                 IN THE SUPREME COURT, STATE OF WYOMING

                                           2014 WY 95

                                                              APRIL TERM, A.D. 2014

                                                                      July 30, 2014

RYAN O’HALLORAN,

Appellant
(Defendant),

v.                                                   S-13-0238

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Big Horn County
                        The Honorable Steven R. Cranfill, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
      N. Olson, Chief Appellant Counsel; and David E. Westling, Senior Assistant
      Appellate Counsel. Argument by Mr. Westling.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Jennifer
      Zissou, Assistant Attorney General. Argument by Ms. Zissou.

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.

*Chief Justice at time of oral argument.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] Ryan O’Halloran pled guilty to misdemeanor interference with a peace officer.
Pursuant to his plea agreement, Mr. O’Halloran agreed to pay restitution in an amount to
be determined in future proceedings against his co-defendant. Nearly two years after Mr.
O’Halloran’s plea and sentencing, the district court issued a ruling requiring Mr.
O’Halloran to pay restitution in the amount of $2,600.15. Mr. O’Halloran appeals,
challenging the sufficiency of the evidence supporting the amount of the restitution order
and contending that the delay in entering the restitution order violated his due process
rights. We find that the restitution order was not supported by sufficient evidence and
reverse.
                                         ISSUES

[¶2]   Mr. O’Halloran states the issues on appeal as follows:

             I.     Did the trial court commit error by awarding
                    restitution for crimes to which Mr. O’Halloran did not
                    plead guilty and for which there was no plea
                    agreement to pay?

             II.    Did the 717 days between the date Mr. O’Halloran
                    pled guilty and the entry of his judgment and sentence
                    constitute a violation of due process in that Mr.
                    O’Halloran was denied his right to speedy sentencing?

                                        FACTS

[¶3] On September 5, 2006, Mr. O’Halloran’s sister, Megan O’Halloran, applied to the
Department of Family Services (DFS) for child care benefits. The child care benefits
were benefits intended to provide assistance to Ms. O’Halloran in paying for child care
while she participated in an approved activity, such as work or school. As a condition to
receiving the child care benefits, Ms. O’Halloran was required to use an authorized
daycare provider—that is, a provider approved by DFS. In September 2006, an
application was submitted to DFS for Mr. O’Halloran to serve as an authorized daycare
provider for Ms. O’Halloran's children. Thereafter, several bills for child care services
were submitted to DFS, identifying Ms. O’Halloran as the benefit recipient and Mr.
O’Halloran as the provider and bearing the purported signatures of both individuals.

[¶4] Between October 2006 and November 2008, DFS issued eighteen checks payable
to Mr. O’Halloran, totaling $5,200.30. Through an investigation, DFS discovered that for
some of the periods for which benefits were paid, Ms. O’Halloran was not participating
in an approved activity or Mr. O’Halloran was working at other employment rather than
providing child care services. The investigation also revealed that Debora McEwan, the


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mother of Mr. O’Halloran and Ms. O’Halloran, signed seventeen of the eighteen checks.1
On June 30, 2009, during the course of a law enforcement investigation into these events,
Mr. O’Halloran told the officer that the signatures on certain documents were his
signatures, knowing that those statements to the officer were untrue.

[¶5] On January 11, 2010, the State filed a felony information charging Mr. O’Halloran
with making a false statement to obtain welfare benefits. Ms. O’Halloran was similarly
charged, and on September 30, 2010, the district court entered an order joining their cases
for trial. Pursuant to a plea agreement, Mr. O’Halloran pled guilty to an amended charge
of misdemeanor interference with a peace officer. The prosecutor described the terms of
the plea agreement, which included Mr. O’Halloran's continued cooperation in the State’s
investigation and the following:

                      That Mr. O’Halloran will be sentenced to the full
               maximum sentence of that [charge], which we believe it’s a
               high misdemeanor, so it will be one year in the county jail,
               credit for whatever time he has served. All of that will be
               suspended, and that he will be placed on unsupervised
               probation.
                                            ****
                      Mr. O’Halloran will pay restitution for the amount that
               he has actually received off of this, which we believe was due
               to his working and baby-sitting at different times, but we
               don’t know exactly how much that would be. We believe it’s
               probably less than $500. But we would ask the Court to
               allow some time until the rest of this – and the other
               codefendants have gone through their pleas or their trials or
               whatever so we can find out how much he did receive, and
               that he pay the restitution with regard to that.

[¶6] The district court accepted the plea agreement and in accordance with the
agreement, sentenced Mr. O’Halloran to one year in county jail, suspended in favor of
one year of unsupervised probation. During that ruling, the following exchange occurred:

                      THE COURT:          ***
                      And the Court will accept that agreement, which is a
               sentence of one year in the county jail, with credit for time
               served. That is to be suspended, and you are to serve a term
               of one year of unsupervised probation.

1
  Debora McEwan was also charged in relation to these events and pled guilty to two counts of felony
obtaining public welfare benefits by misrepresentation. See McEwan v. State, 2013 WY 158, 314 P.3d
1160 (Wyo. 2013).


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                     I assume that begins today.
                     [Defense Counsel]: Yes, sir, Your Honor.
                     THE COURT:            Essentially, it’s to violate no state,
              local or federal law.
                     The issue of restitution will be reset for a separate
              hearing as these other cases resolve and we have more
              information to determine the dollar amount. However, it’s
              the Court’s understanding that that would be less than $500,
              but we’ll determine that at a later date.

[¶7] Prior to Mr. O’Halloran's change of plea hearing, Ms. O’Halloran had requested a
continuance of her trial date. Following an additional continuance on the district court’s
own motion, Ms. O’Halloran’s trial date was continued to June 4, 2012. On May 29,
2012, Ms. O’Halloran requested a change of plea and sentencing hearing, and the court
set that hearing for August 2, 2012. Ms. O’Halloran and the State thereafter jointly
moved to continue that hearing, and the court continued the hearing to October 25, 2012.
Ms. O’Halloran requested another continuance, and the hearing was continued to
November 29, 2012. On November 20, 2012, the State requested a hearing to determine
the amount of restitution owed by Mr. O’Halloran, and the court set that hearing to take
place in conjunction with Ms. O’Halloran’s change of plea and sentencing hearing. Mr.
O’Halloran requested a continuance of that hearing, citing his counsel’s scheduling
conflicts, and the hearing was continued to December 27, 2012. On its own motion, the
court reset the hearing to January 11, 2013. Mr. O’Halloran and Ms. O’Halloran jointly
requested one final continuance, and the court held a restitution hearing on February 14,
2013.

[¶8] During the February 14, 2013 restitution hearing, Mr. O’Halloran argued that any
restitution order would violate his due process rights because of the long delay between
his plea and sentencing and the restitution hearing. Mr. O’Halloran also argued that if the
district court did order him to pay restitution, the amount of restitution must be limited to
the amount of money he actually received from the transaction. The State presented
evidence that the checks issued in the transaction totaled $5,200.30, and it argued that
Mr. O’Halloran and Ms. O’Halloran should be jointly and severally liable for the entire
amount. At the conclusion of the hearing, the court took the matter under advisement.

[¶9] On April 24, 2013, the district court issued a decision letter announcing its ruling
on the restitution issue. The court ordered Mr. O’Halloran and Ms. O’Halloran to each
pay one-half of the restitution claimed by the State. In so ruling, the court stated, in part:

              Who benefited from Ms. O’Halloran's enterprise is not clear,
              however, the amount claimed does not appear to be in
              dispute. It is also clear that amount ($5,300.30) represents
              actual damages, not future or speculative damages.


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                                         ****
                    Mr. O’Halloran did not appear, however his attorney
             argues that he should be responsible, if at all, for a minimum
             amount related to a check he endorsed. He also argues that,
             because of the delay, Mr. O’Halloran has been denied due
             process. The Court is not persuaded by either of those
             arguments. He was involved in the enterprise and should be
             required to pay restitution. No evidence of inability to pay
             was introduced.

[¶10] On May 20, 2013, the district court entered a Judgment, Sentence and Probation
Order for Defendant Ryan O’Halloran, and on August 6, 2013, the court entered its Order
of Restitution. On September 5, 2013, Mr. O’Halloran filed a Notice of Appeal.

                              STANDARD OF REVIEW

[¶11] This Court reviews restitution orders using the following standard of review:

                     The standard of review of restitution orders is confined
             to a search for procedural error or a clear abuse of discretion.
             Penner v. State, 2003 WY 143, ¶ 7, 78 P.3d 1045, 1047
             (Wyo. 2003). The court-ordered restitution should be
             supported by sufficient evidence to afford a reasonable basis
             for estimating the loss. Id. The restitution can be challenged
             only for abuse of discretion by the court. Id. “Judicial
             discretion is a composite of many things, among which are
             conclusions drawn from objective criteria; it means exercising
             sound judgment with regard to what is right under the
             circumstances and without doing so arbitrarily and
             capriciously.” Monjaras v. State, 2006 WY 71, ¶ 8, 136 P.3d
             162, 164 (Wyo. 2006). Under this standard, the inquiry is
             whether the court’s choice is reasonable. A victim impact
             statement is credible evidence to support an order of
             restitution. Penner, ¶ 7, 78 P.3d at 1047 (citation omitted).

                     There is a distinction between the standard of review
             of factual challenges to the amount of restitution ordered and
             challenges to the authority of the court to make a restitution
             award. Challenges to the factual basis of an award of
             restitution can be waived if the defendant enters into a plea
             agreement and then fails to object at sentencing. Penner, ¶ 7,
             78 P.3d at 1047. If the defendant does not object to the
             amount of restitution ordered by the district court, the


                                             4
                reviewing court must review for plain error. Id. at 1048. If
                the defendant challenges the authority of the district court to
                order restitution, then review is under a de novo statutory
                interpretation standard, because a court has only that authority
                to act which is conferred by the subject statute. Id.

Frederick v. State, 2007 WY, ¶¶ 14-15, 151 P.3d 1136, 1141 (Wyo. 2007).

[¶12] The issues in this appeal also require that we consider the terms of the State’s plea
agreement with Mr. O’Halloran and whether the restitution urged by the State and
ordered by the district court is in keeping with that agreement. Regarding review of
compliance with a plea agreement, we have said:

                       When a plea of guilty is entered as a result of a plea
                agreement, any promises made by the State must be fulfilled
                and whether a prosecutor has violated an alleged agreement is
                a question that is reviewed de novo.

Frederick, ¶ 13, 151 P.3d at 1141 (citing Spencer v. State, 2005 WY 105, ¶ 12, 118 P.3d
978, 982–983 (Wyo. 2005)).

                                            DISCUSSION

[¶13] Mr. O’Halloran argues that the district court’s restitution order exceeded its
authority because the order required Mr. O’Halloran to pay restitution for a crime to
which he did not plead guilty and for which he did not agree to pay restitution. The State
responds that while Mr. O’Halloran did not plead guilty or admit to welfare fraud, he did
agree to pay restitution for that crime, and the court was therefore authorized to order the
restitution payment. The State further contends that the record supported the amount of
restitution ordered by the court because restitution is measured by the damage to the
victim, not by the benefit to the defendant. We agree that the district court had authority
to order Mr. O’Halloran to pay restitution for the welfare fraud, but we conclude that the
amount ordered by the court is unsupported by the evidence.2



2
   We have held that a court generally must order restitution at the sentencing hearing and include the
restitution in the judgment and sentence. Smith v. State, 2012 WY 130, ¶ 5, 286 P.3d 429, 431, n.2 (Wyo.
2012). That procedural right is, however, personal to a defendant and may be waived. Id. (citing
Kahlsdorf v. State, 823 P.2d 1184, 1193 (Wyo. 1991)). The record reflects that Mr. O’Halloran agreed to
have restitution determined in a separate proceeding, and Mr. O’Halloran has not on appeal contended
that his waiver of the right to have restitution determined at the sentencing hearing was not a knowing and
intelligent waiver. We therefore find no inherent error in the district court’s separation of the sentencing
and restitution orders.


                                                      5
[¶14] The legal authority of a sentencing court to impose restitution is derived solely
from statute. Hite v. State, 2007 WY 199, ¶ 11, 172 P.3d 737, 740 (Wyo. 2007); Crapo
v. State, 2007 WY 194, ¶ 11, 172 P.3d 393, 397 (Wyo. 2007). A court may order
restitution only for losses “resulting from the defendant’s criminal activity.” Crapo, ¶ 12,
172 P.3d at 397 (quoting Wyo. Stat. Ann. § 7–9–103(b)). This means that to require
restitution for a crime, a court must find that the defendant pled guilty to the crime, was
convicted of the crime, admitted to the crime, or agreed to pay restitution for the crime.
Graham v. State, 2011 WY 130, ¶ 14, 261 P.3d 239, 242 (Wyo. 2011); Crapo, ¶¶ 12, 14,
172 P.3d at 397.

[¶15] In this case, Mr. O’Halloran did not admit to the welfare fraud with which he was
charged, but he agreed, pursuant to his plea agreement, to pay restitution related to that
charge. That agreement to pay, however, had parameters. The record contains no written
plea agreement, but during the change of plea and sentencing hearing, the court asked the
prosecutor to recite the State’s agreement with Mr. O’Halloran. The prosecutor described
the terms of Mr. O’Halloran’s agreement to pay restitution as follows (with our emphasis
added):

                      Mr. O’Halloran will pay restitution for the amount
              that he has actually received off of this, which we believe
              was due to his working and baby-sitting at different times, but
              we don’t know exactly how much that would be. We believe
              it’s probably less than $500. But we would ask the Court to
              allow some time until the rest of this – and the other
              codefendants have gone through their pleas or their trials or
              whatever so we can find out how much he did receive, and
              that he pay the restitution with regard to that.

[¶16] A plea agreement is a contract between the State and the defendant, and a
prosecutor “must explicitly stand by” the terms of that contract. Frederick, ¶ 13, 151
P.3d at 1141 (quoting Ford v. State, 2003 WY 65, ¶ 18, 69 P.3d 407, 412 (Wyo. 2003));
see also Herrera v. State, 2003 WY 25, ¶ 18, 64 P.3d 724, 729 (Wyo. 2003) (“[A]
prosecutor must explicitly stand by those terms agreed upon and may not play ‘fast and
loose’ with the established terms reached between the parties in a plea agreement.”).
Thus, while it is correct, as the State points out, that pursuant to Wyo. Stat. Ann. § 7-9-
103, restitution is generally measured by the damage to the victim, the State cannot
ignore the terms of its plea agreement with Mr. O’Halloran. The plea agreement limited
the amount of Mr. O’Halloran’s restitution to amounts he actually received in relation to
the welfare fraud scheme, and the court’s restitution order therefore had to be based on a
showing of that amount.

[¶17] It is the State’s responsibility to prove a victim’s legal entitlement to restitution.
Hite, ¶ 15, 172 P.3d at 741; Hampton v. State, 2006 WY 103, ¶ 11, 141 P.3d 101, 105


                                              6
(Wyo. 2006). With respect to Mr. O’Halloran’s restitution requirement, this required the
State to present evidence showing the amount of money Mr. O’Halloran received from
the welfare fraud scheme. The State did not meet its burden.

[¶18] During the restitution hearing, the DFS investigator testified as follows on direct
examination by the prosecutor:

                    Q.    Okay. And what did you learn from the
             interview from Mr. O’Halloran?
                    A.    That Mr. O’Halloran didn’t receive the money
             from the checks.
                    Q.    Okay. Did he say where it went?
                    A.    He didn’t know.

[¶19] On cross-examination by Mr. O’Halloran’s counsel, the DFS investigator testified
that she did not know if Mr. O’Halloran benefitted from the monies obtained through the
fraudulent scheme. She further testified:

                    Q.      Okay. During the course of that interview or
             through your investigation, do you know how much money
             Mr. O’Halloran actually received of this 5200 that the State is
             now seeking?
                    A.      Very little, if any.
                    Q.      Very little, if any. Could you put an estimated
             dollar figure amount?
                    A.      I believe that Ryan O’Halloran said that he had
             received a little bit of money from the first check, but I don’t
             remember – I don’t think he could recall the specific dollar
             amount.
                    Q.      And do you recall – I think [Ms. O’Halloran’s
             counsel] asked this, but I’m just following up. Do you recall
             how much money that first check, that warrant was for?
                                            ****
                    A.      $93.50.
                    Q.      And is it your recollection that Mr. O’Halloran,
             Ryan, only received a partial amount of that?
                    A.      I believe that’s what he told us, yes.
                    Q.      And do you have any reason to believe that he
             received any more moneys of this 5200 than that partial
             check?
                    A.      No, I do not.




                                             7
[¶20] Mr. O’Halloran’s co-defendant, Megan O’Halloran, also testified during the
restitution hearing. On direct examination by her counsel, she testified:

                     Q.     Was your brother Ryan getting the money from
              these checks?
                     A.     No.
                     Q.     Okay. How do you know that?
                     A.     I just – I know that neither Ryan or I were
              receiving any of the money.
                     Q.     Who was receiving the money?
                     A.     My mother.

[¶21] On cross-examination by the prosecutor, Ms. O’Halloran testified:

                     Q.    Okay. And to your knowledge, Ryan maybe
              received money once?
                     A.    To my knowledge, yeah. Once.
                     Q.    Okay.
                     A.    And I'm not even completely sure as to how
              much or anything.
                     Q.    Okay. But it wasn’t any more than that?
                     A.    No.

[¶22] The State presented no evidence that Mr. O’Halloran received or otherwise
benefited from the scheme in the amount of $2,600.15. The evidence therefore does not
support the district court’s order requiring Mr. O’Halloran to pay restitution of $2,600.15,
and we must reverse the restitution order. In so ruling, we do not remand for further
proceedings on restitution and instead order the restitution order against Mr. O’Halloran
vacated. See Hite, ¶ 15, 172 P.3d at 741 (quoting Penner, ¶ 12, 78 P.3d at 1049) (“The
State is not entitled to a second opportunity to prove restitution.”); Crapo, ¶ 19, 172 P.3d
at 399 (“[B]ecause of the double jeopardy implications, restitution orders overturned for
failure of proof will not be remanded for the purpose of relitigating the restitution
issue.”).

[¶23] Because we have reversed and vacated the restitution order, we need not address
Mr. O’Halloran’s speedy sentencing argument. We do note, however, that the delay
between Mr. O’Halloran’s June 2, 2011 change of plea and sentencing hearing, and the
district court’s entry of the Judgment, Sentence and Probation Order for Defendant Ryan
O’Halloran on May 20, 2013, may create some confusion in the record. The record of
the June 2, 2011 hearing indicates that Mr. O’Halloran’s one-year term of unsupervised
probation began immediately. The May 20, 2013 order, however, purports to impose a
one-year term of unsupervised probation. The State’s appellate brief indicates that Mr.
O’Halloran completed his unsupervised probation by June 2012. To clarify the record as


                                              8
to the dates of Mr. O’Halloran’s unsupervised probation, we direct the district court to
enter an order specifying that Mr. O’Halloran’s probation has been discharged.

                                     CONCLUSION

[¶24] We find that the restitution order was not supported by sufficient evidence and
therefore reverse and vacate the restitution order. To clarify the record as to the dates of
Mr. O’Halloran’s unsupervised probation, we also direct the district court to enter an
order specifying that Mr. O’Halloran’s probation has been discharged.




                                              9
