IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 95

APRIL TERM, A.D. 2014

July 30, 2014

RYAN O’HALLORAN,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-13-0238

Appeal from the District Court of Big Horn County

The Honorable Steven R. Cranfill, Judge

Representing Appellant:

Office of the State Public Defender: Diane Lozano, State Public Defender; Tina 

N. Olson, Chief Appellant Counsel; and David E. Westling, Senior Assistant 

Appellate Counsel. Argument by Mr. Westling.

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy 

Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Jennifer 

Zissou, Assistant Attorney General. Argument by Ms. Zissou.

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.

*Chief Justice at time of oral argument.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

HILL, Justice.

[¶1] Ryan O’Halloran pled guilty to misdemeanor interference with a peace officer. 

Pursuant to his plea agreement, Mr. O’Halloran agreed to pay restitution in an amount to 

be determined in future proceedings against his co-defendant. Nearly two years after Mr. 

O’Halloran’s plea and sentencing, the district court issued a ruling requiring Mr. 

O’Halloran to pay restitution in the amount of $2,600.15. Mr. O’Halloran appeals, 

challenging the sufficiency of the evidence supporting the amount of the restitution order 

and contending that the delay in entering the restitution order violated his due process 

rights. We find that the restitution order was not supported by sufficient evidence and 

reverse.

ISSUES

[¶2] Mr. O’Halloran states the issues on appeal as follows:

I. Did the trial court commit error by awarding 

restitution for crimes to which Mr. O’Halloran did not 

plead guilty and for which there was no plea 

agreement to pay?

II. Did the 717 days between the date Mr. O’Halloran 

pled guilty and the entry of his judgment and sentence 

constitute a violation of due process in that Mr. 

O’Halloran was denied his right to speedy sentencing?

FACTS

[¶3] On September 5, 2006, Mr. O’Halloran’s sister, Megan O’Halloran, applied to the 

Department of Family Services (DFS) for child care benefits. The child care benefits 

were benefits intended to provide assistance to Ms. O’Halloran in paying for child care 

while she participated in an approved activity, such as work or school. As a condition to 

receiving the child care benefits, Ms. O’Halloran was required to use an authorized 

daycare provider—that is, a provider approved by DFS. In September 2006, an 

application was submitted to DFS for Mr. O’Halloran to serve as an authorized daycare 

provider for Ms. O’Halloran's children. Thereafter, several bills for child care services 

were submitted to DFS, identifying Ms. O’Halloran as the benefit recipient and Mr. 

O’Halloran as the provider and bearing the purported signatures of both individuals.

[¶4] Between October 2006 and November 2008, DFS issued eighteen checks payable 

to Mr. O’Halloran, totaling $5,200.30. Through an investigation, DFS discovered that for 

some of the periods for which benefits were paid, Ms. O’Halloran was not participating 

in an approved activity or Mr. O’Halloran was working at other employment rather than 

providing child care services. The investigation also revealed that Debora McEwan, the 
2

mother of Mr. O’Halloran and Ms. O’Halloran, signed seventeen of the eighteen checks.1 

On June 30, 2009, during the course of a law enforcement investigation into these events, 

Mr. O’Halloran told the officer that the signatures on certain documents were his 

signatures, knowing that those statements to the officer were untrue.

[¶5] On January 11, 2010, the State filed a felony information charging Mr. O’Halloran 

with making a false statement to obtain welfare benefits. Ms. O’Halloran was similarly 

charged, and on September 30, 2010, the district court entered an order joining their cases 

for trial. Pursuant to a plea agreement, Mr. O’Halloran pled guilty to an amended charge 

of misdemeanor interference with a peace officer. The prosecutor described the terms of 

the plea agreement, which included Mr. O’Halloran's continued cooperation in the State’s 

investigation and the following:

That Mr. O’Halloran will be sentenced to the full 

maximum sentence of that [charge], which we believe it’s a 

high misdemeanor, so it will be one year in the county jail, 

credit for whatever time he has served. All of that will be 

suspended, and that he will be placed on unsupervised 

probation.

* * * *

Mr. O’Halloran will pay restitution for the amount that 

he has actually received off of this, which we believe was due 

to his working and baby-sitting at different times, but we 

don’t know exactly how much that would be. We believe it’s 

probably less than $500. But we would ask the Court to 

allow some time until the rest of this – and the other 

codefendants have gone through their pleas or their trials or 

whatever so we can find out how much he did receive, and 

that he pay the restitution with regard to that.

[¶6] The district court accepted the plea agreement and in accordance with the 

agreement, sentenced Mr. O’Halloran to one year in county jail, suspended in favor of 

one year of unsupervised probation. During that ruling, the following exchange occurred:

THE COURT: * * * 

And the Court will accept that agreement, which is a 

sentence of one year in the county jail, with credit for time 

served. That is to be suspended, and you are to serve a term 

of one year of unsupervised probation.

 

1 Debora McEwan was also charged in relation to these events and pled guilty to two counts of felony 

obtaining public welfare benefits by misrepresentation. See McEwan v. State, 2013 WY 158, 314 P.3d 

1160 (Wyo. 2013).
3

I assume that begins today.

[Defense Counsel]: Yes, sir, Your Honor.

THE COURT: Essentially, it’s to violate no state, 

local or federal law.

The issue of restitution will be reset for a separate 

hearing as these other cases resolve and we have more 

information to determine the dollar amount. However, it’s 

the Court’s understanding that that would be less than $500, 

but we’ll determine that at a later date.

[¶7] Prior to Mr. O’Halloran's change of plea hearing, Ms. O’Halloran had requested a 

continuance of her trial date. Following an additional continuance on the district court’s 

own motion, Ms. O’Halloran’s trial date was continued to June 4, 2012. On May 29, 

2012, Ms. O’Halloran requested a change of plea and sentencing hearing, and the court 

set that hearing for August 2, 2012. Ms. O’Halloran and the State thereafter jointly 

moved to continue that hearing, and the court continued the hearing to October 25, 2012. 

Ms. O’Halloran requested another continuance, and the hearing was continued to 

November 29, 2012. On November 20, 2012, the State requested a hearing to determine 

the amount of restitution owed by Mr. O’Halloran, and the court set that hearing to take 

place in conjunction with Ms. O’Halloran’s change of plea and sentencing hearing. Mr. 

O’Halloran requested a continuance of that hearing, citing his counsel’s scheduling 

conflicts, and the hearing was continued to December 27, 2012. On its own motion, the 

court reset the hearing to January 11, 2013. Mr. O’Halloran and Ms. O’Halloran jointly 

requested one final continuance, and the court held a restitution hearing on February 14, 

2013.

[¶8] During the February 14, 2013 restitution hearing, Mr. O’Halloran argued that any 

restitution order would violate his due process rights because of the long delay between 

his plea and sentencing and the restitution hearing. Mr. O’Halloran also argued that if the 

district court did order him to pay restitution, the amount of restitution must be limited to 

the amount of money he actually received from the transaction. The State presented 

evidence that the checks issued in the transaction totaled $5,200.30, and it argued that 

Mr. O’Halloran and Ms. O’Halloran should be jointly and severally liable for the entire 

amount. At the conclusion of the hearing, the court took the matter under advisement.

[¶9] On April 24, 2013, the district court issued a decision letter announcing its ruling 

on the restitution issue. The court ordered Mr. O’Halloran and Ms. O’Halloran to each 

pay one-half of the restitution claimed by the State. In so ruling, the court stated, in part:

Who benefited from Ms. O’Halloran's enterprise is not clear, 

however, the amount claimed does not appear to be in 

dispute. It is also clear that amount ($5,300.30) represents 

actual damages, not future or speculative damages.
4

* * * *

Mr. O’Halloran did not appear, however his attorney 

argues that he should be responsible, if at all, for a minimum 

amount related to a check he endorsed. He also argues that, 

because of the delay, Mr. O’Halloran has been denied due 

process. The Court is not persuaded by either of those 

arguments. He was involved in the enterprise and should be 

required to pay restitution. No evidence of inability to pay 

was introduced.

[¶10] On May 20, 2013, the district court entered a Judgment, Sentence and Probation 

Order for Defendant Ryan O’Halloran, and on August 6, 2013, the court entered its Order 

of Restitution. On September 5, 2013, Mr. O’Halloran filed a Notice of Appeal.

STANDARD OF REVIEW

[¶11] This Court reviews restitution orders using the following standard of review:

The standard of review of restitution orders is confined 

to a search for procedural error or a clear abuse of discretion. 

Penner v. State, 2003 WY 143, ¶ 7, 78 P.3d 1045, 1047 

(Wyo. 2003). The court-ordered restitution should be 

supported by sufficient evidence to afford a reasonable basis 

for estimating the loss. Id. The restitution can be challenged 

only for abuse of discretion by the court. Id. “Judicial 

discretion is a composite of many things, among which are 

conclusions drawn from objective criteria; it means exercising 

sound judgment with regard to what is right under the 

circumstances and without doing so arbitrarily and 

capriciously.” Monjaras v. State, 2006 WY 71, ¶ 8, 136 P.3d 

162, 164 (Wyo. 2006). Under this standard, the inquiry is 

whether the court’s choice is reasonable. A victim impact 

statement is credible evidence to support an order of 

restitution. Penner, ¶ 7, 78 P.3d at 1047 (citation omitted).

There is a distinction between the standard of review 

of factual challenges to the amount of restitution ordered and 

challenges to the authority of the court to make a restitution 

award. Challenges to the factual basis of an award of 

restitution can be waived if the defendant enters into a plea 

agreement and then fails to object at sentencing. Penner, ¶ 7, 

78 P.3d at 1047. If the defendant does not object to the 

amount of restitution ordered by the district court, the 
5

reviewing court must review for plain error. Id. at 1048. If 

the defendant challenges the authority of the district court to 

order restitution, then review is under a de novo statutory 

interpretation standard, because a court has only that authority 

to act which is conferred by the subject statute. Id.

Frederick v. State, 2007 WY, ¶¶ 14-15, 151 P.3d 1136, 1141 (Wyo. 2007).

[¶12] The issues in this appeal also require that we consider the terms of the State’s plea 

agreement with Mr. O’Halloran and whether the restitution urged by the State and 

ordered by the district court is in keeping with that agreement. Regarding review of 

compliance with a plea agreement, we have said:

When a plea of guilty is entered as a result of a plea 

agreement, any promises made by the State must be fulfilled 

and whether a prosecutor has violated an alleged agreement is 

a question that is reviewed de novo.

Frederick, ¶ 13, 151 P.3d at 1141 (citing Spencer v. State, 2005 WY 105, ¶ 12, 118 P.3d 

978, 982–983 (Wyo. 2005)).

DISCUSSION

[¶13] Mr. O’Halloran argues that the district court’s restitution order exceeded its 

authority because the order required Mr. O’Halloran to pay restitution for a crime to 

which he did not plead guilty and for which he did not agree to pay restitution. The State 

responds that while Mr. O’Halloran did not plead guilty or admit to welfare fraud, he did 

agree to pay restitution for that crime, and the court was therefore authorized to order the 

restitution payment. The State further contends that the record supported the amount of 

restitution ordered by the court because restitution is measured by the damage to the 

victim, not by the benefit to the defendant. We agree that the district court had authority 

to order Mr. O’Halloran to pay restitution for the welfare fraud, but we conclude that the 

amount ordered by the court is unsupported by the evidence.2

 

2

 We have held that a court generally must order restitution at the sentencing hearing and include the 

restitution in the judgment and sentence. Smith v. State, 2012 WY 130, ¶ 5, 286 P.3d 429, 431, n.2 (Wyo. 

2012). That procedural right is, however, personal to a defendant and may be waived. Id. (citing 

Kahlsdorf v. State, 823 P.2d 1184, 1193 (Wyo. 1991)). The record reflects that Mr. O’Halloran agreed to 

have restitution determined in a separate proceeding, and Mr. O’Halloran has not on appeal contended 

that his waiver of the right to have restitution determined at the sentencing hearing was not a knowing and 

intelligent waiver. We therefore find no inherent error in the district court’s separation of the sentencing 

and restitution orders.
6

[¶14] The legal authority of a sentencing court to impose restitution is derived solely 

from statute. Hite v. State, 2007 WY 199, ¶ 11, 172 P.3d 737, 740 (Wyo. 2007); Crapo 

v. State, 2007 WY 194, ¶ 11, 172 P.3d 393, 397 (Wyo. 2007). A court may order 

restitution only for losses “resulting from the defendant’s criminal activity.” Crapo, ¶ 12, 

172 P.3d at 397 (quoting Wyo. Stat. Ann. § 7–9–103(b)). This means that to require 

restitution for a crime, a court must find that the defendant pled guilty to the crime, was 

convicted of the crime, admitted to the crime, or agreed to pay restitution for the crime. 

Graham v. State, 2011 WY 130, ¶ 14, 261 P.3d 239, 242 (Wyo. 2011); Crapo, ¶¶ 12, 14, 

172 P.3d at 397.

[¶15] In this case, Mr. O’Halloran did not admit to the welfare fraud with which he was 

charged, but he agreed, pursuant to his plea agreement, to pay restitution related to that 

charge. That agreement to pay, however, had parameters. The record contains no written 

plea agreement, but during the change of plea and sentencing hearing, the court asked the 

prosecutor to recite the State’s agreement with Mr. O’Halloran. The prosecutor described 

the terms of Mr. O’Halloran’s agreement to pay restitution as follows (with our emphasis 

added):

Mr. O’Halloran will pay restitution for the amount 

that he has actually received off of this, which we believe 

was due to his working and baby-sitting at different times, but 

we don’t know exactly how much that would be. We believe 

it’s probably less than $500. But we would ask the Court to 

allow some time until the rest of this – and the other 

codefendants have gone through their pleas or their trials or 

whatever so we can find out how much he did receive, and 

that he pay the restitution with regard to that.

[¶16] A plea agreement is a contract between the State and the defendant, and a 

prosecutor “must explicitly stand by” the terms of that contract. Frederick, ¶ 13, 151 

P.3d at 1141 (quoting Ford v. State, 2003 WY 65, ¶ 18, 69 P.3d 407, 412 (Wyo. 2003)); 

see also Herrera v. State, 2003 WY 25, ¶ 18, 64 P.3d 724, 729 (Wyo. 2003) (“[A]

prosecutor must explicitly stand by those terms agreed upon and may not play ‘fast and 

loose’ with the established terms reached between the parties in a plea agreement.”). 

Thus, while it is correct, as the State points out, that pursuant to Wyo. Stat. Ann. § 7-9-

103, restitution is generally measured by the damage to the victim, the State cannot 

ignore the terms of its plea agreement with Mr. O’Halloran. The plea agreement limited 

the amount of Mr. O’Halloran’s restitution to amounts he actually received in relation to 

the welfare fraud scheme, and the court’s restitution order therefore had to be based on a 

showing of that amount.

[¶17] It is the State’s responsibility to prove a victim’s legal entitlement to restitution. 

Hite, ¶ 15, 172 P.3d at 741; Hampton v. State, 2006 WY 103, ¶ 11, 141 P.3d 101, 105 
7

(Wyo. 2006). With respect to Mr. O’Halloran’s restitution requirement, this required the 

State to present evidence showing the amount of money Mr. O’Halloran received from 

the welfare fraud scheme. The State did not meet its burden.

[¶18] During the restitution hearing, the DFS investigator testified as follows on direct 

examination by the prosecutor:

Q. Okay. And what did you learn from the 

interview from Mr. O’Halloran?

A. That Mr. O’Halloran didn’t receive the money 

from the checks.

Q. Okay. Did he say where it went?

A. He didn’t know.

[¶19] On cross-examination by Mr. O’Halloran’s counsel, the DFS investigator testified 

that she did not know if Mr. O’Halloran benefitted from the monies obtained through the 

fraudulent scheme. She further testified:

Q. Okay. During the course of that interview or 

through your investigation, do you know how much money 

Mr. O’Halloran actually received of this 5200 that the State is 

now seeking?

A. Very little, if any.

Q. Very little, if any. Could you put an estimated 

dollar figure amount?

A. I believe that Ryan O’Halloran said that he had 

received a little bit of money from the first check, but I don’t 

remember – I don’t think he could recall the specific dollar 

amount. 

Q. And do you recall – I think [Ms. O’Halloran’s 

counsel] asked this, but I’m just following up. Do you recall 

how much money that first check, that warrant was for?

* * * *

A. $93.50.

Q. And is it your recollection that Mr. O’Halloran, 

Ryan, only received a partial amount of that?

A. I believe that’s what he told us, yes.

Q. And do you have any reason to believe that he 

received any more moneys of this 5200 than that partial 

check?

A. No, I do not.
8

[¶20] Mr. O’Halloran’s co-defendant, Megan O’Halloran, also testified during the 

restitution hearing. On direct examination by her counsel, she testified:

Q. Was your brother Ryan getting the money from 

these checks?

A. No.

Q. Okay. How do you know that?

A. I just – I know that neither Ryan or I were 

receiving any of the money.

Q. Who was receiving the money?

A. My mother.

[¶21] On cross-examination by the prosecutor, Ms. O’Halloran testified:

Q. Okay. And to your knowledge, Ryan maybe 

received money once?

A. To my knowledge, yeah. Once.

Q. Okay.

A. And I'm not even completely sure as to how 

much or anything.

Q. Okay. But it wasn’t any more than that?

A. No.

[¶22] The State presented no evidence that Mr. O’Halloran received or otherwise 

benefited from the scheme in the amount of $2,600.15. The evidence therefore does not 

support the district court’s order requiring Mr. O’Halloran to pay restitution of $2,600.15, 

and we must reverse the restitution order. In so ruling, we do not remand for further 

proceedings on restitution and instead order the restitution order against Mr. O’Halloran 

vacated. See Hite, ¶ 15, 172 P.3d at 741 (quoting Penner, ¶ 12, 78 P.3d at 1049) (“The 

State is not entitled to a second opportunity to prove restitution.”); Crapo, ¶ 19, 172 P.3d 

at 399 (“[B]ecause of the double jeopardy implications, restitution orders overturned for 

failure of proof will not be remanded for the purpose of relitigating the restitution 

issue.”).

[¶23] Because we have reversed and vacated the restitution order, we need not address 

Mr. O’Halloran’s speedy sentencing argument. We do note, however, that the delay 

between Mr. O’Halloran’s June 2, 2011 change of plea and sentencing hearing, and the 

district court’s entry of the Judgment, Sentence and Probation Order for Defendant Ryan 

O’Halloran on May 20, 2013, may create some confusion in the record. The record of 

the June 2, 2011 hearing indicates that Mr. O’Halloran’s one-year term of unsupervised 

probation began immediately. The May 20, 2013 order, however, purports to impose a 

one-year term of unsupervised probation. The State’s appellate brief indicates that Mr. 

O’Halloran completed his unsupervised probation by June 2012. To clarify the record as 
9

to the dates of Mr. O’Halloran’s unsupervised probation, we direct the district court to 

enter an order specifying that Mr. O’Halloran’s probation has been discharged.

CONCLUSION

[¶24] We find that the restitution order was not supported by sufficient evidence and 

therefore reverse and vacate the restitution order. To clarify the record as to the dates of 

Mr. O’Halloran’s unsupervised probation, we also direct the district court to enter an 

order specifying that Mr. O’Halloran’s probation has been discharged.