Opinion
Court of Appeals No. A-12599 No. 6910
12-09-2020
JOSHUA DANIEL ALMEDA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Courtney R. Lewis, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-14-05765 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Courtney R. Lewis, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and McCrea, District Court Judge. Judge HARBISON.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Joshua Daniel Almeda appeals, for the second time, from the superior court's restitution order.
Almeda was convicted of second-degree murder for killing his girlfriend, Breanna Moore. He was sentenced to 75 years' imprisonment. After a contested restitution hearing, the superior court entered a restitution judgment awarding $55,539.21 to Moore's family. Almeda appealed, challenging both his sentence and the award of restitution to Moore's family.
AS 11.41.110(a)(2).
We affirmed Almeda's sentence, but we remanded the case to the superior court for clarification of the restitution order. In response, the superior court issued a written order explaining that, of the seven claims for restitution that Almeda contested, it disallowed three of the claims. It also explained the basis for its award of restitution for the four remaining claims.
Almeda v. State, No. A-12599, Summary Disposition No. 0080, at *3 (Alaska App. Oct. 23, 2019) (unpublished).
Almeda now appeals the superior court's restitution order for a second time. On appeal, he challenges the superior court's award of restitution for two of the remaining claims. He challenges the superior court's award of $1,127.76 in restitution to reimburse Moore's family for the cost of food for a "one-year anniversary celebration of life ceremony." He also challenges the award of $5,000 in restitution to reimburse the family for the estimated costs to administer and close Moore's estate. For the reasons we now explain, we affirm the superior court's award of restitution for the memorial ceremony, but we vacate the majority of the estimated costs of administering the estate as too speculative.
Why we conclude that the superior court did not abuse its discretion when it awarded restitution for the costs of the memorial ceremony
We review the superior court's restitution award for an abuse of discretion. At the restitution hearing in this case, Moore's father testified that many of Moore's friends and family were unable to attend her funeral because they resided out-of-state. To allow a greater number of friends and family to celebrate Moore's life and to mourn her passing, the family first held a small funeral and later held a larger "one-year anniversary celebration of life event."
See Booth v. State, 251 P.3d 369, 373 (Alaska App. 1994) ("[T]he 'abuse of discretion' standard of review applies to situations where the law allows or requires the judge to exercise discretion—to reach a decision by considering and weighing various factors, and then doing what seems most fair under the circumstances."); Reece v. State, 881 P.2d 1135, 1138 (Alaska App. 1994) (applying the abuse of discretion standard to a trial court's decision ordering the defendant to compensate the victim for future costs of counseling and the victim's mother for partial moving expenses); cf. Riley v. State, 60 P.3d 204, 223 (Alaska App. 2002) (relying on Reece to affirm the trial court's restitution award where the trial court could "reasonably conclude" that the expense was attributable to the defendant's crime). But see Salvato v. State, 814 P.2d 741, 744 (Alaska App. 1991) (holding that "[t]he amount of restitution, which is part of the sentencing determination, shall be affirmed unless clearly mistaken") (emphasis added).
In its written order, the superior court treated the two memorials as separate parts of a single mortuary service, and it accordingly granted the requested restitution.
A defendant's liability for restitution must be proximately related to the defendant's crime. The costs of a celebration of life event held on the anniversary of a victim's death generally would not be the type of expense that is proximately related to the defendant's crime and would not properly be part of a restitution judgment. But we have previously approved an award of restitution for reasonable expenses related to a memorial service. Additionally, in this case, the superior court viewed the anniversary event as essentially a continuation of the funeral and found the costs reasonable. Under the particular facts found by the superior court in this case, we cannot conclude that its order was an abuse of its discretion.
See Ned v. State, 119 P.3d 438, 446 (Alaska App. 2005) (rejecting a "but for" approach to restitution claims); cf. Peratrovich v. State, 903 P.2d 1071, 1078 (Alaska App. 1995) ("[A] restitution order must be based on substantial evidence of monetary loss or expense.").
Ned, 119 P.3d at 446-47.
Why we vacate the majority of the award of restitution for the cost of administering and closing Moore's estate
Almeda next contends that it was error for the superior court to award $5,000 in restitution for the cost of settling Moore's estate. He argues that the evidence presented to the superior court was insufficient to support the restitution award. We agree.
We will uphold an award for restitution only when the expense is a proximate result of the defendant's crime, and only if the amount is based on substantial evidence of monetary loss or expense (as opposed to "mere speculation").
See Ned, 119 P.3d at 446.
Peratrovich, 903 P.2d at 1078 (citing Noffsinger v. State, 850 P.2d 647, 650 (Alaska App. 1993)).
Here, the primary evidence introduced in support of the restitution request for the costs of settling Moore's estate was a letter from a law firm stating only that "the estate should anticipate incurring fees and costs amounting to up to $5,000 to close the estate." The letter did not include a breakdown of the anticipated costs, nor did it provide any information about the size of the estate, the actions needed to close the estate, the lawyer's hourly rate or any other information that would be useful in evaluating the accuracy and reasonableness of the estimate.
Moore's father testified at the December 14, 2016 evidentiary hearing that the family had paid $866.14 in attorney's fees, which was the cost of settling what appears to be the sole claim against the estate. But the record contains no additional information about the ultimate costs of settling the estate — even though it is likely that the estate had closed by the time of our October 2019 remand and the actual costs were known by the time of the superior court's January 13, 2020 written order.
We agree with Almeda that the generic letter from the law firm was insufficient to support the $5,000 restitution award for the cost of settling Moore's estate. We therefore vacate the award with the exception of the $866.14 of costs substantiated by Moore's father's testimony.
Conclusion
We AFFIRM the superior court's order granting restitution to Moore's family for the costs of providing food for the celebration of life ceremony but we VACATE the restitution award for the majority of the costs of administering and closing Moore's estate with the exception of the $866.14 in paid attorney's fees substantiated by Moore's father.