of child support for "material changes in the medical needs of the child." Utah Code Ann. § 78B-12-210(9)(b)(v) (LexisNexis 2018). Husband's contention here fails because he has not shown any change in the medical needs of the children.

¶16 The Child Support Obligation Worksheet stated, "The increased amount [of $ 7,629] is based on the ongoing medical needs of two of the children born to this marriage. Both parties have determined this amount to be fair and necessary." This amount of child support was subsequently incorporated in the Decree of Divorce and Judgment. Thus, the parties' own negotiations at the time of the divorce showed that the deviated amount was based on the medical needs, not the medical expenses, of the children.

¶17 "The primary objective of statutory interpretation is to ascertain the intent of the legislature. Since the best evidence of the legislature's intent is the plain language of the statute itself, we look first to the plain language of the statute." Bagley v. Bagley , 2016 UT 48, ¶ 10, 387 P.3d 1000 (cleaned up). "We therefore look first to the plain language of the statute, presuming that the legislature used each word advisedly, and when we can ascertain the intent of the legislature from the statutory terms alone, no other interpretive tools are needed, and our task of statutory construction is typically at an end." Dole v. Dole , 2018 UT App 195, ¶ 15, 437 P.3d 464 (cleaned up).

¶18 Husband makes the fatal error of conflating medical expenses with medical needs. The two are conceptually distinct. If the legislature had wanted to use the word "expenses," it would have done so. Instead the legislature allows a parent to petition to adjust child support based on changes to the medical "needs" of the child. Medical expenses refer to the actual cost of medical care. Medical needs concern underlying medical conditions. Obviously, a child's medical needs will likely result in medical expenses , but the two are not necessarily equivalent. In a nutshell, medical needs are conditions attended to, while medical expenses are bills to be paid. See Hansen v. Hansen , 2009 UT App 152U, para 3, 2009 WL 1636017 ("Mother remains liable for the support of the child, including the responsibility to pay school fees, buy clothing, transport her to doctor and counseling appointments, attend to her medical needs, and pay her medical expenses."), aff'd, 2012 UT 9, 270 P.3d 531. Indeed, courts in other jurisdictions have recognized this distinction between medical needs and medical expenses. See In re Harrelson , 311 B.R. 618, 621 (Bankr. M.D. Fla. 2004) ("[A]lthough [debtor] has only minimal current medical expenses, her future medical needs are unknown."); Poberesky v. Poberesky , 71 A.D.3d 516, 897 N.Y.S.2d 401, 402 (2010) (stating that "special medical needs" may require additional spousal support for "medical expenses or health insurance coverage").

¶19 Husband does not address medical needs. Rather, he addresses only out-of-pocket medical costs. But a decline in Wife's out-of-pocket expenditures for the medical treatment of her children is not necessarily evidence that the children's overall medical needs have changed. The record contains no evidence, or even mere argument, that the underlying medical conditions-the needs-have improved. Husband asserts only that Wife's out-of-pocket costs have declined. But this fact alone cannot carry the day for Husband, because it does not address the actual medical needs and conditions of the two oldest children. Indeed, Husband himself admitted at trial that the two oldest children's medical conditions are serious and have not substantially changed since the time of divorce. Thus, Husband's contention in this regard is without merit because he failed to show any material change in the children's medical needs on which the upward deviation was premised.

IV. Attorney Fees

¶20 Because we affirm the trial court's ruling, Wife remains entitled to the award of attorney fees she received in the proceedings below. Wife requests that she also be awarded her fees and costs on appeal when this court enters its affirmation of the trial court's ruling. While not opining on the propriety of the trial court's use of the "substantially prevailed" standard, a point not assailed on appeal, see supra note 5, as we have substantively affirmed all the trial court's rulings appealed from, we award Wife attorney fees on appeal and remand to the trial court to calculate the reasonable amount of fees and costs she incurred in connection with this appeal.

CONCLUSION

¶21 We conclude that the trial court properly determined that there had not been a substantial material change in Wife's income, in the parties' relative wealth, or in the medical needs of the children. Having affirmed the trial court's decision, we also award Wife attorney fees incurred on appeal and remand for a determination of those fees.

¶22 Affirmed.

      Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, we cite the current version of the Utah Code.

      The upward deviation was for the medical needs of the two oldest children, who were respectively twenty and seventeen years old at the time of the divorce decree, and not tied to their minority status. Indeed, the deviation continues until April 2023, long after both children are over eighteen years old.

      In his petition to modify, Husband alleged that Wife's salary was $ 3,000 per month. And the trial court made a factual finding, not challenged on appeal, that Wife's income in Wyoming was $ 3,000 per month. Wife's income at the time of the divorce, as reported on the child support obligation worksheet, was $ 4,084 per month.

      While not material to the appeal here, in ruling on this matter the trial court noted that the upward deviation for child support was "in the nature of a property settlement" because, although it was to be paid in monthly installments, it was a "sum certain" and had a "specific date as to when the payments will end." While noting our concern about the propriety of using child support as a means to facilitate property settlements, we decline to address whether this characterization of the child support here is accurate because this appeal can be completely resolved on the basis of the trial court's conclusion that no material change of circumstances occurred. However, we note that, with regard to property settlements, "[s]tipulations entered into in contemplation of a divorce are conclusive and binding on the parties unless, upon timely notice and for good cause shown, relief is granted therefrom." Bayles v. Bayles , 1999 UT App 128, ¶ 15, 981 P.2d 403 (cleaned up); see also Batty v. Batty , 2006 UT App 506, ¶ 2, 153 P.3d 827 ("[S]tipulations regarding property distribution ... should be respected and given great weight." (cleaned up)). Although stipulated agreements "may be perceived as paring back the role of the court as fact-finder, in most cases this result should be welcomed as an exercise entirely consistent with efficient and just judicial administration." Batty , 2006 UT App 506, ¶ 2, 153 P.3d 827 (cleaned up).

      Husband asserts two other issues on appeal. First, he argues that the trial court failed to address certain issues raised at trial, specifically the division of frequent flyer miles and the transfer of marital real property in Eureka, Utah. In fact, the court did not overlook these issues, because it had previously addressed them in a contempt judgment against Husband. On appeal, Husband could have challenged the contempt judgment, but he did not do so. Thus, we decline to address issues related to the division of the frequent flyer miles and the property in Eureka.
      Second, Husband contends that the trial court erred in its award of attorney fees to Wife, but the only argument Husband makes in this regard is the following syllogism: (a) the trial court's fee award was grounded in the assumption that Wife substantially prevailed at trial; (b) according to Husband, he should have prevailed at trial; and therefore (c) he (and not Wife) should be awarded fees. Without opining on the propriety of the trial court's use of the "substantially prevailed" standard to award fees in the first place, we reject Husband's argument because we affirm the trial court's substantive rulings, and therefore Husband's minor premise fails.

      Husband does not dispute or challenge with evidence to the contrary the amount of Wife's income when the petition to modify was filed. Indeed, Husband assigned $ 3,000 in monthly income to Wife in his petition to modify. Citing Utah Code section 78B-12-203 on appeal, Husband obliquely suggests that more income should be imputed to Wife. But he offers no argument and provides no evidence to support his position.

      Wife mortgaged the Heber City house to help pay for a house in Wyoming that she shares with her current husband. She testified that her monthly mortgage payment is about $ 2,200. The trial court noted that the income Wife received in rent was offset by expenses associated with the mortgage and maintenance of the Heber City house. Husband attacks this analysis, but we conclude it is not material to our decision, because even assuming no offset for the mortgage and maintenance, Husband still has not shown an increase in income of 30%.

      As a separate issue, Husband contends the trial court erred in not holding that Cantrell v. Cantrell , 2013 UT App 296, 323 P.3d 586, was applicable to this case. Husband asserts that Cantrell "is not just instructive for this matter, but controlling case law on eerily similar facts." Although Cantrell might be superficially similar to the present case, as the trial court pointed out, it is readily distinguishable. Unlike Cantrell , in this case (1) there is substantial evidence of the reason for the upward deviation; (2) the children and Wife were not living in the marital home at the time of the divorce; (3) Wife was not maintaining the same level of lifestyle but was forced to change her living circumstances in response to the loss of Husband's income; and (4) Husband does not actively participate in his children's lives.

      In reality, it is likely that the medical expenses of the children have not changed either. What has changed is how those expenses are paid (e.g., private insurance, out-of-pocket, Medicaid).

      In fact, Husband testified that he regarded the children's medical conditions as "very severe." Husband stated that he was unaware of a material change in the older son's medical condition since the time of the divorce. Nor does Husband dispute that the younger of the two sons has a serious medical condition.


text:
    STATE of Washington, Respondent, v. Shacon Fontane BARBEE, Petitioner.
    No. 96490-4
    Supreme Court of Washington.
    Filed: JULY 03, 2019 May 7, 2019
    Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-3647, for Petitioner.
    Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Avenue, Suite W554, Seattle, WA 98104-2362, for Respondent.
    YU, J
    ¶1 RCW 9.94A.753(1) provides that restitution must be determined within 180 days of "the sentencing hearing." In this case, petitioner Shacon Barbee had two sentencing hearings-an initial sentencing hearing in 2013 and a resentencing on remand in 2017. We must determine which one is "the sentencing hearing" for restitution purposes. The Court of Appeals correctly held that in this case, "the sentencing hearing" is the resentencing on remand, so the trial court did not exceed its statutory authority by entering a second restitution award following resentencing. We affirm.
   FACTUAL AND PROCEDURAL BACKGROUND

¶2 "Barbee was a pimp who made money from prostitutes working under his supervision." State v. Barbee , 187 Wash.2d 375, 378, 386 P.3d 729 (2017). In 2013, Barbee was convicted of the following offenses:

• Count 1: Promoting commercial sexual abuse of a minor
• Count 2: Promoting commercial sexual abuse of a minor
• Count 4: Promoting prostitution in the second degree
• Count 5: Promoting prostitution in the second degree
• Count 6: Leading organized crime
• Count 7: Theft in the first degree from the United States Social Security Administration (SSA)
• Count 8: Theft in the first degree from the SSA
• Count 9: Theft in the second degree from the Department of Social and Health Services, now known as the Washington Health Care Authority (HCA)

Barbee was given exceptional sentences on Counts 1, 2, and 6, and standard-range sentences on the other counts. After a restitution hearing, the court entered a timely restitution award in favor of the SSA for $15,078.

¶3 Barbee appealed, contending in relevant part that the "two counts of second degree promoting prostitution [Counts 4 and 5] constitute a single unit of prosecution." Id. at 381, 386 P.3d 729. This court affirmed Barbee's convictions for Counts 4 and 5 but held that Barbee's "exceptional sentence on [Count 1] exceeded the statutory maximum and that he is entitled to a resentencing hearing." Id. at 392, 386 P.3d 729.

¶4 The trial court held a resentencing hearing on March 22, 2017, at which point the State's attorney noted that "we're doing a resentencing as opposed to an order simply correcting the Judgment and Sentence because the Court is still using its discretion to determine where in that standard range for Count I between 108 and 120 the Court wants to sentence the defendant." Suppl. Verbatim Report of Proceedings (VRP) (Mar. 22, 2017) at 10-11. At the hearing, the court entered "a brand-new Judgment and Sentence," which imposed a 120-month term of confinement for Count 1 "to run concurrent with all the other sentences on the respective counts." Id. at 12, 15. The new judgment and sentence also imposed the same terms of confinement previously ordered for Barbee's other convictions and further included two checked boxes stating, "Restitution to be determined at future restitution hearing," on a "Date to be set." Clerk's Papers at 215.

¶5 A restitution investigator in the King County Prosecutor's Office Victim Assistance Unit sent Barbee's attorney a letter, an unsigned proposed order setting restitution, and supporting documentation. This restitution order included both the $15,078.00 previously awarded to the SSA and an additional $4,150.09 in favor of the HCA. Barbee's attorney signed the restitution order, returned it to the restitution investigator, and waived notice of presentation. On June 14, 2017, the court entered the order setting restitution as agreed.

¶6 Barbee appealed this second restitution award, and the Court of Appeals affirmed in an unpublished opinion. State v. Barbee, No. 76618-0-1, 2018 WL 4865045 (Wash. Ct. App. Oct. 8, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/766180.PDF. We granted Barbee's petition for review "only on the issue of whether the trial court had authority to enter the second restitution award." Order Granting Review, State v. Barbee, No. 96490-4, 192 Wash.2d 1017, 433 P.3d 819 (Wash. Feb. 6, 2019).

ISSUE

¶7 Did the trial court have authority to enter the second restitution award?

ANALYSIS

¶8 " 'Restitution' means a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specified period of time as payment of damages. The sum may include both public and private costs." RCW 9.94A.030(43). "The authority to impose restitution is not an inherent power of the court, but is derived from statutes." State v. Davison, 116 Wash.2d 917, 919, 809 P.2d 1374 (1991). The statute at issue here is RCW 9.94A.753(1), which provides in relevant part, "When restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within one hundred eighty days." "The time limit is mandatory unless extended for good cause." State v. Gray, 174 Wash.2d 920, 925, 280 P.3d 1110 (2012).

¶9 To determine whether the second restitution award in this case complied with the statutory time limit, we must decide whether the statute directs us to measure timeliness from Barbee's initial sentencing hearing in 2013, as Barbee contends, or his resentencing hearing in 2017, as the State contends. This is a question of statutory interpretation, reviewed de novo. State v. Gonzalez, 168 Wash.2d 256, 263, 226 P.3d 131 (2010). Because there is no statutory definition of "the sentencing hearing," we must examine the statutory context to determine the legislature's intent. See id.

¶10 As Barbee correctly notes, the statutory context and our own precedent show that "a restitution award is linked to a particular victim and a particular offense." Suppl. Br. of Pet'r at 8. RCW 9.94A.753(3) makes it clear that restitution is imposed "pursuant to a criminal conviction" and is determined by reference to "the offender's gain or the victim's loss from the commission of the crime." Accordingly, we have held that restitution generally may be awarded only for "the crime or crimes on which a conviction is specifically based," State v. Eilts, 94 Wash.2d 489, 492-93, 617 P.2d 993 (1980), and "is statutorily connected to the victims' losses," State v. Kinneman, 155 Wash.2d 272, 280, 119 P.3d 350 (2005). Barbee is therefore correct that "the sentencing hearing" does not refer broadly to any sentencing hearing for any offense against any victim. Rather, "the sentencing hearing" generally refers to "the hearing at which the offender is sentenced for the particular offense for which restitution is to be imposed." Suppl. Br. of Pet'r at 9.

¶11 However, the record unequivocally shows that Barbee was sentenced for his theft from the HCA (Count 9) at his 2017 resentencing hearing. At that hearing, the trial court stated that it was entering "a brand-new Judgment and Sentence" and Barbee's counsel confirmed that "the Court's correct in characterizing the position of the case and what's going to happen today." Suppl. VRP (Mar. 22, 2017) at 12. Barbee's new judgment and sentence, filed on March 22, 2017, unambiguously ordered a term of confinement for Count 9 (and all of the other counts of conviction) and clearly noted that restitution was to be determined at a later date.

¶12 Nevertheless, Barbee argues that "the sentencing hearing" for Count 9 refers only to the hearing at which the court initially imposed a term of confinement for Count 9-that is, the 2013 sentencing hearing. This narrow reading, unsupported by any statutory language, is contrary to the purpose of the restitution statute in general and its mandatory timeline in particular.

¶13 Restitution serves both to rehabilitate the defendant and to compensate the victim. Gray, 174 Wash.2d at 929-30, 280 P.3d 1110. We have repeatedly recognized that the plain language of RCW 9.94A.753 indicates a "legislative intent that the applicable restitution statute be interpreted broadly to allow restitution." Davison, 116 Wash.2d at 920, 809 P.2d 1374 ; see also Gray, 174 Wash.2d at 925, 280 P.3d 1110 ; Gonzalez, 168 Wash.2d at 265-66, 226 P.3d 131. Barbee's narrow reading would directly undermine the legislature's intent and the purposes of restitution by allowing him to avoid the financial consequences of his undisputed theft from the HCA.

¶14 In addition, Barbee's proposed interpretation does nothing to advance the specific purpose of the statutory time limit. "The legislature certainly values finality in sentencing, and we have recognized that victims' 'rights will be cut off' when the State fails to comply with the 180 day time limit." Gray, 174 Wash.2d at 929, 280 P.3d 1110 (quoting State v. Moen, 129 Wash.2d 535, 542, 919 P.2d 69 (1996) ). Therefore, "[u]ndoubtedly, the purpose for the mandatory 60-day (now 180-day) limit is to avoid delay in the resolution of a criminal charge." State v. Duvall, 86 Wash. App. 871, 875, 940 P.2d 671 (1997). However, this legislative purpose was not undermined by the second restitution award here because all the restitution in favor of both the SSA and the HCA was awarded in a single, timely, agreed order.

CONCLUSION

¶15 Barbee was unambiguously sentenced for his theft from the HCA at the 2017 resentencing hearing. Therefore, that resentencing hearing is "the sentencing hearing" for purposes of RCW 9.94A.753(1). The second restitution award was entered within 180 days of that hearing and thus was within the trial court's statutory authority. We affirm.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Madsen, J.

Owens, J.

Stephens, J.

Wiggins, J.

González, J.

Gordon McCloud, J.

      To the extent that this case potentially implicates other issues including but not limited to the scope of this court's remand, the law of the case doctrine, finality of a judgment and sentence, and prosecutorial or judicial vindictiveness, such issues are beyond the scope of our order granting review, and we decline to address them.

      The parties agree that the second restitution award is not a "modification" of the first award because restitution awards cannot be modified to add new victims. See RCW 9.94A.753(4) ; State v. Chipman, 176 Wash. App. 615, 622, 309 P.3d 669 (2013).

      This general definition does not apply where "the defendant enters into an express agreement to pay restitution in the case of uncharged crimes." Kinneman, 155 Wash.2d at 286, 119 P.3d 350. Clearly an offender cannot be sentenced for uncharged crimes, but restitution can nevertheless be imposed for those offenses pursuant to RCW 9.94A.753(5).