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McEwan v. State

Supreme Court of Wyoming

June 14, 2018

DEBORA McEWAN, Appellant (Defendant),
v.
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 M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel.

          Representing Appellee: Peter K, Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin Harper, Senior Assistant Attorney General; Katherine A. Adams, Assistant Attorney General.

          Before BURKE, C.J., and DAVIS, FOX, KAUTZ, and BOOMGAARDEN, JJ.

          FOX, Justice.

         [¶1] After Debora McEwan pleaded no contest to obtaining welfare benefits by misrepresentation, the district court fixed restitution at $18, 733, but did not order Ms. McEwan to pay it. Nevertheless, the district court allowed the State to reduce $18, 733 to a civil judgment, which Ms. McEwan challenges. We vacate the erroneous portions of the district court's order and remand for entry of an order conforming to statutory guidelines.

         ISSUES

         [¶2] 1. Did the district court erroneously allow the State to reduce $18, 733 to a civil judgment? 2. Was the district court required to find that Ms. McEwan lacked an ability to pay restitution in the future in order to avoid ordering restitution?

         FACTS

         [¶3] In 2010, the State charged Ms. McEwan with three felonies for obtaining public welfare benefits by misrepresentation.[1] The facts supporting the charges are set out in our first review of this case, McEwan v. State, 2013 WY 158, ¶¶ 4-16, 314 P.3d 1160, 1163-65 (Wyo. 2013), and need not be repeated here. Following Ms. McEwan's no-contest plea to one of the three charges, the district court fixed restitution at $18, 733. Ms. McEwan filed a motion requesting that the district court find she was unable to pay the restitution. At a hearing on the motion, Ms. McEwan presented evidence that the Social Security Administration had declared her to be disabled, she lived on a fixed income, and she had recently been granted a discharge in Chapter 7 bankruptcy proceedings. The prosecutor acknowledged that the State had no evidence to rebut Ms. McEwan's current inability to pay restitution. However, the prosecutor pointed out that Ms. McEwan may have the ability to pay restitution in the future:

. . . certainly the State would ask that Ms. McEwan be required to pay [restitution] . . . [and] if the Court determines that there is an inability to pay, at this time, certainly the State would ask that this be reduced to a judgment, that the victim could be given a right to any type of civil remedy at any later date, that would include whether it was garnishment or seizure of property, if that were to come available.

         [¶4] At the end of the hearing, the district court stated:

I don't think it is probably unreasonable to [find Ms. McEwan unable to pay]; but likewise, I don't think the State's request is unreasonable.
Situations change all the time and in the event that it does, I think the State should clearly have the right to come back civilly and attempt to collect that. So I am going to grant your request but I am also going to allow the State ...

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