State v. Mooers

2015 UT App 266

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
RYAN MOOERS,
Appellant.

Opinion
No. 20140170-CA
Filed November 5, 2015

Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 131400410

Nathalie S. Skibine and Heather J. Chesnut,
Attorneys for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and JAMES Z. DAVIS concurred.

TOOMEY, Judge:

¶1 Ryan Mooers appeals from an order to pay restitution.
The primary issue on appeal is whether a restitution order
imposed as a condition of a plea in abeyance agreement, where
the defendant’s plea has not been entered and the defendant has
not been sentenced, is a final and appealable order. We conclude
that it is not. We therefore dismiss Mooers’s appeal for lack of
jurisdiction.

BACKGROUND

¶2 In November 2012, a family returned from vacation and
discovered that someone had broken into their house through a
 State v. Mooers

basement window and had taken jewelry and coins. For his role
in the crime, Mooers was charged with burglary, a second
degree felony, and theft, a third degree felony.

¶3 Mooers ultimately pled guilty to theft and admitted to
aiding ‚others in entering a home‛ and to taking items worth
between $1,500 and $5,000. As part of the plea deal, Mooers
agreed to attend a theft class, to pay ‚costs as ordered by the
court,‛ and to pay restitution. The court signed Mooers’s plea
form but did not enter his plea. Instead, it held the plea in
abeyance for eighteen months and ordered Mooers to ‚pay
restitution jointly and severally with the other co-defendants.‛ It
gave the State ninety days to determine the amount of
restitution.

¶4 Later, as requested by the State, the court ordered Mooers
to pay $5,760.50 in restitution. This sum included $1,100 for
installing security bars on the basement window through which
the thieves entered the family’s house. Mooers agreed to pay
everything except for this cost and requested an evidentiary
hearing to establish the grounds for making him responsible for
this expense.

¶5 At the evidentiary hearing, Mooers argued that he was
not responsible for the cost of installing bars on the broken
window and, in any event, those costs were not pecuniary
damages as defined by Utah Code section 76-3-201. The court
disagreed and again ordered Mooers to pay $5,760.50.1 Mooers
now appeals the restitution order.

1. Although the court indicated that ‚*t+his is the final order of
the Court and no other order needs to be prepared,‛ such
language is not dispositive. In context, the order is properly
viewed as the last order with regard to restitution, apparently
intended to comply with the Utah Supreme Court’s direction in
Giusti v. Sterling Wentworth Corp., 2009 UT 2, 201 P.3d 966. See id.
(continued…)

20140170-CA 2 2015 UT App 266
 State v. Mooers

ISSUES AND STANDARD OF REVIEW

¶6 Mooers’s primary contention on appeal is that the trial
court erred in concluding that the cost of installing the security
bars constitutes ‚pecuniary damages‛ under the Crime Victims
Restitution Act. See Utah Code Ann. § 77-38a-102(6) (LexisNexis
2012). But before we reach this issue, we must address the State’s
preliminary argument that this court ‚lacks jurisdiction to
consider *Mooers’s] appeal because the restitution order is not a
final judgment or sentence.‛

¶7 Whether we have jurisdiction is a question of law
requiring us to examine the ‚plain meaning of the [relevant]
statute.‛ Housing Auth. of County of Salt Lake v. Snyder, 2002 UT
28, ¶ 10, 44 P.3d 724. ‚*O+ur primary goal is to effectuate the
intent of the Legislature. . . . [W]e read . . . the statute as a whole,
and interpret its provisions in harmony with other statutes in the
same chapter and related chapters.‛ Meza v. State, 2015 UT 70,
¶ 10 (second alteration in original) (citations and internal
quotation marks omitted).

ANALYSIS

I. A Plea in Abeyance Is Not a Final Judgment of Conviction.

¶8 ‚A defendant may, as a matter of right, appeal from . . . a
final judgment of conviction, whether by verdict or plea . . . .‛

(…continued)
¶ 32 (indicating that ‚whenever‛ a court intended for any
document to constitute a final action, ‚the court must explicitly
direct that no additional order is necessary‛ (citation and
internal quotation marks omitted)). But the order’s language
does not control whether this court has appellate jurisdiction
over an appeal from a restitution order issued while the district
court is holding a plea in abeyance.

20140170-CA 3 2015 UT App 266
 State v. Mooers

Utah Code Ann. § 77-18a-1(1) (LexisNexis 2012); see also Utah R.
App. P. 3(a). ‚In the technical legal sense, sentence is ordinarily
synonymous with judgment . . . .‛ State v. Fedder, 262 P.2d 753,
755 (Utah 1953). Accordingly, in criminal cases, ‚*i+t is the
sentence itself which constitutes a final judgment from which
appellant has the right to appeal.‛ State v. Gerrard, 584 P.2d 885,
886 (Utah 1978).

¶9 A plea in abeyance, as the word ‚abeyance‛ itself
suggests, is not a sentence or a final judgment of conviction.
Rather, it is

an order by a court, upon motion of the
prosecution and the defendant, accepting a plea of
guilty or of no contest from the defendant but not,
at that time, entering judgment of conviction
against him nor imposing sentence upon him on
condition that he comply with specific conditions
as set forth in a plea in abeyance agreement.

Utah Code Ann. § 77-2a-1(1) (LexisNexis 2012). If a defendant
successfully completes the conditions specified in the plea in
abeyance agreement, a court may ‚reduce the degree of the
offense and enter judgment of conviction,‛ id. § 77-2a-3(2)(a), or
‚allow withdrawal of defendant’s plea and order the dismissal
of the case,‛ id. § 77-2a-3(2)(b). If, during the term of the
agreement,

the court finds that the defendant has failed to
substantially comply with any term or condition of
the plea in abeyance agreement, it may terminate
the agreement and enter judgment of conviction
and impose sentence against the defendant for the
offense to which the original plea was entered.

Id. § 77-2a-4(1).

¶10 As Utah appellate courts have consistently explained, the
plain language of these statutes provides that ‚*a+cceptance of a

20140170-CA 4 2015 UT App 266
 State v. Mooers

plea in abeyance and the entry of judgment of conviction and the
imposition of sentence are not simultaneous events.‛ State v.
Moss, 921 P.2d 1021, 1025 n.7 (Utah Ct. App. 1996). ‚Had the
Legislature intended a plea in abeyance to constitute a
conviction . . . , it would have so provided in the statute
authorizing such pleas. But it did not. Rather, the statute
provides to the contrary.‛ Meza, 2015 UT 70, ¶ 18; see also id.
¶¶ 7–8 (holding that ‚no judgment of conviction is entered
pending completion of a plea-in-abeyance agreement,‛ and that
a successfully completed plea in abeyance, where the court
allows the defendant to withdraw his plea and dismisses the
case, is not a conviction); State v. Millward, 2014 UT App 174, ¶ 4,
332 P.3d 400 (explaining that the Utah Code plainly provides
that a plea in abeyance is not a final adjudication); Salzl v.
Department of Workforce Servs., 2005 UT App 399, ¶ 14, 122 P.3d
691 (providing that a plea in abeyance for a crime ‚constitutes an
admission, . . . not a conviction, to that crime‛ for the purpose of
making an individual ineligible for unemployment benefits);
State v. Hunsaker, 933 P.2d 415, 416 (Utah Ct. App. 1997) (per
curiam) (dismissing an appeal from a trial court’s order
regarding a plea in abeyance agreement for lack of jurisdiction
for not being a final judgment); Moss, 921 P.2d at 1025 n.7
(providing that the plain language of the plea in abeyance
statutes ‚reveals that a plea in abeyance is not a final
adjudication‛). Consistent with these cases, we conclude that a
plea in abeyance is neither a sentence nor a final judgment, and
therefore does not give rise to a right to appeal.

II. A Restitution Order Entered as a Condition of a Plea in
Abeyance Agreement Is Not an Exception to the Final Judgment
Rule.

¶11 Mooers argues that restitution orders under the Crime
Victims Restitution Act are exceptions to the final-judgment rule
and are ‚appealable orders independent of conviction.‛ This
issue has not been directly addressed by any Utah appellate
court.

20140170-CA 5 2015 UT App 266
 State v. Mooers

¶12 Mooers’s argument relies heavily on State v. Gibson, 2009
UT App 108, 208 P.3d 543, in which we reviewed a trial court’s
denial of a defendant’s motion to withdraw her guilty plea. Id.
¶¶ 7–8, 10. As part of a plea in abeyance agreement, the
defendant was ordered to pay restitution. Id. ¶¶ 3–4. She
disputed the amount and requested a hearing, after which the
court set restitution at nearly $240,000. Id. The defendant later
moved to amend the order, arguing that the total figure was
incorrect. Id. ¶ 4. Although the court denied her motion, the
defendant did not appeal and instead sought to withdraw her
plea. Id. ¶¶ 4–6. The trial court denied her request and imposed
a sentence for failing to pay restitution as required by the
conditions of the plea in abeyance agreement. Id. ¶¶ 6–7. We
upheld the trial court’s decision, noting that the defendant could
have appealed the restitution order after the restitution hearing,
id. ¶¶ 15–16, and in a footnote, stated, ‚The Crime Victims
Restitution Act specifies that a judgment under that act has the
same effect as an ordinary judgment,‛ id. ¶ 15 n.5 (citing Utah
Code Ann. § 77-38a-401(4) (2008)).

¶13 Mooers argues that Gibson’s ‚parallel holding that the
restitution order was independently appealable‛ is precedent
that affords him the right to appeal the restitution order in this
case. We disagree. The opinion’s brief statement on this point
was ‚not within the issue of that case, and is therefore not
authoritative here.‛ See Lagoon Jockey Club v. Davis County, 270 P.
543, 549 (Utah 1928). The Gibson court was asked to consider
whether the trial court ‚misapplied the law when determining
that *the defendant’s+ guilty plea was knowing and voluntary.‛
Gibson, 2009 UT App 108, ¶ 8. In seven paragraphs, we
thoroughly discussed this question. See id. ¶¶ 9–15. Only in
passing—supported by a single footnote—did we address
whether the defendant could have appealed the restitution
order. See id. ¶ 15 & n.5. We therefore conclude that Gibson’s
statement about the right to appeal a restitution order is dicta, in
which case, it

20140170-CA 6 2015 UT App 266
 State v. Mooers

may be respected, but ought not to control the
judgment in a subsequent suit when the very point
is presented for decision. The reason of this maxim
is obvious. The question actually before the Court
is investigated with care, and considered in its full
extent. Other principles which may serve to
illustrate it, are considered in their relation to the
case decided, but their possible bearing on all other
cases is seldom completely investigated.

See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399–400 (1821).

¶14 Similarly, the Utah Supreme Court’s decision in Meza
includes dicta that might suggest that a plea in abeyance is an
exception to the final-judgment rule under the Crime Victims
Restitution Act. See Meza v. State, 2015 UT 70, ¶ 17. There, the
court was asked to consider whether a successfully completed
plea in abeyance agreement, where the case was dismissed after
the defendant met the conditions of the agreement, is a
conviction for the purposes of the Post-Conviction Remedies
Act. Id. ¶¶ 7–8. It concluded that a case dismissed under these
circumstances is not a conviction. Id. ¶ 18. In reaching this
conclusion, the court identified examples in which the legislature
designated pleas in abeyance in certain contexts as the same as
convictions, which included pleas in abeyance under the Crime
Victims Restitution Act. See id. ¶ 17. This discussion of the Act
begins and ends in two sentences and does not go to the matter
decided. See id. Thus, the Meza court’s statement on this
hypothetical situation is also dicta and is not binding.2

2. Although a plea in abeyance is ‚a ‘plea of guilty or of no
contest,’‛ as Meza v. State suggests, it is explicitly not a conviction
under the Crime Victims Restitution Act. See 2015 UT 70, ¶ 17
(quoting Utah Code Ann. § 77-38a-109(2)). The Act defines a
‚plea in abeyance‛ as ‚an order by a court . . . accepting a plea of
guilty or of no contest from the defendant but not, at that time,
(continued…)

20140170-CA 7 2015 UT App 266
 State v. Mooers

¶15 Statutes that treat a plea in abeyance agreement as an
exception to the usual rule that a plea in abeyance is not the
equivalent of a conviction do so explicitly.3 This feature of other
statutes bolsters our conclusion that if the Utah Legislature
intended to create an exception to the final-judgment rule for
restitution orders imposed as a condition in a plea in abeyance
agreement, it would have done so explicitly, but it did not.

¶16 The only language in the Crime Victims Restitution Act
that suggests a restitution order is a final judgment lies in section
77-38a-401, which states that a restitution order ‚shall be
considered a legal judgment, enforceable under the Utah Rules
of Civil Procedure,‛ Utah Code Ann. § 77-38a-401(2) (LexisNexis

(…continued)
entering judgment of conviction against him nor imposing
sentence upon him.‛ Utah Code Ann. § 77-38a-102(8)
(LexisNexis 2012). When a court accepts a plea in abeyance and
orders restitution under the Act, it does not enter judgment of
conviction or impose sentence at that time. See id. Thus, Meza’s
brief statement on this issue is not controlling.

3. Several statutes explicitly treat a plea in abeyance as a
conviction. See, e.g., Utah Code Ann. § 77-36-1.1(3) (LexisNexis
2012) (providing that ‚a plea of guilty or no contest to any
qualifying domestic violence offense in Utah which plea is held
in abeyance . . . is the equivalent of a conviction, even if the
charge has been subsequently reduced or dismissed‛); id. § 17-
16-10.5(2)(c) (2013) (providing that ‚*e+ntry of a plea in abeyance
[in malfeasance in office cases] is the equivalent of a conviction
. . . even if the charge is later dismissed pursuant to a plea in
abeyance agreement‛); id. § 76-9-301.7 (2012) (providing that a
conviction in cruelty to animal cases ‚means a conviction by plea
or by verdict, including a plea of guilty or no contest that is held
in abeyance . . . regardless of whether the charge was, or is,
subsequently reduced or dismissed in accordance with the plea
in abeyance agreement‛).

20140170-CA 8 2015 UT App 266
 State v. Mooers

2012), and ‚shall have the same [e]ffect . . . as a judgment in a
civil action,‛ id. § 77-38a-401(4). But we are not convinced the
legislature intended to make a restitution order in this context an
order appealable by the defendant. Rather, this section refers to
whether the order may be enforced by the victim, the court, or
creditors. Id. § 77-38a-401. In relevant part, it states,

The order shall be considered a legal judgment,
enforceable under the Utah Rules of Civil
Procedure. In addition, the [Department of
Corrections] may, on behalf of the person in whose
favor the restitution order is entered, enforce the
restitution order as judgment creditor under the
Utah Rules of Civil Procedure. . . . If the defendant
fails to obey a court order for payment of
restitution and the victim or department elects to
pursue collection of the order by civil process, the
victim shall be entitled to recover collection and
reasonable attorney fees. . . . [A] judgment ordering
restitution when entered on the civil judgment
docket shall have the same [e]ffect and is subject to
the same rules as a judgment in a civil action and
expires only upon payment in full, which includes
applicable interest, collection fees, and attorney
fees.

Id. § 77-38a-401(2) to (4).

¶17 This section of the Act does not refer to the right to
appeal, nor does it indicate that a restitution order is considered
a conviction or sentence for purposes of appeal. Instead, the
finality in the Act invokes a victim’s, court’s, or creditor’s ability
to enforce the payment of restitution. This enforcement
provision helps fulfill the purposes of restitution—to
‚compensate the victim for pecuniary damages‛ and
‚rehabilitate and deter the defendant, and others, from future
illegal behavior.‛ See State v. Laycock, 2009 UT 53, ¶ 18, 214 P.3d
104. Without this provision, which requires the court to enter the

20140170-CA 9 2015 UT App 266
 State v. Mooers

restitution order on a civil docket, there is no judgment entered
by which a victim can hold the defendant accountable for
restitution.

¶18 Mooers is concerned that not being able to directly appeal
the restitution order puts him in the untenable situation of either
paying an ‚improper restitution amount‛ or facing the
consequences of not fulfilling the conditions of the agreement.
But as our court has explained, ‚relief may still be attainable for
a defendant who enters into a plea in abeyance agreement even
if there is no appeal as of right from that plea agreement.‛ State
v. Millward, 2014 UT App 174, ¶ 6, 332 P.3d 400. Indeed, we
recognize that, without the legislature’s express consent, there
are available at least two of the ‚*t+hree avenues . . . for securing
review of a nonfinal order.‛ Tyler v. Department of Human Servs.,
874 P.2d 119, 120 (Utah 1994) (per curiam). The first is a petition
requesting interlocutory review pursuant to rule 5 of the Utah
Rules of Appellate Procedure. The second is to request
extraordinary relief under rule 65B of the Utah Rules of Civil
Procedure. Although ‚*t+he bases for proceeding under these
[rationales] differ from each other, . . . each provides a method
for seeking review of a lower tribunal’s order at a time prior to
entry of a final appealable judgment.‛4 Id. ‚Our rules allowing
discretionary review provide parties an opportunity to convince
an appellate court that the issue raised is so important that
review prior to full adjudication of the case is justified or that the
order will escape review altogether if an appeal is not allowed.‛
Id.

4. The third avenue mentioned in Tyler v. Department of Human
Services, 874 P.2d 119, 120 (Utah 1994) (per curiam)—seeking
certification of an order under rule 54(b) of the Utah Rules of
Civil Procedure—may not be available in a criminal case. But
even if it is, it is not clear that an order of restitution is one that
would qualify for certification.

20140170-CA 10 2015 UT App 266
 State v. Mooers

CONCLUSION

¶19 Because we conclude that a plea in abeyance is not a final
judgment, and that the restitution order imposed as a condition
to the plea in abeyance agreement is not an exception to the
final-judgment rule, we do not reach the merits of Mooers’s
appeal and dismiss his appeal.

20140170-CA 11 2015 UT App 266