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State v. Chapman

Court of Appeals of Utah

June 14, 2018

State of Utah, Appellee,
Joshua Paul Chapman, Appellant.

          Third District Court, Salt Lake Department The Honorable Vernice S. Trease No. 081906646

          Lori J. Seppi and Scott A. Wilson, Attorneys for Appellant

          Sean D. Reyes and Christopher D. Ballard, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen and Ryan M. Harris concurred.

          POHLMAN, Judge

         ¶1 Joshua Paul Chapman appeals the district court's denial of his motions related to a restitution order entered against him. We affirm.


         ¶2 The State charged Chapman with two counts of securities fraud based on two hard money loans the victim (Victim) made to Chapman's co-defendant, Dennis Rowley. The first loan was for $70, 000 (Count 1), and the second loan was for $140, 000 (Count 2). Chapman acted as an intermediary between Victim and Rowley to facilitate the loans.

         ¶3 A jury convicted Chapman only on Count 1, acquitting him on Count 2.[1] Chapman was sentenced to serve a prison term of one to fifteen years, but the district court suspended that sentence and instead placed him on probation. As part of his probation, the district court ordered Chapman to pay $70, 000 in restitution jointly and severally with Rowley. Chapman appealed his conviction, which this court affirmed in State v. Chapman, 2014 UT App 255, 338 P.3d 230.

         ¶4 Chapman requested a restitution hearing to "determine what portion, if any, of the $70, 000" he should be held accountable for, and to set monthly payments. In a June 2012 restitution hearing, [2] Chapman did not dispute that he was ordered to pay the restitution jointly and severally with Rowley. Instead, he argued that "he should be ordered to pay much less" of the $70, 000 restitution obligation than Rowley. In this regard, Chapman contended that he was less culpable than Rowley because he "just brought [Rowley and Victim] together, " while Rowley was actually responsible for "dissipat[ing] all the funds."

         ¶5 In contrast, the State argued that Chapman's "point that [Rowley] is more culpable . . . doesn't matter at this time" because Chapman had been "convicted by a jury of his peers." The State also contended that it was a "mischaracterization" to claim that Chapman was less culpable because Chapman "was intimately involved with both transactions" and, along with Rowley, "engaged in this fraudulent activity." In any event, the State noted that, because Chapman was jointly and severally liable with Rowley for the $70, 000, "if they both pay on schedule, " the "reality of it" is that Chapman would probably "end up . . . only paying $35, 000" "so long as [Rowley] continues to pay."

         ¶6 The district court determined that the restitution would "remain as set at $70, 000, " jointly and severally with Rowley. In response to Chapman's suggestion that he should be accountable for less than the full amount, the court stated that the jury "found him guilty, " that it was "uncomfortable . . . stepping into the juror's position, " and that "the amount that was previously ordered [at sentencing] is appropriate based on that verdict." The court memorialized its ruling in a written order following the hearing, ordering that Chapman's court-ordered restitution would "remain at $70, 000 owed jointly and severally with [Rowley]."

         ¶7 After the June 2012 hearing, Chapman paid monthly restitution payments for approximately two and a half years. During that time, the court held numerous review hearings. As relevant here, in a January 2015 review hearing, [3] Chapman informed the court that the most recent accounting indicated that none of Rowley's restitution payments were being applied to the $70, 000 joint and several obligation and that, accordingly, he was going to file a motion to address that issue. In that subsequent motion, Chapman renewed his argument that he was less culpable than Rowley. He also contended that his lesser culpability as well as his financial inability to pay the full $70, 000 should persuade the court to apply Rowley's restitution payments to the $70, 000 joint obligation first, before Rowley's individual obligation to repay the $140, 000 as restitution for Count 2.

         ¶8 In a February 2015 review hearing, the court first ordered that Chapman's probation be extended for as long as it took to pay the restitution.[4] The court then addressed Chapman's motion. It noted that the "whole purpose for joint and several [liability] is to put the interests of the victim" before those of the defendants "if one defendant can't pay for whatever reason." Chapman agreed that he would be liable "to pay the entire amount or whatever's left" under joint and several liability if Rowley became unable to pay. But Chapman contended that Rowley was paying restitution, and he asserted that, as a result, "the equities of the situation, both financially and by their part in this crime, " ...

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