COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Overton
Argued at Chesapeake, Virginia
SUE ANN McCULLOUGH
OPINION BY
v. Record No. 1564-01-1 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 27, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
Christopher P. Reagan, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General,
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
At a bench trial, Sue Ann McCullough was convicted of two
counts of misdemeanor welfare fraud and sentenced to twelve
months incarceration, all suspended. In addition, pursuant to
Code § 19.2-305(B), the trial court ordered McCullough to make
restitution in the amount of $5,054.07 as a condition of her
probation. McCullough appeals the trial court's imposition of
this condition. For the reasons that follow, we affirm the
trial court's decision.
Background
A grand jury indicted McCullough for welfare fraud in
excess of $200, a felony. At trial, the Commonwealth proved
beyond a reasonable doubt that Sue Ann McCullough committed
welfare fraud against the Suffolk Department of Social Services.
However, the Commonwealth failed to prove beyond a reasonable
doubt the amount by which McCullough was overpaid as a result of
her fraudulent conduct. She was accordingly convicted only of
two counts of petit larceny, in violation of Code § 18.2-96,
which defines "petit larceny" as the "commi[ssion] of simple
larceny not from the person of another of goods and chattels of
the value of less than $200." Code § 18.2-96. Notwithstanding
the failure of proof during the guilt phase of the trial
regarding the amount by which the Department was defrauded, the
trial court at sentencing ordered restitution in the amount of
$5,054.07, noting a different burden of proof applied to the
determination of restitutionary amounts and holding that the
Commonwealth proved the damages sustained by the agency by a
preponderance of the evidence. The parties do not dispute these
facts.
Analysis
McCullough contends that by ordering restitution in an
amount greater than that proved in the guilt phase of the trial,
the trial court erred as a matter of law. This question is one
of first impression in Virginia. For the reasons that follow,
we hold that the trial court did not err in the imposition of
restitution in an amount greater than that proved in the guilt
phase of the trial and affirm the decision of the trial court.
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The trial court conditioned McCullough's probation on
payment of restitution to the agency in the amount of $5,054.07
pursuant to Code § 19.2-305(B), which provides, in pertinent
part:
A defendant placed on probation following
conviction may be required to make at least
partial restitution or reparation to the
aggrieved party or parties for damages or
loss caused by the offense for which the
conviction was had.
In addition, Code § 19.2-305.1(A1) provides that one convicted
of a crime "shall make at least partial restitution for any
property damage or loss caused by the crime . . . ." Under
these statutes, the trial court has "'wide latitude' and much
'discretion . . . to [apply the] remedial tool [of restitution]
. . . in the rehabilitation of criminals' . . . ." Deal v.
Commonwealth, 15 Va. App. 157, 160, 421 S.E.2d 897, 899 (1992)
(quoting Nuckoles v Commonwealth, 12 Va. App. 1083, 1085-85, 497
S.E.2d 355, 356 (1991)). As such, the statutory provisions are
to be liberally construed. Id.; Bazemore v. Commonwealth, 25
Va. App. 466, 468, 489 S.E.2d 254, 255 (1997).
The statutory scheme for ordering restitution was
established by the Virginia legislature as a conjunct of
suspended sentences. Its purpose is to help make the victim of
a crime whole. See generally, Alger v. Commonwealth, 19
Va. App. 252, 450 S.E.2d 765 (1994); see also Russnak v.
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Commonwealth, 10 Va. App. 317, 322, 392 S.E.2d 491, 493 (1990). 1
Although historically denominated a criminal penalty, 2
restitution under Virginia law may be more accurately
characterized as quasi-civil in nature. Restitution is a
monetary amount that reflects the "damages" or "loss" caused by
the crime. Code § 19.2-305(B). Part of the sentencing phase of
trial, the amount is determined following conviction and is a
matter resting within the sole province of the sentencing judge.
See Code § 19.2-305.1(C) ("At the time of sentencing, the court,
in its discretion, shall determine the amount to be repaid by
the defendant and the terms and conditions thereof."); Frazier
v. Commonwealth, 20 Va. App. 719, 721-22, 460 S.E.2d 608, 609
(1995) (noting that restitution "is a well established
sentencing component . . ."). It is based on facts proved
either at the trial of the offense or at the sentencing hearing,
1
Restitution may also serve the other purposes of
sentencing, including deterrence, rehabilitation and
retribution. See Note, Victim Restitution in the Criminal
Process: A Procedural Analysis, 97 Harv. L. Rev. 931, 937-41
(1984).
2
According to one legal scholar, "[i]n ancient societies,
before the conceptual separation of civil and criminal law, it
was standard practice to require an offender to reimburse the
victim or his family for any loss caused by the offense. The
primary purpose of such restitution was not to compensate the
victim, but to protect the offender from violent retaliation by
the victim or the community. It was a means by which the
offender could buy back the peace he had broken." See id. at
933-34 (citations omitted).
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where both the defendant and the Commonwealth have an
opportunity to present relevant evidence on the issue. Cf.
Deal, 15 Va. App. at 159-61, 421 S.E.2d at 898-900 (considering
evidence from both the offense trial and the sentencing hearing
to determine whether the imposed amount of restitution was
reasonable). Clearly, then, the amount of restitution that may
be imposed as a condition of probation is not an element of the
offense that must be proved during the guilt phase of the trial,
and its determination may properly be viewed as distinct from
the determination of guilt. See Code § 19.2-295.1 (mandating
separate proceedings for conviction and sentencing of felonies);
Deal, 15 Va. App. at 160, 421 S.E.2d at 899 ("Following
conviction in a criminal proceeding, trial courts are
specifically vested with the authority to suspend the sentence
in whole or part, suspend [its] imposition and . . . place the
accused on probation, all under such conditions as the court
shall determine. Among such conditions, restitution for
'damages or loss' caused by the offense is expressly recognized
and approved in several statutes." (internal quotations
omitted)).
In addition to the principles enunciated above, different
rules of procedure apply, further confirming that restitution is
to be treated as distinct and separate from the trial and
conviction for the offense. Such rules do not and need not
mirror those required for conviction. See Hollis v. Smith, 571
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F.2d 685, 693 (2d Cir. 1978) ("There is no authority binding
upon us which holds that the procedure in proceedings relating
solely to punishment even when an additional fact has to be
established, must conform precisely to those in proceedings
relating to guilt, and we see no basis in principle for so
holding."). For example, hearsay evidence is admissible during
sentencing and may be used to establish an appropriate amount of
restitution. See Alger, 19 Va. App. at 259 n.2, 450 S.E.2d at
769 n.2 (holding that Victim Impact Statement contained in
pre-sentence report prepared by probation officer was properly
considered by the court to determine restitution). In addition,
the right to a jury determination of the amount does not attach.
Boyd v. Commonwealth, 28 Va. App. 537, 540, 507 S.E.2d 107, 109
(1998). Finally, and most importantly, the "damages" or loss
incurred by an aggrieved party as a result of the offense need
only be proved by a preponderance of the evidence. Bazemore, 25
Va. App. at 468, 489 S.E.2d at 255; Alger, 19 Va. App. at 258,
450 S.E.2d at 768.
The acceptance of the preponderance standard to establish
the restitutionary amount, in itself, supports the conclusion
that the Commonwealth's failure to prove the entire amount of
loss caused by the offense during the guilt phase of the present
offense, where a higher standard of proof prevailed, did not
preclude the imposition of a greater amount upon proper proof
during the sentencing phase. To adopt the converse and view the
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restitution issue as partaking of the guilt phase of criminal
prosecutions "would turn sentencing hearings into second
trials." United States v. Fatico, 603 F.2d 1053, 1057 (2d Cir.
1979).
In summary, the distinction made between restitution and
the elements of the offense under Virginia law, which includes
the application of a lowered burden of proof and relaxed rules
of evidence, when viewed together with the primary purpose
restitution has been instituted by the Virginia legislature,
supports the conclusion that the amount of restitution the trial
court may impose as a condition of probation is not limited to
the proof put forth during the guilt phase of the trial. On
appeal, where the restitutionary amount is supported by a
preponderance of the evidence and is "reasonable in relation to
the nature of the offense," Deal, 15 Va. App. at 160-61, 421
S.E.2d at 899, the determination of the trial court will not be
reversed.
In this case, the trial court found that the Commonwealth
proved by a preponderance of the evidence that McCullough's
actions caused $5,054.07 in damages to the agency. Therefore,
it ordered McCullough to pay restitution in that amount. We
find no error and affirm the trial court's determination of
restitution.
Affirmed.
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