Appeal from the District Court of Weston County The Honorable Michael N. Deegan, Judge
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and GOLDEN,*fn1 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] The appellant, Timothy J. Smith, entered a plea of "no contest" to one misdemeanor count of reckless endangerment. He was sentenced to one year in jail and was ordered to pay restitution to the two victims of his crime. On appeal, he claims that the district court abused its discretion when it ordered that he pay a total of $335,387.26 in restitution, and that it acted unlawfully when it ordered that the appellant make a "bona fide effort" to pay the restitution within five years. We affirm the district court's order regarding the amount of restitution, but find that it did not have the authority to impose a deadline on when the restitution must be paid.
[¶2] 1. Did the district court abuse its discretion when it ordered that the appellant pay $335,387.26 in restitution?
2. Did the district court have the authority to require the appellant to make a "bona fide effort" to have the total restitution paid within a five-year period?
[¶3] The appellant was arrested and charged with one count of aggravated assault and battery after it was reported that he intentionally struck the victim with his vehicle, which in turn pinned the victim between the appellant's truck and another vehicle. The appellant then left the scene of the accident. The victim was taken to a hospital by life flight for treatment of serious injuries to his legs.
[¶4] Eventually, the State and the appellant came to an agreement that the State would amend the charge from aggravated assault and battery to reckless endangering (a misdemeanor), that the appellant would enter a plea of "no contest" to the charge, and that the appellant and the State would recommend the imposition of the maximum sentence of one year in jail.*fn2 However, the appellant was free to argue that the sentence be suspended in favor of probation. The parties also agreed that the amount of damages for victim restitution would be determined at a later time. The district court accepted the plea agreement and, after the appellant entered his "no contest" plea, sentenced the appellant to one year in jail. Eight months later, the district court held a restitution hearing wherein the appellant was ordered to pay a total of $335,387.26 in restitution to the two victims--one victim who sustained serious bodily injuries and one who sustained damage to his vehicle.
Did the district court abuse its discretion when it ordered that the appellant pay $335,387.26 in restitution?
[¶5] The appellant claims that the district court's decision to order him to pay over $335,000 in restitution was unreasonable when one considers his familial responsibilities and economic conditions.*fn3 This Court reviews a challenge to the amount of restitution set by the district court for an abuse of discretion. Penner v. State, 2003 WY 143, ¶ 7, 78 P.3d 1045, 1047 (Wyo. 2003). "'Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.'" Id. (quoting Brock v. State, 967 P.2d 26, 27 (Wyo. 1998)).
[¶6] The State argues that the appellant waived appellate review of the restitution amount because he agreed to pay restitution pursuant to the plea agreement and he did not object to the final amount of restitution set by the district court. In Merkison v. State, 996 P.2d 1138 (Wyo. 2000), this Court explained that "[c]hallenges to the factual basis of an award of restitution can be waived in certain circumstances by the defendant's voluntary actions, such as entering into a plea agreement, and then failing to make any objection at sentencing[.]" Id. at 1141. Here, the appellant entered into a plea agreement wherein ...