Restitution to Victims of Unconvicted Conduct

Can a defendant be ordered to pay restitution based on offenses that did not result in a conviction? Of course a defendant should not be ordered to pay restitution for a charge on which he or she was acquitted. State v. Bass, 53 N.C. App. 40 (1981) (restitution order for alleged food stamp overpayments was invalid when the defendant was found not guilty of food stamp fraud). But what about the defendant who breaks into 10 different houses but is only charged and convicted—perhaps pursuant to a plea agreement—of three counts? Can he or she be ordered to make restitution for items stolen from the other seven houses?

Under G.S. 15A-1340.34(a),“[w]hen sentencing a defendant convicted of a criminal offense, the court shall determine whether the defendant shall be ordered to make restitution to any victim of the offense in question.” That provision appears to limit restitution to crimes of conviction, and our courts have generally read it that way. In State v. Wilburn, 57 N.C. App. 40 (1982), for example, a defendant was convicted of attempting to obtain property by false pretenses based on a scheme in which he would take money from grocery store owners, promising to deliver below-cost cigarettes that he never actually intended to deliver. At his trial for taking money from a grocer named Johnny Andrews, the state called another store owner, Donald Thomas, who testified that the defendant had done the same thing to him the previous year. As part of the defendant’s sentence, the trial court ordered the defendant to pay restitution for the money he took from Donald Thomas. The court of appeals held this portion of the sentence was invalid, as there was no conviction for obtaining property by false pretenses from Mr. Thomas. To allow the restitution order and then revoke the probation of one who fails to pay it would, the court said, run afoul of Article I, Section 28 of the North Carolina Constitution, which prohibits imprisonment for debt.

What if a defendant agrees to pay victims of unconvicted acts as part of a plea agreement? Some other states word their restitution statutes in a way that expressly allows this. In Idaho, for example, the court “may, with the consent of the parties, order restitution to victims and/or any other person or entity, for economic loss or injury for crimes which are not adjudicated or are not before the court.” Idaho Code § 19-5304(9). Washington law includes a similar provision. Rev. Code. Wash. 9.94A.750(5) (“[R]estitution may be ordered . . . if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement.”). And so does the United States Code. 18 U.S.C. § 3663 (“The court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.”).

Restitution is mentioned in North Carolina’s guilty plea statute, but not in a way that clearly authorizes payments to victims of unconvicted offenses. G.S. 15A-1021(c) says that a “proposed plea arrangement may include a provision for the defendant to make restitution or reparation to an aggrieved party or parties for the damage or loss caused by the offense or offenses committed by the defendant.” There’s no mention of conviction in that subsection—only offenses—which might weigh in favor of allowing agreements to pay restitution for unconvicted acts. But subsection (d) says any restitution order under subsection (c) must be in accordance with Article 81C of Chapter 15A, which brings us back to the “convicted of a criminal offense” language of G.S. 15A-1340.34.

So there’s no clear authority for ordering restitution to victims of offenses other than the crime of conviction. But there doesn’t appear to be explicit authority against it either—at least in the context of a voluntary plea agreement. The Wilburn case discussed above was not a plea, and the defendant didn’t consent to the restitution order to Donald Thomas. Other cases have said the criminal courts cannot compel a defendant to confess judgment against a victim—“something which is in the realm of a civil forum”—as a condition of probation. State v. Clemmons, 111 N.C. App. 569 (1993). But again, that case concerned a compelled restitution order.

Despite the lack of a clear prohibition, I see at least two problems with plea agreements to pay restitution to victims of unconvicted offenses. First, a defendant’s agreement to a condition of probation at sentencing does not preclude him or her from challenging the condition later at a probation violation hearing. G.S. 15A-1342(g) (“The failure of a defendant to object to a condition of probation imposed pursuant to G.S. 15A‑1343(b1) at the time such a condition is imposed does not constitute a waiver of the right to object at a later time to the condition.”); State v. Cooper, 304 N.C. 180 (1981). If the defendant successfully challenged the condition at that point, the victim might be left out in the cold—particularly if the statute of limitations on a related civil suit had already run. (Ordinarily G.S. 1-15.1 would operate to toll the statute of limitations on a related civil action, but that law is limited to “damages arising out of the offense for which the defendant was convicted.”) Second, I think even a voluntary restitution order might run afoul of the North Carolina Supreme Court’s admonition against “use of the criminal process to enforce the payment of a civil obligation”—the very “oppressive action which [Article I, Section 28 of the state constitution] was designed to forbid.” State v. Caudle, 276 N.C. 550 (1970).

Given these concerns about the validity of restitution orders for unconvicted acts, district attorneys might, in cases involving multiple victims, consider structuring plea agreements around consolidated judgments or concurrent sentences in lieu of dismissing some of the charges. Your thoughts?