2020 UT App 6

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

KATHLEEN SEVASTOPOULOS,

Appellant.

Opinion

No. 20180452-CA

Filed January 3, 2020

Third District Court, Salt Lake Department

The Honorable James T. Blanch

No. 161904929

Nathalie S. Skibine, Attorney for Appellant

Sean D. Reyes and William M. Hains, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES GREGORY K. ORME and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 After Kathleen Sevastopoulos’s parents (Parents) 

confronted her for making unauthorized transfers from their 

bank account, they noticed a slew of additional suspicious 

transactions. Parents ultimately discovered that Sevastopoulos 

had stolen over $246,000 from them through over 200 

unauthorized transfers to pay her credit card bills. After criminal 

charges were brought against her, Sevastopoulos pled guilty to 

two counts: theft and theft by deception. As a condition of 

Sevastopoulos’s probation, the district court entered a restitution 

order. Sevastopoulos appeals this order, arguing that the district 

court made various errors in calculating restitution and that her 

counsel was constitutionally ineffective. Because we conclude 

that the only reversible error was the district court’s inclusion of
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two of the numerous transfers in the restitution order, we affirm 

in part, reverse in part, and remand this matter for entry of an 

amended restitution order consistent with our opinion.

BACKGROUND

¶2 When Parents noticed suspicious transactions on their 

bank statements, Sevastopoulos’s mother (Mother) asked 

Sevastopoulos about the transactions. Sevastopoulos admitted to 

making the transactions. After their discussion, Mother thought 

they “had it all cleared up.” But unexplained charges continued 

to appear on Parents’ bank statements. Parents noticed payments 

for credit cards they did not own. This prompted Mother to send 

Sevastopoulos a letter with an attached bank statement. On the 

bank statement, Mother indicated that she had authorized two of 

the transactions—totaling $657.43—but that seven of the 

transactions were a mystery to her. Although Mother had given 

Sevastopoulos money in the past, she had always done so 

through handwritten checks. Parents would later testify that 

they always used paper checks and that they did not know how 

to effectuate electronic transfers. These suspicious transactions 

were processed as automated clearing house transfers, which are

electronic payments made using an account number, routing 

number, and often—but not invariably—a check number. The 

suspicious transactions were all payments made to 

Sevastopoulos’s credit card accounts with American Express, 

Bank of America, Nordstrom, Chase, and U.S. Bank (Credit Card 

Companies).

The Lawsuits

¶3 Parents hired an attorney, who in turn hired a forensic 

accountant (Accountant) to assist the attorney with looking into 

the unexplained payments. The attorney contacted the Credit 

Card Companies to obtain refunds, but most of them were 

“extremely difficult” to work with. The attorney then filed 
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20180452-CA 3 2020 UT App 6

lawsuits against all the Credit Card Companies but one, which 

was “easier to work with.” Most of the Credit Card Companies 

settled the lawsuits by refunding Parents a portion of the 

unauthorized transfers. However, the attorney dropped the 

lawsuit against U.S. Bank after it produced authorized, 

handwritten checks for the disputed transfers. But after further 

review, the Accountant identified unauthorized electronic 

transfers involving U.S. Bank, totaling $9,390. During the

lawsuits against the Credit Card Companies, the Accountant 

identified numerous unauthorized electronic transfers to the 

Credit Card Companies, amounting to a grand total of 

$246,937.90. In all, Parents were able to recover $131,701.63 from 

the Credit Card Companies. The attorney and accountant fees

associated with recouping the unauthorized transfers initiated 

by Sevastopoulos were $40,000.

The Criminal Investigation

¶4 The situation was brought to the attention of law 

enforcement, and a detecitve (Detective) began to investigate. 

During the investigation, Detective reviewed statements from 

the Credit Card Companies—some by way of subpoena—and 

matched the unauthorized transfers from Parents’ bank account 

with the transfers on the statements from the Credit Card 

Companies. Detective also interviewed Sevastopoulos on several 

occasions. In these interviews, Sevastopoulos admitted to 

making approximately 200 transfers from Parents’ account to the 

Credit Card Companies, but she claimed she had permission to 

do so. To substantiate her claim, she showed Detective the letter 

Mother had sent her. The letter included Mother’s writing: “I’m 

totally confused about [some] charges which were not made by 

me.” Later, Detective testified that the letter did not appear to 

give Sevastopoulos permission to make the transfers, stating, 

“[W]hen I read through this document . . . it didn’t seem as 

though . . . there was really consent given.” Based on Detective’s 

investigation, Sevastopoulos was arrested.
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20180452-CA 4 2020 UT App 6

¶5 The State initially charged Sevastopoulos with one count 

of felony theft and two counts of exploitation of a vulnerable 

adult, but Sevastopoulos ultimately pled guilty to theft and theft 

by deception, both misdemeanors. The plea agreement listed the 

basis for both charges as happening “[o]n or about January 17, 

2015.” It also stated that Sevastopoulos pled guilty to counts one 

and two, and the amended information listed the offenses as 

occurring “on or about July 01, 2013, to January 17, 2015.” The 

plea agreement also included a provision that Sevastopoulos 

would pay “any restitution that may be owed on charges that 

are dismissed as part of [the] plea agreement.” Sevastopoulos 

also acknowledged, when questioned by the court, that there 

could be a legal obligation for her to pay restitution to the 

victims in the case for their financial loss. On August 30, 2017,

the court sentenced Sevastopoulos to serve 180 days in jail and 

placed her on probation, with restitution being a condition 

thereof. The court reserved the amount of restitution for later 

determination.

The Restitution Order

¶6 The State subsequently filed a motion for restitution.

Sevastopoulos objected, claiming that (1) she “never agreed to 

pay any amount of restitution as part of her plea,” (2) she 

rightfully used the funds, and (3) the matter was at the time a 

subject of civil litigation involving a family trust, and thus 

“[r]estitution would be inappropriate under these 

circumstances.” The district court rejected Sevastopoulos’s 

objection, explaining that under State v. Ogden, 2018 UT 8, 416 

P.3d 1132, there was “nothing about the pending civil action that 

prevent[ed] th[e] court from going forward and having a 

restitution hearing.” The court then set a restitution hearing for 

March 20, 2018. On the day of the hearing, Sevastopoulos moved 

for a continuance, which the court granted. The court also 

ordered the parties to exchange financial declarations, witness 

lists, and exhibit lists, which the parties did.
State v. Sevastopoulos

20180452-CA 5 2020 UT App 6

¶7 On April 26, 2018, the court held a full-day evidentiary 

hearing in which the State presented its evidence, including 

testimony from Parents, Parents’ attorney, the Accountant, and 

Detective, as well as substantial documentary evidence. The 

witnesses testified as to their roles in discovering and identifying

the fraudulent transfers. Based on the evidence, the district court 

concluded that Sevastopoulos had proximately caused Parents’ 

financial losses and ordered Sevastopoulos to pay $148,243.27 in 

restitution. The court arrived at that number by determining that 

Sevastopoulos stole $246,937.90 from Parents, which it offset by 

the $131,701.63 that Parents recovered from the Credit Card 

Companies, equaling $108,243.27 plus the costs of the attorney 

fees ($38,000) and the accountant fees ($2,000). In its calculation, 

the court included 219 transfers to the Credit Card Companies: 

the later-discovered U.S. Bank transfers, 125 transfers with 

associated check numbers, the two transfers Mother explicitly 

authorized,1 and numerous others.

¶8 The district court’s restitution order precipitated this 

appeal.

ISSUES AND STANDARDS OF REVIEW

¶9 Sevastopoulos challenges the restitution order, raising

three issues. The first two issues are whether the district court 

erred when it included the attorney and accountant fees in its 

restitution order and whether the district court erred when it 

included the rest of the requested restitution—all 219 transfers—

in its order. “We will not disturb a district court’s restitution

determination unless the court exceeds the authority prescribed 

by law or abuses its discretion.” State v. Ogden, 2018 UT 8, ¶ 25, 

416 P.3d 1132 (cleaned up); accord State v. Laycock, 2009 UT 

 

1. We reverse the district court’s order as to these two transfers. 

See infra ¶ 18.
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20180452-CA 6 2020 UT App 6

53, ¶ 10, 214 P.3d 104. “A restitution order will be overturned for 

abuse of discretion only if no reasonable person would take the 

view adopted by the trial court.” State v. Thomas, 2016 UT App 

79, ¶ 4, 372 P.3d 87 (per curiam) (cleaned up).

¶10 The third issue is whether the district court violated 

Sevastopoulos’s constitutional right to due process by 

conducting a restitution hearing where, as Sevastopoulos argues,

“the complicated determinations would be better handled as a 

civil matter.” But Sevastopoulos did not preserve this issue 

below.2 Nevertheless, she contends, in the alternative, that her 

attorney rendered constitutionally ineffective assistance when 

counsel failed to raise the constitutional law objection she now 

advances on appeal. We therefore consider this issue under the 

rubric of ineffective assistance of counsel. “When a claim of

ineffective assistance of counsel is raised for the first time on 

appeal, there is no lower court ruling to review and we must 

decide whether the defendant was deprived of the effective 

assistance of counsel as a matter of law.” State v. Crespo, 2017 UT 

App 219, ¶ 22, 409 P.3d 99 (cleaned up).

 

2. Sevastopoulos’s objection to the restitution hearing was one 

paragraph long and invoked three reasons for the district court 

not to proceed: (1) she “never agreed to pay any amount of 

restitution as part of her plea,” (2) she rightfully used the funds, 

and (3) the matter was at the time a subject of civil litigation, 

which involved a family trust. Her truncated objection did not 

articulate any constitutional law issue. Moreover, in discussing 

State v. Ogden, 2018 UT 8, ¶ 27 n.5, 416 P.3d 1132, when

overruling Sevastopoulos’s objections, the court was not ruling 

on a constitutional law issue. Rather, it was addressing exactly 

the objection Sevastopoulos raised: whether the court could 

move forward despite a simultaneous civil proceeding on a 

separate matter.
State v. Sevastopoulos

20180452-CA 7 2020 UT App 6

ANALYSIS

I. The Attorney and Accountant Fees

¶11 Sevastopoulos contends that the attorney and accountant 

fees were improperly included in the district court’s restitution 

order. Under the Crime Victims Restitution Act (Restitution 

Statute), courts are required to order restitution when a 

defendant commits a crime that “has resulted in pecuniary 

damages.” Utah Code Ann. § 77-38a-302(1) (LexisNexis 2012). At 

the relevant time, pecuniary damages were defined as “all 

demonstrable economic injury, whether or not yet incurred, 

which a person could recover in a civil action arising out of the 

facts or events constituting the defendant’s criminal activities.”3

Id. § 77-38a-102(6). Thus, what one can recover in a civil action 

informs our inquiry here.

¶12 Generally, “costs or expenses incurred in the maintenance 

of, or related to, litigation” are not recoverable in a civil action, 

unless provided for by contract or statute. State v. Brown, 2014 

UT 48, ¶¶ 23–24, 342 P.3d 239 (citing Restatement (Second) of 

Torts § 914(1) (Am. Law Inst. 1979)) (holding that the lost 

wages and expenses requested by the victim and her mother 

would not be recoverable in a civil action against the defendant, 

and therefore they were not compensable as restitution).

Likewise, criminal investigative costs are generally not

 

3. The legislature amended the Restitution Statute in 2016 to “all 

demonstrable economic injury, whether or not yet incurred, 

including those which a person could recover in a civil action.” 

Utah Code Ann. § 77-38a-102(6) (LexisNexis Supp. 2016)

(emphasis added). This seems to indicate that damages are no 

longer strictly limited to what one could recover in a civil action. 

However, we analyze the statute as it was in effect at the time of 

Sevastopoulos’s admitted thefts.
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20180452-CA 8 2020 UT App 6

recoverable in a civil action. E.g., State v. Depaoli, 835 P.2d 162, 

165 (Utah 1992).

¶13 However, one exception to these general rules is the 

“third-party tort rule.” South Sanpitch Co. v. Pack, 765 P.2d 1279, 

1282–83 (Utah Ct. App. 1988) (holding that the attorney fees 

were recoverable under the third-party tort rule and explaining 

that “when the natural consequence of one’s negligence is 

another’s involvement in a dispute with a third party, attorney 

fees reasonably incurred in resolving the dispute are recoverable 

from the negligent party as an element of damages”). Under the 

third-party tort rule, “[o]ne who through the tort of another has 

been required to act in the protection of his interests by bringing 

or defending an action against a third person is entitled to 

recover reasonable compensation for loss of time, attorney fees 

and other expenditures.” Restatement (Second) of Torts § 914(2); 

see also State v. Jamieson, 2017 UT App 236, ¶ 21, 414 P.3d 559

(discussing the third-party tort rule but concluding that it was 

inapplicable because the victim was compelled to participate in 

the prosecution pursuant to a subpoena and did not initiate or 

defend any litigation with third parties), cert. granted, 421 P.3d 

439 (Utah 2018). Without this exception, the costs of protecting 

victims’ interests resulting from criminal defendants’ actions 

would be inappropriately allocated to the victims themselves—a 

result that would contradict both equity and the very purposes

of the Restitution Statute. See State v. Ogden, 2018 UT 8, ¶ 43, 416 

P.3d 1132 (explaining that the purposes of the Restitution Statute 

are to compensate victims, to rehabilitate defendants, and to 

deter crime).

¶14 Here, the attorney and accountant fees fall directly within 

the parameters of the third-party tort rule. The fees are 

recoverable, in this situation, because they were incurred in 

response to Sevastopoulos’s admitted thefts and through the 

pursuit of litigation against the third-party Credit Card 

Companies. And although legally immaterial to whether the 
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20180452-CA 9 2020 UT App 6

third-party tort rule applies, the rule’s equity here is relatively 

easy to identify because Parents ultimately benefitted from the

third-party lawsuits. The district court reduced the figure the 

Accountant identified as stolen—$246,937.90—by $131,701.63 

based on the efforts of the attorney and Accountant to protect 

Parents’ financial interests through recovery of a portion of the 

stolen funds.4 Thus, not only are the attorney and accountant 

fees recoverable under the letter of the law, they fall within the 

spirit of the third-party tort rule as well, which is to incentivize 

injured parties to protect their interests and to mitigate damages.

See Restatement (Second) of Torts § 914(2).

¶15 Nevertheless, Sevastopoulos argues that the accountant 

fees were indistinguishable from investigation fees. However, 

the crucial distinction here is that Parents paid the Accountant to 

assist in the lawsuits against the Credit Card Companies, not to 

assist in Sevastopoulos’s criminal prosecution. That the 

Accountant’s work was later helpful to the State in its 

 

4. Sevastopoulos benefitted from the third-party lawsuits as 

well. The State focused its restitution efforts only on Parents—

the immediate victims of her fraudulent conduct. So, the 

amounts disgorged by the Credit Card Companies to Parents

were credited against the amount of their losses otherwise 

recoverable from Sevastopoulos, resulting in a substantially 

smaller restitution award. The State did not argue that the Credit 

Card Companies were victims of Sevastopoulos’s crimes or that 

she should have made restitution to the Credit Card Companies 

for the losses proximately caused by her misappropriation of 

Parents’ funds and ultimately borne by the Credit Card 

Companies. Thus, we have no occasion to consider whether the 

“demonstrable economic injury” sustained by the Credit Card 

Companies could have been included in the restitution award 

ordered in this case, in addition to the losses ultimately borne by 

Parents.
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20180452-CA 10 2020 UT App 6

prosecution is beside the point of whether Parents are entitled to 

restitution under the third-party tort rule for the costs that 

Parents incurred.

¶16 Sevastopoulos also argues that the attorney fees are not 

recoverable in a civil action for conversion, as a matter of law, 

citing Broadwater v. Old Republic Surety, 854 P.2d 527, 534 (Utah 

1993). This argument misapprehends Broadwater. In Broadwater, 

the plaintiff was not entitled to attorney fees because she 

proceeded in litigation against the original tortfeasor. Id. at 535. 

However, in coming to this conclusion, our supreme court 

specifically recognized the difference between the case before it 

and the situation where a party has to protect its interests 

through litigation with a third party based on the actions of 

the original offending party—in other words, the third-party 

tort rule. Id. Thus, Broadwater simply is not applicable to this 

case.

¶17 Accordingly, because we conclude that the attorney and 

accountant fees would be recoverable in a civil action under the 

facts of this case, and thus compensable as restitution under the 

Restitution Statute, we affirm the portion of the restitution order 

related to the attorney and accountant fees.5

 

5. In cases like this one, the district court should ensure not only 

that the attorney fees were properly calculated, but that “an 

allocation is made between recoverable fees incurred in litigation 

with third parties and non-recoverable fees incurred in pursuing 

the negligent defendant or expended on causes of action not 

proximately necessitated by that defendant’s” actions. South 

Sanpitch Co. v. Pack, 765 P.2d 1279, 1283 (Utah Ct. App. 1988). 

Here, the attorney and accountant fees were strictly limited to 

the legal work performed to recover the stolen money from the 

third-party Credit Card Companies.
State v. Sevastopoulos

20180452-CA 11 2020 UT App 6

II. The Remaining Portions of the Restitution Order

¶18 Sevastopoulos contends that the district court erred by 

concluding that causation had been established for the entire 

amount of the requested restitution. Sevastopoulos is correct—

and the State concedes—that two transactions totaling $657.43

for which the district court ordered restitution were improper 

because Mother explicitly authorized them. We therefore reverse 

the district court’s order as to those two transactions. However, 

we disagree with Sevastopoulos that the court abused its 

discretion when it included the rest of the transactions in its 

restitution order.

¶19 “Proximate cause is required to find that a criminal 

activity has resulted in pecuniary damages” and thus to order 

restitution. State v. Ogden, 2018 UT 8, ¶ 48, 416 P.3d 1132 

(cleaned up). “For proximate cause to exist, the relationship 

between the [particular] act and the injury must be foreseeable.” 

Id. ¶ 47 (cleaned up).

¶20 Here, the record reflects that Sevastopoulos proximately 

caused the pecuniary damage related to the other 217 transfers. 

Sevastopoulos pled guilty to theft of the funds, and she admitted 

to Detective on several occasions that she made approximately 

200 transfers from Parents’ account to the Credit Card 

Companies. Detective added his testimony that, based on his 

investigation, the funds were indeed fraudulently transferred. 

Moreover, Parents testified that the transfers were unauthorized. 

Finally, the Accountant testified as to his assessment of the 

fraudulent transfers and calculation of the total amount of stolen 

money.

¶21 Despite her guilty plea and this evidence, Sevastopoulos 

maintains that the district court erred in its restitution order. All 

her arguments on this point focus narrowly on the facts 

favorable to her, while ignoring important countervailing 

evidence. We therefore determine that none of Sevastopoulos’s 
State v. Sevastopoulos

20180452-CA 12 2020 UT App 6

contentions have sufficient merit to reverse the remaining 

portion of the district court’s restitution order, but we address 

them in turn.

¶22 First, Sevastopoulos argues that because she pled guilty to 

only two counts of theft and her plea stated that both counts 

occurred “on or about January 17, 2015,” the State did not

establish proximate cause on more than two of the transfers. We 

disagree. We recently addressed a similar argument in State v. 

Randall, 2019 UT App 120, 447 P.3d 1232. In Randall, the 

defendant pled guilty to defrauding numerous investors, but he 

later argued that his guilty plea did not extend to all 156 victims

based on some similar language in his plea agreement. Id. ¶ 14. 

However, we pointed out that the district court acted within its 

broad discretion in ordering restitution to all 156 victims based 

on other language in the defendant’s plea agreement, the 

defendant’s own admissions of guilt, and the broad nature of the 

crime—engaging in a pattern of unlawful activity. Id. ¶¶ 14–18.

¶23 In this case, like the defendant did in Randall,

Sevastopoulos focuses too narrowly on the favorable language in 

her plea agreement. See id. ¶ 14. Sevastopoulos’s plea agreement 

also included language that she pled guilty to counts one and 

two in the amended information, and the amended information 

listed those offenses as occurring “on or about July 01, 2013, to 

January 17, 2015.” This clearly entails a broader time period than 

the single date on which Sevastopoulos focuses.6 The plea 

 

6. Sevastopoulos argues that transfers that were made outside of 

this period should not have been included in the district court’s 

restitution order. However, this argument was neither raised 

below nor presented to us until Sevastopoulos’s reply brief.

Other than to note that time was not an element of the offenses, 

we decline to address this argument any further. Camco Constr. 

Inc. v. Utah Baseball Academy Inc., 2018 UT App 78, ¶ 42 n.13, 424 

(continued...)
State v. Sevastopoulos

20180452-CA 13 2020 UT App 6

agreement also included Sevastopoulos’s assent to pay “any 

restitution that may be owed on charges that are dismissed as 

part of [the] plea agreement.” The State dismissed one count of 

felony theft and two counts of exploitation of a vulnerable adult, 

which indicates that there were additional counts—i.e., beyond 

the two on which Sevastopoulos focuses—that had no financial 

limits for which Sevastopoulos agreed to be liable. See Utah 

Code Ann. § 76-6-412(1)(a)(i) (LexisNexis 2012) (providing that 

theft of property is punishable as a second-degree felony when 

the “value of the property . . . exceeds $5,000”); id. § 76-5-

111(4)(a) (prohibiting financial exploitation of a vulnerable adult 

as to any financial amount).

¶24 And like the defendant in Randall, Sevastopoulos 

acknowledged to the district court, both orally and in writing 

through the plea agreement, that she would have a legal 

obligation to pay restitution to the victims for their financial loss. 

2019 UT App 120, ¶ 15. She also admitted to Detective that she 

had made the numerous transfers, like the defendant’s 

admission of defrauding the numerous investors in Randall. Id.

We therefore reject Sevastopoulos’s argument that she owes 

restitution for only two transfers based on her plea agreement. 

Utah Code Ann. § 77-38a-302(2)(a) (“‘Complete restitution’

means restitution necessary to compensate a victim for all losses 

caused by the defendant.”).

¶25 Second, Sevastopoulos argues that the district court 

should not have included restitution for 125 electronic transfers 

that included check numbers. But a claim that she did not make 

these transfers would be directly contradicted by her admission

 

(...continued)

P.3d 1154 (“Issues raised by an appellant in the reply brief that 

were not presented in the opening brief are considered waived 

and will not be considered by the appellate court.” (cleaned up)).
State v. Sevastopoulos

20180452-CA 14 2020 UT App 6

to Detective that she made approximately 200 transfers because 

without these 125 transfers, the total number of transfers would 

be fewer than 100. Also, Parents testified that they never made

electronic transfers, and there was evidence that many electronic 

bank transfers are in fact executed by using check numbers.7

Therefore, once again, Sevastopoulos ignores the contradictory 

evidence upon which the district court appropriately based its 

order.

¶26 Finally, Sevastopoulos argues that the transfers to U.S. 

Bank were improperly included because even Parents’ attorney 

admitted that the case against U.S. Bank was correctly dismissed. 

This is only half of the story. After Parents’ attorney agreed to 

dismiss the case, the Accountant looked further into the situation 

and determined that there were, in fact, unauthorized transfers 

to U.S. Bank, and the Accountant so testified at the restitution 

hearing.

¶27 Simply put, Sevastopoulos’s arguments are unpersuasive

because they do not paint the complete factual picture. 

Accordingly, because we cannot conclude that the district 

court erred in determining that Sevastopoulos’s conduct 

proximately caused the financial harm to Parents in connection 

with the 217 transfers, we affirm its order in this regard. 

However, as previously stated, we reverse the district court’s 

 

7. Although the two explicitly authorized transfers had 

associated check numbers, this does not ipso facto prove a 

conflict in Parents’ testimony about never making electronic 

transfers because Sevastopoulos could have easily made them 

electronically with use of the check numbers. Moreover, the 

“existence of a conflict in the evidence does not render the 

totality of the evidence insufficient. It is the role of the factfinder 

to examine and resolve such conflicts.” State v. Black, 2015 UT 

App 30, ¶ 19, 344 P.3d 644.
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20180452-CA 15 2020 UT App 6

inadvertent inclusion of the two transfers that Mother explicitly 

authorized.

III. Ineffective Assistance of Counsel

¶28 Sevastopoulos contends that her counsel was 

constitutionally ineffective for not raising a constitutional due 

process objection to the restitution order. To prevail on an 

ineffective assistance of counsel claim, a defendant must 

establish both that counsel’s performance was objectively 

deficient and that the deficient performance prejudiced the 

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. 

Wilder, 2018 UT 17, ¶ 17, 420 P.3d 1064. “Because both prongs of 

the Strickland test must be met to establish ineffective assistance

of counsel, we need not always address both prongs.” State v. 

Goode, 2012 UT App 285, ¶ 7 n.2, 288 P.3d 306; see also State v. 

Roberts, 2019 UT App 9, ¶ 23, 438 P.3d 885 (“In practice, we often 

skip the question of deficient performance when a defendant 

cannot show prejudice.”). In this case, because Sevastopoulos

cannot show prejudice, we do not address the deficient

performance prong.

¶29 “To show prejudice in the ineffective assistance of counsel 

context, the defendant bears the burden of proving . . . that there 

is a reasonable probability that, but for counsel’s errors, the 

result of the proceeding would have been different.” State v. 

Beverly, 2018 UT 60, ¶ 30, 435 P.3d 160 (cleaned up). It is 

insufficient to show “some conceivable effect on the outcome of 

the proceeding”; rather, “the likelihood of a different result must 

be substantial.” Menzies v. State, 2014 UT 40, ¶ 91, 344 P.3d 581 

(cleaned up). “A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.” Strickland, 466 U.S. at 

694.

¶30 Sevastopoulos cannot show prejudice because the 

evidence against her was sufficiently robust and because she 

received significant opportunities to contest the ordered 
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20180452-CA 16 2020 UT App 6

restitution at her hearing. Compare State v. Weeks, 2002 UT 98, 

¶ 21, 61 P.3d 1000 (holding that “the presentence report 

sufficiently supported the sentencing court’s” restitution order,

even though it was “the only evidence presented to the 

sentencing court”), with State v. Robinson, 860 P.2d 979, 982 (Utah 

Ct. App. 1993) (holding that ordering restitution violated the 

defendant’s right to due process because he “never had an 

opportunity to raise the issues of whether his improper lane 

change was the proximate cause of the victims’ injuries or 

whether the victims were comparatively negligent”). The district 

court based the restitution order on all the evidence outlined 

above: (1) significant testimony from Parents, Detective, and the 

Accountant; (2) Sevastopoulos’s own admissions and plea 

agreement; and (3) documentary evidence of the bank transfers. 

The court also provided Sevastopoulos with ample opportunity 

to contest the State’s restitution evidence: (1) Sevastopoulos had 

months to prepare; (2) she moved for a continuance on the day 

of the initial restitution hearing, which the court granted; (3) the 

court ensured that the parties exchanged financial declarations, 

witness lists, and exhibit lists; and (4) Sevastopoulos had an 

opportunity at a full-day hearing to present her case.

¶31 Nevertheless, Sevastopoulos contends that her right to 

due process was violated because she did not receive the 

opportunity to utilize interrogatories or depositions. We cannot 

agree. She never requested to use these discovery tools during 

the proceedings at the district court. Nor does she explain what 

evidence they would have unearthed to benefit her cause. 

¶32 Moreover, due process was afforded to Sevastopoulos. 

Due Process is generally defined as providing, “at a minimum, 

timely and adequate notice and an opportunity to be heard in a 

meaningful way,” In re Worthen, 926 P.2d 853, 876 (Utah 1996)

(cleaned up), and is a flexible concept of fairness affording 

procedural protections that a given situation demands, Dairy 

Product Services, Inc. v. City of Wellsville, 2000 UT 81, ¶ 49, 13 P.3d 
State v. Sevastopoulos

20180452-CA 17 2020 UT App 6

581. From Sevastopoulos’s sentencing on August 30, 2017, which 

included restitution as a condition of her guilty plea, to the final 

restitution hearing on April 26, 2018, 239 days had passed. This 

is longer than the 210 days to complete discovery in a tier 3 civil 

action claiming damages of $300,000 or more. Utah R. Civ. P. 

26(c)(5). Thus, she had notice and abundant time to prepare. 

Furthermore, the district court afforded Sevastopoulos a full-day 

evidentiary hearing and required the parties to make significant 

disclosures. Finally, Sevastopoulos makes no claim that she was 

precluded from calling any witnesses or offering any particular 

evidence.

¶33 In short, we cannot conclude that there is a reasonable 

probability that the outcome of the restitution order would have 

been different, even if Sevastopoulos’s attorney had raised the 

due process objection, given the strength of the evidence and the 

process provided to her.

CONCLUSION

¶34 We conclude that the district court erred by including the 

two transfers that Mother explicitly authorized in the restitution 

order. We therefore remand the matter for the district court to 

enter an amended restitution order, reducing the total amount of 

restitution by $657.43. However, we conclude that the district 

court did not otherwise err when it included the attorney and 

accountant fees and remaining transfers in the restitution order. 

Finally, we conclude that Sevastopoulos’s attorney was not 

constitutionally ineffective.

¶35 Affirmed in part, reversed in part, and remanded.