2010-632, State of New Hampshire v. Daniel Bent

Michael A. Delaney

Superior Court (Coffey Stephanie Hausman assault and three counts of reckless conduct. On February 2, 2007, the The defendant was convicted, by a jury, of one count of second degree

No. 2010-632 Rockingham

We vacate and remand. denying his motion to vacate restitution and setting restitution at $21,230.86. defendant, Daniel Bent, appeals orders of the Superior Court (Nadeau, J.) DUGGAN, J., retired, specially assigned under RSA 490:3. The

brief and orally, for the defendant. ___________________________

attorney general, on the brief and orally), for the State. a.m. on the morning of their release. T , attorney general (Stephen D. Fuller, senior assistant reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as of the trial court. State v. Gibson p. 2 Determining the appropriate restitution amount is within the discretion

victim in light of the settlement agreement.

whether a restitution award would result in duplicate compensation to the

assault. He also argues that the trial court erred in failing to determine

of demonstrating the amount of the victim’s economic loss attributable to the

amount of restitution at $21,230.86 because the State did not meet its burden Court (Nadeau On appeal, the defendant argues that the trial court erred in setting the parties came to a settlement agreement, which was approved by the Superior defendant, the defendant’s employer and the employer’s insurance carrier. The 2 The victim of the assault subsequently brought a civil suit against the

submits claims for further expenses related to the incident.” $21,230.86, and that the amount was “subject to increase as the victim

clarifying that “[r]estitution is set at $21,230.86.” clarification. On August 30, 2010, the trial court issued an additional order failed to set an amount for restitution. The defendant filed a motion for employee in the division of field services, as well as the testimony of the victim. At the restitution hearing, the State presented the testimony of an restitution was $18,146.03 plus the 17% administrative fee, for a total of

unless they lack support in the record, or are clearly erroneous. State v.

denying the defendant’s motion to vacate restitution. The order, however,

assigned to collect restitution. The letter also stated that the amount of Shannon, 155 N.H. 135, 137 (2007). department of corrections informing him that Deborah Nelson had been While the defendant was incarcerated, he received a letter from the omitted). In reviewing the trial court’s rulings, we accept its factual findings the offense and bears a significant relationship to the offense.” Id. (quotation preponderance of the evidence that the loss or damage is causally connected to basis for restitution is disputed, however, the State must prove by a

Following a restitution hearing, the court issued an order on May 26, 2010, in the civil case, and requesting a hearing on the issues related to restitution. vacate the order of restitution as a result of the settlement agreement reached On January 6, 2010, the defendant filed a motion requesting the court to

, J.) on January 13, 2009. method of payment of restitution.”

Department of Corrections, a hearing may be scheduled on the amount or Corrections.” The court noted that “[a]t the request of the defendant or the

determined plus statutory 17% administrative fee through the Department of state prison and ordered him to “make restitution of an amount to be p. 3 3

never independently considered the amount of restitution, but rather

the amount of restitution, RSA 651:6 p. 3 3 (Supp. 2010). Because the trial court restitution order, RSA 651:64 (2007), only the court has the authority to set authority to set the time and method of restitution payments, and to enforce a

by the department of corrections. While the department of corrections has The court erred in ruling that it was bound by the restitution amount set

the department of corrections plus the 17% statutory fee.

would remain at $21,2 p. 3 30.86, which is the sum of the $18,146.03 figure from

“[had] been set.” Subsequently, the court clarified that the restitution amount trial court’s order stated that it was bound by the restitution amount that vacated because the court itself never made such a determination. Instead, the

restitution as determined by the trial court, the trial court’s order must be However, although the evidence was sufficient to support an amount of

amount determined by the trial court to be appropriate. find that there was sufficient evidence to support an award of restitution in an

damage to the victim in the amount of $127,000 or greater. Accordingly, we

testimony and the documents presented by the State tended to show loss or

by the court beyond the letter from the department of corrections, the victim’s Although there was no specific evidence supporting the exact amount set

$21,2 p. 3 30.86, and was actually significantly greater. expenses and the $127,000 lien proved that the victim’s loss was at least response, argues that the evidence of the victim’s ongoing out-of-pocket

support the restitution amount ordered by the trial court. The State, in The defendant argues that the State did not present sufficient evidence to

that detailed the calculation of the $127,000 lien. evidence a letter informing the victim that he owes $127,000, as well as a form

benefits. In addition to the victim’s testimony, the State submitted into

him in the amount of $127,000 for money paid as workers’ compensation [therapy].” He further testified that the State is seeking reimbursement from co-pays, [weekly visits to a brain injury center] and myofascial release

to a “loss in salary,” he has ongoing “out-of-pocket expenses for prescription agreement, as well as his losses since the assault. He stated that, in addition The victim testified about his net recovery from the settlement

we came up with that $18,000 figure.”

file that came from [the insurance company], but . . . again, I’m not sure how department] came up with the $18,000 figure. There’s some paperwork in the Regarding the amount, he explained, “[Q]uite honestly, I’m not sure how [the

corrections that initially set restitution at $18,146.0 p. 3 3 plus the 17% fee. The employee testified that he reviewed the file from the department of p. 4 Vacated and remanded

us, we make no finding as to what effect, if any, this provision has.

made in the first instance by the trial court. See restitution would result in double recovery to the victim is one that must be

which was not before the trial court in this case and has not been appealed to

of his motion to vacate restitution. However, the determination of whether

Because the civil settlement agreement was part of a separate proceeding any civil damage awards by restitution ordered and paid to the victim.” restitution is awarded. RSA 651:63, IV provides that “[t]he court shall reduce the civil settlement agreement, pursuant to RSA 651:63, IV (2007), if The defendant also makes various arguments regarding the reduction of

provides that “restitution is not intended to compensate the victim more than in light of the settlement agreement. compensated the victim. He therefore asks us to reverse the trial court’s denial double recovery for the victim because the settlement agreement fully According to the defendant, any amount of restitution would result in

DALIANIS, C.J.