1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 46500

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.
ROY CLINE JOHNSON ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Opinion Filed: February 24, 2020
Karel A. Lehrman, Clerk

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Christopher S. Nye , District Judge.

Order of restitution , vacated

. Eric D. Fredericksen, State Appellate Public Defender; Kim A. Coster , Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake , Deputy Attorney General, Boise, for respondent.

HUSKEY, Chief Judge Roy Cline Johnson appeals from the district court’s order of restitution. Johnson argues the district court lacked the jurisdiction to grant the motion for restitution because it was filed by the crime victim, who was not a party to the defendant’s criminal case. Alternatively, Johnson contends the district court abused its discretion by ordering restitution after the statutory time expired and in determin ing the amount of restitution. The State respon ds by asserting that the district court had jurisdiction to order Johnson to pay restitution and did not abuse its discretion

. Because the State was not seeking restitution on behalf of the crime victim and the victim did not have standing to file a resti tution motion, the district court lacked authority to consider the motion. Thus , the order of restitution is vacated.2 I. FACTUAL AND PROCEDURAL BACKGROUND The State charged Johnson with felony aggravated driving under the influence of alcohol , I daho C ode § 18

- 8006 , after Johnson stru ck a pedestrian while dr iving under the influence , causing injuries to the victim

. The district court appointed a public defender to represent Johnson in the proceedings. Pursuant to a plea agreement, Johnson pled guilty to the offens e

. At the sentencing hearing, the State asked the district court to reserve the issue of restitution to give it additional time to determine the victim’s ec onomic loss as medical bills were still coming in and communicatio ns with insurance companies were ongoing. T he district court sentenced Johnson to a period of confinement of ten years , with three years determinate, and reserved the matter of restitution for 180 days. During the following eight months, the victim went t hrough a period of homelessness and

was incarcerated following a conviction for felony driving under the influence. The victim retained an attorney , Jeffrey McKinnie, to assist in seeking restitution and filing a civil action against Johnson

. In mid

- Ma rch , McKinnie file d a motion for preparation and copy of the judgment of conviction and motion for an order of restitution in Johnson’s criminal case. The motion stated that negotiation attempts to resolve the victim’s outstanding medical bills with Johnson’s insurance company had been unsuccessful , but McKinnie believed obtaining a copy of Johnson’s judgment of conviction would substantially assist the process

. McKinnie no ticed the motion for a hearing and included an affidavit from the victim stati ng as a result of the traumatic brain injury he incurred during the accident , he could not recall if the State had cont acted him regarding restitution. McKinnie did not include Johnson or Johnson’s counsel o n the motion for restitution’s certificate of se rvice

. S ix days later, the victim , represented by McKinnie , and Johnson formalized a civil settlement; the victim signed a release of all claims against Johnson in exchange for $100,000, which was paid by Johnson’s insurance company. In the settlement , the victim recognized the injuries he sustained from the accident m ay be permanent and progressive, yet he released Johnson from liability for: any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses, compensation and all consequential damage on account of or in any way growing out of any and all known and unknown, present or future or unanticipated personal injuries and propert y damage resulting or to result

.3 McKinnie took an active part in the civil settlement and serv ed as th e notary public on the release. Despite the civil settleme nt McKinnie brokered, he continued to pursue the restitution order on the victim’s behalf. Neither Johnson nor the victim was transported to the scheduled restitution h earing, so the district court continued the hearing . The court directed McKinnie to prepare the appropriate transport orders . McKinnie prepared the orders and incorrectly indicat ed that he was the attorney for the defendant in the header and body of the documents. Like McKinnie’s previous filing , he failed to include Johnson or his counsel on the certificates of service. Next , McKinnie filed a supplementa l affidavit on behalf of the victim to reflect an
i ncrease in the medical costs incurred, now totali ng more than $100,000. Appr oximately three weeks later, and almost two months after McKinnie filed the initial motion for preparation and copy of the judgment of conviction and motion for an order of restitution, Johnson’s court

- appointed attorney filed an order to transport Johnson to the restitution hearing. However, Johnson’s attorney did not have a copy of McKinnie’s underlying

mot ion and briefing related to the restitution request at that time ; McKinnie provided Johnson with these documents the morning of the restitution hearing. The district court continued the hearing because the victim had not been transported. At the next restitution hearing, Johnson, the State, the victim , and all relevant attorn eys

were present

. At the onset, Johnson’s counsel challenged the basis of the restitution hearing, objecting to the victim’s standing to independently file motions within a criminal case without going through the prosecuting attorney’s office. The State, in its sole moment of participation in the hearing, concurred: There is an issue of standing as far as the victim being able to file or petition the Court for their own restitution order separate and apart from anything done t hrough the prosecutor’s office. I think if we’re j ust addressing that point, then I think [Johnson’s attorney] has a valid point. In response, McKinnie directed the district court’s attention to I daho Code § 19

- 5304(6) which states: Restitution orders s hall be entered by the court at the time of sentencing or such later date as deemed necessary by the court. Economic loss shall be based upon the preponderance of evidence submitted to the court by the prosecutor, defendant, vict im or presentence investig ator. Each party shall have the right to present such evidence as may be relevant to the issue of restitution, and the court may consider such hearsay as may be contained in the presentence report, victim impact statement or otherwise provided to the cour t.4 T he court allowed the res titution hearing to go forward. 1
McKinnie presented oral argument in support of the motion for restitution, arguing : (1) the civil settlement was solely to compensate for pain, suffering, and lost wages, not for medical bills incurred as a result of the offense , and (2) I .C. § 19

- 5304(2) precludes the court from considering the insurance payment in the restitution award. T he district court requested additional briefing from Johnson and McKinnie regarding the court’s ability t o consider the insurance payment to the victim and whether Johnson objected to the victim’s as serted amount of economic loss. The State did not participate in the addition al briefing. After consider ation, t he district court held the civil settlement, rel ease, and prior insurance paymen ts did not limit the trial court’s ability to award restitution equal to the full amount of the victim’s medical economic loss

. The court entered a restitution order for $101,665.64. Johnson timely appeals.
II

. STANDARD O F REVIEW When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi

- tiered inquiry to determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its decision by an exercise of reason. State v. Herrera , 164 Idaho 261, 270, 429 P.3d 149, 158 (2018). Over questions of law , this Court exercise s free review. State v. O’Neill , 118 Idaho 244, 245, 796 P.2d 121, 122 (1990).
III. ANALYSIS Johnson argues the district court lacked jurisdiction to order restitution bec ause neither the crime victim nor McKinnie had standing to independently file the underlying motion for restitution w ithin Johnson’s criminal case. Jurisdictional issues , such as standing , are questions of law. Tucker v. State , 162 Idaho 11, 17, 394 P.3d 54, 60 (2017)

. A court’s j urisdiction has two components : jurisdiction of the subject matter of the proceeding and jurisdiction of the p erson.

1 It is unclear from the appellate record whether the court held I daho Code § 19

- 5304(6) gave the victim standing to file a restitution motion and present evidence of economic loss within a criminal case or whether the court determined the statute conferred independent judicial authority to order restitution, despite the presence of a standing issue

.5 Hanson v. State , 121 Idaho 507, 509, 826 P.2d 468, 470 (1992). Jurisdiction over the subject matter refers to the authority of the court to exercise judicial power over a particular class or type of dispute, id

. , while jurisdic tion over the person refers to the court’s power to bring a person into its adjudicative pro cess. State v. Ambro , 142 Idaho 77, 79, 123 P.3d 710, 712 (Ct. App. 2005). “A criminal trial court is without subject matter jurisdiction or authority to order restitution unless provided by statute.” State v. Jensen , 149 Idaho 758, 760, 241 P.3d 1, 3 (Ct. App. 2010 ). However, I .C. § 19

- 5304(2) grants trial courts the power to order a defendant who is found guilty of any crime to pay restitution to the victim if there is an economi c loss as a result of the crime

. Therefore, b y statute , c riminal trial courts are clo aked with subject matter jurisdiction r elative to restitution orders. State v. Keys , 160 Idaho 95, 97 , 369 P.3d 313, 315 (Ct. App. 2016)

. However, the establishment of a court’s subject matter jurisdiction over the type of action does not automatically confer personal jurisdiction over the people before it

. See Hanson , 121 Idaho at 509, 826 P.2d at 470. In criminal matters, personal jurisdiction generally relates to the ability of a trial court to bring a defendant into the adjudicative p rocess . W ithout personal jurisdiction the court has no person to which to hold account able to for the crime alleged. See State v. Rogers , 140 Idaho 223, 228, 91 P.3d 1127, 1132 (2004)

. Although a court may gain personal jurisdiction when a party appears and submits to the court’s jurisdiction, id

. , a court generally lacks personal jurisdiction over individuals who are not parties, or have not been served by parties, to the action. Hooper v. State , 150 Idaho 497, 500, 248 P.3d 748, 751 (2011) (holding th e district court lacked personal jurisdiction over the Idaho Industrial Commission in a criminal restitution action because the Commission was never a party to the action and had not been served with a summons and complaint, or submitted to th e district co urt’s jurisdiction )

. Similarly, a court lacks jurisdiction to hear a case if a person does not have standing because the case or controversy requirement for judicial power cannot be satisfied. Martin v. Camas Cty. ex rel. Bd. Comm’ rs , 150 Idaho 508, 512, 248 P.3d 1243, 1247 (2011)

. Standing issues may arise when a non

- party attempts to make a motion to the trial court. See S tate v. Draper , 151 Idaho 576, 597, 261 P.3d 853, 874 (2011) . In Draper , the Idaho Supreme Court found the district court’s de ferment to a procedural request by the presentence investigator troubling because “ as the investigator was not a party to the case, he or she has no standing to6 make a motion to t he court. Simply p ut, it was not the investigator’ s role to request a differ ent procedure for the [presentence investigation report]

. ” Id. Under Idaho’s current statutory scheme, crime victims are not parties to a criminal case even for the limited purpose of seeking restitution and therefore lack standing to pursue a motion independently of a party

. The Idaho Constitution provides “ every action prosecuted by the people of the state as a party, against a person charged with a public offense, for the punishment of the same, sh all be termed a criminal action. ” I DAHO C ONST . art . V, § 1

. This principle is echoed statutorily by I.C. § 19

- 104, which defines the S tate and the person charged as the onl y parties to criminal actions. A t the core of these provisions is the belief that criminal prosecutions

are public matters, sought b y the S tate on behalf of its citizen , not contests between a defendant and a crime victim. See State v. Gault , 39 A.3d 1105, 1113 ( Conn. 2012)

. Although t he Idaho Constitution enumerates a series of rights for crime victims , including the right “ to restitution, as provided by law, from the person committing the offense that caused the victim’ s loss , ” it do es not confer upon a crime victim the status of a party in a criminal proceeding

. 2 I DAHO C ONST . art. I, § 22

. This is true, even when the proceed ing involves a restitution order. Although restitution statutes vary from state to state, it is generally understood while crime victims are sometimes present and often represented by counsel, the government is still the only party to the ca se, other than the defense, and procedurally, the
p rosecutor requests restitution. Cortney E. Lollar, What Is Criminal Restitution? , 100 Iowa L. Rev. 93, 110 (2014). Idaho Code § 19

- 5304 does not depart from this long

- standing principle. In the relevant provisions , I .C. § 19

- 5304 defines “victim” but does not defin e a crime victim as a party to the criminal proceedings , even for the limited purpose of seeking restitution.
As a crime victim is not a party to a criminal case, t he victim cannot intervene in a defendant ’s criminal proceeding because , u nlike Idaho Rule of Civil Procedure 24 , the Idaho

2 Similarly, o ther states have repeatedly held that a crime victim is not a party to a criminal
case , despite having statutory and constitutional rights

. See State v. Lorenzo , ___ P.3d ___, ___, 301 Or. App. 713, 718 (2020) (holding although crime victim has rights protected by state constitution, no ne of those rights purport to make victim party to criminal action s ) ; Cooper v. Dist. Court , 133 P.3d 692, 705 (Alaska Ct. App. 2006) ( noti ng distinct ion between protecting crime victims ’ procedural rights and allowing crime victims to participate as independent parties in criminal prosecution ) ; Lynn v. Reinstein , 68 P.3d 415

- 417 ( Ariz. 2003) (holding that even under liberal constructio n of state’s constitution and victim rights statutes , victims are not parties to defendant’ s criminal case)

.7 Rules of Criminal Procedure do not provide a process for intervention

. The inability of non

parties to intervene in a criminal case recognizes that the consideration s under lying intervention in a civil case are not applicable to a criminal proceeding. See People v. Ham , 734 P.2d 623, 625 (Colo. 1987)

. No other rule, statut e , or constitutional provision a llow s a crime victim to i ndependently intervene within a defendant’s criminal case. The Idaho Constitution bestows a crime victim with the right “ [t] o restitution, as provided by law, from the person committing the offense that caused the victim’ s loss

. ” I DAHO C ONST . art. I, § 22 (7). However, the Idaho Constitution does

not provide a right for a victim to seek restitution by independently intervening within a defendant’s criminal case

. 3
Because t he Idaho Constitution gives crime victims the right “ to restitution, as provided by la w,” additional statutory provisions further define the scope of restitution. Relevant here,
I .C. 19

- 5304(6) provides: Restitution orders shall be entered by the court at the time of sentencing or such later date as deemed necessary by the court. Economic loss shall be based upon the prepo nderance of evidence submitted to the court by the prosecutor, defendant, victim or presentence investigator. Each party shall have the right to present such evidence as may be relevant to the issue of restitution, and the court may consider such hearsay as may be contained in the presentence report, victim impact statement or otherwise provided to the court. This language is unambiguous; while a c rime victim may submit evidence to calculate possible economic losses as a res ult of the defendant’s actions, only the parties have the right to file motions , present such evidence, and seek the amount of restitution submitted

. Therefore,

r estitution sought by a motion filed by a non

- party within the criminal proceeding is not a process “as provided by law

. ” In stead, a party must file the motion for restitution for a trial court to have the authority to entertain it. The State seeking restitution on behalf of crime victims has consistently been the practice in Idaho

. See Keys , 160 Idaho at 96, 369 P.3d at 314 ( S tate submitted affidavit for restitution and district court ordered restitution ) ; State v. Cottrell , 152 Idaho 387, 390, 271 P.3d 1243, 1246 (Ct. App. 2012) ( S tate sought restitution and, after a rguments from both parties, court ordered

3 In recent legislative sessions, efforts to amend the Idaho Constitution to explicitly grant crime victims standing to assert their rights have fail ed

. See S.J. Res. 102 , 2019 Leg., 65 th Sess. (2019); H.J. R es

. 8, 2018 Leg., 64 th Sess. (2018).8 restitution) ; State v. Hill , 154 Idaho 206, 211, 296 P.3d 412, 417 (Ct. App. 2012) ( S tate filed request for order of restituti on and presented evidence of vi ctim’s evidentiary losses at evidentiary hearing); State v. Gonzales , 144 Idaho 775, 776

- 77 , 171 P.3d 266, 267

- 68 (Ct. App. 2007) ( S tate argued victim w as entitled to restitution at sentenc ing hearing and, later, filed motion for restitution after crime vi ctim requested restitution in victim impact statement included
in presentence investigation report ); State v. Taie , 138 Idaho 878, 879, 71 P.3d 477, 478 (Ct. App. 2003) ( S tate requested order of restitution and presented victim ’ s t estimony of economic loss and letter from insurer to support claim )

. This preserves the nature of criminal proceedings

as a process be tween the S tate and the defendant, while protecting a crime victim’s right t o a restitution amount that is properly commensurable to the economic loss caused by the defendant’s criminal actions. Allowing a non

- party to i nterven e in a defendant’s criminal proceeding would bring complicated consequences , including the potential to undermine the critical and distinct role of the prosecutor. Unlike private counsel, a prosecutor has the unique role as “a minister of justice and n ot simply that of an advocate.” Idaho Rules of P rofessional Conduct, 3. 8 cmt.1. While a prosecutor has a duty to communicate with the crime victim , see I DAHO C ONST . a rt. I, § 22 , “[t] he prosecutor generally serves the public and not any particular government agency, law enforcement officer or unit, witness or victim.” ABA Standard 3

- 1.3. I n the context of a restitution hearing, a prosecutor may seek a restitution order pr im arily to a ssist crime victims.
See State v. Olpin , 140 Idaho 377, 378, 93 P.3d 708, 709 (Ct. App. 2004)

. H owever , because restitution may fulfill deterrent or rehabilitative purposes, a prosecutor may additionally pursue restitution for the benefit of the S tate

. See i d. By a llowing a crime victim to independently intervene in a criminal proceeding to seek restitution , any consideration of interests outside the victim’s own may be subverted

. The constitutional and statutory rights provided to crime victims do not mean a crime victim has the authority to usurp the prosecutor’s distinct position within a criminal case. See Lindsay R. v. Cohen , 343 P.3d 435, 437

- 38 ( Ariz. Ct. App. 2015) (hold ing that allowing counsel for crime victim to file memorandums of law and conduct restitution hearing would impermissibly transform crim inal sentencing function into civil damag es trial )

. Further , allowing counsel for a crime victim to file a motion for restitutio n within a criminal case and present the S tate’s case for restitu tion without the support of the prosecutor’s9 office may give rise to significant conflicts of interest and due process concerns

. A defendant’s right to due process may be violated when a person who is a victim of the crime or who has a personal, financial , or attorney

- client r elationship with the victim of the crime prosecutes the criminal case

. S ee People v. Calderone , 573 N.Y.S.2d 1005, 1009 ( N.Y. Crim. Ct. 1991) . As a result, it is generally recognized that “[a] pr ivate attorney who is paid by, or who has an attorney

client relationship with, an individual or entity that is a victim of the charged crime . . . should not be permitted to serve as prosecutor in that matter.” ABA Standard 3

- 2.1(c). Th is reflects a

con cern that self

- serving motivations may underlie an attorney’s pursuit of both a civil settlement and a criminal restitution order to compensate a client for the same economic loss, particularly where the attorney has a financial stake in the outcome of the proceedings. This concern is ameliorated when the State is tasked with protecting the interests of the

non

- party victim. Moreover, the State must weigh many factors when determining whether to pursue restitution on behalf of a crime victim. The prosecutor, as a representative of the state and the people, is fully capable of bringing to the court’s attention any and all matters that might possibly bear on a sentencing decision. See Ham , 734 P.2d at 626. Many of the facts in this case
may exp lain the State’s reticence to participate in the unorthodox process and amply demonstrate why it is inappropriate for a crime victim to usurp the State’s considerations and independently intervene within a defendant’s criminal case to pursue a restitution order. Here, McKinnie did not simply submit evidence of economic loss for the district court’s consideration as provided for by I.C. § 19

- 5304(2) and ask the State to pursue restitution. Instead, McKinnie presented the motion for restitution independent ly of the parties to the proceeding. McKinnie filed the motion for restitution and noticed the motion for hearing, but failed to provide notice to Johnson or Johnson’s counsel. McKinnie filed transport orders for Johnson and the victim , i ncorrectly indic ating he was Johnson’s attorney, presented oral argument at the restitution hearing, and submitted post

- hearing briefing in support of his motion for restitution. None of these actions were made in consultation with, or on behalf of, the prosecutor’s offi ce. Further, McKinnie pursued restitution after brokering a civil settlement that released Johnson from any addition al financial responsibility. Additionally, at the restitution hearing, the victim, through McKinnie, conceded he had not paid any of his m edical bills with the insurance settlement, the insurance company had not attempted to recover its expenses from the victim through a lien, and the insurance company had not subrogated its claims to seek10 reimbursement from Johnson. As such, the victim had suffered no actual economic loss, nor was he likely to. Here, the crime victim did not have standing because he was not a party in Johnson’s criminal case and had no right to intervene in the proceedings. Therefore, the motion for restitution was not p roperly before the district court and so it was error for the district court to consider it.
T he State argues I .C. § 19

- 5304(2) vests the trial court with jurisdictional authority to order restitution within a criminal case ind ependent of a filing by a party and therefore , the validity of the court’s order of restitution order does not hinge on whether the crime victim had standing to file a restitution order

. This is incorrect for two reasons. First, the district court’s order of restitution is discre tionary ; the court can determine whether to order r estitution and in what amount. State v. Weaver , 158 Idaho 167, 170, 345 P.3d 226, 229 (Ct. App. 2014). Second, if the district court orders restitution, res titution can only be ordered “for any economic loss which the victim actually suffers.” I.C. § 19

- 5304. However, even if the statute was mandatory and not discretionary, in this case the district court acted solely on the motion of the non

- party victim , not on its independent authority. Therefore, w hile I.C. § 19

- 5304(2) vest s the trial court with subject matter jurisdiction to order restitution, the court must act “as provided by law,” which it did not do in this case. Because the third party did not have standing to intervene, the district court also erred in finding good cause to extend the time in which the motion could be filed. Because no good cause was established by the State, the district court erred in finding the motion was timely filed. Even if this Court could overlook the unique proce dural posture of the underlyin g proceedings in this case, based on the representations of McKinnie, ther e is simply no economic loss suffered by the victim. Idaho Code § 19

- 5304(2) limits restitution to “any economic loss which the victim actually suffers.” Here, the victim had not spent any money out

- of

- pocket to
pay medical bills , and at the time of the restitution hearing, non e of the providers had sought to execute a lien against the victim for his non

- payment. As such, at the time of the hearing, the victim had suffered no economic loss entitling him to restitution.
Because we vacate the order of restitution on this grou nd, we need not address whether the district court erred in consider ing the motion outside the 180

- day time period , whether McKinnie was precluded from pursuing the restitution request in the criminal case based on the11 language of the civil settlement and McKinnie’s financial interest in the outcome , o r whether the amount of restitution awarded in the criminal case should be offset by the a mount of the civil settlement.
IV. CONCLUSION Although c rime victims have a right to restitution in a criminal case, a crime victim is not a party to a criminal case and does not have a n independent right to intervene in a defendant’s criminal case. Because the district court’s restitution order was based on a motion filed by a

non

- party and b ecause there was no eviden ce the victim suffered any actual economic loss, the order of restitution constituted an abuse of discretion. Accordingly, the order of restitution is vacated. Judge GRATTON and Judge BRAILSFORD CONCUR

.