               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-994

                                  Filed: 4 June 2019

Alamance County, No. 16 CRS 51086

STATE OF NORTH CAROLINA

              v.

TAMORA WILLIAMS


        Appeal by defendant from judgment entered 12 April 2018 by Judge James K.

Roberson in Alamance County Superior Court. Heard in the Court of Appeals 7 May

2019.


        Attorney General Joshua H. Stein, by Assistant Attorney General Madeline G.
        Lea, for the State

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine
        Jane Allen, for defendant-appellant.


        TYSON, Judge.


        Tamora Williams (“Defendant”) appeals from a criminal judgment ordering her

to pay restitution. We affirm the trial court’s order.

                                    I. Background

        Defendant was employed as an office manager at GCF, Incorporated (“GCF”)

from March 2014 to February 2016. GCF is a general construction company located

in Burlington and owned by Charles Clifton Fogleman (“Fogleman”). Defendant’s
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                                 Opinion of the Court



duties with GCF included managing billing, collections, bids, quotes, bank accounts,

and payroll.

      Other than Fogleman, Defendant was the only person with GCF who was

authorized to use the business checking account and debit card.

      In January 2016, Fogleman asked Defendant to collect documents relating to

the business checking account so that he could prepare GCF’s corporate tax filing. In

response to Fogleman’s request, Defendant allegedly admitted that she had been

misappropriating funds from GCF’s business account. Fogleman discovered that the

GCF debit card had been used for personal purchases at various retail establishments

over the previous seventeen months. Fogleman terminated Defendant’s employment

with GCF.

      Fogleman prepared a spreadsheet listing 354 unauthorized expenditures and

misappropriations by Defendant. The spreadsheet included the amount, date, and

nature of each allegedly improper expenditure.          Fogleman reported Defendant’s

actions and turned over the itemized spreadsheet to the Burlington Police

Department.

      Defendant was arrested for embezzlement on 5 March 2016. On 25 May 2016,

Defendant filed a civil complaint against Fogleman for claims of slander and

defamation.    On 10 August 2016, Fogleman filed an answer and asserted

counterclaims for embezzlement and employee theft.



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      Defendant and Fogleman mediated their claims. On 13 February 2017, the

parties entered into a settlement agreement. Defendant agreed to pay Fogleman

$13,500.00 as part of the settlement agreement resolving the civil claims.        The

settlement agreement contained the following release clause:

             The parties hereby release and fully discharge each other
             of and from any and all claims, causes of actions, demands
             and damages, known and unknown, asserted and
             unasserted, from the beginning of time to the date hereof,
             except as set forth herein.

      On 26 February 2018, the State charged Defendant by information for

embezzlement. That same day, Defendant entered an Alford plea to one count of

embezzlement. As part of Defendant’s plea arrangement, the State agreed to dismiss

four counts of forgery, four counts of uttering a forged instrument, and two counts of

embezzlement.    The State also consented to a probationary sentence to allow

Defendant to make restitution payments. Both Defendant and the State expressly

agreed to the trial court holding a hearing to determine the amount of restitution.

      The restitution hearing was held on 27 February 2018. Fogleman contended

he had signed the settlement agreement with the understanding that the civil

settlement had “nothing to do with the criminal matter.” The State sought restitution

of $41,204.85.   Defendant asserted she did not owe any restitution because her

settlement payment of $13,500.00 to Fogleman in the civil action was payment in full

under the terms of the settlement agreement and no further restitution was due.



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      On 23 March 2018, the trial court entered a written order containing findings

of fact and conclusions of law. The trial court’s order concluded, in relevant part:

             2. The Settlement Agreement entered in the Civil action
             does not prohibit the Court in the Criminal action from
             determining an amount of restitution to be paid from the
             Defendant to the victim in this Criminal action.

             3. The Defendant is entitled to a credit against the gross
             amount of restitution determined by this Order in the
             amount of $13,500.00, representing the amount paid by the
             Defendant in connection with the Settlement Agreement in
             the Civil action.

The trial court determined the gross amount of restitution owed by Defendant was

$41,204.85. The trial court credited Defendant for paying $13,500.00 under the civil

settlement agreement and set the balance of restitution due at $27,704.85.

      On 12 April 2018, the trial court sentenced Defendant to six to seventeen

months imprisonment, which was suspended for a period of thirty-six months of

supervised probation, and ordered Defendant to pay $27,704.85 in restitution. The

trial court’s judgment imposed the payment of restitution as a condition of

Defendant’s probation. Defendant gave notice of appeal and filed a petition for writ

of certiorari with this Court.

                                       II. Issue

      Defendant argues the trial court erred in ordering her to pay criminal

restitution because the civil settlement agreement between her and Fogleman

contained a binding release clause.


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       This issue presents a question of first impression in North Carolina of whether

a civil settlement agreement containing a release clause can bar a party to the

settlement agreement from later receiving restitution in a criminal action relating to

the civil claim.

                                    III. Jurisdiction

       A defendant entering an Alford plea has no statutory right to appeal the trial

court’s judgment. See N.C. Gen. Stat. § 15A-1444(e) (2017).

       Defendant has petitioned this Court to issue a writ of certiorari to review her

arguments regarding the trial court’s judgment, which ordered restitution, on the

merits. See id. ( a “defendant is not entitled to appellate review as a matter of right

when he has entered a plea of guilty or no contest to a criminal charge in the superior

court, but he may petition the appellate division for review by writ of certiorari”);

N.C. R. App. P. 21(a)(1) (granting this Court authority to issue a writ of certiorari “in

appropriate circumstances” to review lower court judgments and orders).

       The Supreme Court of North Carolina has held: “The decision concerning

whether to issue a writ of certiorari is discretionary, and thus, the Court of Appeals

may choose to grant such a writ to review some issues that are meritorious but not

others for which a defendant has failed to show good or sufficient cause.” State v.

Ross, 369 N.C. 393, 400, 794 S.E.2d 289, 293 (2016).




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      After considering the arguments presented in Defendant’s principal and reply

briefs, the State’s response, and in Defendant’s petition for writ of certiorari, we

determine Defendant’s challenge to the trial court’s judgment presents “good and

sufficient cause” to review. Id. We exercise our discretion to issue a writ of certiorari

in order to review the trial court’s judgment ordering restitution. See id.

                                IV. Standard of Review

      We review de novo whether the release clause in the civil settlement agreement

bars an award of criminal restitution. See Williams v. Habul, 219 N.C. App. 281, 289,

724 S.E.2d 104, 109 (2012) (“A settlement agreement is a contract governed by the

rules of contract interpretation and enforcement”(citations omitted)); Price & Price

Mech. of N.C., Inc. v. Miken Corp. 191 N.C. App. 177.,179, 661 S.E.2d 775, 777 (2008)

(“questions of contract interpretation are reviewed as a matter of law and the

standard of review is de novo” (citation omitted)). With regard to the trial court’s

judgment, “awards of restitution are reviewed de novo.” State v. Buchanan, __ N.C.

App. __, __, 818 S.E.2d 703, 709 (2018).

                                      V. Analysis

      Defendant argues the settlement agreement terminating her and Fogleman’s

civil lawsuit barred the trial court from ordering further restitution in her criminal

prosecution because the settlement agreement contains a general release clause.

Defendant contends: “[t]he release clause discharged all claims between the parties



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and barred all subsequent rights to recover with respect to the offense.” (Emphasis

supplied).   Defendant concedes the release clause did not bind the State from

prosecuting her for embezzlement, nor did the settlement payment of $13,500.00 to

Fogleman absolve Defendant her crimes. See State v. Pace, 210 N.C. 255, 257-58, 186

S.E. 366, 368 (1936) (“the restitution of money that has been either stolen or

embezzled, or a tender or offer to return the same or its equivalent to the party from

whom it was stolen or embezzled, does not bar a prosecution by indictment, and

conviction for such larceny or embezzlement” (citation omitted)).

      Defendant also contends the State could not obtain an award of restitution in

the course of the criminal proceedings.         We disagree because civil settlement

agreements and restitution awards are separate and distinct remedies, pursued for

different ends.

                             A. Issue of First Impression

      When this Court reviews an issue of first impression, it is appropriate to look

to decisions from sister state jurisdictions for persuasive guidance. See Skinner v.

Preferred Credit, 172 N.C. App. 407, 413, 616 S.E.2d 676, 680 (2005) (“Because this

case presents an issue of first impression in our courts, we look to other jurisdictions

to review persuasive authority that coincides with North Carolina’s law”), aff’d, 361

N.C. 114, 638 S.E.2d 203 (2006).

      The Supreme Court of Florida reviewed an analogous issue in Kirby v. Florida,



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863 So.2d 238 (Fla. 2003). In Kirby, a police officer caused a traffic accident by driving

under the influence which resulted “in the serious bodily injury to another.” Id. at

240. The police officer settled the civil claims with the victim. Id. The terms of the

settlement agreement released the officer from any civil liability in exchange for “the

payment by [the police officer’s] insurance company of $25,000- the insurance policy

limits.” Id.

       A jury found the officer guilty of driving under the influence and sentenced him

to five years of probation, a downward departure from the sentencing guidelines. Id.

The trial court justified the downward departure by concluding that “‘the need for

payment of restitution to the victim outweigh[ed] the need for a prison sentence.’” Id.

at 241. The trial court awarded the victim “restitution for the out-of-pocket medical

expenses, deductibles, and lost wages” beyond the $25,000 the police officer owed

“pursuant to the settlement agreement.” Id. at 241.

       The officer-defendant challenged the restitution imposed and asserted the

settlement agreement as a bar.          The prosecution contended “the settlement

agreement contained a release of all liability, but argued that because the [s]tate was

not a party to the agreement the victim could not prevent the [s]tate from exercising

its statutory right to seek restitution.” Id. at 241.      The trial court rejected the

prosecution’s argument and refused to order restitution. Id.

       When the case reached the Supreme Court of Florida, the court evaluated



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“whether a settlement and release of liability between a victim and a defendant on a

civil claim for damages prior to the disposition of a criminal case based on the same

incident prohibits the trial court as a matter of law from ordering restitution.” Id. at

240. The Court concluded “[b]ecause civil settlements and criminal restitution are

distinct remedies with differing considerations,” a civil settlement does not bar the

trial court from exercising its statutory authority to order restitution in criminal

matters. Id.

      The court in Florida recognized restitution in criminal cases promotes “distinct

societal goals” including: “(1) to compensate the victim and (2) to serve the

rehabilitative, deterrent, and retributive goals of the criminal justice system.” Id. at

242 (citations omitted). Furthermore, restitution “forces the defendant to confront,

in concrete terms, the harm his actions have caused.” Id. at 243 (citations omitted).

      That court also noted civil settlements do not “reflect the willingness of the

People to accept that sum in satisfaction of the defendant’s rehabilitative and

deterrent debt to society.” Id. at 243 (citations omitted). Circumstances which lead a

party to settle a civil claim “should have no bearing on the court’s statutory duty to

order restitution for the damage or loss caused by the defendant’s criminal conduct.”

Id. at 244 (citations omitted).

      Several other states comport with the Supreme Court of Florida’s holding. See

New Jersey v. DeAngelis, 747 A.2d 289, 294 (N.J. Super. Ct. App. Div. 2000) (“civil



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settlement or release does not absolve the defendant of criminal restitution”); Fore v.

Alabama, 858 So. 2d 982, 985 (Ala. Crim. App. 2003) (“[p]rivate parties cannot settle

a civil claim and thereby agree to waive the subsequent application of the criminal

statute”); Haltom v. Indiana, 832 N.E.2d 969, 972 (Ind. 2005) (“allowing a civil

settlement to preclude restitution altogether would infringe upon the State’s power

to administer criminal punishment”); People v. Bell, 741 N.W.2d 57, 60 (Mich. Ct.

App. 2007) (“restitution must be paid…regardless of the existence of the civil

settlement”).

      Our research determined one jurisdiction disagrees with the above line of

cases. See Minnesota v. Arends, 786 N.W.2d 885, 889 (Minn. Ct. App. 2010). The

Minnesota Court of Appeals concluded “that when an alleged victim has made a

complete, valid civil settlement of all claims resulting from a criminal offense, the

state is precluded from seeking restitution.” Id. No other state has followed the

Arends line of cases.

                        B. Civil Release Does Not Bar Restitution

      We find the reasoning of the Supreme Court of Florida and the other similar

noted state courts as persuasive. As in Kirby, the restitution order gives Defendant

the opportunity “to confront, in concrete terms” the harm caused by her

misappropriating employer funds through the personal use of the GCF debit card at

various retail establishments. Kirby, 863 So.2d at 243.         Here, the trial court



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considered the value of the property taken minus the value of the property that

Defendant has previously returned via a civil settlement in order to reach the

conclusion that she owed Fogleman restitution of $27,704.85.

      The trial court’s order reflects “the People[’s]” satisfaction in resolving the issue

and absolving the debt. Kirby, 863 So.2d at 243. Although the circumstances which

gave rise to the agreement have no bearing, here the settlement agreement

specifically states that “the civil matter has been fully resolved.”

      In addition, trial courts maintain the statutory right to order restitution “as a

condition of probation . . . to an aggrieved party.” N.C. Gen. Stat. § 15A-1343(d)

(2017). Similar to the officer’s sentence’s downward deviation in Kirby, as part of

Defendant’s plea agreement, the State dismissed several other charges in exchange

for the restitution payment. The State also consented to a “probationary sentence to

allow Defendant to make restitution payments.”

      Defendant argues that under the plain terms of the settlement agreement,

Fogleman could not seek more recovery from Defendant than the $13,500.00 he

undisputedly agreed to accept in order to settle the civil actions. To hold otherwise,

according to Defendant, would deprive her of the benefit of the bargain she obtained

from the valid settlement agreement. Although the plain terms of the settlement

agreement suggest Fogleman could not seek more recovery from Defendant than the

$13,500.00 he undisputedly agreed to accept, the plain language of the settlement



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agreement expressly limited its application to the parties “releas[ing] and fully

discharg[ing] each other.”   The agreement also specifically states that “the civil

matter has been fully resolved,” limiting the release clause strictly to the parties to

the civil matter, and not including the State.

       Fogleman also testified the settlement agreement he signed “had nothing to

do with the criminal matter.” His testimony that the settlement agreement pertained

solely to the civil matter may show ambiguity in the terms of the agreement. Where

there is ambiguity, the court “look[s] beyond the terms of the contract to determine

the intentions of the party.” Stovall v. Stovall, 205 N.C. App. 405, 410, 698 S.E.2d

680, 684 (2010). The State points to Fogleman’s testimony at the restitution hearing

regarding his intention in signing the settlement agreement:

             [Prosecutor]: And [would] you tell the Court what your
             understanding was of this civil issue?

             [Fogleman]: Yeah, it was a civil matter.

             [[Prosecutor]: And what do you mean by that?

             [Fogleman]: It has nothing to do with the criminal matter
             that we’re here with – about today.

             [Prosecutor]: Was that your understanding when you
             signed the agreement?

             [Fogleman]: That was the only way that I was going to sign
             the agreement.




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      The intention of the parties at the time of execution determines the meaning

of a release. McGaldrey, Hendrickson & Pullen v. Syntek Finance Corp., 92 N.C. App.

708, 711, 375 S.E.2d. 689, 691 (1989). “[T]heir intention is determined from the

language used, the situation they were in, and the objects they sought to accomplish.”

Id. Fogleman and Defendant were the exclusive parties to that agreement. The

settlement agreement did not involve or bind the State of North Carolina. The State

brought criminal charges for crimes committed against the peace of the state.

      Adopting the persuasive authority set forth above, “because the State was not

a party to the agreement[,] the victim could not prevent the State from exercising its

statutory right to seek restitution.” Kirby, 863 So. 2d at 241. Private settlement or

reimbursement agreements neither usurp the State’s ability to uphold criminal

statutes nor impede on the State’s “distinct societal goals” of the criminal justice

system. Id. at 243.

      Restitution is characterized as a “reparation to an aggrieved party . . .for the

damage or loss caused by the defendant arising out of” the criminal offense. State v.

Reynolds, 161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003) (citing N.C. Gen. Stat.

§ 15A-1343(d) (2001)) (emphasis supplied).

      Here, the trial court ordered Defendant to pay $41,204.85 to compensate

Fogleman for his losses due to Defendant’s embezzlement, less than the amount

Fogleman claimed was taken. The court allowed Defendant a $13,500.00 credit for



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what she has already paid under the civil settlement agreement towards making

Fogleman whole.      To compensate for losses, the trial court properly ordered

Defendant to pay the balance of restitution of $27,704.85. The intention of the

restitution order is to restore what Defendant took and make Fogleman whole for his

losses. Defendant’s arguments are overruled.

                                   VI. Conclusion

      The State is not precluded from seeking restitution on a victim’s behalf in a

subsequent criminal prosecution. The trial court correctly concluded that “[t]he

Settlement Agreement entered in the Civil action does not prohibit the Court in the

Criminal Action from determining an amount of restitution to be paid from the

Defendant to the victim in this criminal action.”

      The civil settlement and release and the criminal restitution represent

separate, distinct remedies. The trial court’s restitution order is affirmed. It is so

ordered.

      AFFIRMED

      Judges INMAN and ARROWOOD concur.




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