State v. Chapman

2018 UT App 107

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSHUA PAUL CHAPMAN,
Appellant.

Opinion
No. 20150303-CA
Filed June 14, 2018

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 081906646

Lori J. Seppi and Scott A. Wilson, Attorneys
for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and RYAN M. HARRIS
concurred.

POHLMAN, Judge:

¶1 Joshua Paul Chapman appeals the district court’s denial
of his motions related to a restitution order entered against him.
We affirm.

BACKGROUND

¶2 The State charged Chapman with two counts of securities
fraud based on two hard money loans the victim (Victim) made
to Chapman’s co-defendant, Dennis Rowley. The first loan was
for $70,000 (Count 1), and the second loan was for $140,000
State v. Chapman

(Count 2). Chapman acted as an intermediary between Victim
and Rowley to facilitate the loans.

¶3 A jury convicted Chapman only on Count 1, acquitting
him on Count 2. 1 Chapman was sentenced to serve a prison term
of one to fifteen years, but the district court suspended that
sentence and instead placed him on probation. As part of his
probation, the district court ordered Chapman to pay $70,000 in
restitution jointly and severally with Rowley. Chapman
appealed his conviction, which this court affirmed in State v.
Chapman, 2014 UT App 255, 338 P.3d 230.

¶4 Chapman requested a restitution hearing to “determine
what portion, if any, of the $70,000” he should be held
accountable for, and to set monthly payments. In a June 2012
restitution hearing, 2 Chapman did not dispute that he was
ordered to pay the restitution jointly and severally with Rowley.
Instead, he argued that “he should be ordered to pay much less”
of the $70,000 restitution obligation than Rowley. In this regard,
Chapman contended that he was less culpable than Rowley
because he “just brought [Rowley and Victim] together,” while
Rowley was actually responsible for “dissipat[ing] all the
funds.”

¶5 In contrast, the State argued that Chapman’s “point that
[Rowley] is more culpable . . . doesn’t matter at this time”
because Chapman had been “convicted by a jury of his peers.”
The State also contended that it was a “mischaracterization” to
claim that Chapman was less culpable because Chapman “was
intimately involved with both transactions” and, along with

1. Rowley pleaded guilty to one count of securities fraud and
one count of theft. As part of his sentence, he was ordered to pay
$210,000—the full value of the loans—in restitution.

2. A different judge presided over the restitution proceedings
than had presided over the sentencing proceeding.

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State v. Chapman

Rowley, “engaged in this fraudulent activity.” In any event, the
State noted that, because Chapman was jointly and severally
liable with Rowley for the $70,000, “if they both pay on
schedule,” the “reality of it” is that Chapman would probably
“end up . . . only paying $35,000” “so long as [Rowley] continues
to pay.”

¶6 The district court determined that the restitution would
“remain as set at $70,000,” jointly and severally with Rowley. In
response to Chapman’s suggestion that he should be accountable
for less than the full amount, the court stated that the jury
“found him guilty,” that it was “uncomfortable . . . stepping into
the juror’s position,” and that “the amount that was previously
ordered [at sentencing] is appropriate based on that verdict.”
The court memorialized its ruling in a written order following
the hearing, ordering that Chapman’s court-ordered restitution
would “remain at $70,000 owed jointly and severally with
[Rowley].”

¶7 After the June 2012 hearing, Chapman paid monthly
restitution payments for approximately two and a half years.
During that time, the court held numerous review hearings. As
relevant here, in a January 2015 review hearing, 3 Chapman
informed the court that the most recent accounting indicated
that none of Rowley’s restitution payments were being applied
to the $70,000 joint and several obligation and that, accordingly,
he was going to file a motion to address that issue. In that
subsequent motion, Chapman renewed his argument that he
was less culpable than Rowley. He also contended that his lesser
culpability as well as his financial inability to pay the full $70,000
should persuade the court to apply Rowley’s restitution
payments to the $70,000 joint obligation first, before Rowley’s

3. A different judge presided over the 2015 and 2016 review
hearings than had presided over the 2012 restitution
proceedings.

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State v. Chapman

individual obligation to repay the $140,000 as restitution for
Count 2.

¶8 In a February 2015 review hearing, the court first ordered
that Chapman’s probation be extended for as long as it took to
pay the restitution. 4 The court then addressed Chapman’s
motion. It noted that the “whole purpose for joint and several
[liability] is to put the interests of the victim” before those of the
defendants “if one defendant can’t pay for whatever reason.”
Chapman agreed that he would be liable “to pay the entire
amount or whatever’s left” under joint and several liability if
Rowley became unable to pay. But Chapman contended that
Rowley was paying restitution, and he asserted that, as a result,
“the equities of the situation, both financially and by their part in
this crime,” weighed in favor of Rowley’s restitution payments
“to go towards that $70,000” first and in favor of Chapman
“paying a lot less” than Rowley.

¶9 The court denied Chapman’s request, but it did so
without prejudice, noting that circumstances could change in the
future. In doing so, the court stated that “regardless of what Mr.
Chapman’s participation was,” the jury returned a “verdict of
guilty in that at minimum he was a party to the offense,” which
meant that he was responsible for the loss associated with his
fraudulent behavior. The court also noted that, by virtue of the
joint and several liability for the $70,000, Chapman “may end up
. . . pay[ing] the major portion or all of the $70,000.” And the
court specifically declined to order that Rowley’s restitution
payments be first applied to the $70,000, where Rowley and his
lawyer were not present to provide input or object.

4. The State had filed a motion for an order to show cause
because, as of January 2015, Chapman’s three-year probation
was set to conclude but Chapman had not satisfied his
restitution obligation. The court’s order to extend probation
resolved the State’s motion.

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State v. Chapman

¶10 Following the hearing, Chapman refiled his motion, and
the court withheld its ruling until the motion was sent to Rowley
and Rowley had time to respond. Rowley responded. He
asserted that Chapman’s request was contrary to his own
sentencing order, which provided that his payments would be
applied first to the $140,000 obligation he owed individually to
Victim, and he stated that he agreed with and supported the
State’s position on the issue. Thereafter, the district court entered
its order on Chapman’s motion, denying Chapman’s request “to
include the payments of [Rowley] to reduce the balance of [his]
remaining restitution.”

¶11 Chapman moved to reconsider in April 2016. 5 In his
motion, he argued that it was appropriate to apply Rowley’s
payments to the $70,000 restitution order for three reasons:
“(A) it is, or should be, the law of the case, (B) it promotes
fairness and accomplishes the purposes of restitution, and (C) it
is consistent with the restitution statute.” In an August 2016
hearing, the court denied the motion for reasons it had identified
before. In doing so, the court reaffirmed its previous
interpretation that joint and several liability in context meant
“that [Chapman] will make the payments or pick up the
payments” if Rowley was “unable to.”

¶12 Chapman appeals the district court’s denial of his motion
to apply Rowley’s restitution payments first to the $70,000 joint
and several obligation as well as his motion to reconsider.

ISSUE AND STANDARD OF REVIEW

¶13 Chapman argues that the district court exceeded its
discretion by denying his request to order that Rowley’s
restitution payments be applied first to the $70,000 joint and

5. During the briefing of the motion to reconsider, Rowley
passed away.

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State v. Chapman

several obligation. “We will not disturb a district court’s
restitution determination unless the court exceeds the authority
prescribed by law or abuses its discretion.” State v. Ogden, 2018
UT 8, ¶ 25, 416 P.3d 1132 (quotation simplified).

ANALYSIS

¶14 Chapman requests that we reverse and remand the
court’s denial of his requests to have Rowley’s restitution
payments applied first to the $70,000 joint and several obligation.
To persuade us that reversal is appropriate, he points to the law
of the case doctrine, the restitution statute, and the equities and
purposes underlying restitution, contending that each ought to
persuade us that the court erred by denying his motions. We
disagree.

¶15 Chapman first contends that reversal is appropriate under
the law of the case doctrine, asserting that the parties “reached a
controlling agreement at the time restitution was ordered that
Rowley’s payments would go to the joint-and-several obligation
first.” As support, he points to certain statements made by both
the prosecutor and the district court. For example, Chapman
contends that the prosecutor represented to the court more than
once that Chapman would end up paying only half of the
$70,000 if Rowley “kept making restitution payments.” He also
points to a statement the court made in the preliminary
restitution hearing that he was not responsible for the entire
$70,000 because “it’s joint and several.” He claims that, based on
these representations, it was understood by the parties and the
court that he would pay only about half of the $70,000 and that
that understanding should be enforced by this court under the
law of the case doctrine. 6

6. The State contends that Chapman has not preserved his law of
the case argument where it was first raised in a post-judgment
(continued…)

20150303-CA 6 2018 UT App 107
State v. Chapman

¶16 “Under the law of the case doctrine, a decision made on
an issue during one stage of a case is binding in successive stages
of the same litigation. Thus, the doctrine allows a court to
decline to revisit issues within the same case once the court has
ruled on them.” IHC Health Services, Inc. v. D & K Mgmt., Inc.,
2008 UT 73, ¶ 26, 196 P.3d 588 (quotation simplified). In
particular, “[w]hile a case remains pending before the district
court prior to any appeal, the parties are bound by the court’s
prior decision.” Id. ¶ 27.

¶17 Chapman has not demonstrated that, as a threshold
matter, the law of the case doctrine applies to the circumstances
present here. The court made no court ruling or legal decision—
orally or in writing—that Rowley’s restitution payments should
be applied first to the joint and several obligation Rowley shared
with Chapman or that Chapman should be responsible for
paying less than the full $70,000 obligation. See id. ¶¶ 26–27
(explaining that the law of the case doctrine involves decisions
and rulings made “during one stage of a case” (quotation
simplified)). At best, the State and the court orally expressed
conditional statements that, if Rowley’s payments continued
apace, Chapman would likely pay only approximately half of the
$70,000 obligation—statements that themselves were entirely
consistent with the well-settled meaning of joint and several
liability. See Joint-and-Several-Liability Doctrine, Black’s Law

(…continued)
motion for reconsideration. However, the district court
acknowledged that the restitution issue was evolving, subject to
reconsideration under its continuing jurisdiction. Chapman then
raised the law of the case argument in a reconsideration motion,
which the court proceeded to deny on its merits. We therefore
consider this issue preserved. See generally State v. Johnson, 2017
UT 76, ¶ 15, 416 P.3d 443 (“An issue is preserved for appeal
when it has been presented to the district court in such a way
that the court has an opportunity to rule on it.” (quotation
simplified)).

20150303-CA 7 2018 UT App 107
State v. Chapman

Dictionary (10th ed. 2014) (“The principle that when two or more
persons cause an injury, each is liable for the full amount of
damages.”).

¶18 In this regard, it is significant that, while it made no
ruling or decision that Rowley’s restitution payments be first
applied to the $70,000 obligation, the court did repeatedly affirm
in the restitution hearings and its written orders that Chapman
was jointly and severally liable for the entire $70,000 obligation.
Chapman himself also represented to the court that he
understood his joint and several liability with Rowley meant that
he could be responsible to repay the entire $70,000 in the event
that Rowley was unable to contribute to it. Chapman has
therefore not demonstrated that the court exceeded its discretion
by denying his motion to reconsider on the basis of the law of
the case doctrine.

¶19 Chapman also has not shown that the court otherwise
exceeded its discretion in light of the restitution statute or the
equities underlying it. As the district court repeatedly
recognized, regardless of whether Chapman believed that he
was less culpable than Rowley in the overall scheme, the jury
found Chapman guilty of securities fraud related to the $70,000
loan, which meant it found him criminally culpable for Victim’s
$70,000 loss. Chapman has not demonstrated that it would
therefore be appropriate for us on appeal under statute 7 or as a
matter of equity or policy to relieve him in some measure from
the established loss flowing from his criminal conduct, let alone

7. Chapman suggests that joint and several liability is itself not
consistent with the restitution statutes. While we acknowledge
this suggestion, we do not decide whether ordering joint and
several liability is inconsistent with the restitution statute. That
question is beyond the scope of this appeal because Chapman
did not timely appeal the imposition of joint and several liability,
and he is therefore precluded from raising it here.

20150303-CA 8 2018 UT App 107
State v. Chapman

in the manner he requests—by ordering a change to the
application of his co-defendant’s restitution payments.

CONCLUSION

¶20 Chapman has failed to persuade us that the district court
exceeded its discretion in denying his motion for Rowley’s
restitution payments to be first applied to the joint and several
obligation and his motion for reconsideration. Accordingly, we
affirm.

20150303-CA 9 2018 UT App 107