MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	7	
Docket:	   Ken-18-152	
Argued:	   November	6,	2018	
Decided:	  January	17,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
                                                                                         		
                                                                                         	
                                  STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                  WENDY	L.	GAGNE	
	
	
ALEXANDER,	J.	

	     [¶1]	 	 Wendy	 L.	 Gagne	 appeals	 from	 an	 order	 to	 enforce	 payment	 of	

restitution	 entered	 by	 the	 Superior	 Court	 (Kennebec	 County,	 Stokes,	 J.)	

following	a	hearing	on	a	motion	to	enforce	payment	of	a	restitution	obligation	

originally	 imposed	 as	 part	 of	 a	 2003	 sentence	 imposed	 by	 the	 court	

(Studstrup,	J.).	 	 Because	 the	 motion	 court	 erred	 in	 imposing	 the	 burden	 on	

Gagne	 to	 prove	 the	 current	 balance	 of	 the	 court-ordered	 restitution	 for	 the	

victim’s	 uncompensated	 losses—information	 more	 accessible	 to	 the	 State	

because	it	relates	to	or	is	available	from	the	victim	of	the	crime—we	vacate	and	

remand	for	a	further	hearing.			
2	

                                           I.		CASE	HISTORY	

          [¶2]	 	 The	 relevant	 facts	 are	 drawn	 from	 the	 docket	 entries,	 the	 trial	

court’s	file	and	the	record	of	the	motion	hearing.	

          [¶3]		On	October	10,	2002,	Gagne	waived	indictment	and	was	charged	by	

information	 with	 theft	 by	 deception	 (Class	 B),	 17-A	 M.R.S.	 §	 354(1),	 (2)(A)	

(2017).1	 	 Maine	 Pulp	 and	 Paper	 Association	 (MPPA),	 Gagne’s	 employer,	 was	

identified	as	the	victim	of	the	theft.		Gagne	initially	pleaded	not	guilty,	but	on	

October	30,	2002,	she	changed	her	plea	to	guilty	of	the	Class	B	theft,	with	the	

case	continued	for	sentencing.				

          [¶4]		Following	her	plea,	but	prior	to	sentencing,	Gagne	and	her	husband,	

as	 part	 of	 an	 effort	 to	 compensate	 MPPA	 for	 losses	 occasioned	 by	 the	 theft,	

granted	 mortgages	 to	 MPPA	 on	 properties	 they	 owned	 located	 in	 Augusta,	

Gardiner,	and	Pittston.				

          [¶5]		Sentencing	occurred	on	February	6,	2003.		On	Gagne’s	plea	of	guilty	

to	theft	by	deception	(Class	B),	the	court	sentenced	Gagne	to	the	Department	of	

Corrections	for	a	term	of	seven	years,	with	all	but	thirty	months	suspended,	to	

be	 followed	 by	 probation	 for	 a	 term	 of	 four	 years.	 	 As	 part	 of	 the	 judgment,	


     1	 	 The	 crime	 at	 issue	 was	 committed	 throughout	 the	 years	 of	 1997-2002.	 	 The	 theft	 statute	

applicable	 during	 that	 time	 does	 not	 differ	 materially	 from	 the	 current	 theft	 statute	 in	 any	 way	
relevant	to	this	appeal.		Cf.	17-A	M.R.S.A.	§	354	(1983	&	Supp.	2002);	17-A	M.R.S.A.	§	354	(1983).	
                                                                                        3	

Gagne	 was	 ordered	 to	 pay	 restitution	 in	 the	 amount	 of	 $400,000.	 	 Gagne’s	

conditions	of	probation	separately	required	that	she	pay	a	“maximum”	amount	

of	restitution	of	$400,000	for	the	benefit	of	MPPA.				

      [¶6]	 	 In	 March	 2009,	 around	 the	 time	 when	 Gagne’s	 term	 of	 probation	

would	have	been	scheduled	to	end,	the	State	filed	a	motion	to	revoke	Gagne’s	

probation	because	the	ordered	restitution	had	not	been	paid	in	full.		Following	

a	hearing	on	December	10,	2009,	the	court	(Mills,	J.)	denied	the	motion.		The	

facts	 related	 to	 the	 2009	 hearing	 are	 addressed	 in	 the	 2017	 motion	 court’s	

findings,	 stated	 below.	 	 The	 record	 does	 not	 indicate	 that	 Gagne’s	 term	 of	

probation	was	extended	beyond	its	scheduled	expiration.			

      [¶7]	 	 In	 June	 2016,	 the	 State	 filed	 a	 motion	 to	 enforce	 payment	 of	

restitution.	 	 In	 January	 2017,	 Gagne	 filed	 a	 motion	 to	 dismiss	 the	 motion	 to	

enforce.		The	grounds	for	the	motion	to	dismiss	were	(1)	res	judicata	based	on	

the	 2009	 denial	 of	 the	 motion	 to	 revoke	 probation	 for	 nonpayment	 of	

restitution	 and	 (2)	 the	 early	 2017	 dissolution	 of	 MPPA.	 	 The	 motions	 were	

heard	 on	 April	 28,	 2017,	 and	 decided	 by	 an	 opinion	 (Stokes,	J.)	 dated	

May	4,	2017.		In	that	decision,	the	court	ordered	Gagne	to	pay	$200	per	month	

beginning	in	May	and	indicated	that	a	further	hearing	would	be	scheduled	for	

June	to	determine	the	amount	of	any	credit	to	be	given	to	Gagne	for	any	funds	
4	

recovered	by	MPPA	from	insurance	or	foreclosure	of	the	three	mortgages	given	

by	Gagne	and	her	husband.			

      [¶8]		Gagne	filed	an	appeal	from	the	May	4,	2017,	order.		We	dismissed	

that	appeal	as	interlocutory	because	the	order	contained	a	footnote	stating	that	

the	court	had	“scheduled	a	follow-up	hearing”	in	case	there	was	a	“need	to	take	

additional	 evidence	 relevant	 to	 the	 issue	 of	 whether	 the	 victim	 has	 received	

compensation	from	a	collateral	source	or	has	received	any	proceeds	from	the	

mortgaged	real	estate.”		After	remand,	however,	the	motion	court	indicated	that	

its	 decision	 was	 final	 and	 that	 no	 further	 hearing	 would	 be	 scheduled.	 	 In	

April	2018,	Gagne	filed	a	timely	notice	of	appeal	from	the	motion	court’s	final	

order.		See	15	M.R.S.	§	2115	(2017);	M.R.	App.	P.	2A,	2B.		

      [¶9]		The	relevant	facts	are	outlined	in	the	following	findings	of	fact	stated	

by	the	motion	court.		These	findings	are	supported	by	competent	evidence	in	

the	record.		See	State	v.	Nisbet,	2018	ME	113,	¶	9,	191	A.3d	359.			

      As	 part	 of	 the	 [2003]	 judgment	 and	 commitment	 the	 sentencing	
      court	 ordered	 [Gagne]	 to	 make	 restitution	 in	 the	 amount	 of	
      $400,000	 for	 the	 benefit	 of	 the	 victim.	 	 As	 a	 condition	 of	 her	
      probation,	 [Gagne]	 was	 ordered	 to	 pay	 restitution	 in	 the	
      “maximum”	 amount	 of	 $400,000	 for	 the	 benefit	 of	 the	 named	
      victim.			
      	
            In	 his	 letter	 to	 the	 sentencing	 court,	 [MPPA’s	 attorney]	
      requested	 restitution	 for	 his	 client	 in	 the	 amount	 of	 $367,400,	
      which	represented	the	claimed	theft	of	$400,000	minus	payments	
                                                                                 5	

already	made	by	[Gagne]	to	MPPA	of	$32,600.		The	State	sought	an	
identical	 amount	 of	 restitution.	 	 State’s	 Exhibit	 1	 admitted	 at	 the	
hearing	on	April	28,	2017,	reflects	restitution	payments	made	by	
[Gagne]	 while	 incarcerated	 and/or	 on	 probation	 totaling	
$15,317.39.				
	
       The	court	finds	that	the	$400,000	restitution	amount	made	
part	of	[Gagne’s]	judgment	and	her	probation,	was	intended	to	be	a	
maximum	amount	before	application	of	any	cash	payments	made	
by	 [her]	 to	 the	 victim.	 	 Accordingly,	 the	 court	 further	 finds	 that	
[Gagne]	has	 made	cash	payments	totaling	$47,917.39	 ($32,600	+	
$15,317.39),	 leaving	 a	 balance	 of	 $352,082.61	 prior	 to	 the	
application	of	any	other	credits	to	which	[Gagne]	may	be	entitled	
as	discussed	below.				
	
       In	his	letter	to	the	sentencing	court	dated	January	29,	2003,	
[MPPA’s	attorney]	made	reference	to	three	(3)	properties	owned	
by	 [Gagne]	 in	 the	 central	 Maine	 area	 as	 to	 which	 [Gagne]	 (and	
apparently	 her	 husband)	 granted	 the	 victim	 mortgages.	 	 At	 the	
hearing	 on	 April	 28,	 2017,	 [Gagne]	 offered	 into	 evidence	
Defendant’s	Exhibits	1,	2	and	3	being	recorded	mortgage	deeds	on	
real	 estate	 in	 Pittston,	 Augusta	 and	 Gardiner,	 respectively,	 each	
dated	January	31,	2003.		[Gagne]	testified	that	neither	she	nor	her	
husband	 had	 any	 further	 ownership	 interest	 in	 these	 properties,	
and	she	had	no	knowledge	or	information	about	the	properties	at	
this	time.				
	
       [Gagne]	 also	 raised	 the	 possibility	 that	 MPPA	 may	 have	
received	an	insurance	settlement	as	a	result	of	[Gagne’s]	employee	
theft,	but	no	details	of	any	such	payment	was	provided	to	the	court.		
During	 a	 hearing	 on	 the	 State’s	 Motion	 to	 Revoke	 [Gagne’s]	
Probation	held	on	December	10,	2009	(Mills,	J.),	[Gagne]	presented	
several	letters	her	counsel	had	sent	to	[MPPA’s	attorney]	in	2009	
seeking	information	regarding	any	insurance	payments	and/or	any	
proceeds	 obtained	 from	 the	 foreclosure	 of	 the	 3	 properties	 that	
were	the	subject	of	the	mortgage	deeds	identified	as	 Defendant’s	
Exhibits	1,	2	and	3.	.	.	.		According	to	counsel	for	[Gagne],	[MPPA’s	
6	

     attorney]	 did	 not	 provide	 any	 information	 regarding	 insurance	
     payments	or	any	proceeds	from	the	three	parcels	of	real	estate.				
	
          .	.	.	[Gagne’s]	obligation	to	make	restitution	was	part	of	the	
     sentencing	 judgment,	 in	 addition	 to	 being	 a	 condition	 of	 her	
     probation.		See	17-A	M.R.S.	§§	1326-A,	1326-F	and	1329.					
	
            .	 .	 .	 [Gagne]	 argues[]	 there	 is	 no	 longer	 a	 victim	 for	 whose	
     benefit	restitution	must	be	paid.		The	Maine	Criminal	Code	does	not	
     appear	 to	 clearly	 address	 this	 issue.	 	 Nevertheless,	 the	 court	
     concludes	 that	 the	 corporation’s	 entitlement	 to	 restitution	 from	
     [Gagne]	 is	 an	 asset	 of	 the	 corporation	 and	 the	 directors	 of	 the	
     corporation,	as	liquidating	trustees,	have	the	authority	to	dispose	
     of	any	undistributed	property	of	the	corporation.		See	13-B	M.R.S.	
     §§	1111(2)	and	1104(1)(D)	&	(2).		
            	
            .	.	.	.		
     	
            .	 .	 .	 The	 court	 agrees	 that	 it	 is	 the	 State’s	 initial	 burden	 of	
     proving	 “the	 extent	 of	 the	 victim’s	 loss.”	 	 State	 v.	 Berube,	
     1997	ME	165,	 ¶	 19,	 698	 A.2d	 509.	 	 On	 that	 issue,	 the	 State	 has	
     satisfied	 its	 burden.	 	 In	 the	 court’s	 view,	 it	 is	 [Gagne’s]	 burden	 to	
     present	evidence	that	she	should	be	credited	with	additional	amounts	
     that	may	have	been	subsequently	paid	to	the	victim	from	a	collateral	
     source	or	from	the	sale	of	the	three	parcels	of	mortgaged	real	estate.		
     (Emphasis	added.)		[After	this	sentence,	the	court	added	a	footnote	
     stating	 that	 a	 “follow-up	 hearing”	 was	 set	 for	 June	 30,	 2017,	 “if	
     there	is	a	need	to	take	additional	evidence	relevant	to	the	issue	of	
     whether	 [MPPA]	 has	 received	 compensation	 from	 a	 collateral	
     source	 or	 has	 received	 any	 proceeds	 from	 the	 mortgaged	 real	
     estate.”]			
     	
            During	her	testimony	on	April	28,	2017,	[Gagne]	stated	that	
     based	on	 her	current	income	 and	financial	resources	she	has	the	
     ability	to	pay	$200	per	month	towards	restitution.				
     	
            Based	upon	the	foregoing,	the	court	finds	that	[Gagne]	is	in	
     default	of	her	obligation	to	make	restitution	and	further	finds	that	
                                                                                     7	

      the	default	was	not	inexcusable.		IT	IS	ORDERED,	that	[Gagne]	shall	
      pay	 restitution	 for	 the	 benefit	 of	 the	 victim	 as	 follows:	 up	 to	 the	
      amount	of	$352,082.61	in	payments	of	$200	per	month	beginning	
      in	May,	2017,	to	be	paid	to	the	Office	of	the	District	Attorney	.	.	.	.		
      	
      [¶10]		Gagne	contends	that	the	motion	court’s	conclusion	that	she	was	in	

default	of	her	obligation	to	pay	restitution	was	error	for	four	reasons:	(1)	the	

court’s	 2009	 ruling	 denying	 the	 State’s	 motion	 to	 revoke	 Gagne’s	 probation	

stands	as	res	judicata	on	the	issue	of	default;	(2)	17-A	M.R.S.	§	1326-F	(2017)	

does	 not	apply	because	it	 was	 not	in	 effect	when	the	offense	was	committed	

during	 the	 years	 of	 1997-2002;	 (3)	 the	 restitution	 order	 is	 not	 enforceable	

because	MPPA	has	been	dissolved;	and	(4)	the	court	was	not	presented	with	

sufficient	evidence	to	conclude	that	any	amount	of	restitution	remained	unpaid	

and,	if	so,	in	what	amount.			

                                 II.		LEGAL	ANALYSIS	

      [¶11]		A	court’s	factual	findings	are	reviewed	for	clear	error	and	the	legal	

conclusions	it	derived	from	those	findings	are	reviewed	de	novo.		See	State	v.	
8	

Milliken,	2010	ME	1,	¶	19,	985	A.2d	1152.		Questions	of	statutory	interpretation	

are	reviewed	de	novo.		See	State	v.	Knight,	2016	ME	123,	¶	9,	145	A.3d	1046.			

A.	    Res	Judicata	

       [¶12]		 Gagne	contends	that	the	 motion	 court’s	2009	ruling	that	 denied	

the	 State’s	 motion	 to	 revoke	 her	 probation	 is	 res	 judicata	 on	 the	 issue	 of	

whether	she	defaulted	on	her	restitution	obligation.			

       [¶13]		“The	doctrine	of	res	judicata	prevents	the	relitigation	of	matters	

already	decided:	The	law	is	plain	that	[parties]	cannot	again	come	forward	in	

the	 same	 legal	 mission	 against	 the	 same	 parties	 to	 secure	 a	 remedy	 .	 .	 .	

previously	denied.”		Portland	Water	Dist.	v.	Town	of	Standish,	2008	ME	23,	¶	7,	

940	A.2d	1097	(alterations	in	original).		Claim	preclusion	bars	the	relitigation	

of	a	claim	if	

      (1)	the	same	parties	or	their	privies	are	involved	in	both	actions;	
      (2)	 a	 valid	 final	 judgment	 was	 entered	 in	 the	 prior	 action;	 and	
      (3)	the	matters	presented	for	decision	in	the	second	action	were,	
      or	might	have	been,	litigated	in	the	first	action.	
      	
Johnson	 v.	 Samson	 Constr.	 Corp.,	 1997	 ME	 220,	 ¶	 6,	 704	 A.2d	 866.	 	 Although	

there	was	a	final	judgment	entered	in	the	prior	proceeding	in	this	action	that	

involved	the	same	parties,	the	issue	litigated	was	whether	Gagne	had	violated		

conditions	 of	 probation.	 	 The	 Superior	 Court’s	 action	 on	 the	 probation	
                                                                                       9	

revocation	 motion	 did	 not	 address	 or	 otherwise	 affect	 the	 stand-alone	

restitution	provision	in	the	judgment.				

      [¶14]		As	the	legislative	history	of	the	probation	laws	indicates,	the	denial	

of	the	motion	to	revoke	probation	did	not	terminate	Gagne’s	obligation	to	pay	

restitution.		See	Comm.	Amend.	A	to	L.D.	882,	Summary,	No.	S-305	(118th	Legis.	

1997)	 (“The	 option	 [in	 the	 bill]	 of	 allowing	 the	 court	 to	 revoke	 the	 unpaid	

portion	of	the	restitution	in	whole	or	in	part	has	been	removed	as	an	apparent	

unconstitutional	intrusion	into	the	Governor’s	exclusive	postconviction	pardon	

power.”);	see	also	State	v.	Hunter,	447	A.2d	797,	799-803	(Me.	1982).		

      [¶15]	 	 Accordingly,	 principles	 of	 res	 judicata	 do	 not	 bar	 the	 pending	

enforcement	action.		

B.	   Application	of	Section	1326-F	

      [¶16]		Gagne	further	contends	that	the	court	erred	by	applying	section	

1326-F,	 which	 provides	 that	 “[a]n	 offender	 is	 responsible	 for	 paying	 any	

restitution	 at	 the	 time	 the	 term	 of	 commitment	 to	 the	 Department	 of	

Corrections	 or	 period	 of	 probation	 is	 completed,”	 and	 that	 because	 section	

1326-F	 had	 not	 yet	 taken	 effect	 at	 the	 time	 of	 Gagne’s	 offense,	 we	 should	

assume	 that	 the	 restitution	 provision	 of	 the	 judgment	 terminated	 upon	 her	

discharge	 from	 probation	 or	 Department	 of	 Corrections	 supervision.	 	 We	
10	

review	questions	of	statutory	interpretation	de	novo.		Knight,	2016	ME	123,	¶	9,	

145	A.3d	1046.	

          [¶17]		Section	1326-F	did	not	take	effect	until	2010—seven	years	after	

Gagne’s	 conviction	 and	 eight	 years	 after	 the	 commission	 of	 the	 crime	 ended.		

See	P.L.	2009,	ch.	608,	§	14	(effective	July	12,	2010).		The	legislative	history	of	

the	 restitution	 statutes	 provides	 guidance	 to	 determine	 whether	 section	

1326-F	could	be	applied	in	the	present	case.		The	summary	accompanying	the	

legislative	document	from	which	section	1326-F	was	drawn	states,	in	pertinent	

part:		

             The	 bill	 enacts	 a	 new	 section	 that	 comprehensively	
       addresses	 the	 situation	 in	 which	 an	 offender	 who	 has	 completed	
       the	term	of	commitment	to	the	Department	of	Corrections	or	the	
       period	of	probation	still	has	not	paid	the	restitution	ordered	by	the	
       court	 in	 full.	 	 It	 provides	 notice	 to	 former	 Department	 of	
       Corrections’	 clients	 still	 owing	 restitution	 that	 the	 duty	 to	 pay	
       remains;	requires	that	monetary	compensation	continue	to	be	paid	
       to	 the	 Department	 of	 Corrections;	 and	 requires	 that,	 unless	
       otherwise	modified	by	the	court,	the	time	and	method	of	payment	
       determined	 by	 the	 Department	 of	 Corrections	 during	 the	 former	
       term	of	commitment	or	period	of	probation	continues	to	control.	
       	
L.D.	 1789,	 Summary	 (124th	 Legis.	 2010).	 	 We	 construe	 section	 1326-F	 to	

confirm	the	then-existing	continuing	obligation	to	pay	the	restitution	required	

by	the	judgment,	to	provide	clarity	to	the	then-existing	practice,	and	to	add	the	

requirement	of	notice	to	obligors	of	their	obligations.		The	adoption	of	section	
                                                                                        11	

1326-F	 did	 not	 operate	 to	 terminate	 obligations	 to	 pay	 restitution	 imposed	

prior	to	its	enactment.		C.f.	Hunter,	447	A.2d	at	803	(“[T]he	power	to	reduce	an	

offender’s	sentence	on	the	basis	of	his	post-conviction	behavior	is	not	part	of	

the	traditional	 judicial	 power;	rather,	it	 is	encompassed	within	the	executive	

commutation	power.”	(citation	omitted)).	

C.	    Effect	of	Dissolution	of	MPPA	

	      [¶18]	 	 At	 the	 hearing,	 Gagne	 presented	 evidence	 that,	 in	 early	 2017,	

MPPA	 filed	 Articles	 of	 Dissolution	 with	 the	 Maine	 Secretary	 of	 State.	 	 Gagne	

asserts	that	the	restitution	order	is	now	unenforceable	because	there	no	longer	

exists	a	victim	to	be	made	whole.			

	      [¶19]		“We	examine	[the	restitution	statutes]	in	the	context	of	the	entire	

statutory	scheme.”		State	v.	Kendall,	2016	ME	147,	¶	14,	148	A.3d	1230.		Maine’s	

restitution	 statutes	 are	 silent	 on	 the	 enforceability	 of	 an	 order	 of	 restitution	

owed	to	a	corporate	entity	that	is	dissolved	after	the	issuance	of	the	order.		As	

those	statutes	apply	to	other	kinds	of	post-judgment	changes	in	circumstances	

affecting	the	victim	of	a	crime,	however,	they	are	explicit.		If	a	victim	who	is	a	

natural	 person	 dies	 after	 the	 court	 issues	 a	 restitution	 order,	 the	 State	 must	

forward	 restitution	 payments	 to	 the	 victim’s	 estate.	 	 17-A	 M.R.S.	 §	 1326-C	

(2017).		If	the	victim’s	location	becomes	unascertainable	after	the	restitution	
12	

order	 is	 issued,	 the	 restitution	 payments	 must	 be	 forwarded	 to	 the	 State	

Treasurer	as	unclaimed	property.		17-A	M.R.S.	§	1326-D	(2017).			

	      [¶20]		The	combined	effect	of	these	statutes	indicates	a	legislative	resolve	

to	require	criminal	offenders	to	pay	restitution	and	not	excuse	that	obligation	

because	 of	 post-judgment	 changes	 in	 the	 availability	 of	 the	 victim	 to	 receive	

that	 compensation.	 	 The	 proper	 identification	 of	 the	 specific	 recipient—

whether	it	be	the	victim’s	estate	or	 a	governmental	entity—is	a	 matter	to	be	

determined	by	the	State	pursuant	to	the	restitution	statutes	and	has	no	bearing	

on	the	defendant’s	underlying	obligation	to	pay	restitution.	

	      [¶21]		There	is	no	reason	to	treat	the	dissolution	of	a	corporate	victim	

differently	 given	 the	 Legislature’s	 pronouncement	 that	 the	 purposes	 of	

restitution	include	rehabilitating	the	offender	and	“reinforc[ing]	the	offender’s	

sense	 of	 responsibility	 for	 the	 offense.”	 	 17-A	 M.R.S.	 §	 1321	 (2017).	 	 If	 the	

identity	or	location	of	a	victim	cannot	be	determined	at	the	time	of	sentencing,	

the	 court	 remains	 authorized	 to	 impose	 a	 restitution	 order,	 after	 which	 the	

State	 must	 forward	 restitution	 payments	 to	 the	 county	 where	 the	 case	 is	

prosecuted.		17-A	 M.R.S.	§	1324(2)	 (2017).		 This	 demonstrates	that	 even	the	

initial	 issuance	 of	 an	 enforceable	 restitution	 order	 is	 not	 predicated	 on	 the	

availability	of	a	victim.		The	dissolution	of	MPPA	as	a	corporate	entity	therefore	
                                                                                       13	

did	not	render	the	restitution	order	unenforceable.		See	Allocca	v.	York	Ins.	Co.	

of	Me.,	2017	ME	186,	¶	22,	169	A.3d	938	(“[T]he	fundamental	rule	in	statutory	

construction	is	that	the	legislative	intent	as	divined	from	the	statutory	language	

controls	 the	 interpretation	 of	 the	 statute.”	 (alteration	 in	 original));	 Damon	 v.	

S.D.	 Warren	 Co.,	 2010	 ME	 24,	 ¶	 10,	 990	 A.2d	 1028	 (“[W]here	 statutory	

construction	is	at	issue,	we	construe	a	statute	to	give	effect	to	legislative	intent.”	

(citation	omitted)).	

D.	   Sufficiency	of	Evidence	of	Default		
      	
      [¶22]	 	 Gagne	 contends	 that	 the	 court	 erred	 by	 finding	 that	 she	 had	

defaulted	on	her	obligation	because	the	court	was	not	presented	with	sufficient	

evidence	to	conclude	whether	any	restitution	remained	unpaid	and,	if	it	did,	in	

what	amount.			

      [¶23]		On	restitution	issues,	the	State	has	the	initial	burden	to	prove	the	

extent	of	a	victim’s	loss	by	a	 preponderance	of	the	evidence.		State	v.	Nelson,	

2010	ME	40,	 ¶¶	 16-17,	 994	 A.2d	 808;	 see	 also	 State	 v.	 Berube,	 1997	 ME	 165,	

¶	19,	698	A.2d	509	(“[I]t	is	the	burden	of	the	State	to	produce	evidence	as	to	the	

extent	of	the	victim’s	loss	and	to	prove,	by	a	preponderance,	a	causal	connection	

between	the	loss	and	the	offender’s	conduct.”	(citations	omitted)).	
14	

      [¶24]	 	 As	 we	 conclude	 below,	 the	 burden	 to	 establish	 the	 amount	 still	

owed	remains	with	the	State	when	it	files	a	motion	to	enforce	the	restitution	

obligation.	 	 In	 this	 case,	 the	 motion	 court	 found	 that	 Gagne	 had	 “made	 cash	

payments	 totaling	 $47,917.39	 ($32,600	 +	 $15,317.39),	 leaving	 a	 balance	 of	

$352,082.61	prior	to	the	application	of	any	other	credits	to	which	[Gagne]	may	

be	entitled	to	as	discussed	below.”		(Emphasis	added.)		 The	court	went	on	to	

discuss	the	three	properties	that	Gagne	owned	to	which	she	and	her	husband	

granted	MPPA	mortgages,	as	well	as	a	possible	insurance	settlement	received	

by	MPPA.		The	court	found	that,	although	Gagne	had	sought	information	in	2009	

regarding	proceeds	from	the	properties	and	possible	insurance	payments	from	

MPPA’s	counsel,	no	information	had	been	provided.			

      [¶25]		At	the	time	of	the	order,	the	court	scheduled	a	follow-up	hearing	

for	 June	 30,	 2017,	 to	 take	 additional	 evidence	 regarding	 any	 compensation	

received	 by	 the	 victim	 from	 the	 proceeds	 of	 real	 estate	 sales	 or	 collateral	

sources.		This	hearing	never	occurred—after	her	initial	appeal	was	dismissed	

as	 interlocutory,	 the	 motion	 court	 determined	 that	 such	 a	 hearing	 “is	 not	

necessary	at	this	time”	and	declared	the	restitution	order	final	for	purposes	of	

the	appeal.		Thus,	the	restitution	order	was	made	final	without	evidence	of	what	

amount,	 if	 any,	 Gagne	 should	 be	 credited	 for	 proceeds	 from	 the	 mortgage	
                                                                                    15	

foreclosures	and	real	estate	sales	or	other	collateral	sources—evidence	which,	

the	record	indicates,	would	be	in	the	possession	of	MPPA	or	its	attorney.			

	     [¶26]		While	the	restitution	chapter	of	the	Criminal	Code	makes	clear	that	

the	 State	 has	 the	 burden	 to	 prove	 the	 amount	 of	 the	 victim’s	 loss	 and	 the	

amount	to	be	paid	in	restitution,	Nelson,	2010	ME	40,	¶¶	16-17,	994	A.2d	808,	

it	is	silent	regarding	the	burden	of	proving	past	restitution	payments	when	a	

default	is	alleged.		Section	1325,	which	relates	to	criteria	to	be	considered	in	

authorizing	 a	 restitution	 order	 in	 a	 criminal	 judgment,	 states	 the	 following	

about	burdens	of	proof,	addressing	only	proof	of	incapacity	to	make	payments:		

      An	 offender	 who	 asserts	 a	 present	 or	 future	 incapacity	 to	 pay	
      restitution	 has	 the	 burden	 of	 proving	 the	 incapacity	 by	 a	
      preponderance	of	the	evidence.		On	appeal	of	a	restitution	order,	
      the	offender	has	the	burden	of	demonstrating	that	the	incapacity	
      was	proven	as	a	matter	of	law.		
	
17-A	 M.R.S.	 §	 1325(4)	 (2017).	 	 The	 statutes	 provide	 no	 further	 guidance	

regarding	pre-	and	post-judgment	burdens	of	proof	in	restitution	matters.		See	

generally	17-A	M.R.S.	§§	1321	to	1330-C	(2017).	

      [¶27]	 	 Our	 precedents	 provide	 helpful	 insights.	 	 In	 State	 v.	 Bouchard,	

2005	ME	106,	¶	22,	881	A.2d	1130,	we	specifically	noted	that	it	“remains	for	

the	Division	of	Probation	and	Parole	to	determine	the	actual	amount	that	[the	

defendant]	 should	 be	 required	 to	 pay	 in	 restitution”	 and	 “[i]n	 making	 that	
16	

determination,	the	probation	officer	should	consider	any	evidence	that	may	be	

offered	by	[the	defendant]	as	to	how	much	of	the	[restitution	amount]	he	used	

[for	legitimate	purposes]	that	would	reduce	the	total	amount	of	the	[victim’s]	

economic	loss,	and	thus	the	amount	of	restitution	to	be	paid.”		See	also	Nelson,	

2010	 ME	 40,	 ¶	 17,	 994	 A.2d	 808	 (holding	 that	 the	 State	 met	 its	 burden	 of	

proving	 the	 amount	 of	 restitution	 to	 be	 ordered	 when	 it	 presented	 the	

testimony	 of	 a	 forester,	 whose	 testimony	 consisted	 of	 the	 method	 used	 to	

calculate	the	value	of	stolen	wood,	and	that	“to	the	extent	that	[his	calculation]	

is	imprecise,	it	is	a	‘conservative’	estimate”).		

      [¶28]		The	State,	directly	or	through	access	it	may	have	to	information	

from	MPPA,	is	in	the	better	position	to	determine	the	restitution	or	insurance	

payment	information.		Applying	our	general	civil	principles	on	assignment	of	

the	burden	of	proof	or	persuasion,	the	State,	on	its	motion	to	enforce,	has	the	

burden	 of	 persuasion.	 	 See	 Dowley	 v.	 Morency,	 1999	ME	 137,	 ¶	 11,	

737	A.2d	1061	(“[T]he	party	asserting	the	affirmative	of	controlling	issues	.	.	.	

bears	 the	 risk	 of	 nonpersuasion.”);	 Markley	 v.	 Semle,	 1998	ME	 145,	 ¶	 5,	

713	A.2d	945	(“The	party	who	asserts	the	affirmative	of	the	controlling	issues	

in	the	case,	whether	or	not	he	is	the	nominal	plaintiff	in	the	action,	bears	the	

risk	of	non-persuasion.”).		
                                                                                     17	

      [¶29]		Here,	the	State	never	met	the	burden	assigned	to	it	in	Nelson	and	

Berube	 to	 determine	 the	 amount	 of	 MPPA’s	 loss,	 payments	 credited	 to	 cover	

that	loss,	and	thus	the	remaining	sum	that	Gagne	should	have	been	obligated	to	

pay	in	restitution.		The	burden	cannot	be	shifted	to	Gagne	by	imposing	a	“not	to	

exceed”	 restitution	 amount	 and	 then	 leaving	 it	 to	 her	 to	 learn	 from	 the	

now-dissolved	 MPPA	 the	 amounts	 that	 MPPA	 had	 recovered	 from	 insurance	

and	 from	 sale	 of	 her	 mortgaged	 properties—information	 Gagne	 had	 tried,	

without	success,	to	obtain	from	MPPA	in	2009.			

      [¶30]		 The	failure	of	proof	by	the	party	 that	bears	the	burden	of	 proof	

usually	requires,	as	a	matter	of	law,	entry	of	a	judgment	adverse	to	that	party.		

See	Nelson,	2010	ME	40,	¶¶	16-17,	994	A.2d	808;	c.f.	Ma	v.	Bryan,	2010	ME	55,	

¶	6,	997	A.2d	755	(stating	that	it	is	the	plaintiff’s	burden	of	proof	to	establish	

the	 elements	 of	 a	 cause	 of	 action).	 	 Such	 a	 result	 should	 not	 obtain	 here,	

however,	 because	 neither	 the	 parties	 nor	 the	 court	 had	 the	 benefit	 of	 the	

clarification	that	we	provide	today,	and	as	a	result	the	State	was	not	on	proper	

notice	that	it	was	responsible	for	presenting	evidence	of	the	amount,	if	any,	of	

restitution	that	remains	due.			

      [¶31]	 	 We	 therefore	 vacate	 the	 motion	 court’s	 order	 and	 remand	 for	 a	

new	 hearing	 on	 the	 enforcement	 of	 the	 restitution	 obligation,	 with	 the	 State	
18	

having	the	burden	to	prove	the	restitution	obligation	remaining	after	receipt	of	

payments	directly	from	Gagne,	proceeds	from	the	foreclosure	and	sale	of	the	

mortgaged	properties,	and	any	proceeds	from	insurance.2	

         The	entry	is:	

                  Order	 granting	 the	 State’s	 motion	 to	 enforce	 the	
                  payment	of	restitution	vacated.		Remanded	for	further	
                  proceedings	 as	 indicated	 in	 paragraph	 31	 of	 this	
                  opinion.		
	

	        	        	         	   	      	
	
Robert	E.	Sandy,	Jr.,	Esq.	(orally),	Sherman	&	Sandy,	Waterville,	for	appellant	
Wendy	L.	Gagne	
	
Maeghan	 Maloney,	 District	 Attorney,	 and	 Paul	 Cavanaugh	 II,	 Dep.	 Dist.	 Atty.	
(orally),	Office	of	the	District	Attorney,	Augusta,	for	appellee	State	of	Maine	
	
	
Kennebec	County	Superior	Court	docket	number	CR-2002-316	
FOR	CLERK	REFERENCE	ONLY	




    2		These	are	the	sources	of	satisfaction	from	collateral	sources	that	have	been	suggested	by	the	

record.		Our	holding	today,	that	the	State	bears	the	burden	of	proving	the	outstanding	balance	of	a	
restitution	obligation,	should	not	be	construed	to	mean	that	the	State	is	required	to	account	for	any	
imaginable	credit,	but	only	for	payments	or	credits	from	sources	identified	in	the	evidence.	
