from the District Court of Logan County, Southeast Judicial
District, the Honorable Daniel D. Narum, Judge.
J. Zimmerman, for plaintiff and appellee.
Donavin L. Grenz, for defendant and appellant.
1] Leona Kuhn appeals after remand from an order deferring
imposition of sentence, requiring her to pay restitution of
$10, 686.98. We conclude the district court did not err in
holding another restitution hearing on remand and did not
abuse its discretion in awarding restitution based on the
evidence presented at the hearing. We affirm.
2] Our prior decision in City of Napoleon v. Kuhn,
2015 ND 75, 860 N.W.2d 460 (" Kuhn I "),
contains the relevant facts in this case, and we will not
repeat them here except as necessary to resolve the issues
raised in this appeal.
3] In 2013 Kuhn was charged in Napoleon Municipal Court with
improper disposal of refuse in violation of Napoleon city
ordinance § 10.0310, an infraction. After her house had
been severely damaged by fire, Kuhn disposed of debris from
the house in the Napoleon city dump. The municipal court
found Kuhn guilty of improper disposal, and she appealed to
the district court. After a March 2014 trial, the district
court found her guilty of the infraction for improper
disposal. The court entered a criminal judgment imposing a
$500 fine, but the court also purported to defer imposition
of sentence and have Kuhn remove or relocate rubbish "to
the City's satisfaction."
4] In April 2014 Kuhn moved the district court for a
restitution hearing, which was held in May 2014. After the
hearing the court declined to modify the criminal judgment
and entered an order denying her request for a written
restitution order, stating no restitution had been ordered.
Kuhn appealed. In Kuhn I, 2015 ND 75, ¶¶
1, 24, 860 N.W.2d 460, we affirmed in part, concluding
sufficient evidence supported Kuhn's conviction of the
infraction, but reversed and remanded for the district court
to clarify its sentence.
5] On August 3, 2015, the district court held a hearing on
remand. The court decided to defer imposition of the $500
fine for the infraction and to order restitution rather than
restoration of the property. The court initially scheduled a
restitution hearing for October 5, 2015, without objection,
but ultimately held the restitution hearing on October 21,
2015. After the hearing, the court entered an order deferring
imposition of a $500 fine for six months and requiring Kuhn
pay restitution in the amount of $10, 686.98.
6] Kuhn argues the district court's order deferring
imposition of sentence and imposing payment of restitution of
$10, 686.98 should be set aside.
7] Section 12.1-32-02(1) , N.D.C.C., provides that
"[e]very person convicted of an offense who is sentenced
by the court must be sentenced to one or a
combination of the following alternatives[.]"
(Emphasis added.) Alternatives listed in N.D.C.C. §
12.1-32-02(1) include: "d. A fine, " "e.
Restitution for damages resulting from the commission of the
offense, " and "f. Restoration of damaged property
or other appropriate work detail." The district court
may order restitution as part of a criminal defendant's
sentence after a hearing under N.D.C.C. § 12.1-32-08(1),
which states in relevant part:
1. Before imposing restitution or reparation as a sentence or
condition of probation, the court shall hold a hearing on the
matter with notice to the prosecuting attorney and to the
defendant as to the nature and amount of restitution. The
court, when sentencing a person adjudged guilty of criminal
activities that have resulted in pecuniary damages, in
addition to any other sentence the court may impose, shall
order that the defendant make restitution to the victim or
other recipient as determined by the court, unless the court
states on the record, based upon the criteria in this
subsection, the ...