State v. Bohannon

Skoglund, J.,

¶ 16. concurring. The Court correctly concludes that the Department of Corrections (DOC) is not entitled to recover the costs of extraditing defendant after he violated the terms of his probation and left the state. I write separately to express my position regarding the ability of a state agency to seek and receive restitution under statutes created to compensate victims of crimes as was decided in State v. Lewis, 167 Vt. 533, 711 A.2d 669 (1998). Looking at the restitution statutes and the compensation-to-victims-of-crime statute in pari materia, I do not believe the Legislature intended that state agencies be considered “victims” when performing their agency functions. I now believe that Lewis was wrongly decided.

¶ 17. In Lems, we addressed whether a defendant had to compensate the DOC for the costs of extradition when the defendant escaped while on work-furlough or whether such expenses were properly a “cost of prosecution.” Section 7172(b) of Title 13 states that the “[c]ost of prosecution shall not be taxed against a respondent in any criminal cause.” We held that the DOC’s expenses for the defendant’s extradition were not “costs of prosecution,” 167 Vt. at 537, 711 A.2d at 672; rather, for the purpose of awarding restitution, we found that the DOC was the “victim” of the defendant’s escape under 13 V.S.A. § 7043 and, *419therefore, entitled to compensation. Id. at 538-39, 711 A.2d at 673. The rationale underlying Lems fails for four reasons.

¶ 18. As an initial matter, the logic of the Lewis opinion is disjointed. At the outset, the Lends Court reasoned that extradition was not a “cost of prosecution” because transporting the defendant back to Vermont was “more closely related to his earlier conviction and sentence for assault, robbery, and kidnapping than to his subsequent prosecution for escape,” and opined “that the Commissioner would have sought defendant’s return, irrespective of any subsequent decision to prosecute.” Id. at 535-36, 711 A.2d at 671. Nevertheless, in deciding that the DOC was a “victim,” we expressly held that because the “underlying substantive offense in this case [was] escape, the Department was the immediate and intended victim.” Id. at 538, 711 A.2d at 673. In other words, in deciding that § 7172(b) did not prohibit ordering the defendant to repay the DOC the costs of returning the defendant to Vermont, we held the extradition was not part of a prosecution, but rather a normal part of the business of the DOC. Then we held that defendant’s escape had victimized the DOC and entitled it to restitution. Either the cost of extradition is a “cost of prosecution” of the underlying crime of escape or it is a cost incidental to the duties of the DOC. See 28 V.S.A. § 102(b)(10) (Commissioner charged with power to “utilize the resources of the department to apprehend any person escaping from a correctional facility”). In Lends, it is both.

¶ 19. Second, putting this logical flaw to one side, Lends made a more fundamental error by holding that a state agency could properly be considered a “victim” within the meaning of § 7043. The Court found that “governmental bodies are not precluded from recovering under the restitution scheme.” Lewis, 167 Vt. at 538, 711 A.2d at 672. To support this proposition, we cited two fraud cases, neither of which offered any relevant legal analysis. See State v. Benoit, 131 Vt. 631, 635, 313 A.2d 387, 389 (1973) (“[F]or lack of any evidence to the contrary, . . . defendant must repay . . . the Department [of Social Welfare] under the order of restitution by the lower court.”); State v. Godfrey, 131 Vt. 629, 631, 313 A.2d 390, 391 (1973) (“[Restitution] was discussed in [Benoit,] decided at this term of Court, and the same answer is reached in this case.”). In Benoit and Godfrey, the defendants had fraudulently received state-aid payments and were ordered, as a term of their probation, to repay the amount of money wrongly obtained. *420Rather than designating a state agency a compensable “victim” of a crime, the defendants were simply forced to divest themselves of their ill-gotten gains.

¶20. Third, the term “victim” is not defined in either the restitution statute, 13 V.S.A. § 7043, or the probation statute, 28 V.S.A. § 252(b)(6). Citing to State v. Bonfanti, 157 Vt. 625, 628, 603 A.2d 365, 367 (1991), we noted that our statutory scheme assumes the victim of a crime “suffers some sort of wrong for which restitution compensates.” Lewis, 167 Vt. at 538, 711 A.2d at 672. We likened the situation in Lewis to the restitution allowed in Bonfanti, where we upheld a restitution award to companies insuring a building that the owner had set on fire, and held “the Department was the immediate and intended victim of defendant’s [escape].” Id. at 538-39, 711 A.2d at 673. We then found support for this finding in the definition of “victim” provided in Title 13, chapter 167, which established the victim’s compensation fund.2 Id. at 539, 711 A.2d at 673. This analytical stretch views the DOC as the equivalent of a true crime victim who has sustained physical, emotional, or financial injury as the direct result of a crime. I cannot make that stretch.

¶ 21. Fourth, I find it difficult to understand how an agency’s budgeted and statutorily mandated expenses can properly be considered a “material loss” and the result of a crime. See 13 V.S.A. § 7043(a)(1) (restitution considered in cases where victim “has suffered a material loss”). In Lewis, we held that the costs of extradition were to be borne by the defendant because his escape caused the expense and thus was a “material loss” that was not part of “ordinary operational costs of law enforcement.” 167 Vt. at 539, 711 A.2d at 673. Yet, 28 V.S.A. § 102 charges the DOC Commissioner with a series of powers that includes the “assignment and transfer of persons committed to the custody of the commissioner to correctional facilities.” § 102(b)(5). Most importantly, the Commissioner has the power to “utilize the resources of the department to apprehend any person escaping from a correctional facility.” Id. § 102(b)(10) (emphasis added). Unlike unforeseen property damage or medical expenses, the capture and rendition of an escaped prisoner is part and parcel of the duties of the DOC, and those expenses are not a loss, material or otherwise.

*421¶ 22. Finally, beyond the flawed analysis in Lewis, I fail to see how any state agency could properly fall within the ambit of our restitution scheme. We have recognized that § 7043 “is narrowly drawn” and precludes restitution in many instances where our sister jurisdictions permit it. State v. Forant, 168 Vt. 217, 222, 719 A.2d 399, 402 (1998); see id. at 224, 719 A.2d at 403-04 (pointing out Vermont’s restitution statute involves more narrow definition of “victim” than “most similar” jurisdiction’s statute). Moreover, as it was enacted in conjunction with 28 V.S.A. § 252 as part of the “Crime Victim’s Bill of Rights,” the two statutes “are parts of a statutory scheme dealing with restitution, and they should be construed together.” State v. Jarvis, 146 Vt. 636, 638, 509 A.2d 1005, 1006 (1986); see 1983, No. 229 (Adj. Sess.). They are meant to support crime victims following an injury directly resulting from a criminal’s unlawful acts. The context of § 7043, combined with its language and true underlying legislative purpose and the flaws of the Lewis opinion, all lead me to recognize that we erred in permitting a state agency to recover restitution.

¶23. I am authorized to state that Justice Burgess joins in ¶¶ 16-18 and 21 of this concurrence.

Section 5351(7)(A) defines “victim” as “[a] person who sustains injury or death as a direct result of the commission or attempted commission of a crime.”