State v. Rust

MILLER, Chief Justice.

ACTION

Arlys Rust appeals an order of restitution based on her conviction for embezzlement. We affirm.

FACTS

Rust worked as a bookkeeper for Rauen Steel Construction (Rauen). Between July 1, 1983 and June 27, 1990, she embezzled $221,818 from Rauen. Rauen discovered the embezzlement while Rust was on vacation in June 1990. Rauen contacted the appropriate authorities.

Rust was charged with embezzlement and she pled guilty as part of a plea agreement. State agreed not to charge her with other embezzlement counts and agreed not to present witnesses at sentencing. State reserved the right to inform the trial court of the entire amount of money embezzled. State and Rust agreed that State could seek restitution. They did not discuss what amount of restitution would be sought. In short, nothing in the plea agreement prevented State from seeking the maximum amount of restitution allowed by law.

At a combined arraignment and plea hearing, the trial court accepted Rust’s guilty plea. After the trial judge had accepted Rust’s guilty plea, he noted:

The Court: I was just reminded that

under the more recent — a recent decision of our Supreme Court, I should advise the Defendant even ahead of her plea, that there is a possibility, of course, that she may have — be ordered to make restitution, if that amount can be established. And I’m advising you of that now, Mrs. Rust, that that may be a term and condition of your sentence. And if that in any way affects your plea that you entered, then you should tell the Court now.

Rust: No.

*611The trial court ordered a presentence report. Just before the October 31, 1990 sentencing hearing, the state’s attorney informed Rust that he intended to seek restitution for the entire amount of money she embezzled while working at Rauen. Rust objected and argued that the trial court was only authorized by law to order restitution for crimes she was convicted of, pled guilty to, or admitted. After hearing the arguments of the state’s attorney and Rust’s attorney, the trial court noted:

The Court: So that the record will reflect
the approach the Court’s going to take in this matter, and too, so that it’s clear to counsel, I’m going to proceed with the sentencing procedure, and then the Court will consider the restitution issue at a restitution hearing some time subsequent to this date, so, that an amount can be determined. I’m not sure at this point as to what the effects are as to the agreeing to restitution in the plea bargain agreement, or the lack of that; however, the Court did advise the Defendant prior to the entry of her plea that one of the terms and conditions of the sentencing would be possible restitution, and, subsequent to that time, she did enter her plea with that knowledge. And we’ll proceed from there. Mrs. Rust, would you stand, please? Would you state your name.
Arlys Rust: Arlys Joy Rust
* * * * * *
The Court: Now, Mrs. Rust, you entered a plea of guilty to this charge of Embezzlement before this Court approximately a little over a month ago. And, if you have any reason to believe that you were not afforded every right to which you were entitled, if you did not have a fair opportunity to confer with your counsel, if any promise was made to you with respect to sentencing, if you were coerced into making your plea, if you did not understand what you were doing when you entered your plea, and did not understand its consequences to you, if you are not guilty of the crime to which you pled guilty, or if you have any other reason which would make it in your best interest to withdraw your plea previously entered and proceed to trial, you may now move to withdraw your plea. I’d ask that you, please, confer with your counsel and advise the Court as to whether or not you want your plea to stand, and whether or not you are guilty of that offense.
(Pause)
Arlys Rust: I want it to stand.
The Court: All right. And are you guilty of that offense?
Arlys Rust: Yes.
The Court: [A]ll right. Now, Mrs. Rust, you have heard the discussion between counsel here today and the Court. And it’s rather confusing, but there is the question as to whether or not the Court should and will order restitution to be made, and the amount of restitution that’s to be ordered. And I advised you previously, before you entered your plea, that there would be an order of restitution, or that was a possibility; and do you recall that?
Arlys Rust: Yes.

Rust was sentenced to ten years in prison with two years suspended on condition that she makes restitution as ordered. A hearing on the restitution issue was held on January 2, 1991 and the trial court set restitution at $221,818.01. Rust appeals.

DECISION

As noted in the facts above, nothing in the plea agreement limited the trial court’s ability to order restitution to the full extent authorized by law. The trial court informed Rust that she could be ordered to pay restitution. Of course, when Rust pled guilty she did not know exactly how much restitution the trial court was going to order. That is not extraordinary. The important fact is that Rust knew the trial court could order her to pay restitution.

Rust did not admit in open court that she embezzled $221,818.01. Her attorney relies on the language of the restitution statutes, as interpreted by this Court in State v. Wolff, 438 N.W.2d 199 (S.D.1989), which *612provides that restitution may only be ordered for crimes the defendant pled guilty to, was convicted of, or admitted. Rust contends the trial court only had authority to order restitution for the $10,278.62 she admitted to the court she had embezzled.

However, Rust admitted her entire embezzlement scheme to the court investigator during a court-ordered presentence investigation. She said that she had embezzled approximately $175,000, but was not aware of the exact amount. Investigation of her employer’s records showed that she had taken over $220,000.

The trial court held an evidentiary hearing on restitution. An accountant testified that he examined the employer’s financial records and learned that Rust had embezzled $221,818.01. Rust had the opportunity to cross-examine the witnesses and to present evidence on her own behalf. Based on the evidence produced at the restitution hearing, the trial court concluded that Rust had embezzled $221,818.01. The trial court ordered Rust to make restitution of that entire amount.

When she pled guilty Rust knew the trial court was going to order restitution. She admitted to the presentence investigator that she had embezzled a large amount of money over several years. Unlike the defendants in Wolff and State v. Wilson, 459 N.W.2d 457 (S.D.1990), Rust cannot successfully argue that her due process rights were abridged. A hearing was held and evidence was offered to prove that she had embezzled $221,818.01. She was given the opportunity to refute that evidence. The trial court ordered her to make restitution for the entire embezzlement scheme. We affirm the trial court’s restitution order.

SABERS, J., concurs. HENDERSON, J., concurs specially. AMUNDSON and WUEST, JJ., dissent.