              IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 44701

KENNETH M. WORKMAN,                           ) 2017 Opinion No. 42
                                              )
      Plaintiff-Appellant,                    ) Filed: August 31, 2017
                                              )
v.                                            ) Karel A. Lehrman, Clerk
                                              )
CHRISTOPHER RICH, Clerk of the                )
Fourth Judicial District; IDAHO               )
DEPARTMENT OF CORRECTION,                     )
                                              )
      Defendants-Respondents,                 )
                                              )
and                                           )
                                              )
UNKNOWN AND UNNAMED                           )
INDIVIDUAL OF THE STATE OF                    )
IDAHO,                                        )
                                              )
      Defendant.                              )
                                              )

      Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
      County. Hon. Gerald F. Schroeder, District Judge. Hon. George G. Hicks,
      Magistrate.

      Order of the district court affirming magistrate decision to grant motion to
      dismiss; order of the district court affirming magistrate grant of summary
      judgment, affirmed.

      Kenneth M. Workman, Boise, pro se appellant.

      Jan M. Bennetts, Ada County Prosecuting Attorney; Ray J. Chacko, Deputy
      Prosecuting Attorney, Boise, for respondent, Christopher Rich.

      Hon. Lawrence G. Wasden, Attorney General; Kristina M. Schindele, Deputy
      Attorney General, Boise, for respondent, Idaho Department of Correction.

                   ________________________________________________




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GRATTON, Chief Judge
       Kenneth M. Workman appeals from the district court’s order affirming the magistrate’s
decision to grant Christopher Rich’s (Rich) motion to dismiss and the Idaho Department of
Correction’s (IDOC) motion for summary judgment.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       In 2001, Workman drove his vehicle off Interstate 84 and into two pickups parked on the
side of the road.   At the time of the crash, Workman was under the influence of heroin,
methamphetamine, and THC. The owners of the pickups were standing between the vehicles at
the time of the crash, and both owners suffered serious injuries. One person was thrown into the
road and suffered major broken bones and a ruptured spleen. The other person was pinned
between the vehicles, breaking one leg while the other leg was severed from his body. Workman
was convicted of two counts of aggravated driving under the influence, Idaho Code § 18-8006,
and being a persistent violator, I.C. § 19-2514, and was sentenced to two determinate life
sentences.   On April 28, 2003, the district court ordered Workman to pay $32,391.44 in
restitution, with interest accruing annually. The district court’s order also provided that “this
Order shall constitute a Civil Judgment against the defendant, KENNETH M. WORKMAN.”
       The IDOC began deducting funds from Workman’s inmate account on September 30,
2003. These funds were sent to Rich, the clerk of the district court in which Workman was
convicted, for distribution to the victims. On December 30, 2015, Workman filed a pro se
complaint, 1 in which he asserted that Rich and the IDOC improperly garnished money from his
inmate account in order to pay the court-ordered restitution. Rich filed a motion to dismiss and
the IDOC filed a motion for summary judgment. 2 The magistrate granted Rich’s and the IDOC’s



1
       Pro se litigants are held to the same standards as those litigants represented by counsel.
Michalk v. Michalk, 148 Idaho 224, 229, 220 P.3d 580, 585 (2009). Pro se litigants are not
excused from abiding by procedural rules simply because they are appearing pro se and may not
be aware of the applicable rules. Id.
2
       The IDOC’s motion was captioned as a motion to dismiss but was supported by materials
outside the pleadings. “[B]ecause matters outside the pleadings were presented, the motion to
dismiss was converted into a motion for summary judgment under I.R.C.P. 56(c).” See
Hauschulz v. Idaho Department of Correction, 143 Idaho 462, 466, 147 P.3d 94, 98 (Ct. App.
2006).
                                               2
motions. Workman appealed to the district court, and the district court affirmed the magistrate’s
decision. Workman timely appeals.
                                                II.
                                           ANALYSIS
       Workman argues that the restitution order entered against him has “expired, [is]
unenforceable, uncollectable, and no longer still owing” because it is a civil judgment that was
not renewed within five years of its entry. Workman further argues that I.C. §§ 19-4708 and 19-
5305(2) do not apply to his restitution order because the statutes were amended subsequent to his
judgment being entered. For an appeal from the district court, sitting in its appellate capacity
over a case from the magistrate division, this Court’s standard of review is the same as expressed
by the Idaho Supreme Court. The Supreme Court reviews the magistrate record to determine
whether there is substantial and competent evidence to support the magistrate’s findings of fact
and whether the magistrate’s conclusions of law follow from those findings. State v. Korn, 148
Idaho 413, 415, 224 P.3d 480, 482 (2009). If those findings are so supported and the conclusions
follow therefrom, and if the district court affirmed the magistrate’s decision, we affirm the
district court’s decision as a matter of procedure. Id. Thus, the appellate courts do not review
the decision of the magistrate. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct.
App. 2014). Rather, we are procedurally bound to affirm or reverse the decision of the district
court. Id.
       As an appellate court, we will affirm a trial court’s grant of an Idaho Rule of Civil
Procedure 12(b)(6) motion where the record demonstrates that there are no genuine issues of
material fact and the case can be decided as a matter of law. Coghlan v. Beta Theta Pi
Fraternity, 133 Idaho 388, 398, 987 P.2d 300, 310 (1999). When reviewing an order of the
district court dismissing a case pursuant to Rule 12(b)(6), the nonmoving party is entitled to have
all inferences from the record and pleadings viewed in its favor, and only then may the question
be asked whether a claim for relief has been stated. Coghlan, 133 Idaho at 398, 987 P.2d at 310.
The issue is not whether the plaintiff will ultimately prevail, but whether the party is entitled to
offer evidence to support the claims. Orthman v. Idaho Power Co., 126 Idaho 960, 962, 895
P.2d 561, 563 (1995).
       On appeal, we exercise free review in determining whether a genuine issue of material
fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v.

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Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986).                 Summary
judgment is proper if the pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. I.R.C.P. 56(c). The movant has the burden of
showing that no genuine issues of material fact exist. Stoddart v. Pocatello Sch. Dist. No. 25,
149 Idaho 679, 683, 239 P.3d 784, 788 (2010). The burden may be met by establishing the
absence of evidence on an element that the nonmoving party will be required to prove at trial.
Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App. 1994). Such an absence of
evidence may be established either by an affirmative showing with the moving party’s own
evidence or by a review of all the nonmoving party’s evidence and the contention that such proof
of an element is lacking. Heath v. Honker’s Mini-Mart, Inc., 134 Idaho 711, 712, 8 P.3d 1254,
1255 (Ct. App. 2000). Once such an absence of evidence has been established, the burden then
shifts to the party opposing the motion to show, via further depositions, discovery responses or
affidavits, that there is indeed a genuine issue for trial or to offer a valid justification for the
failure to do so under I.R.C.P. 56(d). Sanders v. Kuna Joint School Dist., 125 Idaho 872, 874,
876 P.2d 154, 156 (Ct. App. 1994). Disputed facts and reasonable inferences are construed in
favor of the nonmoving party. Castorena v. Gen. Elec., 149 Idaho 609, 613, 238 P.3d 209, 213
(2010). This Court freely reviews issues of law. Cole v. Kunzler, 115 Idaho 552, 555, 768 P.2d
815, 818 (Ct. App. 1989).
A.     Restitution Order
       Workman asserts that criminal restitution orders are civil judgments subject to a
collection process whereby Rich, as clerk of the district court, was required to record the
restitution order as a civil judgment and continually renew it in order to collect on behalf of the
victims. Because Rich did not do so, Workman argues, the judgment ordering Workman to pay
restitution expired five years after the judgment was entered, on April 28, 2008.
       Idaho’s restitution statute directs a court to order a defendant, found guilty of any crime
which results in an economic loss to the victim, to make restitution to the victim unless the court
finds restitution would be inappropriate or undesirable. I.C. § 19-5304(2). The policy to fully
compensate crime victims for their economic loss has long been recognized by the courts. State
v. Weaver, 158 Idaho 167, 170, 345 P.3d 226, 229 (Ct. App. 2014). Through I.C. § 19-5305, the
determination of when or how a restitution order may be enforced after it is entered has been

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specifically entrusted to the clerk of the district court or to the victim. Weaver, 158 Idaho at 172,
345 P.3d at 231. Idaho Code § 19-5305 provides:
                (1) After forty-two (42) days from the entry of the order of restitution or at
       the conclusion of a hearing to reconsider an order of restitution, whichever occurs
       later, an order of restitution may be recorded as a judgment and the victim may
       execute as provided by law for civil judgments.
                (2) The clerk of the district court may take action to collect on the order of
       restitution on behalf of the victim and, with the approval of the administrative
       district judge, may use the procedures set forth in section 19-4708,[ 3] Idaho Code,
       for the collection of the restitution.
(emphasis added).
       Idaho Code § 20-209H was enacted to provide for the IDOC to mandate the withdrawal
of inmate-owed restitution. The law went into effect on March 1, 2015. Workman contends this
statute is not applicable to him because the order for restitution became unenforceable in
April 2008.   Workman relies on I.C. §§ 10-1110 and 10-1111 which state that to keep a
judgment an active, collectable order, the parties must file a timely motion to renew judgment
within five years from the date of the entry and thereafter every five years. Workman reasons
that because the judgment against him has never been renewed, all funds deducted from his
inmate account after April 2008 must be returned and all future attempts to deduct funds must
cease and desist.




3
       Idaho Code § 19-4708 states, in part:
               (1)     The supreme court, or the clerks of the district court with the
       approval of the administrative district judge, may enter into contracts in
       accordance with this section for collection services for debts owed to courts. The
       cost of collection shall be paid by the defendant as an administrative surcharge
       when the defendant fails to pay any amount ordered by the court and the court
       utilizes the services of a contracting agent pursuant to this section.
               (2)     As used in this section:
               ....
                       (c) “Debts owed to courts” means any assessment of fines, court
               costs, surcharges, penalties, fees, restitution, moneys expended in
               providing counsel and other defense services to indigent defendants or
               other charges which a court judgment has ordered to be paid to the court in
               criminal cases, and which remain unpaid in whole or in part, and includes
               any interest or penalties on such unpaid amounts as provided for in the
               judgment or by law.
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       The magistrate court determined, and the district court agreed, that “the legislature
provided two different avenues for crime victims to receive restitution from the perpetrators of
the crime.” First, I.C. § 19-5304(4) provides for a court order of restitution:
              If a separate written order of restitution is issued, an order of restitution
       shall be for an amount certain and shall be due and owing at the time of
       sentencing or at the date the amount of restitution is determined, whichever is
       later. An order of restitution may provide for interest from the date of the
       economic loss or injury.
Payment of restitution can be pursued by a civil judgment that can be executed on or result in a
lien being placed on the perpetrator’s real property pursuant to I.C. § 19-5305(1). Rich argues
that Workman’s interpretation fails to provide for these separate avenues for obtaining
restitution: allowing victims to personally collect through the use of a civil judgment and
allowing the clerk of the court to collect on the victim’s behalf.         Therefore, Rich asserts,
Workman’s claim fails to give effect to all parts of I.C. § 19-5305. Similarly, the IDOC argues
that Workman fails to recognize the victims and the clerk of the court have different mechanisms
governed by separate and distinct processes set forth in statutes through which collection efforts
may be undertaken. We agree with the respondents and the district court.
       As the district court noted, the language of I.C. § 19-5305 highlighted above would not
be necessary if all restitution orders were civil judgments. Unlike the requirements imposed on
creditors seeking to enforce civil judgments, neither I.C. §§ 19-4708 nor 19-5305(2) require the
clerk of the court to take any steps to execute the restitution order entered as a result of a
criminal conviction. Instead, any collection efforts by the clerk of the court are to be undertaken
in the same manner or fashion as other “debts owed to courts” as provided in I.C. § 19-4708. See
I.C. § 19-5305(2). This Court notes, as did the district court, that the restitution statute is silent
concerning the expiration of an order of restitution, rather, stating it “shall be due and owing at
the time of sentencing or at the date the amount of restitution is determined, whichever is later.”
I.C. § 19-5304(4). Therefore, Workman’s contention that restitution orders must be collected
under one civil judgment methodology is without merit.
       Workman points to State v. McCool, 139 Idaho 804, 87 P.3d 291 (2004) in support of his
contention that criminal restitution orders are civil judgments against a defendant. In McCool,
the Idaho Supreme Court quoted I.C. § 19-5305(1) and noted that “the order of restitution
provided in Idaho Code § 19-5304(2) becomes, in essence, a civil judgment for the amount of
such restitution.” McCool, 139 Idaho at 806, 87 P.3d at 293. The Court did not hold that a court
                                                  6
order of restitution is extinguished and loses enforceability when the order is also recorded as a
judgment for purposes of constituting a civil judgment, or that an order of restitution is always
and solely a civil judgment. 4 Workman’s argument fails to make a distinction between criminal
restitution orders, that do not expire, and civil judgments, which do expire.
         Workman points to Grazer v. Jones, 154 Idaho 58, 294 P.3d 184 (2013); Bach v.
Dawson, 152 Idaho 237, 268 P.3d 1189 (Ct. App. 2012); and Smith v. Smith, 131 Idaho 800, 964
P.2d 667 (Ct. App. 1998) in support of his contention that I.C. §§ 10-1110 and 10-1111 speak to
the expiration of civil orders and money judgments. However, none of these cases involve
restitution or restitution orders.   Workman also asserts I.C. §§ 10-1110 and 10-1111 are
applicable because garnishments from inmate accounts made under I.C. § 20-209H can only be
made for restitution that “is still owing.” As explained above, Workman’s argument that all
restitution orders are solely civil judgments is without merit. We agree with the magistrate and
the district court that neither I.C. §§ 10-1110 nor 10-1111 are applicable to Workman’s
restitution order.
B.       Applicability of Idaho Code §§ 19-4708 and 19-5305(2)
         Workman further argues that I.C. §§ 19-4708 and 19-5305(2) do not apply to his
restitution order because the statutes were amended subsequent to his judgment being entered.
Generally, issues not raised below may not be considered for the first time on appeal. Sanchez v.
Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Workman states that this issue was not
raised before because I.C. §§ 19-4708 and 19-5305(2) were first mentioned in the motions to
dismiss, not in his initial complaint. However, that does not explain why Workman did not make
an argument of the statutes’ inapplicability either to the magistrate in response to the motions to
dismiss or to the district court on appeal. Accordingly, this Court will not further consider this
issue.




4
        The same is true of the holdings in the other cases cited by Workman, including: State v.
Straub, 153 Idaho 882, 292 P.3d 273 (2013); State v. Gomez, 153 Idaho 253, 281 P.3d 90 (2012);
State v. Cottrell, 152 Idaho 387, 271 P.3d 1243 (Ct. App. 2012); State v. Mosqueda, 150 Idaho
830, 252 P.3d 563 (Ct. App. 2010); State v. Waidelich, 140 Idaho 622, 97 P.3d 489 (Ct. App.
2004); State v. Ferguson, 138 Idaho 659, 67 P.3d 1271 (Ct. App. 2002).
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                                             III.
                                       CONCLUSION
       The magistrate’s decision is supported by the applicable law. The district court’s order
affirming the magistrate’s decision to grant Rich’s motion to dismiss and the IDOC’s motion for
summary judgment is affirmed.
       Judge GUTIERREZ and Judge Pro Tem WALTERS CONCUR.




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