State v. Hedgcock

2019 UT App 93
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
LEE EVAN H EDGCOCK,
Appellant.
Opinion
No. 20170040-CA
Filed May 31, 2019
Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 161400207
Andrea J. Garland, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 	Instead of paying $701 per month in child support for the
relevant five years (totaling $51,883 with interest) as stipulated
and adopted in a divorce decree, Defendant Lee Evan Hedgcock
paid $780 total. He was charged with and pled no contest to a
single count of criminal nonsupport. Hedgcock now challenges
the district court’s restitution determination. Because we agree
that the district court did not make separate findings as to
complete restitution and court-ordered restitution as required by
statute and precedent, we vacate the restitution determination
and remand for further proceedings consistent with this opinion.
Further, 	Hedgcock 	challenges 	the 	district 	court’s 	refusal 	to
reduce complete restitution by amounts Hedgcock claims he
would not have owed had he filed a petition to modify the

State v. Hedgcock
20170040-CA 	2 	2019 UT App 93
divorce decree in the intervening years. We affirm the district
court on this point of law.
BACKGROUND
¶2 	Following his divorce, Hedgcock was ordered to pay $701
per month in child support (Decree). The child support amount
was based on an imputed wage that was allegedly more than
Hedgcock’s actual wage. Hedgcock, however, stipulated to the
higher imputed wage and child support amount. The Decree
provided that “[t]he current Child Support amount shall remain
in effect unless modified by [the Office of Recovery Services
(ORS)]” and that “each party to this action may request that
[ORS] review the Court’s child support order for this action to
determine whether a modification of the Court ordered child
support be pursued.” ORS was also joined as a party to the
divorce 	action 	to 	clarify 	and 	determine 	Hedgcock’s 	child
support obligations moving forward. Although ORS appeared, it
did not seek to modify the child support as ordered in the
Decree.
¶3 	In December 2014, Hedgcock moved the divorce court to
“address 	the 	issue 	of 	his 	child 	support.” 	A 	commissioner
declined to set a hearing on the motion but outlined the correct
procedure for pursuing an adjustment of child support in a
minute entry. The minute entry noted that Hedgcock could seek
an adjustment by filing a petition to modify and a financial
declaration pursuant to rules 101 and 106 of the Utah Rules of
Civil Procedure. Hedgcock did not object to the minute entry
and never filed a petition to modify.
¶4 	In 	January 	2016, 	Hedgcock 	was 	charged 	with
criminal nonsupport based on an alleged total arrearage, with
interest, of $61,310. In other words, from the time the Decree
was entered in 2011, to the time he was charged in January

State v. Hedgcock
20170040-CA 	3 	2019 UT App 93
2016 	(Charged 	Period), 	Hedgcock 	paid 	a 	total 	of 	$780 	in
child support—rather than the $701 per month ordered in the
Decree.
¶5 	At 	a 	preliminary 	hearing, 	Hedgcock 	argued 	that 	the
total arrearage for the Charged Period was incorrect because
ORS should have modified the child support amount when it
was joined as a party. But a representative for ORS testified
that despite being joined as a party, it typically “would not . . .
modify 	a 	child 	support 	order 	unless 	[it 	had] 	a 	written
request 	from 	one 	of 	the 	parties 	to 	do 	so.” 	And 	although
ORS 	received 	written 	requests 	from 	Hedgcock, 	“the
determination was made . . . not to proceed with a modification
review because [Hedgcock’s] circumstances had not changed
from the date that the initial order had been stipulated to.”
Hedgcock did not petition the divorce court to review ORS’s
determination.
¶6 	The State filed a motion in limine seeking to exclude from
trial—among other things—evidence that Hedgcock disagreed
with the amount of child support ordered in the Decree. The
district court granted the motion, concluding that Hedgcock’s
“disagreement with the amount of child support he has been
ordered to pay is not a relevant issue in this case, and therefore
any argument regarding this matter is inadmissible.” The court
further explained that the Decree is a final order and the only
way that Hedgcock’s arguments would be relevant is if he had
filed a petition to modify in the divorce proceeding. But the
court noted, “[T]hat’s not what’s happened. That’s not the facts
that are before this court. The facts before this court are there’s
an order for $701, and that’s the existing order [the State is]
claiming criminal nonsupport on.”
¶7 	Hedgcock pled no contest to a single count of criminal
nonsupport in return for the State’s recommendation of no jail
time 	and 	a 	402 	reduction 	“upon 	successful 	completion 	of

State v. Hedgcock
20170040-CA 	4 	2019 UT App 93
payment of restitution.”1 At sentencing, Hedgcock requested a
restitution hearing, “not necessarily to question the amounts . . .
but because he would like the Court to consider some of the
same things . . . discussed when arguing the motion in limine as
toward 	restitution.” 	The 	court 	responded 	that 	the 	criminal
proceeding was “not the appropriate place” to challenge the
Decree. And because there was no pending petition to modify
the 	Decree, 	the 	court 	clarified 	that 	the 	only 	permissible
arguments at the restitution hearing would be to establish the
amounts 	that 	Hedgcock 	already 	paid 	against 	the 	existing
arrearage. After a brief recess, Hedgcock entered his no-contest
plea,2 and requested to be sentenced immediately without a pre-
sentencing report (PSR) or review of his financial declaration.
¶8 	The district court held a restitution hearing in December
2016. At the outset, Hedgcock renewed his objection to the
amount owed during the Charged Period. The court responded
that, absent a pending petition to modify the Decree, Hedgcock’s
past-due 	child 	support 	obligation 	was a 	fixed 	amount 	and
“there’s no possibility this order is going to be anything different
than what it is.” Hedgcock then submitted to the court that the
parties had reached a stipulation on the amount of arrearage
based on the operative Decree—which was determined to be
$51,833. The court asked the parties if there was anything else
that needed to be taken care of at the hearing, and Hedgcock’s
counsel replied, “I don’t believe so.” Specifically, Hedgcock did
not 	ask 	the 	district 	court 	to 	consider 	anything 	other 	than
(1) whether child support had actually ever been ordered under
1. A “402 reduction” refers to a reduction of the degree of a
criminal conviction under Utah Code section 76-3-402.
2. Hedgcock did not reserve his right to appeal the ruling on the
motion in limine under rule 11(j) of the Utah Rules of Criminal
Procedure.

State v. Hedgcock
20170040-CA 	5 	2019 UT App 93
the Decree and (2) whether the support order should have been
modified at some point in the past.
¶9 	The district court entered a stipulated sentencing order on
December 27, 2016. The order provided that “[r]estitution . . .
owed to [Hedgcock’s ex-wife] as of December 8, 2016, is entered
for $51,883.” The district court did not indicate whether the
ordered amount was for complete restitution, court-ordered
restitution, or both.
¶10 	Hedgcock appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 	Hedgcock raises two issues on appeal. He first contends
that the district court misapplied the Crime Victims Restitution
Act (Restitution Act)3 when it merged complete restitution with
court-ordered restitution without making separate findings. “We
will not disturb a district court’s restitution order unless it
exceeds 	that 	prescribed 	by 	law 	or 	otherwise 	abused 	its
discretion.” State v. Hamilton, 2018 UT App 202, ¶ 15, 437 P.3d
530 (cleaned up). “But we review a district court’s interpretation
of 	restitution 	statutes 	for 	correctness.” 	Id. 	(cleaned 	up).
Hedgcock did not preserve this issue and therefore asks us to
review for plain error. See State v. Johnson, 2017 UT 76, ¶¶ 15, 19,
416 P.3d 443. “To demonstrate plain error, a defendant must
establish that (i) an error exists; (ii) the error should have been
obvious to the [district] court; and (iii) the error is harmful.” Id.
¶ 20 (cleaned up).
¶12 	Next, Hedgcock argues that the district court erred in
determining 	the 	restitution 	amount 	because 	it 	refused 	to
3. 	The 	Restitution 	Act 	is 	codified 	at 	Utah 	Code 	sections
77-38a-101 to -601.

State v. Hedgcock
20170040-CA 	6 	2019 UT App 93
consider factors—such as the actual income of Hedgcock and his
ex-wife—that 	could 	have 	changed 	the 	child 	support 	owed
during 	the 	Charged 	Period. 	We 	review 	the 	district 	court’s
determination of restitution for abuse of discretion. Hamilton,
2018 UT App 202, ¶ 15.
ANALYSIS
I. The Restitution Act
¶13 	Hedgcock 	argues 	that 	the 	district 	court 	erred 	“by
conflating complete restitution with court-ordered restitution.”
Generally, complete restitution is “necessary to compensate a
victim for all losses caused by the defendant” and is determined
by taking into account “all relevant facts” of the case. State v.
Mooers, 2017 UT 36, ¶ 9, 424 P.3d 1 (cleaned up) (listing relevant
facts to be 	considered 	in determining 	complete restitution).
Court-ordered restitution, on the other hand, is a subset of
complete restitution that the court “orders the defendant to pay
as a part of the criminal sentence.” See id. ¶ 10 (cleaned up). To
determine 	the 	amount 	of 	court-ordered 	restitution, 	courts
consider the facts for complete restitution and additional factors
set forth in the Restitution Act. Id. Finally, “[t]he plain language
of the Restitution Act contains a clear directive that district
courts are to make two separate restitution determinations, one
for 	complete 	restitution 	and 	a 	second 	for 	court-ordered
restitution,” id. ¶ 8 (cleaned up), and failure to do so, or even
“merg[ing] them into one order,” is error, id. ¶ 12.
¶14 	Here, the district court did not make separate findings,
nor did it indicate whether it was ordering complete restitution
or court-ordered restitution. Simply put, 	the district court’s
failure to engage in this analysis was error. Id. However, because
Hedgcock failed to preserve this issue, he must also show that
the court’s error was obvious and harmful. See State v. Johnson,

State v. Hedgcock
20170040-CA 	7 	2019 UT App 93
2017 UT 76, ¶¶ 20–21, 416 P.3d 443. We discuss each element in
turn.
¶15 	“For an error to be obvious . . . the law governing the
error [must be] clear or plainly settled at the time the alleged
error was made.” State v. Jamieson, 2017 UT App 236, ¶ 27, 414
P.3d 559 (cleaned up), cert. granted, 421 P.3d 439 (Utah 2018).
Here, the law governing restitution is both clear and plainly
settled. First, relevant portions of the Restitution Act—which
was enacted in 2001—mandate that “[i]n determining restitution
the court shall determine complete restitution and court-ordered
restitution,” Crime Victims Restitution Act, ch. 137, § 8, 2001
Utah Laws 699, 704; “the court shall make the reasons for the
decision part of the court record,” id.; and “[i]n determining the
monetary 	sum 	and 	other 	conditions 	for 	court-ordered
restitution, the court shall consider the factors” for complete
restitution as well as:
(i) the financial resources of the defendant and the
burden that payment of restitution will impose,
with 	regard 	to 	the 	other 	obligations 	of 	the
defendant; (ii) the ability of the defendant to pay
restitution on 	an 	installment basis or on other
conditions 	to 	be 	fixed 	by 	the 	court; 	(iii) 	the
rehabilitative 	effect 	on 	the 	defendant 	of 	the
payment of restitution and the method of payment;
and 	(iv) 	other 	circumstances 	which 	the 	court
determines may make restitution inappropriate.
Id. at 705.4 Second, our supreme court settled the law governing
complete restitution and court-ordered restitution, see State v.
4. 	These 	portions 	of 	the 	Restitution 	Act 	were 	essentially
unchanged when the stipulated sentencing order was entered in
this case. See Utah Code Ann. § 77-38a-302(1)–(5) (LexisNexis
(continued…)

State v. Hedgcock
20170040-CA 	8 	2019 UT App 93
Laycock, 2009 UT 53, ¶¶ 20–24, 214 P.3d 104 (holding that district
courts are “clearly required to determine . . . restitution, as set
out in [the Restitution Act]”), seven years prior to entry of the
stipulated sentencing order. In light of the plain language in the
Restitution Act and the holding in Laycock, we conclude that the
requirement to make separate and distinct findings for complete
restitution and court-ordered restitution was obvious.
¶16 	Next, Hedgcock argues that the district court’s error was
harmful. We agree. As Hedgcock contends, the entire portion of
restitution in this case is being treated as court-ordered,5 and he
faces “criminal enforcement mechanisms” such as contempt of
court or the imposition of a sentence for failure to pay. See
Mooers, 	2017 	UT 	36, 	¶ 	18 	n.3. 	Conversely, 	had 	the 	court
conducted the proper analysis and determined that any portion
of the amount owed was complete restitution, rather than court-
ordered restitution, that portion would be enforceable only as a
civil judgment. See id. We conclude that the district court’s error
is at least potentially harmful because it exposes Hedgcock to
(…continued)
2017). Because the statutory provision in effect at the relevant
time does not differ in any material way from the provision now
in effect, we cite the current version of the Utah Code.
5. The stipulated sentencing order is silent as to whether the
restitution 	ordered 	in 	this 	case 	was 	“complete” 	or 	“court-
ordered.” The State contends that the restitution amount set by
the 	district 	court 	represented 	court-ordered 	restitution. 	In
support of its position, the State relies on the district court’s
statement at sentencing that if Hedgcock fails to pay the amount
of restitution ordered “[it was] not going to have any qualms
about locking [him] up for a substantial period of time.”

State v. Hedgcock
20170040-CA 	9 	2019 UT App 93
criminal penalties for amounts of restitution that may not have
been court-ordered restitution.6
¶17 	We 	are 	unpersuaded 	by 	the 	State’s 	argument 	that
Hedgcock invited this error by stipulating to the amount of
restitution and/or failing to object to the stipulated sentencing
order. Even where, as here, a defendant stipulates to “complete”
restitution, the plain language of the Restitution Act still requires
that the court make separate findings for complete restitution
and court-ordered restitution. Accordingly, Hedgcock’s failure
to object to the stipulated sentencing order is a preservation
defect but nothing more.
¶18 	We 	readily 	understand 	that, 	given 	the 	sentencing
stipulation made by the parties, the district court may well have
intended to order complete and court-ordered restitution in the
same amount. But the court did not articulate that. And given
the bright-line precedent of Mooers and Laycock, we conclude that
the district court’s failure to indicate what type of restitution was
being ordered—and its failure to justify its conclusion with
adequate factual findings—was plain error. Therefore, we vacate
the restitution order and remand to the district court to clarify
the amount of complete restitution and court-ordered restitution
it imposed in this case.7
6. This is not to say that a district court cannot conclude that
complete restitution and court-ordered restitution should be in
the same amounts, so long as the court considers the factors
contemplated by the Restitution Act. State v. Laycock, 2009 UT 53,
¶ 28, 214 P.3d 104.
7. On remand, if the district court finds that its ability to consider
some of the factors under the Restitution Act is limited because
Hedgcock 	has 	waived 	the 	PSR 	and 	its 	associated 	financial
(continued…)

State v. Hedgcock
20170040-CA 	10 	2019 UT App 93
II. Restitution Amount
¶19 	Relatedly, Hedgcock argues that the district court erred
when 	it 	calculated 	restitution, 	whether 	complete 	or 	court-
ordered, without considering whether the child support owed
during the Charged Period should have been adjusted in the
domestic case. In other words, Hedgcock contends that the
district court should have allowed him to launch, in his criminal
case, essentially, a petition to modify the Decree retroactively for
the Charged Period. We disagree.
¶20 	When 	Hedgcock 	entered 	his 	no-contest 	plea, 	he
effectively conceded that the State had sufficient evidence to
prove the elements of criminal nonsupport. See Utah R. Crim. P.
11(e)(4)(A) (“The court . . . may not accept the plea until the
court has found . . . the defendant understands the nature and
elements of the offense to which the plea is entered . . . .”). In
other 	words, 	Hedgcock 	conceded 	that 	during 	the 	Charged
Period he had children under the age of eighteen, for whom he
knowingly failed to provide support; his children would have
been in needy circumstances but for support received from a
source other than him; and the total arrearage was in excess of
$10,000. See Utah Code Ann. § 76-7-201(3) (LexisNexis 2017)
(listing the elements of criminal nonsupport).
¶21 	Given 	that 	Hedgcock 	knew 	of 	his 	child 	support
obligations, he could have filed a petition to modify in the
divorce 	proceedings 	prior 	to 	being 	charged 	with 	criminal
(…continued)
declaration 	and 	did 	not 	offer 	any 	evidence 	concerning 	his
present ability to pay, it would be appropriate for the court to
articulate those facts. However, the district court must still
undertake its best efforts to consider the factors even in the face
of missing information. Id. ¶¶ 22–23.

State v. Hedgcock
20170040-CA 	11 	2019 UT App 93
nonsupport. His failure to do so does not alleviate his obligation
to pay child support under the Decree, nor does it change the
fact that his children were dependent on his support, which he
nevertheless failed to pay. See id. § 78B-12-112(3) (“Each payment
or installment of child . . . support under any support order . . .
is, on and after the date it is due: a judgment with the same
attributes and effect of any judgment of a district court . . . [and]
not subject to retroactive modification by this or any other
jurisdiction . . . .”). And even if Hegdcock had filed a petition to
modify, any change to the Decree would apply only after the
date of the petition. See id. § 78B-12-112(4) (“A child or spousal
support payment under a support order may be modified with
respect to any period during which a modification is pending,
but only from the date of service of the pleading . . . .”).
¶22 	Thus, the total arrearage for the Charged Period in this
case was a final judgment, see id. § 78B-12-112(3), and even a
successful 	petition 	to 	modify 	the 	amount 	of 	child 	support
would, at best, change only the amount owed retroactively to the
date the petition was filed, see id. § 78B-12-112(4). Accordingly,
we conclude that the district court did not abuse its discretion in
refusing to consider the potential merits of a petition to modify
that was never filed and was therefore legally irrelevant.
CONCLUSION
¶23 	We conclude that the district court erred in neglecting to
make separate and distinct findings for complete restitution and
court-ordered 	restitution, 	and 	on 	this 	basis, 	we 	vacate 	the
restitution order and remand for further proceedings consistent
with this opinion. But, we conclude the district court did not err
in refusing to consider whether the amount of child support
ordered by the Decree should have been changed prior to
Hedgcock being charged with criminal nonsupport.