Argued: November 6, 2018
E. Sandy, Jr., Esq. (orally), Sherman & Sandy,
Waterville, for appellant Wendy L. Gagne
Maeghan Maloney, District Attorney, and Paul Cavanaugh II,
Dep. Dist. Atty. (orally), Office of the District Attorney,
Augusta, for appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
REPORTER OF DECISIONS
Wendy L. Gagne appeals from an order to enforce payment of
restitution entered by the Superior Court (Kennebec County,
Stokes, J.) following a hearing on a motion to
enforce payment of a restitution obligation originally
imposed as part of a 2003 sentence imposed by the court
[Studstrup, J.). Because the motion court erred in
imposing the burden on Gagne to prove the current balance of
the court-ordered restitution for the victim's
uncompensated losses-information more accessible to the State
because it relates to or is available from the victim of the
crime-we vacate and remand for a further hearing.
The relevant facts are drawn from the docket entries, the
trial court's file and the record of the motion hearing.
On October 10, 2002, Gagne waived indictment and was charged
by information with theft by deception (Class B), 17-A M.R.S.
§ 354(1), (2) (A) (2017). Maine Pulp and Paper Association
(MPPA), Gagne's employer, was identified as the victim of
the theft. Gagne initially pleaded not guilty, but on October
30, 2002, she changed her plea to guilty of the Class B
theft, with the case continued for sentencing.
Following her plea, but prior to sentencing, Gagne and her
husband, as part of an effort to compensate MPPA for losses
occasioned by the theft, granted mortgages to MPPA on
properties they owned located in Augusta, Gardiner, and
Sentencing occurred on February 6, 2003. On Gagne's plea
of guilty to theft by deception (Class B), the court
sentenced Gagne to the Department of Corrections for a term
of seven years, with all but thirty months suspended, to be
followed by probation for a term of four years. As part of
the judgment, Gagne was ordered to pay restitution in the
amount of $400, 000. Gagne's conditions of probation
separately required that she pay a "maximum" amount
of restitution of $400, 000 for the benefit of MPPA.
In March 2009, around the time when Gagne's term of
probation would have been scheduled to end, the State filed a
motion to revoke Gagne's probation because the ordered
restitution had not been paid in full. Following a hearing on
December 10, 2009, the court [Mills, J.) denied the
motion. The facts related to the 2009 hearing are addressed
in the 2017 motion court's findings, stated below. The
record does not indicate that Gagne's term of probation
was extended beyond its scheduled expiration.
In June 2016, the State filed a motion to enforce payment of
restitution. In January 2017, Gagne filed a motion to dismiss
the motion to enforce. The grounds for the motion to dismiss
were (1) res judicata based on the 2009 denial of the motion
to revoke probation for nonpayment of restitution and (2) the
early 2017 dissolution of MPPA. The motions were heard on
April 28, 2017, and decided by an opinion [Stokes,
J.) dated May 4, 2017. In that decision, the court
ordered Gagne to pay $200 per month beginning in May and
indicated that a further hearing would be scheduled for June
to determine the amount of any credit to be given to Gagne
for any funds recovered by MPPA from insurance or foreclosure
of the three mortgages given by Gagne and her husband.
Gagne filed an appeal from the May 4, 2017, order. We
dismissed that appeal as interlocutory because the order
contained a footnote stating that the court had
"scheduled a follow-up hearing" in case there was a
"need to take additional evidence relevant to the issue
of whether the victim has received compensation from a
collateral source or has received any proceeds from the
mortgaged real estate." After remand, however, the
motion court indicated that its decision was final and that
no further hearing would be scheduled. In April 2018, Gagne
filed a timely notice of appeal from the motion court's
final order. See 15 M.R.S. § 2115 (2017); M.R.
App. P. 2A, 2B.
The relevant facts are outlined in the following findings of
fact stated by the motion court. These findings are supported
by competent evidence in the record. See State v.
Nisbet, 2018 ME 113, ¶ 9, 191 A.3d 359.
As part of the  judgment and commitment the sentencing
court ordered [Gagne] to make restitution in the amount of
$400, 000 for the benefit of the victim. As a condition of
her probation, [Gagne] was ordered to pay restitution in the
"maximum" amount of $400, 000 for the benefit of
the named victim.
In his letter to the sentencing court, [MPPA's attorney]
requested restitution for his client in the amount of $367,
400, which represented the claimed theft of $400, 000 minus
payments already made by [Gagne] 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 made by [Gagne] while incarcerated
and/or on probation totaling $15, 317.39.
The court finds that the $400, 000 restitution amount made
part of [Gagne's] judgment and her probation, was
intended to be a maximum amount before application of any
cash payments made by [her] to the victim. Accordingly, the
court further finds that [Gagne] 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 [Gagne] may be entitled as discussed below.
In his letter to the sentencing court dated January 29, 2003,
[MPPA's attorney] made reference to three (3) properties
owned by [Gagne] in the central Maine area as to which
[Gagne] (and apparently her husband) granted the victim
mortgages. At the hearing on April 28, 2017, [Gagne] 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.
[Gagne] testified that neither she nor her husband had ...