Appeal from Superior Court, Chittenden Unit, Criminal
Division James R. Crucitti, J.
Pepper and David Tartter, Deputy State's Attorneys,
Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Matthews and
Joshua O'Hara, Appellate Defenders, Montpelier, for
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Defendant Lucas Dwight appeals the trial court's
restitution order requiring him to pay dental expenses
resulting from defendant's conviction for simple assault.
Defendant raises two main issues: (1) whether the court erred
in awarding restitution for expenses that complainant's
father paid on complainant's behalf; and (2) whether the
ordered repayment schedule, which considered defendant's
earning capacity, was impermissibly punitive. We affirm.
2. The following facts are undisputed. Connor Richards, a
student at the University of Vermont, was assaulted in May
2016. He sustained substantial injury to his mouth, including
losing four teeth. Defendant was charged with aggravated
assault for the attack, which was later amended to simple
assault pursuant to 13 V.S.A. § 1023(a)(1). In May 2016,
defendant pled nolo contendere to the charge of simple
assault. The court entered a judgment of guilty and sentenced
defendant to four to twelve months, all suspended except for
three days on work crew, and defendant was placed on
probation for fifteen months. The probation conditions
included anger-management counseling, no contact with
complainant, and restitution as ordered by the court.
3. The court held two restitution hearings to determine the
amount of restitution and defendant's ability to pay. See
13 V.S.A. § 7043(c) (requiring, when ordering
restitution, court must hold hearing if parties contest
restitution amount and make findings regarding restitution
amount and defendant's ability to pay); 28 V.S.A. §
252(b)(6) (permitting court to order restitution as probation
condition and requiring court to "fix the amount [of
restitution] thereof, which shall not exceed an amount the
defendant can or will be able to pay, and shall fix the
manner of performance"). The court found that as of
August 2016, the date of the first restitution hearing,
complainant had incurred $21, 441.15 in dental expenses due
to the assault that were not covered by insurance or the
State of Vermont Restitution Unit. Complainant's father
paid for these expenses by credit card. Complainant's
father "told his son that he would be required to make a
choice-have his severely damaged teeth and gums repaired, or
go to school." Complainant has taken out a $28, 000 loan
for school expenses, an expense previously paid for by his
parents. The court ordered defendant to pay $21, 441.15 in
restitution to complainant.
4. In assessing defendant's ability to pay, the court
found that as of February 2017, the date of the second
restitution hearing, defendant was a high school graduate
with no college or trade school education. Defendant worked
seasonally, mowing lawns in summer and snowplowing in winter.
A paystub dated November 18, 2016, showed he earned $14.00
per hour, worked 35.25 hours per week, and earned a gross
income of $493.50 per week, and his year-to-date earnings
were $10, 785.25. Defendant reported his monthly income was
$1, 012.00, and his monthly expenses were $1, 155.00. The
court noted that defendant "appears to be a very fit and
healthy young individual" and that "defendant
offered no reason why" he could not work forty hours per
week. The court calculated that if defendant worked forty
hours per week at $14.00 per hour, he would earn $2, 424.00
per month. If he earned the weekly wage on his paystub every
week, he would earn $2, 136.00 per month. The court concluded
that defendant "should be required to work a standard
work week in order to make the restitution amount
meaningful," and "[g]iven the number of hours
worked per week by the defendant and the absence of any
reason for not working a standard work week, . . . the
defendant is earning less than he could through reasonable
effort." Relying on this calculation of defendant's
earning potential, the court ordered defendant to pay $500 by
March 1, 2017, $200 by April 1, 2017, and $200 by May 1,
2017. Starting June 1, 2017, defendant was required to pay
$300 per month. Defendant timely appealed.
5. On appeal, defendant argues that because complainant's
father paid the dental expenses, the loss was father's,
not complainant's, placing it outside the reach of the
restitution statute. He also argues that the purpose of
restitution is to compensate the victim, rather than to
punish the defendant, and the restitution payment schedule
was unnecessarily and impermissibly punitive.
6. An order to pay restitution as a condition of probation
falls within the sentencing discretion of the court.
State v. Hughes, 2010 VT 72, ¶ 8, 188 Vt. 595,
5 A.3d 926 (mem.) (citing 28 V.S.A. § 252 and
"noting that conditions of probation, including award
and amount of restitution, lie within discretion of trial
court"). Accordingly, "[w]e review restitution
orders for an abuse of discretion." State v.
Gorton, 2014 VT 1, ¶ 8, 195 Vt. 460, 90 A.3d 901.
We will uphold the trial court's order unless "the
trial court has withheld its discretion entirely or . . . it
was exercised for clearly untenable reasons or to a clearly
untenable extent." Unifund CCR Partners v.
Zimmer, 2016 VT 33, ¶ 15, 201 Vt. 474, 144 A.3d
1045 (quotation omitted). To the extent the court's order
relies on statutory interpretation or a question of law, we
review the matter de novo. State v. Blake, 2017 VT
68, ¶ 8, ___ Vt. ___, 174 A.3d 126 ("When we review
issues of law or engage in statutory interpretation"
involved in restitution orders, "we do so de
Expenses Paid by Father
7. Our first question is whether the court erred in ordering
defendant to pay restitution to complainant for the dental
expenses when complainant's father, not complainant, paid
the expenses. This is a question of law that we review de
8. The restitution statute requires the court to consider
restitution "in every case in which a victim of a crime
. . . has suffered a material loss." 13 V.S.A. §
7043(a)(1). This statute is narrowly drawn. State v.
Stewart, 2017 VT 82, ¶ 7, ___ Vt. ___, 176 A.3d
1120. "Victim" is defined as "a person who
sustains physical, emotional, or financial injury or death as
a direct result of the commission or attempted commission of
a crime." 13 V.S.A. § 5301(4). The "direct
result" requirement means that restitution is only
available for "direct victims of crime." State
v. Thomas, 2010 VT 107, ¶ 17, 189 Vt. 106, 14 A.3d
961 ("The Legislature's use of the words 'direct
result' indicates that it intended to provide restitution
only to direct victims of crime."). "Material
loss" refers to "uninsured property loss, uninsured
out-of-pocket monetary loss, uninsured lost wages, and
uninsured medical expenses." 13 V.S.A. §
7043(a)(2). "[T]here must be a direct link between the
crime and the restitution." State v. LaFlam,
2008 VT 108, ¶ 11, 184 Vt. 629, 965 A.2d 519 ...