State v. Mooers and Becker

This opinion is subject to revision before
final publication in the Pacific Reporter

2017 UT 36

IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.

RYAN MOOERS and DARRON LAVEN BECKER,
Petitioners.

No. 20150996
Filed June 27, 2017

On Certiorari to the Utah Court of Appeals

Third District, West Jordan
The Honorable Charlene Barlow
No. 131400410
Third District, Salt Lake
The Honorable Ann Boyden
No. 131902981

Attorneys:
Sean D. Reyes, Att’y Gen., Tera J. Peterson, Asst. Solic. Gen.,
Salt Lake City, for respondent
Nathalie S. Skibine, Debra M. Nelson, Heather J. Chesnut,
Lacey C. Singleton, Salt Lake City, for petitioners

JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUDGE DAVIS joined.
Having recused himself, JUSTICE PEARCE did not participate herein;
DISTRICT JUDGE LYNN DAVIS sat.

JUSTICE HIMONAS, opinion of the Court:
 STATE v. MOOERS and BECKER
Opinion of the Court

INTRODUCTION
¶ 1 We address two underlying cases in this appeal, both of which
turn on the same issue: whether an order of complete restitution that is
part of a plea in abeyance is a final order appealable as of right. The
Utah Court of Appeals determined in the first case, State v. Mooers, 2015
UT App 266, 362 P.3d 282, that it is not. In the second case, State v.
Becker, 2015 UT App 304, 365 P.3d 173, another panel of the court of
appeals held that it was bound by the Mooers panel’s holding. Each
panel dismissed its case for lack of jurisdiction, and we consolidated
the cases for appeal. We hold that an order of complete restitution is a
final order for purposes of appeal and therefore reverse the decisions of
the court of appeals.
BACKGROUND
¶ 2 The first case involves a restitution order for Ryan Mooers. On
April 15, 2013, Mr. Mooers entered a plea in abeyance to third-degree
felony theft, a condition of which was the payment of restitution.
Thereafter, the State requested that Mr. Mooers pay $5,760.50 in
restitution, of which $4,660.50 represented the cost of the items stolen,
window repair, and carpet replacement. The victims of the theft stated
that their daughter had trouble feeling safe in her room, which had
been broken into, so the restitution amount included $1,100 for bars to
place over her basement window. Mr. Mooers objected to the inclusion
of the cost of the window bars, but the district court found that the cost
was part of the pecuniary damages stemming from the theft and, in a
ruling dated February 12, 2014, ordered the $1,100 to be included in the
restitution order. Thirteen days later, Mr. Mooers filed a notice of
appeal. After briefing and argument, the court of appeals held that
because the restitution order was part of a plea in abeyance, it was not a
final order and the court therefore had no jurisdiction to hear the
appeal. State v. Mooers, 2015 UT App 266, ¶¶ 1, 19, 362 P.3d 282.
¶ 3 The second case involves Darron Laven Becker’s plea in
abeyance for attempted aggravated assault after he attempted to hit his
neighbor with a shovel. Following the entry of Mr. Becker’s plea, the
State requested $663.01 in restitution for medical costs that the Utah
Office for Victims of Crime paid the neighbor. Mr. Becker objected to
the basis for the amount, noting that the only documentation for the
amount was a handwritten note from the neighbor requesting $624 for
replacement glasses, $39 for an eye exam, and $480 for lost wages. The
district court determined that a sufficient nexus between Mr. Becker’s
actions and the neighbor’s requested restitution existed and, on

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December 9, 2013, ordered Mr. Becker to pay $663.01. Mr. Becker
appealed the district court’s order on December 17, 2013. The court of
appeals dismissed Mr. Becker’s appeal for lack of jurisdiction upon
determining that it was bound by the Mooers panel’s decision. State v.
Becker, 2015 UT App 304, ¶¶ 7–9, 365 P.3d 173.
¶ 4 We consolidated the cases on appeal and granted certiorari
review under Utah Code section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶ 5 Whether a court has jurisdiction over an appeal is a matter of
law, which we review for correctness. State v. Norris, 2007 UT 5, ¶ 7, 152
P.3d 305. Statutory interpretation is also a matter of law reviewed for
correctness. State v. Smith, 2005 UT 57, ¶ 6, 122 P.3d 615.
ANALYSIS
¶ 6 Both the State and the defendants in these cases approach the
issue as one involving a single form of restitution. In taking this view,
the State argues that a district court’s order of restitution is not final for
a plea in abeyance because the defendant has been neither convicted
nor sentenced, and it is the sentence that triggers the time for appeal.
The defendants argue that because conviction and restitution have
separate timeframes and purposes, an order of restitution should be
considered final regardless of whether or when a conviction occurs.
Both arguments disregard Utah’s distinctive statutory framework for
restitution, which (1) requires our district courts to assess both
complete and court-ordered restitution and (2) makes orders of
complete restitution, as opposed to court-ordered restitution, separately
appealable from a criminal sentence.
¶ 7 Restitution orders are a unique animal, existing at the
convergence of the civil and criminal worlds, and understanding the
sui generis nature of our Crime Victims Restitution Act, UTAH CODE
§§ 77-38a-101 et seq., helps us in our task of statutory interpretation.
When interpreting statutes, our primary goal is to ascertain the intent of
the legislature. Carter v. Univ. of Utah Med. Ctr., 2006 UT 78, ¶ 9, 150
P.3d 467. “The best evidence of the legislature’s intent ‘is the plain
language of the statute.’” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011
UT 50, ¶ 14, 267 P.3d 863 (citation omitted). We must therefore “read
the plain language of the statute as a whole,” interpreting its provisions
in harmony with the other portions of the statute. Miller v. Weaver, 2003
UT 12, ¶ 17, 66 P.3d 592.

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 STATE v. MOOERS and BECKER
Opinion of the Court

¶ 8 The 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.” State v. Laycock, 2009 UT 53, ¶ 20, 214 P.3d 104.
¶ 9 Complete restitution is “restitution necessary to compensate a
victim for all losses caused by the defendant,” UTAH CODE § 77-38a-
302(2)(a), taking into account “all relevant facts,” including
(i) the cost of the damage or loss if the offense resulted in
damage to or loss or destruction of property of a victim
of the offense; (ii) the cost of necessary medical and
related professional services and devices relating to
physical or mental health care, including nonmedical
care and treatment rendered in accordance with a
method of healing recognized by the law of the place of
treatment; (iii) the cost of necessary physical and
occupational therapy and rehabilitation; (iv) the income
lost by the victim as a result of the offense if the offense
resulted in bodily injury to a victim; (v) up to five days
of the individual victim’s determinable wages that are
lost due to theft of or damage to tools or equipment
items of a trade that were owned by the victim and were
essential to the victim’s current employment at the time
of the offense; and (vi) the cost of necessary funeral and
related services if the offense resulted in the death of a
victim.
Id. § 302(5)(b) (2013).1
¶ 10 Court-ordered restitution, on the other hand, is “the
restitution the court having criminal jurisdiction orders the defendant
to pay as a part of the criminal sentence at the time of sentencing or
within one year after sentencing.” Id. § 302(2)(b). In making this
determination, the court considers the factors for complete restitution
and then takes into account

1 We cite to the version of the Restitution Act in effect at the time of
Mr. Mooers’s and Mr. Becker’s hearings. The Act was amended in 2016,
but the amendments do not affect the difference between complete and
court-ordered restitution and do not change the outcome in this case.
See 2016 Utah Laws ch. 223.

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(ii) the financial resources of the defendant . . . ; (iii) the
burden that payment of restitution will impose, with
regard to the other obligations of the defendant; (iv) the
ability of the defendant to pay restitution on an
installment basis or on other conditions to be fixed by
the court; (v) the rehabilitative effect on the defendant of
the payment of restitution and the method of payment;
and (vi) other circumstances that the court determines
may make restitution inappropriate.
Id. § 302(5)(c).
¶ 11 In other words, court-ordered restitution is “a subset of
complete restitution that, among other things, takes into account the
defendant’s circumstances.” State v. Brown, 2014 UT 48, ¶ 21, 342 P.3d
239.
¶ 12 Although the Restitution Act clearly requires a district court
to make separate findings for the different kinds of restitution, courts
often merge them into one order.2 This is error. See Laycock, 2009 UT
53, ¶ 24. We emphasize that courts must make two separate
determinations—one for complete restitution and one for court-ordered
restitution and that the two kinds of restitution may be appealed at
separate times.

2 While Utah Code section 77-38a-302 delineates the two types of
restitution, we recognize that in other parts of the statute it is not
always clear whether “restitution” refers to complete or court-ordered
restitution. See State v. Laycock, 2009 UT 53, ¶ 21, 214 P.3d 104. The
Restitution Act frequently refers to “restitution,” defining it, in relevant
part, as the “full, partial, or nominal payment for pecuniary damages to
a victim.” UTAH CODE § 77–38a–102(11). But most uses of “restitution”
in neighboring statutory provisions do not “make the distinctions and
definitional refinements, such as the distinction between complete and
court-ordered restitution, made elsewhere in the statute.” Laycock, 2009
UT 53, ¶ 21. However, reading the statute as a whole, the provisions
“unambiguously define[] complete restitution as the full amount of
pecuniary damages necessary to compensate a victim for losses caused
by a defendant based on the factors listed in section 77-38a–302(5)(c).”
Id.

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Opinion of the Court

¶ 13 The Restitution Act makes clear that an order of complete
restitution is a civil order and “shall be considered a legal judgment.”
UTAH CODE § 77-38a-401(2). Thus, it has “the same [e]ffect and is subject
to the same rules as a judgment in a civil action.” Id. § 401(4). And like a
legal judgment in a civil action, it is appealable as of right within thirty
days from the entry of the order. UTAH R. APP. P. 3(a) (“An appeal may
be taken from a district . . . court to the appellate court with jurisdiction
over the appeal from all final orders and judgments[.]”); id. 4(a) (noting
thirty-day time period to file appeal); see Kennecott Corp. v. Utah State
Tax Comm’n, 814 P.2d 1099, 1102 (Utah 1991) (explaining that when trial
courts reduce certain orders in a case to judgments by virtue of rule
54(b) of the Utah Rules of Civil Procedure, they “thereby make them
appealable as of right, effectively forcing the appellate court to review
them”); see also Laycock, 2009 UT 53, ¶ 33 (stating that after the district
court determines complete restitution, “that sum will be reduced to a
civil judgment, a judgment that may only be enforced through the Utah
Rules of Civil Procedure”).
¶ 14 In fact, to not allow immediate appeal of an order of complete
restitution would present problems where a defendant’s restitution
hearing is held more than thirty days after his or her sentencing. See
UTAH CODE § 77-38a-302(5)(d)(i) (allowing restitution orders to be
entered “within one year after sentencing”). If the time to appeal the
restitution order is tied to the sentence, the defendant would be in the
position of either trying to appeal a restitution order that has not yet
been entered or appealing outside of the thirty-day window, in which
case the appellate court would lack jurisdiction.
¶ 15 We have not previously addressed this issue, but the Utah
Court of Appeals has dealt with this conundrum by recognizing that
restitution orders are an exception to the general rule that the sentence
is the only final appealable order in a criminal case. Salt Lake City v.
Ausbeck, 2011 UT App 269, ¶ 4 n.2, 274 P.3d 991 (per curiam)
(recognizing that where a restitution order is entered after sentencing,
“the sentence constitutes the final order” for purposes of appealing the
sentence, and the “order of restitution is a separate appealable order”);
State v. Gibson, 2009 UT App 108, ¶ 15 & n.5, 208 P.3d 543 (noting that
the Restitution Act provides that “a judgment under that act has the
same effect as an ordinary judgment” and therefore a “defendant has
all the due process rights inherent in [a restitution] hearing and also has
the right to appeal the resulting determination”). We agree with the
court of appeals, as it would be nonsensical in situations where a

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restitution order is entered after the sentence to require a defendant to
follow the sentence’s appeal deadline in order to appeal a restitution
order that has not been entered. Certainly nothing in the Restitution
Act requires such an absurd result. See Encon Utah, LLC v. Fluor Ames
Kraemer, LLC, 2009 UT 7, ¶ 73, 210 P.3d 263 (stating that under the
absurd results canon, when “statutory language plausibly presents the
court with two alternative readings, we prefer the reading that avoids
absurd results” (citation omitted)).
¶ 16 The canon of constitutional avoidance also compels the
conclusion that complete restitution is separately appealable. This
canon compels us to “reject[] one of two plausible constructions of a
statute on the ground that it would raise grave doubts as to its
constitutionality.” Utah Dep’t of Transp. v. Carlson, 2014 UT 24, ¶ 23, 332
P.3d 900. In this case, possible constitutional issues could arise from
holding that an order of complete restitution is not separately
appealable, as the Utah Constitution guarantees that “there shall be in
all cases an appeal of right from the court of original jurisdiction to a
court with appellate jurisdiction over the cause.” UTAH CONST. art. VIII,
§ 5. Because a plea in abeyance is not a conviction and therefore not
appealable, to hold that a defendant could not separately appeal an
order of complete restitution would mean that the defendant
potentially could never challenge a civil judgment entered against him,
thereby possibly violating the constitutional guarantee of the right to
appeal. See UTAH CODE § 77-38a-401(2) (complete restitution orders are
“legal judgment[s], enforceable under the Utah Rules of Civil
Procedure”). This threat is made more palpable by the fact that a
defendant who has entered a plea in abeyance may not seek relief
through the Post-Conviction Remedies Act. See id. § 78B-9-104(1)
(providing that only “a person who has been convicted and sentenced
for a criminal offense may file an action . . . for post-conviction relief”);
see also Meza v. State, 2015 UT 70, ¶ 2, 359 P.3d 592 (“We hold that the
PCRA does not apply to a successfully completed plea in
abeyance . . . .”).
¶ 17 We therefore hold that orders of complete restitution are
separately appealable. And even though the order of complete
restitution is entered on the civil docket, defendants may still appeal
the order of complete restitution from their criminal case, which
generally goes directly to the court of appeals. UTAH CODE § 78A-4-
103(2)(e) (granting court of appeals jurisdiction over appeals in criminal
cases except those involving first-degree or capital felonies). This is

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because orders of complete restitution, though technically entered on
the civil docket, flow entirely from the criminal cases that give rise to
them; they are not separate civil cases with a life outside of the criminal
case.
¶ 18 Court-ordered restitution, in contrast, is not separately
appealable because it is a condition of the plea in abeyance, which is
not a final order.3 It is therefore not appealable unless the sentence is
entered. See State v. Bowers, 2002 UT 100, ¶ 4, 57 P.3d 1065 (“In a
criminal case, it is ‘the sentence itself which constitutes a final judgment
from which appellant has the right to appeal.’” (citation omitted)).
¶ 19 But with a plea in abeyance, the court does “not enter
judgment of conviction against the defendant nor impose sentence
upon the defendant.” UTAH CODE § 77-2a-2(1). We therefore treat court-
ordered restitution in the plea in abeyance context as a condition of the
plea rather than part of the sentence, which may or may not ever be
entered. See id. § 77-2a-3(5)(b) (listing restitution as one of the possible
terms of a plea in abeyance). Like other conditions of a plea in
abeyance, then, court-ordered restitution is not appealable as a final
order.4

3 Whereas a civil order of complete restitution is enforceable as a
judgment, a violation of court-ordered restitution subjects the
defendant to criminal enforcement mechanisms such as contempt of
court or, in the plea in abeyance context, the imposition of a sentence.
See Laycock, 2009 UT 53, ¶ 32.
4 We note that defendants may nonetheless sometimes be able to
challenge court-ordered restitution that is part of a plea in abeyance.
Because defendants can appeal orders of complete restitution as of
right, they may always challenge the calculation of damages resulting
from the crime. And because court-ordered restitution may never be
more than complete restitution, a defendant will never be ordered to
pay more than the amount that he or she is able to appeal. See State v.
Brown, 2014 UT 48, ¶ 21, 342 P.3d 239 (court-ordered restitution is “a
subset of complete restitution”). For example, if the court on appeal
determines that the amount of complete restitution was too high, and
reduces it below the amount of court-ordered restitution, the district
court on remand could alter both the amounts for complete and court-
ordered restitution, or the defendant could use a changed judgment of
complete restitution as the basis for an extraordinary writ in order to
(cont.)

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¶ 20 The result of this split in the kinds of restitution is that a
district court’s order that uses the factors laid out in Utah Code section
77-38a-302(5)(b) is appealable as a final order. But in the plea in
abeyance context, a district court’s order that applies the factors in
section 302(5)(c) is not a final order over which appellate jurisdiction is
proper. Therefore, it is possible that a constitutional problem does not
arise if a defendant is unable to appeal the court-ordered restitution
component of his plea in abeyance because pleas in abeyance are not
final orders or judgments and there is therefore no constitutional “case”
to which the right to appeal guaranteed by article VIII, section 5 of the
Utah Constitution might attach. But our conclusion today is based on
the statutory question before us, and we need not and do not reach the
question of whether a defendant may have a constitutional right to
appeal an order of court-ordered restitution in a plea in abeyance
context.
¶ 21 In today’s cases, Mr. Mooers and Mr. Becker both challenged
orders of complete restitution. In both cases, the district court did not
specify whether it was determining complete or court-ordered
restitution, instead focusing on whether the disputed cost was part of
the “pecuniary damages” resulting from the criminal activity under
Utah Code section 76-3-201(4)(a), which states that “[w]hen a person is
convicted of criminal activity that has resulted in pecuniary
damages, . . . the court shall order that the defendant make restitution
to the victims.” But because determining pecuniary damages is part of
calculating the victim’s losses—as required for complete restitution—
and because the district court did not apply any of the factors for court-
ordered restitution, we treat each district court’s order as one for
complete restitution.
¶ 22 The district court’s order of restitution for Mr. Mooers
determined that the addition of $1,100 for window bars was proper
because it was a “pecuniary damage[]” under Utah Code section 76-3-
201(4)(a). Nowhere in the order does the district court address the
court-ordered restitution factors, and we conclude that the court’s order
was for complete restitution only. Jurisdiction over Mr. Mooers’s
appeal was therefore proper.

lower his or her court-ordered judgment amount, thereby ensuring that
court-ordered restitution is never higher than complete restitution.

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Opinion of the Court

¶ 23 Similarly, the restitution order for Mr. Becker addressed only
whether the neighbor’s claim for pecuniary damages was properly
considered for restitution, but the district court never addressed any
factors for court-ordered restitution. Instead, the district court
described its order as “the full and complete order of restitution,”
which it also deemed “part of the defendant’s sentence.” Thus, the
district court’s order for Mr. Becker to pay for the medical expenses
was a final order from which he may appeal.
CONCLUSION
¶ 24 Because the district court’s restitution orders for both
Mr. Mooers and Mr. Becker were orders of complete restitution rather
than court-ordered restitution, we conclude that the court of appeals
had jurisdiction over the defendants’ appeals. Accordingly, we reverse
and remand for the court of appeals to consider the merits of
Mr. Mooers’s and Mr. Becker’s appeals.

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