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State v. Speed

Court of Appeals of Utah

May 4, 2017

State of Utah, Appellee,
Jason Michael Speed, Appellant.

         Third District Court, Salt Lake Department The Honorable Vernice S. Trease No. 101901272.

          Joel J. Kittrell and Kristina H. Ruedas, Attorneys for Appellant

          Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee

          Judge Stephen L. Roth authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen concurred.


          ROTH, Judge

         ¶1 Jason Michael Speed appeals the district court's denial of his motion for relief from judgment and his request for a restitution hearing. We affirm.


         ¶2 In February 2010, Speed was charged with one count of theft by deception, a second degree felony. See Utah Code Ann. §§ 76-6-405, -412 (LexisNexis 2012). The information alleged that in his role as a supervisor at an "outsource service center for Verizon Wireless, " Speed discounted "high-end" phones to nothing, had them sent to his address, and then resold them for his own profit. The information indicated that the "amount discounted on the[] phones" Speed disposed of in this way was $123, 153.

         ¶3 Speed pleaded guilty to one count of third degree felony theft by deception in August 2010. Before sentencing, the court ordered a presentence investigation report (PSI). The PSI included a recommendation that Speed be placed on probation for thirty-six months and pay restitution. The PSI specified $126, 547 as the amount of restitution, a figure which Speed's employer told Adult Probation and Parole (AP&P) was the value of the cell phones Speed had taken and sold.

         ¶4 In an October 2010 hearing, Speed was sentenced to an indeterminate prison term of zero to five years, which the court suspended. He was placed on probation for thirty-six months and was ordered to comply with certain conditions of probation, including paying restitution.

         ¶5 During the sentencing hearing, defense counsel addressed the court regarding the amount of restitution. He asserted that Speed had "taken full responsibility" for what he had done and had even "gotten two jobs . . . in anticipation of having a large financial obligation related to this case." Speed admitted, however, that as of the date of the hearing, he had set aside nothing to pay for restitution and had instead "been trying to catch up on previous debt." Counsel stated that Speed was "still a little bit in question as to whether or not that full [restitution] amount was attributable to him, " and that even though Speed unlawfully appropriated many phones, the restitution amount recommended by AP&P represented "the full retail value of these phones, " which was an amount counsel asserted "almost nobody ever pays."

         ¶6 The sentencing court expressed concern "that [Speed had] done nothing to address the issue of restitution that exceeds $126, 000." The court was particularly troubled that Speed had made no effort at repayment when he was "more responsible, by far, than any of [his] co-defendants, "[1] given that "[t]en, 15 times . . . more restitution" was attributable to him. During the sentencing portion of the hearing, the court ordered Speed to serve a prison term of zero to five years but suspended all but the time already served and ordered him to complete thirty-six months of probation supervised by AP&P. After setting forth a number of terms of Speed's probation, the court concluded, "Pay restitution in the amount of $126, 547." The court advised defense counsel that it would "let [him] approach later" about restitution but explained to Speed,

I want to get this on rather than deferring it. I want you to make monthly payments every single month toward the restitution. I will let you work with AP&P towards that, but I want them to immediately start getting reimbursed for their losses . . . . I really expect you to make significant advances towards dealing with this enormous restitution, that you need to make your victim whole.

         ¶7 Defense counsel then stated that he had spoken with the State "about having a restitution hearing to determine what court-ordered and total restitution would be." Following this remark, an exchange between defense counsel and the court ensued:

THE COURT: Well, get closer. If there are disputes[, ] I set a lot of these restitution hearings because it's murky. So what I want you to do is file a motion for restitution.
THE COURT: And with some specifics about what I can look at before we get to the restitution hearing-
THE COURT:-and nobody knows anything.
[DEFENSE COUNSEL]: Yeah. I think-it's not a complicated-I don't think it's going to be a complicated hearing. The only issue is really addressing his availability to pay and those resources he has available to pay this whole amount.
THE COURT: Well, let's get all of that documentation then.
THE COURT: I will set it for hearing.
[DEFENSE COUNSEL]: Okay. And, Your Honor, how long do we have to file that ...

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