Utah Office for Victims of Crime v. Hembree

2023 UT App 112

THE UTAH COURT OF APPEALS

UTAH OFFICE FOR VICTIMS OF CRIME,
Limited-Purpose Party/Appellant,
v.
NICHOLAS EZEKIEL HEMBREE,
Appellee.

Opinion
No. 20220466-CA
Filed September 28, 2023

Eighth District Court, Vernal Department
The Honorable Edwin T. Peterson
No. 191800614

Sarah E. Goldberg,
Attorney for Limited-Purpose Party/Appellant
Ramon Ortiz, Debra M. Nelson, and Benjamin Miller,
Attorneys for Appellee Nicholas Ezekiel Hembree

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Nicholas Ezekiel Hembree pleaded guilty but mentally ill
to two first-degree felonies and two third-degree felonies. The
district court did not address restitution at the sentencing hearing,
but the court’s minutes entered after the hearing noted that no
restitution was being sought under the plea agreement. After
sentencing, the Utah Office for Victims of Crime (UOVC)
submitted a motion for restitution, which the court denied. UOVC
sought reconsideration of the denial, which the court also denied.
UOVC now appeals the court’s denial of its request for restitution,
arguing the court erred by refusing to order Hembree to pay
restitution. We agree and therefore vacate the court’s order and
remand the matter to the district court for further proceedings.
Office for Victims of Crime v. Hembree

BACKGROUND

¶2 In October 2019, soon after Hembree was charged with five
felony counts, UOVC initiated contact with the Uintah County
Attorney’s Office to inform the prosecutor assigned to the case
(Prosecutor) that it had approved a reparation award to the victim
and would be seeking reimbursement. This initial letter included
a request from UOVC for Prosecutor’s assistance in collecting
restitution for the amounts UOVC had paid on behalf of the
victim. Thereafter, UOVC sent numerous updated restitution
notices to Prosecutor, informing Prosecutor that the victim had
received a total of $2,119.33 from UOVC for medical-related
expenses.

¶3 In August 2021, Hembree pleaded guilty but mentally ill to
several of the charges. At the change of plea hearing, neither the
district court nor the parties discussed restitution. However,
Hembree acknowledged in his written statement in support of
guilty plea (plea agreement) that he “may be ordered to make
restitution to any victim(s) of [his] crimes, including any
restitution that may be owed on charges that are dismissed as part
of a plea agreement.” The plea agreement did not otherwise
address restitution.

¶4 Hembree was sentenced to prison in January 2022. At the
sentencing hearing, the district court asked Prosecutor for victim
input on sentencing. In response, Prosecutor indicated that the
direct victim wanted Hembree to be incarcerated; however,
Prosecutor did not indicate that the direct victim was seeking
restitution, and the court did not discuss the issue of restitution
with the parties. Nevertheless, the minutes from that hearing note
that “[r]estitution is not being sought in this matter as per the plea
agreement.”

¶5 Approximately two weeks after the sentencing hearing,
UOVC filed a motion for restitution seeking $2,119.33 in

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restitution. Neither party opposed the motion. Nevertheless, the
district court did not hold a hearing on the motion and denied it
by returning UOVC’s proposed order “not signed” and without
providing any justification for the denial. UOVC then filed a
motion to reconsider, which the court denied in a written order.
In the order, the court explained it was denying the motion to
reconsider based on the court’s belief that Prosecutor’s failure to
address restitution before judgment bound UOVC as a fellow
“State” agency to the terms of the plea agreement, which terms
“did not include restitution.” As such, the court concluded that
UOVC’s restitution request was “untimely and potentially
violative of [Hembree’s] due process rights and simply not in the
fundamental interests of justice.”

ISSUE AND STANDARD OF REVIEW

¶6 UOVC appeals the district court’s denial of its post-
sentencing restitution request. “We will not disturb a district
court’s restitution order unless it exceeds that prescribed by law
or [the court] otherwise abused its discretion. But we review a
district court’s interpretation of restitution statutes for
correctness.” State v. Hamilton, 2018 UT App 202, ¶ 15, 437 P.3d
530 (quotation simplified).

ANALYSIS

I. This Court Has Jurisdiction Over This Appeal

¶7 To begin, we must consider whether we have jurisdiction
over this appeal. Hembree argues that this court lacks jurisdiction
because UOVC appealed from the wrong order. Specifically,
Hembree contends that UOVC should have appealed from the
sentencing order rather than the district court’s denial of its post-
sentencing motion for restitution. This argument is incorrect for
two primary reasons.

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¶8 First, the district court’s sentencing order is distinct from
its order denying restitution. Utah law addresses sentencing and
restitution determinations separately and allows for sentencing
and restitution to be imposed at different times. See Utah Code
§ 77-38b-205(5). Section 77-38b-205(1) of the Utah Code states, “If
a defendant is convicted, . . . the court shall order a defendant, as
part of the sentence imposed . . . , to pay restitution to all victims
. . . .” Id. § 77-38b-205(1). While the availability of restitution
hinges on a conviction, restitution can be determined and
imposed after sentencing. See id. § 77-38b-205(5). Furthermore, the
Utah Supreme Court has acknowledged that “orders of complete
restitution . . . [are] separately appealable from a criminal
sentence.” State v. Mooers, 2017 UT 36, ¶ 6, 424 P.3d 1. In
Hembree’s case, restitution was not addressed by the parties at
sentencing, except for in the plea agreement, which both parties
agree fails to explicitly indicate that Hembree did not have to pay
restitution. Moreover, because restitution was not formally
ordered as part of Hembree’s sentence, there was no restitution
order for UOVC to appeal. The only final and definitive decision
regarding restitution was the district court’s denial of UOVC’s
motion for restitution. Accordingly, UOVC’s appeal from this
order was proper, and this court has jurisdiction to hear this case. 1

¶9 Second, UOVC is not a traditional party to the criminal case
and did not have standing to appeal the sentencing order. Under
Utah law, only parties to a criminal case can bring a direct appeal.
See Utah Code § 77-18a-1; see also State v. Sun Surety Ins. Co., 2004
UT 74, ¶ 9, 99 P.3d 818 (explaining that only “a party to the
criminal case” may “bring a direct appeal”). And as our supreme
court has explained, “[o]nly the State and the defendant are actual

1. In a related vein, Hembree argues that “[n]ot only has UOVC
appealed from the wrong order, but it is now too late to appeal
the correct one.” However, UOVC’s appeal was timely given that
it did not appeal from the wrong order. See Utah Code § 77-38b-
205(5) (establishing timelines for entering an order for restitution).

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parties to a criminal action.” State v. Lane, 2009 UT 35, ¶ 17, 212
P.3d 529; see also State v. Brown, 2014 UT 48, ¶ 14, 342 P.3d 239
(“[T]he traditional parties to a criminal proceeding are two—the
prosecution and the defendant.”).

¶10 Even though UOVC is not a traditional party to the case, it
was nevertheless entitled to participate in some of the
proceedings. Utah law contemplates that crime victims “possess
the status of a limited-purpose party with the right to file a request
for restitution.” Brown, 2014 UT 48, ¶ 20. As relevant here, section
77-38b-102(17)(b)(i) of the Utah Code defines “victim” to include
“the [UOVC] if the [UOVC] makes a payment to, or on behalf of,
a victim.” Thus, because UOVC made payments to the victim in
Hembree’s case, it qualifies as a victim.

¶11 As a victim under the law and not a party in this case,
UOVC was “not entitled to participate at all stages of the
proceedings or for all purposes.” Brown, 2014 UT 48, ¶ 16. Indeed,
UOVC could not appeal the sentencing order, see Lane, 2009 UT
35, ¶¶ 16–17, nor could it negotiate the terms of the plea
agreement, see State v. Hamilton, 2018 UT App 202, ¶ 23, 437 P.3d
530 (“Plea agreements are negotiated between the defendant and
the State . . . .”). It could, however, “file and pursue a claim for
restitution,” including appealing “any ‘adverse rulings on . . . a
motion or request brought by a victim of a crime or representative
of a victim of a crime.’” Brown, 2014 UT 48, ¶ 19 (quoting Utah
Code § 77-38-11(2)(b) (quotation simplified)). 2 Accordingly,

2. Hembree appears to argue that the district court’s minute entry
from the sentencing hearing—which states that “[r]estitution is
not being sought in this matter as per the plea agreement”—
constitutes an adverse ruling on a request for restitution that is
appealable under Utah law. See Utah Code § 77-38-11(2)(b); accord
State v. Brown, 2014 UT 48, ¶ 19, 342 P.3d 239. But we construe this
language in the judgment as nothing more than an aside because
(continued…)

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UOVC was within its rights to file motions and appeal the denial
of its direct request for restitution.

II. The District Court Erred in Denying UOVC’s Request for
Restitution

¶12 The district court denied UOVC’s motion for restitution on
the grounds that it was untimely, that it went against the plea
agreement between Prosecutor and Hembree, and that ordering
restitution after sentencing would possibly violate Hembree’s due
process rights. We address each in turn.

A. UOVC’s Request Was Timely

¶13 The district court concluded UOVC’s motion for restitution
was untimely because it was not filed until after sentencing. In
reaching this conclusion, the court misinterpreted the statutory
provisions governing restitution.

¶14 Victims (like UOVC) may seek restitution after sentencing.
Section 77-38b-205(5) of the Utah Code allows a court to order
restitution until the earlier of (1) the conclusion of the defendant’s
sentence or (2) in the case of a first-degree felony—as is the case
here—within seven years of sentencing. UOVC filed its motion for
restitution on February 7, 2022, only two weeks after Hembree
was sentenced on January 25, 2022, and well within the timeline
allowed by law.

¶15 In addition, subsection 77-38b-205(4) clearly acknowledges
that a court is not required to enter an order for restitution at
sentencing and may do so at a later hearing, see Utah Code § 77-

as discussed infra ¶¶ 19–20, there is no evidence that the parties
agreed on restitution in the plea agreement, that anyone
affirmatively requested restitution at the sentencing hearing (or
that the issue was even discussed), or that restitution was
affirmatively waived.

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38b-205(4) (“If a court does not enter an order for restitution at
sentencing, the court shall schedule a hearing to enter an order for
restitution . . . .”), and subsection 77-38b-205(6) provides for what
action should be taken when the court does not enter such an
order, see id. § 77-38b-205(6)(a) (“If a court does not order
restitution at sentencing . . . , the prosecuting attorney or the
victim may file a motion for restitution within the time periods
described in Subsection (5).”). This statutory scheme clearly
demonstrates the legislature’s understanding and desire that
restitution can be determined and declared either at sentencing or
within the statutorily specified period after sentencing. Because
UOVC is a victim, it was within its rights to file a motion for
restitution after sentencing because the district court did not order
restitution at sentencing or schedule a restitution hearing. And
because UOVC filed its motion within the timeline required, the
request was valid and should not have been dismissed by the
district court as untimely.

B. UOVC Is Not Bound by Prosecutor’s Actions

¶16 The district court also denied UOVC’s motion for
restitution based on its conclusion that UOVC is an “entity of the
‘State’ of Utah” and was therefore “bound” by Prosecutor’s
actions in negotiating the terms of the plea agreement, which did
not affirmatively address restitution. This conclusion was
erroneous.

¶17 First, though both are agents of the State of Utah,
Prosecutor and UOVC are separate entities. As previously
discussed, UOVC is a “victim” in this case. It is well settled that a
prosecutor does not represent victims in criminal proceedings.
While prosecutors are given some responsibilities relating to
victims, they do not represent victims directly. See generally Utah
Code § 77-38b-202 (outlining the responsibilities of a prosecuting
attorney regarding the collection of restitution information on
behalf of a victim). This separation is also evidenced by the fact

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that a court is prohibited from entering a restitution order without
holding a hearing unless, among other requirements, the
prosecutor certifies to the court that he or she “has consulted with
all victims, including [UOVC].” Id. § 77-38b-205(4)(b) (emphasis
added). Thus, while the law contemplates that victims and
prosecuting attorneys must work together in some respects, the
two entities are still not one and the same.

¶18 Second, UOVC was not “bound” by Prosecutor’s actions
here. 3 Section 77-38b-205(6)(a) of the Utah Code states that “[i]f a
court does not order restitution at sentencing . . . , the prosecuting
attorney or the victim may file a motion for restitution” within the
time period allowed by statute. (Emphasis added.) This
subsection makes clear that victims may submit a request for
restitution separately from a prosecutor. The ability to seek
restitution independently evidences that a victim is not limited by
a prosecutor’s actions—or, as is the case here, inactions. In short,
because UOVC is a victim, it did not need to work through

3. There are some circumstances where a prosecutor can bind
UOVC (or any other victim) concerning restitution: “If a court
does not enter an order for restitution at sentencing, the court
shall schedule a hearing to enter an order for restitution, unless:
the prosecuting attorney certifies to the court, on the record, that:
(i) the prosecuting attorney has consulted with all victims,
including [UOVC]; and (ii) all victims, including [UOVC], are not
seeking restitution.” Utah Code § 77-38b-205(4)(b). Thus, if
Prosecutor had certified to the court that he had consulted with
all victims, including UOVC, and thereafter affirmatively
represented to the court that no restitution was being sought,
UOVC might be bound by Prosecutor’s actions. However, even if
Prosecutor had consulted with UOVC and none of the victims
were seeking restitution (which is clearly not the case), Prosecutor
never made such a certification to the court, and the failure to
address restitution is not a circumstance in which the actions of
Prosecutor can bind UOVC.

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Prosecutor to file a valid motion for restitution, even after
sentencing.

¶19 Third, UOVC is not “bound” by the terms of the plea
agreement. As an initial matter, the district court’s conclusion that
it had “entered a judgment which did not include restitution” is
not supported by the record. UOVC asserts, and Hembree does
not dispute, that the plea agreement did not discuss restitution
amounts or affirmatively state that restitution was not being
sought. Indeed, there was no indication during the change of plea
hearing or the sentencing hearing that restitution was not being
sought, and Hembree has not pointed to anywhere in the record
where Prosecutor discussed restitution with the court. And while
the court’s minutes from the sentencing hearing do mention that
“[r]estitution is not being sought . . . as per the plea agreement,”
there is no evidence that the parties agreed on restitution in the
plea agreement or that restitution was affirmatively waived.
Thus, the court’s conclusion that the judgment “did not include
restitution” was in error. The plea agreement merely failed to
finalize restitution; it did not forever preclude it from being
sought. 4

4. In response, Hembree posits that UOVC should be estopped
from seeking restitution because Prosecutor’s silence led
Hembree to believe that restitution would not be required of him
and he relied on this assumption in his decision to plead guilty.
This argument misses the mark. Equitable estoppel has three
elements. See R.O.A. Gen. Inc. v. Salt Lake City Corp., 2022 UT App
141, ¶ 28, 525 P.3d 100. To prove the first element, Hembree must
show that Prosecutor made “a statement, admission, act, or failure
to act . . . inconsistent with a claim later asserted.” Id. (quotation
simplified). Hembree cannot prove this element because, under
the statutory scheme at issue, neither Prosecutor nor UOVC had
any duty to request restitution before sentencing; rather, they were
(continued…)

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¶20 But even assuming, for purpose of argument, that
restitution had been specifically determined as part of the plea
agreement, neither the district court nor UOVC would be bound
by the terms of the agreement. Here, the only parties that were
bound to the terms of the plea agreement were the parties to the
agreement—the State and Hembree. See Utah Code § 77-38b-
102(12) (defining plea agreement as “an agreement entered
between the prosecuting attorney and the defendant”). Barring
certain exceptions not at issue here, see supra note 2, the law does
not allow victims (including UOVC) to be bound by a plea
agreement to which they are not a party, see State v. Hamilton, 2018
UT App 202, ¶ 23, 437 P.3d 530 (stating that “plea agreements are
like contracts” and that only the defendant and the State are
parties to a plea agreement (quotation simplified)). And this same
principle applies to the district court. As a non-party to the plea
agreement, the court is not required to accept the terms of the
agreement and may instead exercise discretion in determining
the amount of restitution based on the evidence presented. See
State v. Stringham, 2001 UT App 13, ¶ 14, 17 P.3d 1153 (“Even
where the [State] and the defendant reach a plea agreement, the
court is not required to accept it.” (quotation simplified)); State v.
Rodrigues, 2009 UT 62, ¶ 26, 218 P.3d 610 (explaining that “a
district court has discretion to adjust the amount of restitution
agreed to by the parties in a plea agreement” so long as the
adjustment falls within the bounds prescribed by statute
(quotation simplified)). Because UOVC is a victim and not a party
to the case, nothing in the plea agreement bound UOVC to a
position of not seeking restitution.

¶21 In sum, UOVC was not bound by Prosecutor’s actions.
UOVC and Prosecutor are separate entities, and, under the

entitled to request restitution at any time before the earlier of
seven years after sentencing or the termination of Hembree’s
sentence. See Utah Code §§ 77-38b-202(2)(c), -205(5).

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circumstances here, Prosecutor did not have the authority to bind
UOVC regarding a request for restitution.

C. Ordering Restitution Would Not Violate Double Jeopardy

¶22 Lastly, the district court concluded that ordering Hembree
to pay restitution after sentencing would “potentially” violate his
due process rights. This conclusion was also incorrect.

¶23 Traditionally, the rules of double jeopardy mean that a
sentencing order is the only appealable order in a criminal case.
However, this court and the Utah Supreme Court have
recognized restitution orders as an exception to this rule because
restitution orders can be entered after sentencing. See State v.
Mooers, 2017 UT 36, ¶ 15, 424 P.3d 1; Salt Lake City v. Ausbeck, 2011
UT App 269, ¶ 4 n.2, 274 P.3d 991, cert. denied, 268 P.3d 192 (Utah
2011). The supreme court has explained that “the Double
Jeopardy Clause only proscribes resentencing where the
defendant has developed a legitimate expectation of finality in his
original sentence.” State v. Rodrigues, 2009 UT 62, ¶ 36, 218 P.3d
610 (quotation simplified). Holding a restitution hearing and
ordering restitution would not violate due process because the
law specifically allows for decisions to be made regarding
restitution after a sentence has been imposed. See, e.g., Utah Code
§ 77-38b-205(4) (“If a court does not enter an order for restitution
at sentencing, the court shall schedule a hearing to enter an order
for restitution . . . .”). The law anticipates that there will be
scenarios where restitution is decided after sentencing and gives
a timeline in which such motions may be made. See id. § 77-38b-
205(5). Therefore, it is unreasonable to conclude that Hembree
had a “legitimate expectation of finality” to the issue of restitution
at the time of his sentencing, and the Double Jeopardy Clause
is not implicated. Rodrigues, 2009 UT 62, ¶ 36 (quotation
simplified).

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CONCLUSION

¶24 The district court erred in denying UOVC’s motion for
restitution. The court misinterpreted the relevant statutory
provisions when it concluded that UOVC could not seek
restitution after sentencing. UOVC’s motion was timely, UOVC
was not bound by Prosecutor’s actions, and ordering restitution
after sentencing would not violate Hembree’s due process rights.
We therefore vacate the court’s order and remand the matter for
additional proceedings.

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