McCullough v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Overton
Argued at Chesapeake, Virginia

SUE ANN McCULLOUGH
OPINION BY
v. Record No. 1564-01-1 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 27, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge

Christopher P. Reagan, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.

Eugene Murphy, Assistant Attorney General,
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

At a bench trial, Sue Ann McCullough was convicted of two

counts of misdemeanor welfare fraud and sentenced to twelve

months incarceration, all suspended. In addition, pursuant to

Code § 19.2-305(B), the trial court ordered McCullough to make

restitution in the amount of $5,054.07 as a condition of her

probation. McCullough appeals the trial court's imposition of

this condition. For the reasons that follow, we affirm the

trial court's decision.

Background

A grand jury indicted McCullough for welfare fraud in

excess of $200, a felony. At trial, the Commonwealth proved
beyond a reasonable doubt that Sue Ann McCullough committed

welfare fraud against the Suffolk Department of Social Services.

However, the Commonwealth failed to prove beyond a reasonable

doubt the amount by which McCullough was overpaid as a result of

her fraudulent conduct. She was accordingly convicted only of

two counts of petit larceny, in violation of Code § 18.2-96,

which defines "petit larceny" as the "commi[ssion] of simple

larceny not from the person of another of goods and chattels of

the value of less than $200." Code § 18.2-96. Notwithstanding

the failure of proof during the guilt phase of the trial

regarding the amount by which the Department was defrauded, the

trial court at sentencing ordered restitution in the amount of

$5,054.07, noting a different burden of proof applied to the

determination of restitutionary amounts and holding that the

Commonwealth proved the damages sustained by the agency by a

preponderance of the evidence. The parties do not dispute these

facts.

Analysis

McCullough contends that by ordering restitution in an

amount greater than that proved in the guilt phase of the trial,

the trial court erred as a matter of law. This question is one

of first impression in Virginia. For the reasons that follow,

we hold that the trial court did not err in the imposition of

restitution in an amount greater than that proved in the guilt

phase of the trial and affirm the decision of the trial court.

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 The trial court conditioned McCullough's probation on

payment of restitution to the agency in the amount of $5,054.07

pursuant to Code § 19.2-305(B), which provides, in pertinent

part:

A defendant placed on probation following
conviction may be required to make at least
partial restitution or reparation to the
aggrieved party or parties for damages or
loss caused by the offense for which the
conviction was had.

In addition, Code § 19.2-305.1(A1) provides that one convicted

of a crime "shall make at least partial restitution for any

property damage or loss caused by the crime . . . ." Under

these statutes, the trial court has "'wide latitude' and much

'discretion . . . to [apply the] remedial tool [of restitution]

. . . in the rehabilitation of criminals' . . . ." Deal v.

Commonwealth, 15 Va. App. 157, 160, 421 S.E.2d 897, 899 (1992)

(quoting Nuckoles v Commonwealth, 12 Va. App. 1083, 1085-85, 497

S.E.2d 355, 356 (1991)). As such, the statutory provisions are

to be liberally construed. Id.; Bazemore v. Commonwealth, 25

Va. App. 466, 468, 489 S.E.2d 254, 255 (1997).

The statutory scheme for ordering restitution was

established by the Virginia legislature as a conjunct of

suspended sentences. Its purpose is to help make the victim of

a crime whole. See generally, Alger v. Commonwealth, 19

Va. App. 252, 450 S.E.2d 765 (1994); see also Russnak v.

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Commonwealth, 10 Va. App. 317, 322, 392 S.E.2d 491, 493 (1990). 1

Although historically denominated a criminal penalty, 2

restitution under Virginia law may be more accurately

characterized as quasi-civil in nature. Restitution is a

monetary amount that reflects the "damages" or "loss" caused by

the crime. Code § 19.2-305(B). Part of the sentencing phase of

trial, the amount is determined following conviction and is a

matter resting within the sole province of the sentencing judge.

See Code § 19.2-305.1(C) ("At the time of sentencing, the court,

in its discretion, shall determine the amount to be repaid by

the defendant and the terms and conditions thereof."); Frazier

v. Commonwealth, 20 Va. App. 719, 721-22, 460 S.E.2d 608, 609

(1995) (noting that restitution "is a well established

sentencing component . . ."). It is based on facts proved

either at the trial of the offense or at the sentencing hearing,

1
Restitution may also serve the other purposes of
sentencing, including deterrence, rehabilitation and
retribution. See Note, Victim Restitution in the Criminal
Process: A Procedural Analysis, 97 Harv. L. Rev. 931, 937-41
(1984).
2
According to one legal scholar, "[i]n ancient societies,
before the conceptual separation of civil and criminal law, it
was standard practice to require an offender to reimburse the
victim or his family for any loss caused by the offense. The
primary purpose of such restitution was not to compensate the
victim, but to protect the offender from violent retaliation by
the victim or the community. It was a means by which the
offender could buy back the peace he had broken." See id. at
933-34 (citations omitted).

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where both the defendant and the Commonwealth have an

opportunity to present relevant evidence on the issue. Cf.

Deal, 15 Va. App. at 159-61, 421 S.E.2d at 898-900 (considering

evidence from both the offense trial and the sentencing hearing

to determine whether the imposed amount of restitution was

reasonable). Clearly, then, the amount of restitution that may

be imposed as a condition of probation is not an element of the

offense that must be proved during the guilt phase of the trial,

and its determination may properly be viewed as distinct from

the determination of guilt. See Code § 19.2-295.1 (mandating

separate proceedings for conviction and sentencing of felonies);

Deal, 15 Va. App. at 160, 421 S.E.2d at 899 ("Following

conviction in a criminal proceeding, trial courts are

specifically vested with the authority to suspend the sentence

in whole or part, suspend [its] imposition and . . . place the

accused on probation, all under such conditions as the court

shall determine. Among such conditions, restitution for

'damages or loss' caused by the offense is expressly recognized

and approved in several statutes." (internal quotations

omitted)).

In addition to the principles enunciated above, different

rules of procedure apply, further confirming that restitution is

to be treated as distinct and separate from the trial and

conviction for the offense. Such rules do not and need not

mirror those required for conviction. See Hollis v. Smith, 571

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F.2d 685, 693 (2d Cir. 1978) ("There is no authority binding

upon us which holds that the procedure in proceedings relating

solely to punishment even when an additional fact has to be

established, must conform precisely to those in proceedings

relating to guilt, and we see no basis in principle for so

holding."). For example, hearsay evidence is admissible during

sentencing and may be used to establish an appropriate amount of

restitution. See Alger, 19 Va. App. at 259 n.2, 450 S.E.2d at

769 n.2 (holding that Victim Impact Statement contained in

pre-sentence report prepared by probation officer was properly

considered by the court to determine restitution). In addition,

the right to a jury determination of the amount does not attach.

Boyd v. Commonwealth, 28 Va. App. 537, 540, 507 S.E.2d 107, 109

(1998). Finally, and most importantly, the "damages" or loss

incurred by an aggrieved party as a result of the offense need

only be proved by a preponderance of the evidence. Bazemore, 25

Va. App. at 468, 489 S.E.2d at 255; Alger, 19 Va. App. at 258,

450 S.E.2d at 768.

The acceptance of the preponderance standard to establish

the restitutionary amount, in itself, supports the conclusion

that the Commonwealth's failure to prove the entire amount of

loss caused by the offense during the guilt phase of the present

offense, where a higher standard of proof prevailed, did not

preclude the imposition of a greater amount upon proper proof

during the sentencing phase. To adopt the converse and view the

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restitution issue as partaking of the guilt phase of criminal

prosecutions "would turn sentencing hearings into second

trials." United States v. Fatico, 603 F.2d 1053, 1057 (2d Cir.

1979).

In summary, the distinction made between restitution and

the elements of the offense under Virginia law, which includes

the application of a lowered burden of proof and relaxed rules

of evidence, when viewed together with the primary purpose

restitution has been instituted by the Virginia legislature,

supports the conclusion that the amount of restitution the trial

court may impose as a condition of probation is not limited to

the proof put forth during the guilt phase of the trial. On

appeal, where the restitutionary amount is supported by a

preponderance of the evidence and is "reasonable in relation to

the nature of the offense," Deal, 15 Va. App. at 160-61, 421

S.E.2d at 899, the determination of the trial court will not be

reversed.

In this case, the trial court found that the Commonwealth

proved by a preponderance of the evidence that McCullough's

actions caused $5,054.07 in damages to the agency. Therefore,

it ordered McCullough to pay restitution in that amount. We

find no error and affirm the trial court's determination of

restitution.

Affirmed.

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