                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 44176
STATE OF IDAHO,                                      )
                                                     )
                                                              Boise, December 2016 Term
     Plaintiff-Respondent,                           )
                                                     )
                                                              2017 Opinion No. 19
v.                                                   )
                                                     )
                                                              Filed: February 27, 2017
JEREMY YORK CUNNINGHAM,                              )
                                                     )
                                                              Stephen W. Kenyon, Clerk
     Defendant-Appellant.                            )
                                                     )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Lynn G. Norton, District Judge.

       District court award of restitution, vacated and remanded.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant.
       Brian R. Dickson, Deputy State Appellate Public Defender argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
       Kenneth K. Jorgensen argued.

                          _________________________________
BURDICK, Chief Justice
       Jeremy Cunningham appeals the Ada County district court’s award of restitution entered
under Idaho Code section 37-2732(k). The Idaho Court of Appeals vacated the restitution award,
and we granted the State’s timely petition for review. Because we conclude the State failed to
support its request for restitution with sufficient evidence, we vacate and remand.
                   I.    FACTUAL AND PROCEDURAL BACKGROUND
       In September 2014, a jury convicted Cunningham of possession of a controlled
substance. The district court imposed a unified sentence of five years, with one-and-one-half
years fixed. On October 23, 2014, the district court held a restitution hearing, where the State
sought to recoup its prosecution costs under Idaho Code section 37-2732(k). The State requested
$2,240, which reflects 16 hours of work billed at $140 per hour. The State submitted an unsworn
written statement, entitled “Statement of Costs and Request for Restitution in a Drug Case”




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(Statement of Costs), as evidence of its prosecution costs. 1 Cunningham argued the hourly rate
was unreasonable and unsupported by the evidence, but he offered no evidence or further
arguments on his behalf. The district court awarded the State its requested prosecution costs, plus
$100 “for lab fees under the Drug Donation Act.” The award totaled $2,340.
           Cunningham appealed, and the Idaho Court of Appeals vacated the award and remanded
for further consistent proceedings. The Court of Appeals held that insufficient evidence
supported the award because it was based only on the State’s unsworn Statement of Costs. We
granted the State’s timely petition for review.
                                       II.     STANDARD OF REVIEW
           When addressing a petition for review, this Court will give “serious consideration to the
views of the Court of Appeals, but directly reviews the decision of the lower court.” State v.
Schall, 157 Idaho 488, 491, 337 P.3d 647, 650 (2014).
                                              III.     DISCUSSION
           This appeal brings to light Idaho Code section 37-2732(k). That statute permits the State
to recoup its prosecution costs as restitution, providing as follows:
                   Upon conviction of a felony or misdemeanor violation under this chapter
           or upon conviction of a felony pursuant to the “racketeering act,” section 18-7804,
           Idaho Code, or the money laundering and illegal investment provisions of section
           18-8201, Idaho Code, the court may order restitution for costs incurred by law
           enforcement agencies in investigating the violation. Law enforcement agencies
           shall include, but not be limited to, the Idaho state police, county and city law
           enforcement agencies, the office of the attorney general and county and city
           prosecuting attorney offices. Costs shall include, but not be limited to, those
           incurred for the purchase of evidence, travel and per diem for law enforcement
           officers and witnesses throughout the course of the investigation, hearings and
           trials, and any other investigative or prosecution expenses actually incurred,
           including regular salaries of employees. In the case of reimbursement to the Idaho
           state police, those moneys shall be paid to the Idaho state police for deposit into
           the drug and driving while under the influence enforcement donation fund created
           in section 57-816, Idaho Code. In the case of reimbursement to the office of the
1
    The Statement of Cost reads:

           I . . . Deputy Prosecuting Attorney for State of Idaho, County of Ada, am aware that the Ada
           County Prosecutor’s Office keeps records regarding the attorney time spent prosecuting drug cases
           in anticipation of submitting a request for restitution pursuant to I.C. § 37-2732(k). I have
           reviewed the time log in this case, which documents the prosecutor time spent prosecuting the
           above referenced drug case. The Ada County Prosecutor’s Office spent 16 attorney hours at an
           attorney rate of $140 per hour prosecuting this case, not including preparation and argument for
           the sentencing hearing. Pursuant to Idaho Code § 37-2732(k), the State requests restitution in the
           amount of $2,240.


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       attorney general, those moneys shall be paid to the general fund. A conviction for
       the purposes of this section means that the person has pled guilty or has been
       found guilty, notwithstanding the form of the judgment(s) or withheld
       judgment(s).
I.C. § 37-2732(k).
       In this appeal, we focus on how “the court may order restitution” to the State for
prosecution expenses “actually incurred.” See id. (emphasis added). Thus, restitution under
section 37-2732(k) is discretionary. To determine whether the district court abused its discretion,
this Court evaluates whether the district court: (1) correctly perceived the issue as one of
discretion; (2) acted within the outer boundaries of its discretion and consistently with relevant
legal standards; and (3) reached its decision by an exercise of reason. Swallow v. Emergency
Med. of Idaho, P.A., 138 Idaho 589, 592, 67 P.3d 68, 71 (2003). The second and third
requirements of the inquiry outlined above require the district court to “base the amount of
restitution upon the preponderance of evidence submitted by the prosecutor, defendant, victim,
or presentence investigator.” State v. Weaver, 158 Idaho 167, 170, 345 P.3d 226, 229 (Ct. App.
2014) (citation omitted). What amount of restitution to award is a question of fact for the district
court, “whose findings will not be disturbed if supported by substantial evidence.” Id.
       Here, the sole “evidence” supporting the restitution award is a one-paragraph form, the
Statement of Costs. The Statement of Costs is problematic for several reasons. First, the
Statement of Costs is a boilerplate, fill-in-the-blank-style form the State has used in other cases.
See State v. Nelson, slip op. 44177 at 4 (Idaho 2017). The Statement of Costs merely identifies
the defendant, the case number, and the prosecutor. It then states the total number of attorney
hours, the hourly rate, and computes the sum total of the request. It does not contain itemized
time entries explaining the tasks performed or the expenditures made in the particular case.
Although it is signed, the signature does not purport to certify it as correct.
       The Court of Appeals concluded the Statement of Costs did not constitute evidence. The
Court of Appeals elaborated as follows:
       [T]he district court lacked any evidence to support its restitution award. The State
       provided only an unsworn written statement as to the amount of costs and hours
       spent prosecuting. In a general sense, “evidence” is something (including
       testimony, documents, and tangible objects) that tends to prove or disprove the
       existence of an alleged fact. BLACK’S LAW DICTIONARY 595 (8th ed. 2004).
       The district court’s restitution decision and our review, however, must be based
       upon substantial and competent evidence in the record. Unsworn oral or written
       representations, even those of an officer of the court, are not evidence. See Zepeda


                                                  3
       v. State, 152 Idaho 710, 716, 274 P.3d 11, 17 (Ct. App. 2012); State v. Gerardo,
       147 Idaho 22, 26, 205 P.3d 671, 675 (Ct. App. 2009). While the State’s Statement
       of Costs and Request for Restitution in a Drug Case was signed, it was unsworn,
       and therefore does not constitute evidence. Since the State failed to present
       evidence, there can be no award of restitution. Thus, the district court erred in
       awarding restitution for prosecution costs.
       The State cites us to State v. Weaver, 158 Idaho 167, 345 P.3d 226 (Ct. App. 2014),
contending the district court did not err. In Weaver, the State sought $300 in restitution under
section 37-2732(k). Id. at 170, 345 P.3d at 229. The State filed a “written accounting of the time
spent prosecuting [the defendant], which was broken into categories comprised of one or more
tenths of an hour that totaled four hours at an hourly rate of $75. This accounting was signed by
the prosecutor assigned to [the] case certifying that the accounting was correct.” Id. The district
court determined that $75 was a reasonable hourly rate within the legal community, and the
parties did not dispute that finding. Id. at 170 n.1, 345 P.3d at 229 n.1. Rather, the defendant
“only specifically challenged the time claimed for [the] first appearance . . . .” Id. The defendant
argued he spent “less than thirty seconds at the defense table,” but the “time listed by the
prosecutor for the first appearance was twelve minutes.” Id. The State countered that even if the
time stated was imprecise, it sufficed as an estimate. Id. The district court agreed, and the Court
of Appeals affirmed, articulating as follows:
       The state’s certified accounting of the time it spent prosecuting the case, even if
       only an estimate, constitutes substantial evidence sufficient to support the district
       court’s award of $300 to the county prosecutor’s office. The accounting parsed
       the prosecutor’s time amongst eleven listed tasks accompanied by a brief
       description of each task and, in many cases, a date on which the task occurred.
       There is little more that Weaver could reasonably expect as evidence in these
       circumstances. The state was not required to prove the time spent on Weaver’s
       case beyond a reasonable doubt; only a preponderance of the evidence was
       required. Although Weaver questioned the accuracy of the state’s accounting, he
       presented no evidence to undermine or contradict that accounting.
Id. at 170–71, 345 P.3d at 229–30.
       Weaver is distinguishable from the restitution award at issue in this appeal. First, the
defendant in Weaver “only specifically challenged the time claimed for [the] first appearance”
but never disputed the hourly rate. Id. at 170, 345 P.3d at 229. But here, the number of hours and
the hourly rate are both disputed. Second, the accounting in Weaver “parsed the prosecutor’s
time amongst eleven listed tasks accompanied by a brief description of each task and, in many
cases, a date on which the task occurred.” Id. That accounting “was signed by the prosecutor


                                                 4
assigned to [the] case certifying that the accounting was correct.” Id. But here, the Statement of
Costs is not so detailed, as it does not itemize tasks like the certified accounting in Weaver. And,
while the Statement of Costs contains the prosecutor’s signature, nothing indicates that signature
purports to certify the Statement of Costs is correct.
        We conclude the restitution award is not supported by evidence. As noted, restitution
under section 37-2732(k) must be based on a preponderance of the evidence, and an award of
restitution will not be disturbed if supported by substantial evidence. Substantial evidence is
“relevant evidence as a reasonable mind might accept to support a conclusion.” State v. Straub,
153 Idaho 882, 885, 292 P.3d 273, 276 (2012). Based on the above, the State’s unsworn
Statement of Costs does not meet that burden. We therefore hold that unsworn representations,
even by an officer of the court, do not constitute “substantial evidence” upon which restitution
under section 37-2732(k) may be based. 2
        Consequently, we vacate the district court’s award of restitution and remand for further
proceedings consistent with this opinion. As guidance concerning the correct interpretation of
section 37-2732(k), we note that section 37-2732(k), by its plain terms, grants discretion to
award restitution to the State for prosecution expenses “actually incurred.” An award of
restitution under section 37-2732(k) is not mandatory. When deciding whether restitution is
proper, factors to consider include other fines imposed, victim restitution, assets, and previous
and prospective earning abilities. Additionally, where relevant, the factors set forth under the
general restitution statute, Idaho Code section 19-5304(7), may be considered. See State v.
Kelley, slip op. 44178 at 7–8 (Idaho 2017). Moreover, unlike many other fee award statutes,
section 37-2732(k) does not permit recovery of what is “reasonable.” Compare I.C. § 37-
2732(k), with I.C. §§ 12-117, -120, and -121. For example, we recently clarified that clear
statutory language permitting recovery of reasonable attorney fees obviates the burden to prove
actual costs incurred because “Idaho law simply does not equate reasonable attorney fees to
actual attorney fees.” Inclusion, Inc. et al. v. Idaho Dep’t of Health and Welfare, 161 Idaho 239,
385 P.3d 1, 3 (Idaho Nov. 23, 2016). The same logic governs the interpretation of section 37-
2
 This conclusion finds support from our opinions in the sentencing context. See State v. Coutts, 101 Idaho 110, 113,
609 P.2d 642, 645 (1980) (explaining that sentencing judge cannot consider unsworn representations if a formal
sentencing hearing is requested). Additional support arises from our opinions in the civil arena. See, e.g., Rocky
Mountain Power v. Jensen, 154 Idaho 549, 552, 300 P.3d 1037, 1040 (2012) (declining to admit document as an
“affidavit” because it was unsworn); Heinze v. Bauer, 145 Idaho 232, 236, 178 P.3d 597, 601 (2008) (“Normally, a
party would not be entitled to rely on an unsworn document that he or she authored in order to demonstrate the
existence of a genuine issue of material fact.”).


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2732(k)’s clear and unambiguous terms. At a minimum, measuring up to section 37-2732(k)’s
burden to prove expenses actually incurred will generally require sworn statements that delineate
the time spent performing specific tasks.
                                     IV.    CONCLUSION
       We vacate the restitution award for lack of evidence and remand for further proceedings
consistent with this opinion.
       Justices EISMANN, W. JONES, HORTON and J. JONES, PRO TEM, CONCUR.




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