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Germinia Ortencia Solis v. the State of Wyoming

December 16, 2010

GERMINIA ORTENCIA SOLIS, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge

The opinion of the court was delivered by: Golden, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

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.

[¶1] After pleading guilty to one count of felony larceny, Appellant Germinia Ortencia Solis was ordered to pay $2,328.31 in restitution to the victim of her crime. Solis challenges the amount of restitution imposed. We hold the district court erred in ordering restitution for the full regular retail value of the stolen merchandise. We therefore reverse the order of restitution and remand the matter to the district court for entry of an amended Judgment and Sentence consistent with this opinion.

ISSUE

[¶2] Solis phrases the issue as follows:

Was the trial court's restitution order in error as such amount was not the actual pecuniary damage as authorized by statute?

FACTS

[¶3] On July 29, 2007, Solis and Pricilla Enriquez entered the JCPenney retail store in Cheyenne and selected a large quantity of clothing that was on sale. A sales associate rang up the items, which totaled $1,011.95, and placed them in five separate bags. Without paying for the items, Solis and Enriquez grabbed the bags and dashed towards a nearby exit door. When the sales associate followed, Enriquez threatened her with a drawn knife. The sales associate immediately retreated from the encounter, and Solis and Enriquez left the store with the merchandise.

[¶4] In October 2007, the State charged Solis with one count of aiding and abetting aggravated robbery under Wyo. Stat. Ann. § 6-2-401(c)(ii) and § 6-1-201(a) (LexisNexis 2009), and one count of felony larceny under Wyo. Stat. Ann. § 6-3-402(a) and (c)(i) (LexisNexis 2009). A warrant for Solis' arrest was issued, and she was eventually arrested on June 1, 2009. Shortly thereafter, the State dismissed the aiding and abetting charge, and Solis was bound over to district court on the larceny charge. She later entered into a plea agreement with the State in which she agreed to plead guilty to that charge in exchange for a sentence of three to five years, to be suspended in favor of five years of supervised probation. The plea agreement also provided that Solis would be jointly and severally liable with her co-defendant for full restitution in an amount to be determined. Pursuant to that agreement, Solis pled guilty to the larceny charge on October 26, 2009.

[¶5] A Presentence Investigation Report (PSI) subsequently filed with the district court identified the restitution amount as $2,328.31, without furnishing details as to how that amount was derived. At the sentencing hearing held on January 11, 2010, Solis contested the amount of restitution listed in the PSI. After some discussion, and with the parties' consent, the district court deferred the restitution determination to a later hearing, and proceeded to sentence Solis in accordance with the terms of the plea agreement.

[¶6] At the subsequent hearing, the State sought restitution in the amount of $1,968.31 for the stolen property, which was the full regular retail price of that property.*fn1 In addition, the State asserted a restitution claim of $360.00 for the cost to JCPenney of hiring and training a new sales associate, since the sales associate who sought to prevent the theft had resigned as a result of the incident. Solis objected to the imposition of restitution for the cost of the new sales associate, and argued that the value of the stolen property was only $1,011.95, which was the price of the goods on the day they were stolen and the value reflected on the cash register receipts. Ultimately, the district court agreed with the State regarding the losses suffered by JCPenney and ordered Solis to pay as restitution the sum $2,328.31 ($1,968.31 for the stolen merchandise plus $360.00 for the new sales associate). A Judgment and Sentence incorporating the restitution order was entered on March 23, 2010. This appeal followed.

DISCUSSION

Standard of ...


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