2019 UT App 93
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LEE EVAN HEDGCOCK,
Appellant.
Opinion
No. 20170040-CA
Filed May 31, 2019
Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 161400207
Andrea J. Garland, Attorney for Appellant
Sean D. Reyes 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.
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
State v. Hedgcock
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
20170040-CA 2 2019 UT App 93
State v. Hedgcock
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
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State v. Hedgcock
payment of restitution.” 1 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, 2 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
1. A “402 reduction” refers to a reduction of the degree of a
criminal conviction under Utah Code section 76-3-402.
2. 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.
20170040-CA 4 2019 UT App 93
State v. Hedgcock
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) 3 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
3. The Restitution Act is codified at Utah Code sections
77-38a-101 to -601.
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State v. Hedgcock
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.
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,
20170040-CA 6 2019 UT App 93
State v. Hedgcock
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. 4 Second, our supreme court settled the law governing
complete restitution and court-ordered restitution, see State v.
4. 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
(continued…)
20170040-CA 7 2019 UT App 93
State v. Hedgcock
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, 5 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. 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
(…continued)
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.
5. 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.”
20170040-CA 8 2019 UT App 93
State v. Hedgcock
criminal penalties for amounts of restitution that may not have
been court-ordered restitution. 6
¶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. 7
6. 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.
7. 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
(continued…)
20170040-CA 9 2019 UT App 93
State v. Hedgcock
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
(…continued)
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.
20170040-CA 10 2019 UT App 93
State v. Hedgcock
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 Hegdcock 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.
20170040-CA 11 2019 UT App 93