State v. Murphy and Restitution for Unconvicted Conduct

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In 2010, I wrote a post asking, “Can a defendant be ordered to pay restitution based on offenses that did not result in a conviction?” The court of appeals answered that question this week in State v. Murphy.

That old post from 8 years ago began with a hypothetical, asking what would happen if a defendant broke into 10 different houses but was convicted—perhaps as part of a plea—of only three counts. Could the defendant be required to make restitution to the victims from the other seven houses?

I almost got it on the nose—I just reversed the convictions and the dismissals. In Murphy, the defendant allegedly broke into 10 houses. He pled guilty to seven counts and the State dismissed three. The court ordered restitution to the victims of all the alleged break-ins, including those residing at the three houses for which charges were dismissed. The defendant stipulated to the total restitution amount, which was north of $23,000.

On appeal, the defendant argued that the trial court erred by ordering him to pay restitution to the victims of the dismissed charges.

The court of appeals agreed. Under G.S. 15A-1340.34, the court said, restitution is ordered for defendants “convicted” of a criminal offense. And though the guilty plea and probation statutes (G.S. 15A-1021(c) and 15A-1343(d), respectively) refer to “offenses committed” instead of convictions, the court concluded that “restitution is securely tied to the losses attributable to the offenses of conviction.” Slip op. at 8.

The court seemed to allow some flexibility for restitution for multiple charges related to the same victim. It distinguished State v. Dula, 67 N.C. App. 748 (1984), where the trial court did not err by ordering a defendant to pay restitution to a victim of a breaking or entering when the defendant had been acquitted on a larceny charge related to the same victim. Those crimes were “perpetrated at the same residence and on the same date.” In Murphy, by contrast, the dismissed charges were for victims who lived in houses other than the ones that were the subject of the crimes of conviction.

The court of appeals rejected the State’s argument that the defendant’s plea and stipulation to the restitution amount empowered the trial court to impose it. Slip op. at 11 (“[P]arties to a plea agreement cannot by stipulation increase the statutory powers of a sentencing judge to authorize restitution beyond that allowed under our General Statutes.”).

The court went on to conclude that the improper restitution amount was not an essential term of the plea agreement, because the agreement simply didn’t mention it. All the defendant did was stipulate to the restitution amount. That being the case, the court concluded that the proper remedy was not to withdraw the plea, but rather just to remand the case for resentencing on restitution limited to the crimes of conviction.

After Murphy, restitution should be limited to the offenses for which a person is convicted. The gold standard is probably one judgment of conviction with attendant restitution per victim, but nothing in Murphy expressly says it would be improper for a court to order restitution for all of the offenses in a consolidated judgment. (In fact, oddly, all $23,000 of restitution in Murphy’s case was rolled into one of the seven consecutive active judgments. I guess that makes things easier as a matter of recordkeeping, but it’s an ironic twist in a case emphasizing the importance of connecting the restitution amount to the specific victim of the crime of conviction.)

Finally, I can’t help but point out that all the restitution in this case was ordered as a civil judgment. As noted here and here (citing unpublished cases), I don’t think there is any clear statutory authority to order a civil judgment for restitution in a case not covered under the Crime Victims’ Rights Act.

One comment on “State v. Murphy and Restitution for Unconvicted Conduct

  1. Good points. I am more and more thinking we should be asking for ability to pay hearings in advance of “agreeing” to civil judgments, for example when probation is revoked. I believe they are more prevalent in some places than others, but the courts in my experience tend to order civil judgments in some cases just for court costs…

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