           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                   September 2014 Term
                                    _______________
                                                                          FILED
                                                                    October 23, 2014
                                      No. 13-0982                      released at 3:00 p.m.

                                                                     RORY L. PERRY II, CLERK

                                    _______________                SUPREME COURT OF APPEALS

                                                                        OF WEST VIRGINIA


                               STATE OF WEST VIRGINIA,

                                Plaintiff Below, Respondent


                                            v.

                                   MARTY ATWELL,

                                Defendant Below, Petitioner


       ____________________________________________________________

                    Appeal from the Circuit Court of Kanawha County

                         The Honorable Paul Zakaib, Jr., Judge

                              Criminal Action No. 13-F-85


                        REVERSED AND REMANDED

       ____________________________________________________________

                               Submitted: September 17, 2014

                                  Filed: October 23, 2014


Charles R. Hamilton, Esq.	                             Patrick Morrisey, Esq.
Hamilton Law Office	                                   Attorney General
Charleston, West Virginia	                             Laura Young
Attorney for the Petitioner	                           Assistant Attorney General
                                                       Julie A. Warren, Esq.
                                                       Assistant Attorney General
                                                       Charleston, West Virginia
                                                       Attorneys for the Respondent


JUSTICE BENJAMIN delivered the Opinion of the Court.

JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.

JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.

                             SYLLABUS BY THE COURT


             1.     “The Supreme Court of Appeals reviews sentencing orders,

including orders of restitution made in connection with a defendant’s sentencing, under a

deferential abuse of discretion standard, unless the order violates statutory or

constitutional commands.” Syl. pt. 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221

(1997).



             2.     “Under W.Va.Code, 61-11A-1 through -8 and the principles

established in our criminal sentencing jurisprudence, the circuit court’s discretion in

addressing the issue of restitution to crime victims at the time of a criminal defendant’s

sentencing is to be guided by a presumption in favor of an award of full restitution to

victims, unless the circuit court determines by a preponderance of the evidence that full

restitution is impractical, after consideration of all of the pertinent circumstances,

including the losses of any victims, the financial circumstances of the defendant, and the

defendant’s family, the rehabilitative consequences to the defendant and any victims, and

such other factors as the court may consider.” Syl. pt. 3, State v. Lucas, 201 W. Va. 271,

496 S.E.2d 221 (1997).
Benjamin, Justice:



              The petitioner, Marty Atwell, appeals the August 21, 2013, order of the

Circuit Court of Kanawha County that denied his motion requesting a reduction in the

amount of restitution he was ordered to pay after pleading guilty to Nighttime Burglary

by Way of Entering Without Breaking and Grand Larceny. For the reasons stated herein,

this Court reverses the circuit court’s denial of the petitioner’s motion for reduction of

restitution and remands for a hearing on the issue of restitution.



                                      I.      FACTS

              In May 2013, the prosecuting attorney of Kanawha County filed an

information charging the petitioner with one count of Nighttime Burglary by Way of

Entering without Breaking and one count of Grand Larceny for stealing a stainless steel

stove and refrigerator from the dwelling house of Steve Loncki. The petitioner pled guilty

to both counts in the information.



              The Adult Probation Department submitted a thorough Presentence Report

to the circuit court. According to the report, the residence in which the petitioner

committed the crimes had been vacant because the homeowner, Mr. Loncki, had

sustained a traumatic brain injury while performing work on the residence. As a result of

the accident, Mr. Loncki was in a coma for six months. After undergoing rehabilitation,

Mr. Loncki went to live with his parents in Delaware. The presentence report also

                                              1

indicated that there was evidence that the petitioner had conspired with others to remove

items from Mr. Loncki’s residence in addition to the stove and refrigerator.



              Attached to the presentence report was a victim statement prepared by Mr.

Loncki’s parents which indicated that Mr. Loncki did not have insurance on the residence

and that the residence was a total loss. The statement also included an itemized list of

property stolen and the purported value of each item, which adds up to $50,013.00.1 A

police report included in the presentence report states that numerous items were taken

from Mr. Loncki’s property including military medals awarded to Mr. Loncki’s daughter,

who died serving in the military in Iraq, a trailer, and three four-wheelers.



              In its July 23, 2013, sentencing order, the circuit court sentenced the

petitioner to a term of incarceration of 1 to 15 years for the nighttime burglary charge and

1 to 10 years for grand larceny with the sentences to run consecutively.2 Pertinent to this

appeal, the petitioner was ordered to pay restitution in the amount of $50,013.00 to the

victim of his crimes. The petitioner’s counsel took exception to the amount of restitution

in light of the fact that the petitioner pled guilty only to stealing a stove and refrigerator.

In his subsequent Rule 35 motion for reconsideration of sentence, the petitioner requested


       1
         Included in the appendix are copies of receipts or bills of sale for items of the
victim that were allegedly damaged or stolen by the petitioner or others. Most of the
copies in the appendix are of poor quality and illegible.
       2
        These sentences also are to run consecutively to a 24-month federal sentence
which petitioner is serving on an unrelated matter.
                                              2

that the amount of restitution be corrected to reflect the value of the stove and refrigerator

which were listed in the information.3 The circuit court denied the petitioner’s motion in

its August 21, 2013 order.



                             II.   STANDARD OF REVIEW

               Our standard of review in this case is stated in syllabus point 1 of State v.

Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997) as follows:

                      The Supreme Court of Appeals reviews sentencing
               orders, including orders of restitution made in connection
               with a defendant’s sentencing, under a deferential abuse of
               discretion standard, unless the order violates statutory or
               constitutional commands.



                                   III.   DISCUSSION

               The petitioner’s sole assignment of error is that the circuit court abused its

discretion in determining the amount of restitution absent the presentation of evidence of

the victim’s loss at the sentencing hearing and without determining the petitioner’s ability

to pay restitution.



               The State responds that the circuit court did not abuse its discretion in

determining the amount of restitution. The State notes that as part of the respondent’s

       3
         In the petitioner’s Rule 35 motion for reconsideration of sentence, the petitioner
also requested that the circuit court sentence him to concurrent state sentences and that
the state sentences be served concurrently with his federal sentence. The circuit court, in
its August 21, 2013, order denied these requests. On appeal, the petitioner challenges
only the denial of his motion to reconsider the amount of restitution.
                                              3

guilty plea, he agreed to pay the amount recommended by the Adult Probation

Department which, based on the information submitted to the Department from the

victim’s family and included in the presentence report, amounts to $50,013.00.

According to the State, the petitioner adduced no evidence at the sentencing hearing to

rebut the values of the items stolen as presented in the report, nor did he present any

argument related to his financial condition and his ability to pay restitution.



              With regard to a circuit court’s determination of the amount of restitution,

this Court has held:

                      Under W.Va.Code, 61-11A-1 through -8 and the
              principles established in our criminal sentencing
              jurisprudence, the circuit court’s discretion in addressing the
              issue of restitution to crime victims at the time of a criminal
              defendant’s sentencing is to be guided by a presumption in
              favor of an award of full restitution to victims, unless the
              circuit court determines by a preponderance of the evidence
              that full restitution is impractical, after consideration of all of
              the pertinent circumstances, including the losses of any
              victims, the financial circumstances of the defendant, and the
              defendant’s family, the rehabilitative consequences to the
              defendant and any victims, and such other factors as the court
              may consider.

Syl. pt. 3, Lucas, 201 W. Va. 271, 496 S.E.2d 221. Factors to be considered in

determining the amount of restitution are set forth in W. Va. Code § 61-11A-5(a) (1984)

of the Victim Protection Act of 1984 as follows:

                      The court, in determining whether to order restitution
              under this article and in determining the amount of such
              restitution, shall consider the amount of the loss sustained by

                                              4
              any victim as a result of the offense, the financial resources of
              the defendant, the financial needs and earning ability of the

              defendant and the defendant’s dependents, and such other
              factors as the court deems appropriate.

In addition, W. Va. Code § 61-11A-5(d) provides the allocation of the burden of proof

between the parties:

                      Any dispute as to the proper amount or type of
              restitution shall be resolved by the court by the preponderance
              of the evidence. The burden of demonstrating the amount of
              the loss sustained by a victim as a result of the offense shall
              be on the prosecuting attorney. The burden of demonstrating
              the financial resources of the defendant and the financial
              needs of the defendant and such defendant’s dependents shall
              be on the defendant. The burden of demonstrating such other
              matters as the court deems appropriate shall be upon the party
              designated by the court as justice requires.



              After reviewing the parties’ arguments, the appendix herein, and the

applicable law, this Court finds that the circuit court did not consider all of the pertinent

circumstances in determining the practicality of an award of full restitution. Therefore,

we reverse the circuit court’s denial of the petitioner’s motion for reconsideration of the

amount of restitution. We remand this matter to the circuit court for a hearing in which

the court is to determine the practicality of an award of full restitution after consideration

of all of the pertinent circumstances which are set forth in syllabus point 3 of Lucas and

W. Va. Code § 61-11A-5.




                                              5

                                  IV.     CONCLUSION

              For the foregoing reasons, the circuit court’s order denying the petitioner’s

Rule 35(b) motion for reconsideration of the amount of restitution is reversed, and this

case is remanded for the circuit court to reconsider the issue of restitution.



                                                                    Reversed and remanded.




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