State v. Jamieson

               THE UTAH COURT OF APPEALS

                         STATE OF UTAH,
                           Appellee,
                               v.
                         GARY JAMIESON,
                           Appellant.

                      Amended Opinion 1
                        No. 20150863-CA
                      Filed January 7, 2021

             First District Court, Logan Department
              The Honorable Brandon J. Maynard
                           No. 121101017

           Emily Adams and Freyja Johnson, Attorneys
                        for Appellant
          Sean D. Reyes, Jeanne B. Inouye, and Karen A.
                Klucznik, Attorneys for Appellee

     JUDGE RYAN M. HARRIS authored this Opinion, in which
         JUDGES MICHELE M. CHRISTIANSEN FORSTER and
               DAVID N. MORTENSEN concurred.


1. This Amended Opinion replaces the Opinion in Case No.
20150863-CA, issued on December 29, 2017. After our previous
opinion issued, the State petitioned the Utah Supreme Court for
certiorari review of this court’s ruling regarding Jamieson’s
ineffective assistance of counsel claim; the supreme court
“provisionally granted” the petition, but stayed proceedings
pending the outcome of State v. Ray, 

, 

,
and State v. Scott, 

, 

. Following issuance of
its opinions in those cases, the supreme court issued an order
remanding this case back to this court “for further proceedings
in light of the opinions in Ray and Scott.” After reviewing Ray
and Scott, as well as supplemental briefing submitted by the
parties, we issue this Amended Opinion.
                         State v. Jamieson


HARRIS, Judge:

¶1     Gary Jamieson downloaded, without authorization, over
1,400 of his boss’s emails and disseminated them to outside
parties. He later pled guilty to one count of “computer crimes,” a
class A misdemeanor. See 

(1)
(LexisNexis 2017). The State sought restitution on behalf of his
employer (Company), the victim of the crime. After holding a
hearing, the district court calculated complete restitution in the
amount of $120,378.27, a figure representing, in large part, the
estimated value of the time Company officials spent dealing
with the aftereffects of the email download.

¶2     Jamieson appeals from the restitution order, and asks us
to consider two arguments. 2 First, he argues that the district
court improperly included in its restitution figure at least some
amount for time spent by Company employees while
participating in the criminal case (e.g., attending hearings).
Jamieson did not raise this argument below, but contends that
the district court plainly erred by including any such amounts in


2. In his briefing on appeal, Jamieson raised a third argument:
that his counsel was ineffective for failing to move to withdraw
Jamieson’s guilty plea after the court had already sentenced him.
In connection with this argument, Jamieson filed a motion for
remand, pursuant to rule 23B of the Utah Rules of Appellate
Procedure, asking this court to remand the case to the district
court for additional factual findings on the issue. However,
while this case was pending, the Utah Supreme Court issued its
decision in State v. Rettig, 

, 

, in which the
court upheld the constitutionality of Utah’s plea withdrawal
statute. Id. ¶ 13. That statute requires that “[a] request to
withdraw a plea of guilty . . . be made by motion before sentence
is announced.” 

(2)(b) (LexisNexis
2017). In light of the supreme court’s decision in Rettig and the
statute’s plain mandate, Jamieson has since withdrawn this third
argument as well as his related rule 23B motion.




20150863-CA                     2                 

                         State v. Jamieson


its calculation. Second, Jamieson asserts that he received
ineffective assistance of counsel because his attorney failed to
take issue with the Company CEO’s claim that he had devoted
553 hours to dealing with the email download.

¶3      We find Jamieson’s arguments persuasive. Accordingly,
we vacate the restitution order and remand the case to the
district court for a new restitution hearing.


                        BACKGROUND

¶4     Jamieson was employed by Company as its chief
engineer. In May 2011, Jamieson contacted another Company
employee and requested access to the Company Chief Executive
Officer’s (the CEO) emails. At that time, the CEO was out of the
country and was not reachable by phone. The employee gave
Jamieson “remote access to [the CEO’s] computer, bypassing the
firewall, other network protections and password controls,”
thereby allowing Jamieson direct access to the CEO’s computer.
Jamieson had full access to the CEO’s computer for about twenty
minutes, and in that time period Jamieson printed out several
hard copy files and downloaded many of the CEO’s emails onto
a thumb drive. In this fashion, Jamieson obtained “at least” 1,400
emails comprising some 2,000 printed pages. The emails were
“very confidential” and included information regarding
employee compensation, pending business deals, plans to hire a
competitor’s employees, and communications with other
industry professionals.

¶5     Later, believing that Company was involved in illegal
activity, Jamieson told the CEO that “I have your email[s],
they’re very damning, I’m going to take you down.” Jamieson
disseminated the emails to a federal government agency, federal
law enforcement officials, and a local news organization.
Company eventually fired Jamieson.

¶6   The State charged Jamieson with one felony count of
“computer crimes.” See 

(1)


20150863-CA                     3                 

                         State v. Jamieson


(LexisNexis 2017). 3 At a preliminary hearing before a magistrate,
the CEO was asked how much time he had spent “dealing with
the fallout from [Jamieson’s] disclosures,” and he responded that
he had not kept time records, and “wish[ed] [he] could recall
that.” He gave an “estimate,” however, stating that “on average”
he had spent “an hour a day . . . over a two-year period.” He
acknowledged that a lot of the time he spent “was a rehash and
trying to reconstruct what brought this whole thing on,” and
attempting to “rehears[e] and re-rehears[e] the sequence of
events that led to this.” The magistrate bound the case over for
trial and, after plea negotiations, Jamieson pled guilty to one
count of “computer crimes” as a class A misdemeanor.

¶7     After Jamieson pled guilty, the State sought a total of
$164,609.77 in restitution. The bulk of this request consisted of
time spent by the CEO. Indeed, the State asserted that the CEO
had spent “553 hours (at minimum) . . . reviewing printed
emails, meeting with local [and federal] counsel, police
investigators, [and] staff,” and that the value of the CEO’s time
totaled $110,600. The State also sought $7,500 for time spent by
three other Company employees, including its vice-president.

¶8     The restitution hearing was scheduled and postponed
several times. The hearing was finally held in September 2015 4
and, at the hearing, the district court posed direct questions
about the 553 hours that the CEO claimed to have spent, asking
Company counsel to “[h]elp me understand the 553 hours.”
Company counsel proffered the testimony of the CEO and vice-president as follows:


3. The State also charged Jamieson with theft. On Jamieson’s
motion, the district court severed the theft charge from the other
charges, and Jamieson later pled guilty to the theft charge in a
separate case. That case is not at issue in this appeal.

4. The district court held the sentencing hearing and restitution
hearing on the same day.




20150863-CA                     4                 

                         State v. Jamieson


      [T]he time that they had spent would probably fall
      into one of two pots. The time that was directly
      related to mitigating the damages and time that
      they’d spent dealing with the criminal process in
      general. Because we’ve been in court three or four
      times for this restitution hearing to be continued.
      So I asked them to allocate that . . . . What they
      responded to me was—their initial reaction was
      about 75 percent of [their time] fell into the former
      pot and about 25 percent in the latter.

The CEO also stated that he “wished he would have kept better
records related to the time he spent on those [charges].”

¶9     The court invited Jamieson’s attorney to ask questions of
the Company employees. Jamieson’s attorney asked one specific
question—whether the vice-president was a salaried employee—
but otherwise declined to examine the Company employees
whose time was at issue. Specifically, counsel did not take the
opportunity to question the CEO about his claim that he had
devoted 553 hours to this case.

¶10 A few weeks after the restitution hearing, the district
court issued a written decision calculating “complete restitution”
at $120,378.27, a figure that was comprised almost entirely of
Company employees’ time. The court excluded attorney fees
from the calculation, but did not make any attempt to separate
and exclude Company employees’ time spent attending to the
criminal proceedings. The court credited the CEO with spending
553 hours on the matter, and calculated the value of the CEO’s
time at $110,600, exactly as the State requested. Likewise, the
court granted the State’s request, in its entirety, regarding the
other employees’ time, valuing that time at $7,500. After taking
Jamieson’s finances into account, the court ordered Jamieson to
pay $90,000, acknowledging that “the complete restitution in this
case is larger than the [c]ourt-ordered restitution.”




20150863-CA                     5                 

                          State v. Jamieson


¶11 In addition to the restitution order, the district court
sentenced Jamieson to a term of 365 days in jail, with 335 days
suspended. The court also imposed a probationary term of
thirty-six months on Jamieson, with the payment of court-ordered restitution as one of the conditions of probation.


            ISSUES AND STANDARDS OF REVIEW

¶12 Neither of the arguments Jamieson raises on appeal were
preserved in the district court. “When a party fails to raise and
argue an issue in the [district] court, it has failed to preserve the
issue, and an appellate court will not typically reach that issue
absent a valid exception to preservation.” State v. Johnson, 

, 

. Jamieson asks us to consider his
arguments on appeal under the plain error and ineffective
assistance of counsel exceptions to the preservation requirement.
See id. ¶ 19 (noting that plain error and ineffective assistance of
counsel are exceptions to the preservation rule).

¶13 Jamieson first argues that the district court plainly erred
by including in its restitution calculation monetary damages for
time the CEO and vice-president spent related to the criminal
litigation. Even where an issue is preserved below, “a reviewing
court will not disturb a district court’s [restitution]
determination unless the court exceeds the authority prescribed
by law or abuses its discretion.” State v. Laycock, 

, 

. To the extent that the district court made legal
determinations in connection with its restitution analysis, we
review those legal determinations for correctness. See State v.
Brooks, 

, 858–59 (Utah 1995) (“The standard of
review for a simple legal interpretation of a rule or statute is
correctness.”). To prevail under the plain error standard,
Jamieson must demonstrate that (1) an error exists; (2) the error
should have been obvious to the district court; and (3) the error
harmed him, “i.e., absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant.” State
v. Bond, 

, 

 (quotation simplified).



20150863-CA                      6                  

                         State v. Jamieson


¶14 Second, Jamieson argues that his trial attorney was
constitutionally ineffective for failing to challenge the amount of
time the CEO allegedly spent addressing the aftereffects of the
email download. A claim for ineffective assistance of counsel
raised for the first time on appeal presents a question of law,
which we review for correctness. State v. Kozlov, 

, 

.


                            ANALYSIS

                                 I

¶15 Jamieson first argues that the district court plainly erred
by including in its restitution calculation at least some amount of
time spent by Company employees in addressing the criminal
litigation. We agree.

¶16 The Crime Victims Restitution Act (the Act) 5 provides
that “[w]hen a defendant enters into a plea disposition or is
convicted of criminal activity that has resulted in pecuniary
damages, . . . the court shall order that the defendant make
restitution to victims.” 

-38a-302(1)
(LexisNexis 2017). The Act defines restitution as “full, partial, or
nominal payment for pecuniary damages to a victim.” 

 § 77-
38a-102(11). At the time Jamieson pled guilty, the Act defined
“pecuniary damages” as follows:

       all demonstrable economic injury, whether or not
       yet incurred, including those which a person could
       recover in a civil action arising out of the facts or
       events constituting the defendant’s criminal
       activities and includes . . . lost earnings and



5. The Act, in its entirety, is codified at Utah Code Annotated
sections 77-38a-101 to -601 (LexisNexis 2017).




20150863-CA                     7                  

                           State v. Jamieson


       medical expenses, but excludes punitive           or
       exemplary damages and pain and suffering.

 § 77-38a-102(6) (2015). 6

¶17 There are two types of restitution: “complete restitution”
and “court-ordered restitution.” “Complete restitution” is “a
calculation of the restitution necessary to compensate [a victim]
for all losses caused.” State v. Brown, 

, 

 (quotation simplified). “Court-ordered restitution” is “a
subset of complete restitution that, among other things, takes
into account the defendant’s circumstances.” 

 (quotation
simplified). “Where facts do not provide a full evidentiary
foundation” for a restitution calculation, “the court must base its
determination on the best information available.” State v.
Laycock, 

, 

; see also 

-38a-203(1)(c) (LexisNexis 2017) (“The inability, failure, or
refusal of the crime victim to provide all or part of the requested
information shall result in the court determining restitution
based on the best information available.”).

¶18 Jamieson wisely does not dispute that a restitution award
can include amounts intended to reimburse crime victims for
time spent attempting to mitigate the deleterious effects of the
crime visited upon them. See State v. Birkeland, 

, 

 (“The value of labor necessitated by another’s
culpable conduct has been recognized as a form of economic
injury that is amenable to inclusion in a restitution award.”),
overruled on other grounds by State v. Ogden, 

, 

; see also 

-38a-102(6) (“lost earnings” are


6. The Act’s definition of “pecuniary damages” was amended in
2016 and now expressly includes “travel expenses reasonably
incurred as a result of participation in criminal proceedings.”

-38a-102(6) (LexisNexis 2017). In this
opinion, we apply the 2015 version of the Act’s definition of
“pecuniary damages.”




20150863-CA                       8               

                         State v. Jamieson


included as part of “pecuniary damages”). Instead, Jamieson
points out that, at least under the law in effect at the time of the
district court’s restitution order, any time that Company
employees spent attending to the criminal proceedings could not
be included in a restitution order as a matter of law, see Brown,

, and argues as a factual matter that the district
court’s restitution order in this case improperly included at least
some amount of time that falls into this category.

¶19 Jamieson’s legal argument is correct. In Brown, our
supreme court noted the “longstanding, well-settled rule” that
“forecloses recovery of costs or expenses incurred in the
maintenance of, or related to, litigation.” 

 In that case, the
victim asked the district court to include in its restitution order
$1,228 for lost wages and travel costs incurred by the victim and
her mother to attend hearings “[d]uring the criminal
proceedings.” 

 ¶¶ 6–8. The district court denied the request,
and the supreme court affirmed. The court cited the then-current
statutory definition of “pecuniary damages” available as part of
a restitution order, which, as noted, limited the damages to those
“which a person could recover in a civil action arising out of the
facts or events constituting the defendant’s criminal activities.”

 ¶ 22 (quoting 

-38a-102(6)). The court
observed that the victim and her mother “would not be eligible
to recover the lost wages or travel costs that were requested in
this case” in the context of a “civil tort action against Brown
arising out of his criminal activity.” Id. ¶ 23. Accordingly, the
court held that “the lost wages and expenses requested for [the
victim] and her mother are not ‘pecuniary damages’
compensable as an element of restitution.” Id. ¶ 24.

¶20 In response, the State acknowledges Brown, but asserts
that its holding is limited to situations where a victim appears at
a hearing voluntarily, and does not apply when a crime victim is
compelled by subpoena to participate in the criminal
proceeding. In support of this argument, the State points to the
Brown court’s reliance on section 914 of the Restatement (Second)
of Torts. See id. ¶ 23. That Restatement section sets forth the



20150863-CA                     9                  

                         State v. Jamieson


general rule that expenses incurred in maintenance of litigation
are not recoverable, but in its second subsection it provides an
exception for attorney fees, experts, and loss of time incurred in
bringing or defending a suit against a third party in order to
protect one’s interests as a result of the tortfeasors’ actions. See
Restatement (Second) of Torts § 914 (Am. Law Inst. 1979). On the
facts of this case, the State’s reliance on this Restatement
provision is misplaced.

¶21 The full text of the relevant subsection of that Restatement
provision reads as follows:

       One 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 thereby suffered or incurred in
       the earlier action.

Id. § 914(2). The comment to this subsection makes clear that this
provision applies only if a prior tort (e.g., Jamieson’s crime)
caused a person to become a party to a subsequent suit by or
against a third party: “The rule stated in [subsection 914(2)]
applies when the preceding action was brought against the
present plaintiff [e.g., Company] either by a third person or by
the state, and also when the present plaintiff has been led by the
defendant’s tort [e.g., Jamieson’s crime] to take legal proceedings
against a third person.” See id. § 914 cmt. b. The illustrations to
the comment show that subsection 914(2) is applicable, in this
context, only when the victim of a prior crime becomes
embroiled in a subsequent suit as a result of that crime. See id.
§ 914 illustrations. Here, no third party has brought any
subsequent action against Company seeking damages for harm
Jamieson caused, and Company has not instituted any such
litigation itself. Thus, subsection 914(2) is inapplicable.




20150863-CA                     10                 

                         State v. Jamieson


¶22 The State provides no additional support for its
contention that the rule set forth in Brown—that crime victims
and their families are not permitted to include in restitution
awards time spent attending to the underlying criminal
proceedings, see 

, ¶ 23—should be varied in instances
where a crime victim is compelled by subpoena to participate in
the criminal case. We note that witnesses compelled to appear in
court pursuant to subpoena are, at least nominally, compensated
for their time, and although such fees often do not completely
cover a witness’s expenses, they do provide some level of
reimbursement for a subpoenaed witness’s time. See Utah Code
Ann. § 78B-1-119(1)(a) (LexisNexis 2018) (mandating that
witnesses “required . . . to attend a trial court of record” are
entitled to receive “$18.50 for the first day of attendance and $49
per day for each subsequent day of attendance”). Certainly, in a
civil case arising out of Jamieson’s crime, the question of
Company’s ability to recover for its own employees’ time would
not turn on whether those employees were compelled to appear
by subpoena. In short, we are aware of no reason why a
subpoenaed witness should be treated any differently than a
non-subpoenaed witness for the purpose of calculating
pecuniary damages for restitution.

¶23 We conclude, therefore, that the rule announced in Brown
applies with equal force to witnesses compelled to participate in
criminal proceedings pursuant to subpoena as it does to non-subpoenaed witnesses. Accordingly, any time that Company
employees spent attending to the proceedings in the State’s
prosecution of Jamieson—regardless of whether they appeared
pursuant to subpoena—is not compensable as restitution under
the statute in effect at the time.

¶24 And as near as we can tell on the record before us,
Jamieson’s factual assertions—that the court’s restitution order
includes at least some amount for time Company employees
spent attending hearings in the criminal case—are correct as
well. The only evidence before the district court was Company
counsel’s proffer that “about 75 percent” of the requested hours



20150863-CA                    11                 

                          State v. Jamieson


were spent “mitigating the damages” sustained by Jamieson’s
email download, and that “about 25 percent” of the requested
hours were spent “dealing with the criminal process in general.”
It is not entirely clear from the record what is included in the
latter “25 percent” category, but in the very next sentence
following his description of that category, Company counsel
stated that this category was necessary “[b]ecause we’ve been in
court three or four times for this restitution hearing to be
continued.” The clear inference—and perhaps the only
inference—that must be drawn from this statement is that the
time Company employees spent attending hearings in the
criminal case, including the oft-rescheduled restitution hearing,
was included in the latter “25 percent” category.

¶25 It is, of course, not clear on this record whether all of the
hours in the “25 percent” category were incurred attending court
hearings or otherwise participating in the criminal case. But this
question is beside the point. If even any of the time included in
the “25 percent” category was time spent attending hearings in
the criminal case, the calculation is erroneous. And it is clear that
at least some time that falls in this category was indeed included.
The district court did not undertake any analysis designed to
ascertain how many of the hours that Company was requesting
be included in the restitution order were hours spent attending
to the criminal proceedings, and to then exclude those hours
from the calculation. The district court’s failure to undertake this
analysis was error.

¶26 Here, however, because Jamieson failed to raise this issue
below, Jamieson must show more than error—he must show that
the error was plain. In order to succeed in that endeavor,
Jamieson must also show that the error should have been
obvious to the district court, and that he was harmed by the
error. See State v. Bond, 

, 

. We
conclude that Jamieson has made the necessary showing.

¶27 “For an error to be obvious to the [district] court, the
party arguing for the exception to preservation must show that



20150863-CA                     12                  

                         State v. Jamieson


the law governing the error was clear or plainly settled at the
time the alleged error was made.” State v. Johnson, 

, 

 (quotation simplified). In this case, the
relevant rule had been articulated by our supreme court in
Brown over a year before the district court entered its restitution
order. See 

, ¶ 23. Indeed, the district court was clearly
aware of Brown: in its written decision calculating the restitution
amount, the court not only cited Brown, it cited the very
paragraph in Brown where the rule is found.

¶28 And Jamieson was clearly harmed by the inclusion, in
calculation of complete restitution, of amounts reimbursing
Company for time its employees spent attending to the criminal
proceedings: he is now liable for at least some amount of
complete restitution that should not have been awarded. If the
district court had undertaken the analysis required by Brown, it
would have reduced its complete restitution order by whatever
amount it determined represented time spent by Company
employees attending hearings or otherwise participating in the
criminal case. Because the restitution amount imposed upon
Jamieson was higher than it should have been, Jamieson was
clearly harmed. 7

¶29 Accordingly, Jamieson has succeeded in demonstrating
that the district court plainly erred by including at least some
improper amounts in its restitution order.




7. Jamieson correctly points out that he would still sustain harm
from an inaccurate computation of complete restitution, even if
the court-ordered restitution amount would remain unaffected by
the inaccuracy. Under Utah law, even though a defendant is
obligated as part of the criminal case to pay only court-ordered
restitution, a defendant is liable civilly for payment of the (often
higher) complete restitution amount. See 

-
38a-401 (LexisNexis 2017).




20150863-CA                     13                 

                          State v. Jamieson


                                  II

¶30 Jamieson next argues that his counsel was constitutionally
ineffective for failing to challenge the State’s assertion that the
CEO had spent 553 hours attempting to address the email
download. We agree with this argument as well.

¶31 The Sixth Amendment to the United States Constitution
provides that criminal defendants are entitled “to have the
Assistance of Counsel for [their] defence.” U.S. Const. amend.
VI. A criminal defendant’s right to effective assistance applies to
privately retained counsel, Cuyler v. Sullivan, 

(1980), and applies at all critical stages of a criminal proceeding,
including restitution hearings where restitution is ordered as
part of a sentence that includes actual or suspended jail time,
State v. Cabrera, 

, ¶¶ 11–14, 

. Here,
the district court sentenced Jamieson to a term of 365 days in jail,
with 335 days suspended. Because the district court sentenced
Jamieson to actual as well as suspended jail time, he was entitled
to effective assistance of counsel at the restitution hearing. See 

¶32 To establish that his trial counsel was constitutionally
ineffective, Jamieson must establish that (1) his counsel’s
performance was deficient, and (2) this “deficient performance
prejudiced the defense” by giving rise to “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v.
Washington, 

 (1984). We discuss, in turn,
each part of this two-prong test.

                                  A

¶33 To determine whether counsel’s performance was
deficient under the first part of the test, we apply “the deficiency
standard announced in Strickland” and ask whether counsel’s
actions “fell below an objective standard of reasonableness.” See
State v. Scott, 

, 

 (quotation
simplified); see also Archuleta v. Galetka, 

, 267



20150863-CA                      14                  

                          State v. Jamieson


P.3d 232 (“To prevail, a defendant must show . . . that his
counsel rendered a deficient performance in some demonstrable
manner,” and that counsel’s “performance fell below an
objective standard of reasonable professional judgment.”
(quotation simplified)). One factor courts examine, in evaluating
whether an attorney performed deficiently, is whether the
attorney had a strategic reason for taking the action in question.
See Scott, 

 (stating that “the performance inquiry
will often include an analysis of whether there could have been a
sound strategic reason for counsel’s actions”). If the court
determines that the attorney had a valid strategic reason for his
actions, then “it follows that counsel did not perform
deficiently.” Id.; see also State v. Ray, 

, 

 (“If it appears counsel’s actions could have been intended to
further a reasonable strategy, a defendant has necessarily failed
to show unreasonable performance.”).

¶34 But our supreme court has clarified that, despite some
language to the contrary in prior case law, the “converse is not
true.” Ray, 

. A court’s determination that an
attorney did not have a valid strategic reason for his actions does
not automatically lead to the conclusion that the attorney
performed deficiently. Id.; see also Scott, 

 (“[E]ven
where a court cannot conceive of a sound strategic reason for
counsel’s challenged conduct, it does not automatically follow
that counsel was deficient.”). In that situation, the court still
must “ask whether, in light of all the circumstances, the attorney
performed in an objectively reasonable manner.” Ray, 

 (quotation simplified); see also Scott, 

(“[E]ven if a court concludes that counsel made an error, the
ultimate question is always whether, considering all the
circumstances, counsel’s acts or omissions were objectively
unreasonable.”).

¶35 In certain circumstances, there can be valid tactical
reasons for counsel to decide not to challenge the State’s
requested restitution amount. For instance, counsel might
believe that the requested amount is quite reasonable, and that



20150863-CA                     15                  

                         State v. Jamieson


challenging the requested amount could expose the defendant to
the risk that the court might order an amount even higher than
the amount the State requests. See, e.g., State v. Daniels, 

, 

 (determining that counsel had a
valid tactical reason for stipulating to a certain restitution
amount, because “counsel might very reasonably have
concluded that his client risked restitution liability in excess of”
the stipulated amount). Alternatively, where restitution is
computed before (or contemporaneously with) sentencing,
counsel might believe that challenging the requested restitution
amount may exhibit a lack of contrition by the defendant, which
could cause a sentencing judge to impose a harsher sentence or
higher court-ordered restitution amount. See, e.g., State v.
Beckstrom, 

, 

 (observing that
stipulating to the amount of complete restitution put the
defendant in a “contrite position” where she “might have had a
better chance of convincing the judge to not impose the full
amount of complete restitution as court-ordered restitution”); see
also Daniels, 

 (stating that “counsel may
have thought that it might play well for [the] [d]efendant to
accept a restitution award in excess of the damages for which he
admitted he was ‘absolutely responsible’”).

¶36 In this case, however, neither of these tactical reasons
existed. First, there is no evidence in the record to suggest that
the court would have had any basis to increase the number of
hours above 553 had Jamieson’s counsel questioned the CEO.
The State’s initial request for the CEO’s time was 553 hours, and
the State presented no evidence to support any higher figure.
This case therefore differs from Daniels, where there was a risk,
based on a “revised damage estimate” as well as on the potential
that the defendant would be asked to pay restitution for damage
caused by his co-defendants, that the defendant might be
ordered to pay a higher restitution amount if he withdrew his
stipulation to a certain amount. See 

.
Here, Jamieson was the only perpetrator, and neither the State
nor Company ever asked for any figure higher than 553 hours for
the CEO’s time. There does not appear to have been any



20150863-CA                     16                 

                         State v. Jamieson


appreciable risk that a higher figure might have been imposed if
counsel took the opportunity to question the CEO.

¶37 Second, there was no risk in this case that Jamieson might
have been subject to a stiffer overall sentence if he had
questioned the CEO, for the simple reason that the district court
sentenced Jamieson minutes before considering restitutionrelated issues. Thus, at the time Jamieson’s counsel had to decide
whether or not to question the CEO, there was no risk that
Jamieson might have been subject to additional jail time or more
onerous probation conditions.

¶38 The only issue that remained open at the time the CEO’s
testimony was proffered was the restitution amount itself. As
noted above, there was no appreciable risk of questioning
resulting in a finding of more than 553 hours, since that was the
entire amount the State asked for. The only risk that remained
may have been a concern that the district court would view the
questioning as a lack of contrition and impose a higher court-ordered restitution amount. But on the facts of this case, it is
clear that defense counsel did not choose to employ a strategy of
simply stipulating to the State’s requested amount of complete
restitution in hopes of appearing contrite. Instead, Jamieson and
his counsel made the decision to contest the State’s requested
restitution amounts by arguing that Company “didn’t lose any
money” and “had no pecuniary loss.” Thus, we need not
speculate about whether defense counsel, in choosing not to
question the CEO about the 553 hours, was attempting to further
a strategy of attempting to appear contrite, when that is a
strategy that counsel clearly chose not to adopt here.

¶39 In the end, we are unable to conceive of any valid tactical
or strategic reason that Jamieson’s attorney might have had for
not questioning the CEO about his claim that he spent 553 hours
attempting to address Jamieson’s illegal email download.
However, that does not end our analysis. Under Strickland, as
clarified in Ray and Scott, we must proceed to determine
whether, even in the absence of any valid tactical purpose for



20150863-CA                    17                 

                         State v. Jamieson


counsel’s actions, counsel nevertheless acted in an objectively
reasonable manner in light of all the circumstances. See Scott,

; Ray, 

. And we conclude that
counsel did not act in an objectively reasonable manner. Under
the circumstances presented here, an attorney providing an
objectively reasonable level of assistance would have conducted
at least some cross-examination of the CEO regarding his claim
that he spent 553 hours on matters related to Jamieson’s actions.

¶40 In the context of this particular restitution hearing, the
CEO’s claim to have spent 553 hours attending to the aftereffects
of Jamieson’s crime was extremely important: it comprised the
clear majority of the State’s claimed restitution amount, and
itself constituted a six-figure claim. This claim was unsupported
by any documentation, and instead was based entirely on the
CEO’s unclear recollection and rough “estimate” that he had
spent an hour a day for a two-year period. The CEO’s time claim
contrasted starkly with the time claim submitted by Company’s
vice-president, the employee who was initially tasked with
reviewing the emails Jamieson had taken and assessing the
potential damage; that employee spent only sixty hours on the
matter. And the district court expressed particular interest in
how the 553-hour figure was derived, asking Company counsel
to “[h]elp me understand the 553 hours.”

¶41 In sum, we conclude that Jamieson’s trial counsel had no
valid tactical reason not to follow up on the 553-hour figure, and
that a reasonable attorney would have done so. Accordingly,
Jamieson’s counsel was objectively deficient by not questioning
the CEO about the 553 hours.

                                B

¶42 In evaluating prejudice under the second part of the test,
we assess whether there exists a reasonable probability that the
case would have had a different outcome had trial counsel not
performed deficiently. See State v. Garcia, 

, ¶¶ 34–38,

; see also State v. Beckstrom, 

,



20150863-CA                    18                 

                         State v. Jamieson

 (stating that, in order to establish prejudice, a
litigant must show “that ‘but for counsel’s unprofessional errors,
the result of the proceeding would have been different’”
(quoting Strickland, 

)). “A reasonable probability is
a probability sufficient to undermine confidence in the outcome”
of the proceeding. Strickland, 

. In assessing
whether a defendant has met this standard, we “consider the
totality of the evidence before the judge or jury and then ask if
the defendant has met the burden of showing that the decision
reached would reasonably likely have been different absent the
errors.” Garcia, 

 (quotation simplified).

¶43 And we are confident that the result of the restitution
hearing would likely have been different if counsel had chosen
to press the State and Company about the 553 hours. Despite the
district court’s stated interest in a breakdown of how the 553-
hour figure was derived, very little additional information was
provided in the State’s restitution request or at the restitution
hearing. During the hearing, the court twice asked the State and
Company counsel to “help me understand” where the figure
came from, but the only “help” the court received in answer to
this question was a statement from the CEO that he “wished [he]
would have kept better records,” and a reference to a written
exhibit stating that the 553 hours had been spent “reviewing
printed emails, meeting with local [and federal] counsel, police
investigators, and staff.”

¶44 The State asserts that the record is “silent” as to what the
CEO would have said, on cross-examination, and contends that
Jamieson therefore cannot show prejudice. See Scott, 

, 45–46 (holding that, where the record contained “no
information about what [the] evidence would have been,” the
defendant could not demonstrate prejudice). But here, the record
is not silent. At the preliminary hearing—which had been
conducted by a magistrate, not the judge who presided over the
restitution hearing—the CEO explained that the 553-hour figure
was based on his assertion that “on average [he] had spent an
hour a day, even now, on this matter. That’s going over a two-



20150863-CA                     19                 

                         State v. Jamieson


year period.” But these figures were rough estimates—not
discrete facts corroborated through other credible evidence, such
as logged time sheets. While Company was under no obligation
to log this information with meticulous detail, the evidence
supporting the 553-hour figure, as explained at the preliminary
hearing, was sketchy at best, and would likely have been fruitful
ground for cross-examination. Had the CEO been crossexamined, additional information from the preliminary hearing
could have been provided to the restitution judge, which
information could have been used to cast additional doubt on
the merits of the restitution claim.

¶45 Under the circumstances, our confidence in the outcome
of the restitution hearing is undermined, and we conclude that
there is a reasonable probability that the court would have
reduced the number of hours if counsel had taken the
opportunity to press the State and the CEO on this point.

¶46 In sum, Jamieson’s trial counsel’s performance was
objectively deficient, and but for that deficient performance,
Jamieson likely would have received a better outcome.
Therefore, his trial counsel provided constitutionally ineffective
assistance. See State v. Ison, 

, 

(explaining that a defendant has received constitutionally
ineffective assistance of counsel when an attorney’s acts “fall
below the standard of reasonable professional assistance” and
that “counsel’s error prejudiced the defendant, i.e., that but for
the error, there is a reasonable probability that the [outcome]
would have been more favorable to the defendant” (quotation
simplified)); see also People v. Pangan, 

(Cal. Ct. App. 2013) (concluding that trial counsel was ineffective
for failing to challenge a restitution award based on the time
value of money); State v. Hassan, 

 (Wash. Ct.
App. 2014) (concluding that trial counsel was ineffective for
failing to object to the prosecution seeking a restitution award
when “there was no evidence to support” the award and “there
was no conceivable tactical reason not to object”).




20150863-CA                    20                 

                         State v. Jamieson


                         CONCLUSION

¶47 We agree with Jamieson that the district court plainly
erred in including in its restitution order at least some amount of
time spent by Company employees in addressing the criminal
litigation. We also agree with Jamieson that his trial counsel was
ineffective for failing to challenge the 553 hours the CEO claimed
to have spent mitigating damages.

¶48 Accordingly, we vacate the restitution order and remand
the case to the district court to hold a new restitution hearing
and to recalculate complete restitution (and, if necessary, court-ordered restitution) in a manner consistent with this opinion.




20150863-CA                    21