WILLIAM R. STOKES JUSTICE, SUPERIOR COURT.
matter before the court is the State of Maine's Motion to
Enforce Payment of Restitution dated June 23, 2016 and the
Defendant's Motion to Dismiss dated January 20, 2017. A
hearing on both motions was held on April 28, 2017, which
included testimony from Diana York the restitution clerk with
the Kennebec County District Attorney's Office, and the
Defendant Wendy Gagne. Also admitted into evidence were the
following exhibits: State's Exhibit 1 and Defendant's
Exhibits 1-12. Based upon the evidence presented at the
hearing and a review of the file in this case, and after
consideration of the arguments made by the parties, the court
makes the following findings of fact and conclusions of law.
October 3, 2002 the Defendant waived indictment to an
information charging her with one count of Class B theft by
deception of "over $400, 000" of property belonging
to Maine Pulp and Paper Association (MPPA), her former
employer. She entered a not guilty plea on October 10, 2002,
but changed her plea to guilty on October 30, 2002. The plea
agreement was a "cap" agreement whereby the State
could argue for 10 years, all but 5 years suspended with 4
years of probation and restitution, and the Defendant could
argue for less incarceration. Sentencing was held on February
6, 2003. Both the prosecution and the defense submitted
written sentencing memoranda. Attorney Charles Einsiedler of
the firm Pierce Atwood submitted a letter on behalf of the
Board of Directors of MPPA.
court (Studstrup, J.) sentenced the Defendant to 7 years,
with all but 30 months suspended followed by 4 years of
probation. As part of the judgment and commitment the
sentencing court ordered the Defendant to make restitution in
the amount of $400, 000 for the benefit of the victim. As a
condition of her probation, the Defendant was ordered to pay
restitution in the "maximum" amount of $400, 000
for the benefit of the named victim.
letter to the sentencing court, Attorney Einsiedler requested
restitution for his client in the amount of $367, 400, which
represented the claimed theft of $400, 000 minus payments
already made by the Defendant to MPPA of $32, 600. The State
sought an identical amount of restitution. State's
Exhibit 1 admitted at the hearing on April 28, 2017, reflects
restitution payments by the Defendant while incarcerated
and/or on probation totaling $15, 317.39.
court finds that the $400, 000 restitution amount made part
of the Defendant's judgment and her probation, was
intended to be a maximum amount before application of any
cash payments made by the Defendant to the victim.
Accordingly, the court further finds that the Defendant has
made cash payments totaling $47, 917.39 ($32, 600 $15,
317.39), leaving a balance of $352, 082.61 prior to the
application of any other credits to which the Defendant may
be entitled as discussed below.
letter to the sentencing court dated January 29, 2003,
Attorney Einsiedler made reference to three (3) properties
owned by the Defendant in the central Maine area as to which
the Defendant (and apparently her husband) granted the victim
mortgages. At the hearing on April 28, 2017 the Defendant
offered into evidence Defendant's Exhibits 1, 2 and 3
being recorded mortgage deeds on real estate in Pittston,
Augusta and Gardiner, respectively, each dated January 31,
2003. The Defendant testified that neither she nor her
husband had any further ownership interest in these
properties, and she had no knowledge or information about the
properties at this time.
for the Defendant also raised the possibility that MPPA may
have received an insurance settlement as a result of the
Defendant's employee theft, but no details of any such
payment was provided to the court. During a hearing on the
State's Motion to Revoke the Defendant's Probation
held on December 10, 2009 (Mills, J.) the Defendant presented
several letters her counsel had sent to Attorney Einsiedler
in 2009 seeking information regarding any insurance payments
and/or any proceeds obtained from the foreclosure of the 3
properties that were the subject of the mortgage deeds
identified as Defendant's Exhibits 1, 2 and 3. See
also Defendant's Exhibits 1, 2 and 3 to the Motion
to Revoke and Defendant's Exhibit 4 to Motion to
Enforce). According to counsel for the Defendant,
Attorney Einsiedler did not provide any information regarding
insurance payments or any proceeds from the three parcels of
Defendant's motion to dismiss is premised on two
arguments. First, she contends that the State's earlier
motion to revoke her probation for failure to pay restitution
was denied and, thereafter, her probation terminated. Thus,
she claims that her restitution obligation no longer exists.
As explained on the record at the April 28, 2017 hearing, the
court disagrees with this contention because the
Defendant's obligation to make restitution was part of
the sentencing judgment, in addition to being a condition of
her probation. See 17-A M.R.S. §§1326-A,
1326-F and 1329.
the Defendant maintains that earlier this year the Maine Pulp
and Paper Association dissolved as a nonprofit corporation.
See Defendant's Exhibits 5, 6 & 7. Thus, the
Defendant argues, there is no longer a victim for whose
benefit restitution must be paid. The Maine Criminal Code
does not appear to clearly address this issue. Nevertheless,
the court concludes that the corporation's entitlement to
restitution from the Defendant is an asset of the corporation
and the directors of the corporation, as liquidating
trustees, have the authority to dispose of any undistributed
property of the corporation. See 13-B M.R.S.
§§1111(2) and 1104(1)(D) & (2).
reasons stated on the record of the April 28, 2017 hearing,
the Defendant's motion to dismiss the State's motion
to enforce restitution is denied.
Defendant further argues that it is the State's
responsibility and burden to account for any other payments
received by the victim from some collateral source, such as
insurance or from the proceeds of the sale of the three
mortgaged properties. The court agrees that it is the
State's initial burden of proving "the extent of the
victim's loss." State v. Berube, 1997 ME
165, ¶ 19, 698 A.2d 509. On that issue the State has
satisfied its burden. In the court's view, it is the
Defendant's burden to present evidence that she should be
credited with additional amounts that may have been
subsequently paid to the victim from a collateral source or
from the sale of the three parcels of mortgaged real
her testimony on April 28, 2017 the stated that based on her
current income and financial resources she has the ability ...