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City of Napoleon v. Kuhn

Supreme Court of North Dakota

July 20, 2016

City of Napoleon, Plaintiff and Appellee
v.
Leona J. Kuhn, Defendant and Appellant

         Appeal from the District Court of Logan County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.

          Isaac J. Zimmerman, for plaintiff and appellee.

          Donavin L. Grenz, for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 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.

         I

         [¶ 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.

         II

         [¶ 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) [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 ...

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