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
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.
BURKE, C.J., and DAVIS, FOX, KAUTZ, and BOOMGAARDEN, JJ.
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.
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
In 2010, the State charged Ms. McEwan with three felonies for
obtaining public welfare benefits by
misrepresentation. 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
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 ...