NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
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                                           2016 VT 83

                                          No. 2015-192

State of Vermont                                              Supreme Court

                                                              On Appeal from
   v.                                                         Superior Court, Franklin Unit,
                                                              Criminal Division

Toby Charbonneau                                              May Term, 2016


Alison S. Arms, J.

James A. Hughes, Franklin County State’s Attorney, St. Albans, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and
 Ashton Roberts, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   EATON, J. Defendant pleaded guilty to felony possession of stolen property in

violation of 13 V.S.A. § 2561(b) and misdemeanor possession of stolen property in violation of

the same statute. He was subsequently ordered to pay restitution in the amount of $35,791. On

appeal, he challenges the restitution order. The issues on appeal are (1) whether an order of

restitution must relate to the damage caused by the criminal conduct for which defendant pleaded

guilty; (2) whether restitution is limited to items that were not recovered and returned to the

victim; and (3) whether the trial court is required to make findings as to a defendant’s ability to

pay in a restitution order. We reverse on the first issue.
       ¶ 2.    On March 9, 2014, the victims notified the St. Albans City Police that their

private residence had been burgled on March 7 or 8. The victims reported thousands of dollars’

worth of property as having been stolen and filed claims with two insurance companies for the

stolen items: one for $28,274 and one for $23,956.97, amounting to a total of $52,230.97 in

claimed losses. The victims’ insurance providers made payments of $9172.30 and $12,000, for a

total of $21,172.

       ¶ 3.    The victims subsequently notified the police that defendant and his partner had

posted some of the items reported as stolen from their residence on the Franklin County

Facebook website, “Buy, Sell, or Trade.” The police applied for and received a search warrant

for defendant’s residence. During a search, the police recovered fifteen items identified by the

victims as stolen from their residence during the burglary, and these items were later returned to

the victims.

       ¶ 4.    On March 25, 2014, defendant was charged with felony possession of stolen

property valued in excess of $900 in violation of 13 V.S.A. § 2561(b). At a change of plea

hearing on January 5, 2015, defendant pleaded guilty to felony possession of stolen property in

violation of § 2561(b) and to misdemeanor possession of stolen property in violation of the same

statute.1 There was no colloquy as to the specific items defendant admitted to having possessed,

and there was no mention as to specific items that were recovered from defendant’s residence.

The State described the factual basis for the plea as resulting from a search of defendant’s

residence, where “several items of property that were identified as belonging to the [victims’]

family” were recovered.

       ¶ 5.    The trial court subsequently held a restitution hearing, where neither defendant

nor the State objected to the trial court adopting the findings of fact relative to the loss amount

       1
           Section 2561(b) provides that the penalty for receiving stolen property is “the same as
for the stealing of such property.” The larceny statutes make stealing property valued in excess
of $900, a felony, 13 V.S.A. § 2501, and below that amount, a misdemeanor, id. § 2502.

                                                2
and value of the items stolen from the victims as derived from testimony and findings at

defendant’s partner’s restitution hearing.2 This included testimony that defendant and his partner

had purchased the items from an individual offering them for sale out of the back of his car, and

that they then advertised the items for sale on the Franklin County Facebook website “Buy, Sell,

or Trade.” At defendant’s partner’s hearing, the trial court determined that the recovered and

returned items had a collective actual cash value (ACV) of $6765.70, but that because they had

been returned to the victims, there was no material loss. For this reason, the trial court did not

order defendant’s partner to pay restitution.

       ¶ 6.     At defendant’s restitution hearing, the State sought restitution for the victims’

total uninsured loss as a result of the burglary, which it argued to be $35,791. This figure

included the value of the items that were recovered and returned to the victims, as well as the

value of the remaining items reported as stolen but not recovered during the search of

defendant’s residence. At the hearing, the trial court considered testimony from one of the

victims. She testified that defendant posted a photograph on Facebook depicting a TV stolen

during the burglary, and that she had seen defendant approximately one week before the burglary

parked across from her home. The court also considered testimony from Detective Trevor

Sergeant, who had investigated the burglary, that he had observed a shoe print in the snow

outside the victims’ home with a distinctive “x” mark, and that he had seized a pair of Nike

shoes from defendant’s home with an “x” pattern on the heel. The number of shoes with a

similar pattern was not established.

       ¶ 7.     Considering findings from defendant’s partner’s restitution hearing, as well as the

victims’ testimony and that of Detective Sergeant, the trial court found by a preponderance of the

evidence that defendant was seen in some proximity to the victims’ residence a week before the

burglary, possessed a shoe with a similar print left at the scene of the burglary, and possessed

       2
           See State v. Crystal Shepard, No. 255-3-14 FrCr, at 4 (Vt. Dec. 18, 2014).

                                                 3
and offered for sale a TV reported as stolen during the burglary but which was not among the

property defendant alleged was purchased out of the back of a car. Based on these findings, the

court concluded that defendant had committed the burglary of the victims’ home in early March

2014. Based on the findings and conclusions, and after noting that “no evidence was offered

regarding defendant’s ability to pay” restitution, the trial court calculated the victims’ material

loss as the value of the items claimed under both insurance policies ($52,230.97), minus the

amount paid by the insurance companies ($21,172), for a total of $35,791.3 Defendant appealed.

       ¶ 8.    On appeal, defendant challenges the trial court’s restitution order. Specifically,

defendant contends that the trial court erred in ordering restitution for losses attributed to an

offense other than the charged offense; that the trial court erred in failing to make findings as to

defendant’s ability to pay; and that the trial court improperly included in its restitution order

items recovered and returned to the victim, which were not material losses as defined under the

statute. “We review restitution orders for an abuse of discretion, and interpret controlling

statutes de novo.” State v. Gorton, 2014 VT 1, ¶ 8, 195 Vt. 460, 90 A.3d 901.

       ¶ 9.    We first address defendant’s assertion that the trial court erred in ordering

restitution for losses attributable to the burglary of the victims’ residence, because the burglary

and resulting losses were not directly related to defendant’s offense of possession of stolen

property. It is undisputed that the factual basis for defendant’s plea was that several items of the

victims’ property were recovered from defendant’s residence; that defendant’s plea did not

include the possession of any items other than those recovered; and that defendant was not

charged with, nor did he admit to, the underlying burglary of the victims’ residence.

Nonetheless, the trial court’s order included both the value of those items recovered from

defendant’s residence and the value of the property reported as stolen from the victims’ residence

       3
         The Court is aware that $52,230.97 minus $21,172 does not equal $35,791. In its brief,
the State acknowledges errors in the trial court’s calculation of the victims’ material loss.
Because we reverse on other grounds there is no need to address these mathematical errors.

                                                 4
during the March 2014 burglary but not found at defendant’s residence. Defendant contends that

that the trial court erred in finding that he had committed the burglary, and moreover, that the

absence of a direct link between his plea and the burglary necessitates the reversal of the

restitution order for losses attributed to the burglary.

        ¶ 10.   Vermont’s restitution statute is intended to compensate victims for their “material

loss,” 13 V.S.A. § 7043(a), which is defined as an “uninsured property loss, uninsured out-of-

pocket monetary loss, uninsured lost wages, and uninsured medical expenses.” Id. § 7043(a)(2).

To support a restitution award, the State must demonstrate “causation between the defendant’s

criminal act and the victim’s loss.” State v. Forant, 168 Vt. 217, 222, 719 A.2d 399, 403 (1998).

We have interpreted the causation element as requiring that restitution orders “relate directly to

the damage caused by the defendant’s criminal act for which he was convicted.” Id. at 222-23,

719 A.2d at 403 (holding that expenses incurred by domestic-assault victim to change locks and

telephone number were “indirect costs” from crime and therefore “not recoverable as

restitution”). “A restitution order may not include amounts resulting from conduct on which

defendant was acquitted . . . or conduct that was not covered by defendant’s conviction.” State v.

VanDusen, 166 Vt. 240, 244, 691 A.2d 1053, 1054-55 (1997) (citation omitted).

        ¶ 11.   In VanDusen, 166 Vt. at 244, 691 A.2d at 1055, this Court upheld an order of

restitution after the State proved that the defendant had stolen an amount greater than supported

by his conviction for misdemeanor possession of stolen property, which involved property not

exceeding $500 in value. We reasoned that the value of the stolen property ($4500) was directly

related to the conduct for which the defendant had been convicted—possession of stolen

property—and that the fact that the amount varied from the conviction was immaterial. Id. at

244, 691 A.2d at 1055. We further noted that the difference in value need only be established by

a preponderance of the evidence as it pertained to a sentencing matter. Id. at 245, 691 A.2d at

1055. We cautioned, however, that a restitution order may not be based on conduct that was not

                                                   5
covered by the defendant’s conviction, citing this Court’s holding in State v. Stimpson, 151 Vt.

645, 563 A.2d 1001 (1989) (mem.). Id. at 244, 691 A.2d at 1055. In Stimpson, the defendant

pleaded nolo contendere to several burglary offenses and the court ordered that he pay

restitution, a portion of which corresponded to an incident that was not covered by the plea

agreement and for which defendant was not convicted. We held that “[a]n order of restitution

must relate to the damage caused by the criminal conduct for which the defendant was

convicted,” and that the link was absent. Id. at 645-46, 563 A.2d at 1001 (quotation omitted).4

       ¶ 12.   More recently, in State v. Rollins, 2007 VT 127, ¶ 8, 182 Vt. 644, 944 A.2d 218

(mem.), we vacated a restitution order based on conduct that was not covered by the defendant’s

conviction. In Rollins, the defendant was convicted of attempted assault and robbery after the

State proved that the “defendant was involved in a scheme to rob the victim” and “took a

significant step in that direction.” Id. After the victim claimed that he lost $420 and a CD player

during the robbery, the trial court ordered restitution of $460. Id. at ¶ 6. On appeal, this Court

concluded that “[d]espite the victim’s testimony that he lost $420 as a result of the robbery, the

conviction was based solely on evidence of the plan to rob and the identification of [the]

defendant as one of the assailants.” Id. at ¶ 8. The Court held that a conviction for attempted

robbery could not support a direct link between the defendant and the claimed loss due to

robbery, because in order to convict, the jury necessarily found that the defendant had failed in

his attempt to rob the victim. Id.

       ¶ 13.   Here, we similarly find that a conviction of possession of stolen property cannot

support a connection between defendant and the claimed loss due to burglary.            Unlike in

VanDusen, the trial court did not simply find that defendant stole property valued at an amount

greater than supported by his conviction—it found, to a lesser standard than required for a


       4
          Of course, as part of a plea agreement, a defendant could agree to restitution related to
criminal acts which were either dismissed, amended, or not charged.

                                                6
criminal conviction, that he had committed the entirely separate criminal offense of burglary.

Defendant was not charged with burglary, and pleaded only to possession of stolen property, a

plea based on the recovery of some of the victims’ stolen property from his residence. The

restitution order, however, was based on the value of the property burgled from the victims’

residence.

       ¶ 14.   In VanDusen, we held that the trial court acts within the scope of § 7043 when it

makes findings with respect to the amount of the victims’ material loss for the purpose of

establishing causation between the victims’ loss and the conduct for which defendant was

convicted. This may include findings in addition to those made at trial in order to establish a

direct link between the charged offense and the victim’s material losses. Here, however, the trial

court exceeded the scope of § 7043 by making findings to establish causation between the

victims’ loss and defendant’s involvement in the burglary of their home—conduct that was not

covered by defendant’s conviction for possession of stolen property. Cf. VanDusen, 166 Vt. at

244, 691 A.2d at 1055 (requiring causation between victim’s loss and conduct for which

defendant was convicted).

       ¶ 15.   The trial court’s findings at the restitution hearing sought to establish causation

between the victims’ losses, not only concerning the items found in defendant’s possession, but

also for losses from items reported as stolen during the burglary and not found in defendant’s

possession. Other than the trial court’s own findings at the restitution hearing, there is no

connection between the crime for which defendant was convicted—possession of stolen

property—and the crime that resulted in the victim’s loss—burglary. That defendant had in his

possession some of the property stolen from the victims’ home does not mean the criminal act

for which defendant was convicted included the burglary of the victims’ home. Possession of

stolen property and burglary are entirely separate crimes.       Thus, the expenses ordered as

restitution related to the burglary cannot be viewed as the direct result of defendant’s crime of

                                                7
possession of stolen property, the criminal act for which he was convicted.            Forant and

VanDusen require this conclusion.

       ¶ 16.   We need not consider whether the trial court could have ordered restitution for

additional items reported as stolen during the burglary had it found, by a preponderance of the

evidence, that defendant was in possession of such items. Because the trial court failed to make

such findings, defendant cannot now be found liable for restitution for those items.

       ¶ 17.   The only losses directly resulting from the criminal conduct for which defendant

was convicted would necessarily relate to the items underlying that plea: the fifteen items

recovered from the victims’ residence, valued at $6765.70. Because it is undisputed that those

items were returned to the victims, there can be no finding of material loss. See 13 V.S.A.

§ 7043(a)(2) (defining material loss as “uninsured property loss, uninsured out-of-pocket

monetary loss, uninsured lost wages, and uninsured medical expenses.”). We therefore reverse

the trial court’s order of restitution in the amount of $35,791. Having found defendant’s first

issue to be dispositive, we decline to address the remaining two.

       Reversed. The restitution order is vacated.



                                               FOR THE COURT:



                                               Associate Justice




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