
    765 S.E.2d 182
    STATE of West Virginia, Plaintiff Below, Respondent v. Marty ATWELL, Defendant Below, Petitioner.
    No. 13-0982.
    Supreme Court of Appeals of West Virginia.
    Submitted: Sept. 17, 2014.
    Decided: Oct. 23, 2014.
    Concurring and Dissenting Opinion Of Justice Loughry Nov. 6, 2014.
    Charles R. Hamilton, Esq., Hamilton Law Office, Charleston, WV, Attorney for the Petitioner.
    
      Patrick Morrisey, Esq., Attorney General, Laura Young, Assistant Attorney General, Julie A. Warren, Esq., Assistant Attorney General, Charleston, WV, Attorneys for the Respondent.
   BENJAMIN, Justice:

The petitioner, Marty Atwell, appeals the August 21,2013, order of the Circuit Court of Kanawha County that denied his motion requesting a reduction in the amount of restitution he was ordered to pay after pleading guilty to Nighttime Burglary by Way of Entering Without Breaking and Grand Larceny. For the reasons stated herein, this Court reverses the circuit court’s denial of the petitioner’s motion for reduction of restitution and remands for a hearing on the issue of restitution.

I. FACTS

In May 2013, the prosecuting attorney of Kanawha County filed an information charging the petitioner with one count of Nighttime Burglary by Way of Entering without Breaking and one count of Grand Larceny for stealing a stainless steel stove and refrigerator from the dwelling house of Steve Loncki. The petitioner pled guilty to both counts in the information.

The Adult Probation Department submits ted a thorough Presentence Report to the circuit court. According to the report, the residence in which the petitioner committed the crimes had been vacant because the homeowner, Mr. Loncki, had sustained a traumatic brain injury while performing work on the residence. As a result of the accident, Mr. Loncki was in a coma for six months. After undergoing rehabilitation, Mr. Loncki went to live with his parents in Delaware. The presentence report also indicated that there was evidence that the petitioner had conspired with others to remove items from Mr. Loneki’s residence in addition to the stove and refrigerator.

Attached to the presentenee report was a victim statement prepared by Mr. Loncki’s parents which indicated that Mr. Loncki did not have insurance on the residence and that the residence was a total loss. The statement also included an itemized list of property stolen and the purported value of each item, which adds up to .SSO.OIS.OO. A police report included in the presentence report states that numerous items were taken from Mr. Loncki’s property including military medals awarded to Mr. Loncki’s daughter, who died serving in the military in Iraq, a trailer, and three four-wheelers.

In its July 23, 2013, sentencing order, the circuit court sentenced the petitioner to a term of incarceration of 1 to 15 years for the nighttime burglary charge and 1 to 10 years for grand larceny with the sentences to run consecutively. Pertinent to this appeal, the petitioner was ordered to pay restitution in the amount of $50,013.00 to the victim of his crimes. The petitioner’s counsel took exception to the amount of restitution in light of the fact that the petitioner pled guilty only to stealing a stove and refrigerator. In his subsequent Rule 35 motion for reconsideration of sentence, the petitioner requested that the amount of restitution be corrected to reflect the value of the stove and refrigerator which were listed in the information. The circuit court denied the petitioner’s motion in its August 21, 2013 order.

II. STANDARD OF REVIEW

Our standard of review in this ease is stated in syllabus point 1 of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997) as follows:

The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant’s sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.

III. DISCUSSION

The petitioner’s sole assignment of error is that the circuit court abused its discretion in determining the amount of restitution absent the presentation of evidence of the victim’s loss at the sentencing hearing and without determining the petitioner’s ability to pay restitution.

The State responds that the circuit court did not abuse its discretion in determining the amount of restitution. The State notes that as part of the respondent’s guilty plea, he agreed to pay the amount recommended by the Adult Probation Department which, based on the information submitted to the Department from the victim’s family and included in the presentence report, amounts to $50,013.00. According to the State, the petitioner adduced no evidence at the sentencing hearing to rebut the values of the items stolen as presented in the report, nor did he present any argument related to his financial condition and his ability to pay restitution.

With regal’d to a circuit court’s determination of the amount of restitution, this Court has held:

Under W.Va.Code, 61-11A-1 through -8 and the principles established in our criminal sentencing jurisprudence, the circuit court’s discretion in addressing the issue of restitution to crime victims at the time of a criminal defendant’s sentencing is to be guided by a presumption in favor of an award of full restitution to victims, unless the circuit court determines by a preponderance of the evidence that full restitution is impractical, after consideration of all of the pertinent circumstances, including the losses of any victims, the financial circumstances of the defendant, and the defendant’s family, the rehabilitative consequences to the defendant and any victims, and such other.factors as the court may consider.

Syl. pt. 3, Lucas, 201 W.Va. 271, 496 S.E.2d 221. Factors to be considered in determining the amount of restitution are set forth in W. Va.Code § 61-11A-5(a) (1984) of the-Victim Protection Act of 1984 as follows:

The court, in determining whether to order restitution under this article and in determining the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.

In addition, W. Va.Code § 61-llA-5(d) provides the allocation of the burden of proof between the parties:

Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the prosecuting attorney. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant and such defendant’s dependents shall be on the defendant. The burden of demonstrating such other matters as- the court deems appropriate shall be upon the party designated by the court as justice requires.

After reviewing the parties’ arguments, the appendix herein, and the applicable law, this Court finds that the circuit court did not consider all of the pertinent circumstances in determining the practicality of an award of full restitution. Therefore, we reverse the circuit court’s denial of the petitioner’s motion for reconsideration of the amount of restitution. We remand this matter to the circuit court for a hearing in which the court is to determine the practicality of an award of full restitution after consideration of all of the pertinent circumstances which are set forth in syllabus point 3 of Lucas and W. Va.Code § 61-11A-5.

IV. CONCLUSION

For the foregoing reasons, the circuit court’s order denying the petitioner’s Rule 35(b) motion for reconsideration of the amount of restitution is reversed, and this ease is remanded for the circuit court to reconsider the issue of restitution.

Reversed and remanded.

Justice KETCHUM,

dissenting:

The defendant entered into a plea agreement. The agreement provided that the defendant agreed to pay the amount of restitution recommended by the Adult Probation Department. The restitution recommendation was contained in the department’s pre-sentence report. The judge imposed restitution in the amount set out in the report. The defendant did not object to the presentence report or the restitution imposed by the judge.

A deal is a deal. The State met its burden of proof by relying on the presentence report. The restitution award was proper.

Therefore, I dissent.

LOUGHRY, Justice,

concurring, in part, and dissenting, in part:

(Filed Nov. 6, 2014)

In a scant six-page opinion, the majority reverses the trial court’s restitution order in the amount of $50,013.00 and remands the case to the trial court for a hearing to determine the “practicality” of an award of full restitution. While I agree with the reversal of the restitution order, I would do so on the basis that the restitution order far exceeds the loss sustained by the victim in relation to the offense for which the defendant was charged and convicted.

The State filed an information against the defendant charging him with one count of nighttime burglary by entering without breaking and one count of grand larceny for the theft of a stainless steel stove and refrigerator. There were no other charges in the information. A plea agreement was reached pursuant to which the defendant agreed to plead guilty to both counts and agreed to pay restitution for the stolen stove and refrigerator in an amount to be determined by Adult Probation.

A plea hearing was held on May 30, 2013. During this hearing, the trial court asked the defendant, “[t]ell me what you did that makes you feel you are guilty to Grand Larceny.” The defendant responded, “I went on the property and I removed a refrigerator and a stove.” The prosecutor echoed the defendant’s admission by stating that the defendant “stole a stainless steel refrigerator and a stove that was [sic] valued in excess of $1,000.” The trial court accepted the defendant’s guilty plea to both counts in the information.

On July 23, 2013, a sentencing hearing was held during which defense counsel objected to the Presentence Report prepared by Adult Probation to the extent that it set restitution in the amount in excess of $50,000.00. Defense counsel reminded the trial court that the defendant pled guilty to stealing a stove and a refrigerator and asked that the Report “be corrected on the restitution part.” Thereafter, the assistant prosecutor directed the trial court’s attention to other items taken from the victim’s home, referring to the defendant and “his conspirators” and accusing the defendant of stealing “an injured man’s dead daughter’s war medals.” Importantly, however, the defendant was never charged with stealing any items other than the stove and the refrigerator, nor was he charged with conspiracy.

In determining the amount of restitution, West Virginia Code § 61-11A-5 (2014) provides that

(a) [t]he court ... in determining the amount of ... restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such factors as the court deems appropriate.
(d) ... The burden of demonstrating the amount of the loss sustained, by a victim as a result of the offense shall be on the prosecuting attorney....

Id. (emphasis added). The appendix record is replete with references to the defendant’s grand larceny offense as being his theft of a stove and a refrigerator, beginning with the charging instrument through the sentencing hearing. As we explained in State v. Whetzel, 200 W.Va. 45, 488 S.E.2d 45 (1997), “[t]his Court believes that the clear intention of the Legislature ... was to enable trial courts to require convicted criminals to pay all losses sustained by victims in the commission of the crime giving rise to the conviction.” Id., at 48, 488 S.E.2d at 48 (emphasis added).

The loss sustained by the victim as a result of the defendant’s offense of grand larceny was the value of a stainless steel stove and refrigerator, which I believe should have been the total amount of the trial court’s restitution order. A number of other jurisdictions addressing similar issues are in agreement. See Simmons v. State, 90 Ark. App. 273, 205 S.W.3d 194, 197 (2005) (“The trial court erred in ordering the appellant to pay restitution for the theft of times for which he had not been charged and to which he did not plead guilty or no contest[]”); State v. Ferguson, 165 Ariz. 275, 798 P.2d 413, 415 (Ct.App.1990) (“A defendant may be ordered to pay restitution only for an offense that he has admitted, upon which he has been found guilty or on which he has agreed to pay restitution[ ]”); State v. Christman, Nos. CA2009-03-007, C2009-03-008, 2009 WL 4810318, at *2 (Ohio Ct.App. Dec. 14, 2009) (finding that trial court erred by including in restitution order items of property that were not subject of defendant’s conviction and were not included in indictment or bill of particulars, explaining that “trial court is restricted to awarding restitution only for those acts which constitute the crime for which the defendant has been convicted and sentenced[ ]”); State v. Colon, 185 Ohio App.3d 671, 925 N.E.2d 212, 216 (2010) (reversing restitution order for theft-related items where defendant was indicted, tried, and convicted only for aggravated arson on basis that “[a] restitution award must be limited to those acts that constitute the crime of conviction”); State v. Cass, No. A11-2279, 2013 WL 141629 (Minn.Ct.App. Jan. 14, 2013) (reversing restitution order to extent full amount not directly related to conduct for which appellant was convicted).

In the instant appeal, the State argues that the trial court’s restitution order should be affirmed because the defendant’s plea agreement provides that he will pay restitution “in an amount to be determined by the Adult Probation Department,” and because Adult Probation later set restitution in the amount of $50,013.00, he was responsible for that amount. Logic dictates, however, that the defendant believed that he was agreeing to Adult Probation determining the value of the stove and the refrigerator — the only items to which he had agreed to plead guilty to stealing, as defense counsel’s argument at the sentencing hearing demonstrates. There is simply nothing in the plea agreement to indicate that the defendant was agreeing to pay restitution for all items ever stolen from the victim by other persons on any occasion and at any point in time. In fact, the record reflects that multiple items were stolen from the victim’s home and that other persons may have been charged with some of those offenses.

While the law of this state provides that restitution is to be in the amount of the loss sustained by any victim as a result of the offense, I do recognize that a defendant could agree to a greater amount as a part of his or her plea negotiations. In State v. Cummings, 214 W.Va. 317, 322 n. 4, 589 S.E.2d 48, 53 n. 4 (2003),

[w]e tangentially note[d] that situations may arise in which, through the process of plea bargaining, a defendant and the State might propose a plea bargain which includes restitution for offenses contained in the indictment to which the defendant had not pled guilty. In such instance, the inclusion of such other items of restitution would rest within the sound discretion of the lower court in its consideration of the plea bargain agreement.

Id., at 322 n. 4, 589 S.E.2d at 53 n. 4. Although we noted in Cummings that through the process of plea negotiations, a criminal defendant could agree to pay restitution for the loss caused by other offenses charged in the indictment, but to which the defendant had not pled guilty, in the case at bar, the defendant pled guilty to all charges in the information. Id. Consequently, there were no other offenses in the charging document to which the parties could have contemplated extending restitution through their plea negotiations. See Id.; see also Killion v. Commonwealth, No. 2013-CA-000501-MR, 2014 WL 3021316 *3 (Ky.App. July 3, 2014) (“a trial court may not order a criminal defendant to pay restitution to a victim of a crime for which he was not convicted unless the defendant freely and voluntarily agrees to make restitution for other crimes as part of the plea agreement.”). Had the State negotiated a plea securing the defendant’s agreement to pay restitution in an amount that covered all items stolen from the victim, then surely its written plea agreement would have expressly set forth such agreement. As we have previously explained, “the burden of insuring both precision and clarity in a plea agreement is imposed on the State.” See Syl. Pt. 3, in part, State ex rel. Thompson v. Pomponio, 233 W.Va. 212, 757 S.E.2d 636 (2014).

To be clear, I firmly believe that a criminal defendant should be required to pay restitution in an amount that fully compensates his or her victim for the loss sustained as a result of the offense. See W.Va.Code § 61-11A-5. If the State believed that other items should have been included in the grand larceny charge, the State could have included those other items. For whatever reason or purpose, it did not. Consequently, on remand, I believe the trial court should determine the appropriate amount of restitution based on the “loss sustained by [the] victim as a result of the offense” for which the defendant was charged and convicted: grand larceny for the theft of a stainless steel stove and refrigerator. See Id.

For the foregoing reasons, I respectfully concur, in part, and dissent, in part, to the majority’s decision in this ease. 
      
      . Included in the appendix are copies of receipts or bills of sale for items of the victim that were allegedly damaged or stolen by the petitioner or others. Most of the copies in the appendix are of poor quality and illegible.
     
      
      . These sentences also are to run consecutively to a 24-month federal sentence which petitioner is serving on an unrelated matter.
     
      
      .In the petitioner’s Rule 35 motion for reconsideration of sentence, the petitioner also requested that the circuit court sentence him to concurrent state sentences and that the state sentences be served concurrently with his federal sentence. The circuit court, in its August 21, 2013, order denied these requests. On appeal, the petitioner challenges only the denial of his motion to reconsider the amount of restitution.
     
      
      . The hearing transcript reflects that defense counsel mistakenly referred to the theft of a "sink and a refrigerator,” rather than a stove and refrigerator.
     
      
      . The victim had sustained a traumatic brain injury during the construction of his home and . was residing out of state with his parents at the time of the offenses committed against him.
     
      
      . See W.Va.Code § 61-11A-5.
     
      
      . While Cummings contemplates the negotiation of a plea agreement that provides for restitution covering offenses in the charging instrument to which a defendant will not plead guilty, I see no reason why that concept could not be taken a step further. In other words, other than securing a criminal defendant’s agreement, I see no obvious impediment to the State negotiating a plea that includes restitution for other items stolen from the victim particularly where, as here, the State believes that the defendant was involved in the theft of those other items.
     
      
      . The majority’s wholesale remand will arguably give the defendant a second opportunity to present evidence of his ability, or inability, to pay restitution as the trial court considers the "practicality” of the amount of restitution. However, ■ there is nothing in the appendix record to indicate that the defendant was prevented from offering such evidence at his sentencing hearing, although it was his evidentiary burden to do so. See W.Va.Code § 61-11A-5(d) ("The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant and such defendant’s dependents shall be on the defendant.”). Because the defendant neither offered such evidence nor sought a continuance for the purpose of doing so, I do not believe that he should get a second bite at that apple.
     
      
      .The appendix record reflects that the trial court has the information necessary to set the value for these two items. Attached to the Presentence Report is a list prepared by the victim’s family of the items stolen and the value of those items. This list includes a refrigerator valued at $2,800.00 and a stove valued at $4,000.00.
     