Summary 2008 WY 86

Summary of Decision issued July 22, 2008

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Case Name: Pinker v. State

Citation: 2008 WY 86

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=452058

Docket Number: S-07-0187

Appeal from the District Court of Laramie County, Honorable Edward L. Grant, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; and Tina N. Kerin, Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General.

Date of Decision: July 22, 2008

Facts: Appellant entered a plea of guilty to a violation of Wyo. Stat. § 6-2-502(a)(i) (LexisNexis 2007) in that he inflicted injuries on his two-month-old daughter which caused her serious, permanent, and disabling injuries. He was sentenced to be imprisoned for six to eight years. In addition, he was also ordered to complete restitution to the Office of Healthcare Financing (OHCF), care of ACS Third Party Liability for the amount of Medicaid benefits that had been paid on behalf of his daughter as of the date the presentence report was completed. The presentence report also provided the court with verification that OHCF was subrogated to the rights of his daughter with respect to any claim that ... she may have arising from the accident or incident and this subrogation extends to all Medicaid funds paid or to be paid on account of her injuries, and OHCF must be reimbursed for those amounts.

Issues: Whether the district court's oral pronouncement of restitution was controlling and an illegal sentence. Whether the district court exceeded its statutory authority in awarding restitution to the Office of Healthcare Financing, as that entity is not a "victim" as defined by statute.

Holdings: The essence of Appellant's argument is that the district court's oral sentence effectively awarded an uncertain and unspecified amount of restitution, not to exceed $200,000.00, and did not name the victim. His claim is that both of these matters are required to be made definite in the oral sentence and, having failed to comply with the statute, the sentence is illegal. However, under the circumstances presented here, the plea agreement clearly informed Appellant that he would be required to pay restitution for the treatment provided to his daughter. The district court mistakenly believed that it could order Appellant to be required to pay restitution in an amount "to be determined." However, that mistaken belief was corrected prior to entry of the written sentence. The evidence of record fully supported the district court's initial oral findings and that can easily be followed through to the written sentence. Under these circumstances, Appellant's contention that the oral sentence conflicts with the written sentence must be rejected, and any suggestion that the oral sentence was illegal is also rejected. There is no real ambiguity in the trial court's sentences, both oral and written and there is no real discrepancy or conflict between them. It should also be noted that Appellant did not make objections to the restitution award either at the sentencing hearing or after the written sentence was entered of record.

Appellant contends that the Office of Healthcare Financing (OCHF) is not a victim as defined by the governing statute and, hence, the district court exceeded its statutory authority in ordering that it be paid restitution. A part of the plea agreement in force in this case made it clear that Appellant would be paying restitution to the victim or victims of his crime. That, of course, was aimed directly and primarily at the costs of caring for and maintaining his daughter. "Victim" is defined by statute: "'Victim' means a person who has suffered pecuniary damage as a result of a defendant's criminal activities. Under Wyo. Stat. 7-9-101(a) (v) (2007), an insurer which paid any part of a victim's pecuniary damages shall be regarded as the victim only if the insurer has no right of subrogation and the insured has no duty to pay the proceeds of restitution to the insurer." However, the restitution statute does not define "insurer." In this case, Medicaid paid the enormous medical bills generated by the treatment for the injuries inflicted by Appellant on his daughter. Wyo. Stat. 42-4-201 through 42-4-206 (2007) detail the State of Wyoming's right to recover, by way of subrogation, benefits paid for Medicaid services under circumstances like those presented in this case. Looking to the logical source for a definition, the Wyoming Insurance Code which defines "insurer" as "any person engaged as indemnitor, surety or contractor in the business of entering into contracts of insurance or annuity" and defines insurance as a contract. Wyo. Stat. 26-1-102(a)(xvi), (xv). OHCF is not in the business of entering into contracts of insurance or annuity and does not enter into contracts for insurance. The Insurance Code does not purport to govern the Medicare system. Further, OCHF was required to pay the medical expenses which resulted from Appellant's assault. Therefore, OCHF is not an insurer for purposes of the restitution statute, and the trial court's order is affirmed.

The judgment and sentence of the district court are affirmed.

J. Hill delivered the opinion for the court.