2024 UT App 49
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JAMES B. MOORING,
Appellant.
Opinion
No. 20230253-CA
Filed April 4, 2024
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 111904457
J. Adam Knorr and Chase G. Peterson,
Attorneys for Appellant
Sean D. Reyes and Connor Nelson,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 In 2012, James B. Mooring entered into a plea agreement in
which he agreed, among other things, to pay $50,000 in court-ordered restitution. At that time, based on his ability to pay,
Mooring began making $100 monthly payments. Mooring
continued to make $100 monthly payments until June 2022, at
which point the State filed a motion asking the district court to
revisit Mooring’s ability to pay. Mooring submitted an updated
financial declaration to the court, and in 2023, the court entered
an order adjusting Mooring’s monthly restitution payment to
$1,100 per month. The court did not change the total amount of
State v. Mooring
court-ordered restitution owed, however, leaving that amount set
at $50,000.
¶2 Mooring appeals the district court’s order adjusting his
restitution payment schedule. He argues that the court erred in
adjusting the payment schedule because (1) the adjustment is
prohibited under Utah law, (2) the adjustment violates double
jeopardy, (3) the adjustment violates substantive due process, and
(4) the State should be equitably estopped from seeking an
adjustment. We are not persuaded by any of Mooring’s
arguments, and we accordingly affirm the district court’s order.
BACKGROUND
¶3 In 2011, the State charged Mooring with one count of
securities fraud, a second-degree felony, and one count of sales by
an unlicensed agent, a third-degree felony. The following year,
Mooring entered into a plea in abeyance agreement with the State
wherein he agreed to plead guilty to one count of sales by an
unlicensed agent and to comply with various conditions,
including that he pay $50,000 in “court-ordered restitution.” In
exchange, the State agreed to reduce the third-degree felony plea
to a class B misdemeanor after a thirty-six-month abeyance
period.
¶4 Under the conditions of the plea agreement, Mooring
would “make monthly restitution payments in an amount to be
determined by the parties, or an amount otherwise approved by
the Court based upon the financial resources of [Mooring] and the
burden the payment of restitution will impose with regard to
[Mooring’s] other obligations.” If Mooring paid the full amount
of the court-ordered restitution by the time the abeyance period
ended, he would be sentenced to time served. Otherwise, he
would be sentenced to court-supervised probation and would
“remain on court-supervised probation until the $50,000.00 . . . is
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State v. Mooring
paid in full.” Payments were set to begin “on or before May 25,
2012,” at the rate of $100 per month.
¶5 In June 2016, at the end of the abeyance term, the district
court found that Mooring had “complied with the terms and
conditions of the plea agreement” and was “current in his court-ordered restitution payments.” Accordingly, the court entered an
order reducing Mooring’s felony plea to a class B misdemeanor
plea. The court also ordered Mooring to “continue to make
monthly restitution payments in the same amount as [has] been
made to date” and to “remain on court-supervised probation until
the court-ordered restitution is paid in full.”
¶6 In August 2018, the State filed a motion requesting that the
district court extend Mooring’s probation “for an indefinite
period of time, or until [Mooring] has paid his restitution in full.”
Shortly thereafter, the court issued an order (2018 Order) entering
Mooring’s conviction and ordering that he be placed on court-supervised probation “for an indefinite period [of] time, or until
[Mooring] has paid his restitution in full.” The court noted that
Mooring’s restitution balance owed was $42,600, and it ordered
Mooring to “continue to pay restitution . . . at a monthly rate of no
less than $100.00 per month.”
¶7 In June 2022, the State moved for a review hearing to
determine whether the probation should continue or whether the
outstanding restitution balance should be referred to the Office of
State Debt Collection. The motion also requested that Mooring be
required to complete a new financial declaration. The court
granted the State’s motion and ordered Mooring to file an
updated financial declaration and a written response to the State’s
request for a review hearing. Mooring submitted a new financial
declaration and a memorandum opposing the State’s request for
a review hearing. He argued that the court should deny the State’s
request because changing the “longstanding” arrangement would
constitute a modification of Mooring’s restitution order that
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State v. Mooring
would violate Utah law, “double jeopardy, estoppel, and
substantive due process.”
¶8 After reviewing Mooring’s updated financial declaration
and hearing argument on the matter, the district court
disapproved the $100 monthly payments. The court found that
Mooring had the ability to “pay substantially more than he has
been paying,” and it rejected his argument that a change to the
payment schedule is a modification of the restitution order
prohibited under Utah law. The court did not, however,
determine what the change to Mooring’s payments should be.
Instead, the court ordered the parties to first confer with respect
to the new monthly payment amount; if the parties could not
reach a stipulation as to the amount, the court would establish it,
taking into account Mooring’s current ability to pay.
¶9 Pursuant to the district court’s order, the parties conferred
regarding an increased monthly restitution payment amount;
however, they were not able to come to an agreement. As a result,
in March 2023, the court entered an order of restitution. The new
order did not change the total amount of court-ordered restitution
owed ($50,000), but it “adjust[ed] the monthly payment schedule
to reflect the financial resources of [Mooring] as disclosed in his
financial declaration . . . and his demonstrated ability to pay more
than his previous monthly payment indicated.” Relying on
sections 77-32b-103(3)(b) and 77-38b-205(2)(a)(ii) of the Utah
Code, the court increased the monthly payment “from $100 per
month to not less than $1,100 per month.” The court explained
that this increase was justified “because of what appears to be a
significant increase in [Mooring’s] ability to pay.” Relying on
Mooring’s updated financial declaration, the court found that
Mooring had a gross monthly income of around $13,000, and that
he had multiple voluntary and discretionary monthly expenses,
including spending $1,000 on donations, $200 on entertainment,
and $150 in retirement deposits. The court concluded that because
these voluntary and discretionary expenses “can be modified,”
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State v. Mooring
Mooring “is able to allocate more money towards the restitution
he currently owes the victims.”
ISSUE AND STANDARDS OF REVIEW
¶10 Mooring now appeals, raising one issue for our review.
Mooring argues the district court erred in adjusting his monthly
restitution payment schedule. “We will not disturb a district
court’s restitution order unless it exceeds that prescribed by law
or [the court] otherwise abused its discretion. But we review a
district court’s interpretation of restitution statutes for
correctness.” State v. Hamilton, 2018 UT App 202, ¶ 15,
437 P.3d
530 (quotation simplified). Likewise, constitutional issues are
questions of law that are reviewed for correctness. See State v.
Archibeque,
2022 UT 18, ¶ 11,
509 P.3d 768.
ANALYSIS
¶11 Mooring contends the district court erred in adjusting his
monthly restitution payment schedule. As part of this challenge,
Mooring raises four distinct arguments. First, he argues the court
erred in determining that the adjustment did not violate Utah law.
Second, he argues the adjustment violates the federal Double
Jeopardy Clause. Third, he argues the adjustment violates his
federal substantive due process rights. Fourth, he argues the State
should be equitably estopped from seeking an adjustment. We
address each argument in turn.
I. Utah Law
¶12 Mooring first asserts the district court violated Utah law
when it adjusted his monthly restitution payment. Specifically,
Mooring contends the court’s adjustment constitutes a
modification to his restitution order that is time-barred under
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State v. Mooring
section 77-38b-205 of the Utah Code. 1 This argument is not
supported by the plain language of the statute.
¶13 Section 77-38b-205 sets forth the process for entering an
order for restitution. Subsection (1) outlines the court’s obligation
to order restitution upon conviction as part of the sentence
1. The State and Mooring disagree as to whether Utah Code
section 77-38b-205 is applicable in this case. Section 77-38b-205
was enacted in 2021, see Act of Mar. 17, 2021, ch. 260, § 96, 2021
Utah Laws 1679, 1739–40, and the statute therefore did not exist
in 2012 when Mooring entered his plea agreement and the court
entered its restitution order. The State contends that we should
apply the version of the statute in effect when Mooring entered
his plea agreement, whereas Mooring contends that we should
apply section 77-38b-205 because it was in effect in 2023 when the
district court ordered the adjustment. See Rodriguez v. Crosby,
2024
UT App 7, ¶¶ 12–13,
543 P.3d 206 (stating that courts are
“required to apply the version of the statute as it existed at the
time of the event regulated by the law in question,” and
explaining how to determine “what event is regulated by the
statute” (quotation simplified)). Under Mooring’s formulation of
the argument, i.e., that the court’s adjustment order was a
modification of the existing restitution order, this distinction is
relevant because section 77-38b-205 provides time frames for
filing a motion to modify an existing order for restitution. See Utah
Code § 77-38b-205(6) (2022). This period is three years for felonies
and one year for misdemeanors. Id. § 77-38b-205(5). Therefore, if
section 77-38b-205 applies, any modification to Mooring’s
restitution order might be time-barred since Mooring was
sentenced on his misdemeanor in 2016 when the court entered his
conviction and ordered him to remain on court-supervised
probation. Ultimately, as explained below, it is of no consequence
in this case whether the filing deadlines imposed by section 77-
38b-205 apply because the court did not modify the restitution
order.
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State v. Mooring
imposed. Utah Code § 77-38b-205(1) (2022). In cases where the
defendant “enters a plea in abeyance . . . that includes an
agreement to pay restitution, the court shall order the defendant
to pay restitution in accordance with the terms of the plea in
abeyance.” Id. § 77-38b-205(1)(b).
¶14 After the court has entered “an order . . . to pay restitution
under Subsection (1),” the court must then take two additional
actions. Id. § 77-38b-205(2)(a). First, the court must “enter an order
to establish a criminal accounts receivable.” Id. § 77-38b-
205(2)(a)(i). Second, the court must “establish a payment schedule
for the criminal accounts receivable.” Id. § 77-38b-205(2)(a)(ii).
Both the criminal accounts receivable and the payment schedule
are to be established in accordance with section 77-32b-103, which
provides factors a court shall consider when establishing a
“payment schedule.” Id. § 77-32b-103(3)(b) (listing the victim’s
needs, the defendant’s other obligations and ability to pay, and
any other relevant circumstances as factors to consider). Once this
process is complete, “[i]f the defendant objects to the order for
restitution or the payment schedule, the court shall allow the
defendant to have a hearing on the issue.” Id. § 77-38b-205(3)
(emphasis added).
¶15 Here, the district court relied on sections 77-32b-103(3)(b)
and 77-38b-205(2)(a)(ii) when it ordered that Mooring’s monthly
payment be increased “from $100 per month to not less than
$1,100 per month.” As explained, these sections govern the
payment schedule, not the underlying restitution order. And
because the restitution order and the payment schedule are
separate, the court may adjust one without disturbing the other.
Accordingly, the court’s adjustment, which undisputedly did not
change the amount of court-ordered restitution owed under the
original restitution order, did not constitute a modification of the
restitution order. Rather, the adjustment was made to only the
payment schedule and therefore was allowed under Utah law.
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State v. Mooring
II. Double Jeopardy
¶16 Next, Mooring asserts the district court violated his federal
protection against double jeopardy when it adjusted his monthly
restitution payment. This argument misses the mark, however,
because the court’s payment-modification order did not change
Mooring’s original sentence.
¶17 “The Double Jeopardy Clause embodies three separate
protections: (1) protection against a second prosecution for the
same offense after acquittal, (2) protection against a second
prosecution for the same offense after conviction, and
(3) protection against multiple punishments for the same
offense.” State v. Rodrigues, 2009 UT 62, ¶ 36,
218 P.3d 610
(quotation simplified). “However, resentencing per se does not
implicate the double jeopardy protection from multiple
punishments.”
Id. (quotation simplified). Rather, double jeopardy
bars resentencing only where “the defendant has developed a
legitimate expectation of finality in his original sentence.”
Id.
(quotation simplified).
¶18 Here, Mooring contends the district court violated his
protection against multiple punishments for the same offense
because the court’s adjustment of his restitution payments
“increase[ed] the severity of his existing punishment” after he
“justifiably and reasonably believed his restitution order was
final.” But Mooring’s position on this point again conflates an
adjustment to the payment schedule with a modification of the
restitution order. As explained above, the court’s order adjusted
only the minimum monthly payment, not the total amount of
restitution owed. In other words, the court did not “resentence”
Mooring because it did not modify his original sentence. And
because Mooring was not resentenced, his expectation in the
finality of his sentence was not disturbed. As such, the court’s
adjustment did not implicate double jeopardy.
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State v. Mooring
III. Substantive Due Process
¶19 Mooring asserts his federal substantive due process rights
were violated when the district court adjusted his restitution
payment schedule. We are not convinced.
¶20 Due process prevents the State from depriving a person of
“life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. “Substantive due process, as opposed to
procedural due process, addresses the essence of state action
rather than its modalities; such a claim rests not on perceived
procedural deficiencies but on the idea that the government’s
conduct, regardless of procedural swaddling, was in itself
impermissible.” Smith Inv. Co. v. Sandy City, 958 P.2d 245, 251 n.7
(Utah Ct. App. 1998) (quotation simplified). “A party makes a
substantive due process claim by alleging, for example, a
deprivation of a fundamental right. Fundamental rights are
protected against government action regardless of the fairness of
the procedures used by the government.” Nelson v. City of Orem,
2013 UT 53, ¶ 28,
309 P.3d 237 (quotation simplified).
¶21 Mooring contends that in certain circumstances, the
“Federal Due Process Clause imposes a limitation on the ability of
a court to alter a sentence after a final sentence has been imposed.”
To support his position, Mooring relies on a four-factor balancing
test created by the District of Columbia Court of Appeals in Jordan
v. United States,
235 A.3d 808 (D.C. 2020). This test allows a court
to determine “[w]hether a defendant’s expectation of finality in a
sentence has crystalized, and is therefore protected by due
process,” by “balancing several non-exclusive factors.” Id. at 821.
These factors are (1) the amount of time elapsed between the
imposition of a sentence and the attempted imposition of an
increased sentence, (2) the reasonableness of the defendant’s
expectations of finality, (3) the government’s diligence in seeking
the change, and (4) prejudice resulting from the change. Id. at 821–
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State v. Mooring
22. But Mooring’s reliance on Jordan is problematic for two
reasons.
¶22 First, Jordan is not controlling in Utah. Cf. State v. Lopez, 886
P.2d 1105, 1109 (Utah 1994) (“[I]t has been well established for
almost two centuries that the United States Supreme Court is the
final arbitrator of federal constitutional issues.”). While we may
look to the court’s analysis in Jordan as guidance in reaching a
decision, we are by no means required to or bound by the
decision. Cf. Zimmerman v. University of Utah,
2018 UT 1, ¶ 19,
417
P.3d 78 (explaining that while Utah courts may look to decisions
from other jurisdictions for guidance on a state constitutional
question, such decisions are “by no means binding”). Because
Mooring has offered no explanation as to why this balancing
test—which so far as we are aware has been utilized by only the
Jordan court—should be used as the standard in Utah, we decline
to apply it here.
¶23 Second, even if we were to adopt the Jordan balancing test,
it would not help Mooring because Jordan is factually
distinguishable. In Jordan, the defendant was initially sentenced
to thirty years to life for a felony murder conviction. 235 A.3d at
812. Thereafter, the defendant filed a motion to correct his
sentence on the ground that the trial court had applied the wrong
sentencing law. Id. The trial court granted the defendant’s motion
and resentenced him to twenty years to life. Id. Sixteen years later,
the government moved to correct the sentence, arguing that the
original thirty-year sentence was correct. Id. The defendant
opposed the motion, asserting that increasing his sentence would
violate due process. Id. at 813. Ultimately, the trial court was
unpersuaded by the defendant’s due process argument and
resentenced him in accordance with the government’s request,
which resulted in an “overall increase” to his sentence. Id. at 813–
14. On appeal, the District of Columbia Court of Appeals was
persuaded by the defendant’s argument, concluding that
although a defendant’s due process right to liberty is diminished
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State v. Mooring
post-sentencing and generally a defendant has no expectation of
finality in an illegal sentence, “the Due Process Clause may, in
extreme circumstances, impose a temporal limit on the power of
a court to increase a sentence, even an illegal one.” Id. at 821
(emphasis added).
¶24 As has been discussed extensively in Sections I and II
above, here the district court’s order did not alter—let alone
increase—Mooring’s sentence. The adjustment was made only to
Mooring’s restitution payment schedule, not to the underlying
restitution order. Thus, the proposition for which Jordan stands is
not applicable in this case. The action taken by the court did not
work a change to Mooring’s sentence.
¶25 Because Mooring relies solely 2 on the balancing test in
Jordan, which is both factually distinguishable and noncontrolling, he has not demonstrated that the adjustment to his
payment schedule violates substantive due process.
2. In passing, Mooring cites Monson v. Carver, 928 P.2d 1017 (Utah
1996), for the proposition that a court is prohibited from
“mak[ing] more burdensome the punishment for a crime, after its
commission.”
Id. at 1026 (quotation simplified). But the sentence
from which this language was lifted describes the prohibition
against ex post facto laws guaranteed under Article 1, Section 10
of the United States Constitution. See
id. (“An ex post facto law is
one that punishes as a crime an act previously committed, which
was innocent when done [or] which makes more burdensome the
punishment for a crime, after its commission . . . .” (emphasis added)
(quotation simplified)). Indeed, the issue in Monson was whether
the retroactive application of a statute requiring restitution as a
condition of parole violated the defendant’s protections against ex
post facto laws guaranteed by both the state and federal
constitutions. See
id. Resolution of this issue did not involve a
substantive due process analysis.
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State v. Mooring
IV. Equitable Estoppel
¶26 Lastly, Mooring asserts the State should be equitably
estopped from seeking an adjustment to the payment schedule.
Equitable estoppel generally has three elements:
(1) a statement, admission, act, or failure to act by
one party inconsistent with a claim later asserted;
(2) reasonable action or inaction by the other party
taken or not taken on the basis of the first party’s
statement, admission, act or failure to act; and
(3) injury to the second party that would result from
allowing the first party to contradict or repudiate
such statement, admission, act, or failure to act.
South Weber City v. Cobblestone Resort LLC, 2022 UT App 63, ¶ 26,
511 P.3d 1207 (quotation simplified). Estoppel claims made
against the government are different, however, because “as a
general rule, estoppel may not be invoked against a governmental
entity.” Terry v. Retirement Board,
2007 UT App 87, ¶ 14,
157 P.3d
362 (quotation simplified). Notwithstanding this general
prohibition, Utah courts have recognized one “narrow exception”
that allows claimants to assert estoppel against the state and its
agencies in “unusual circumstances where it is plain that the
interests of justice so require.” South Weber,
2022 UT App 63, ¶ 27
(quotation simplified). This exception applies only if the claimant
can show that the “authorized government entit[y]” made “very
specific written representations.” Monarrez v. Utah Dep’t of
Transp.,
2014 UT App 219, ¶ 35,
335 P.3d 913 (quotation
simplified), aff’d,
2016 UT 10,
368 P.3d 846.
¶27 Mooring contends the State should be estopped from
adjusting his monthly restitution payment amount because “after
[Mooring] had been paying his restitution properly for years, the
State specifically moved the district court to allow [Mooring] to
remain on probation ‘indefinitely’ while he made his $100
monthly payments,” and Mooring “relied on this arrangement to
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State v. Mooring
structure his life and expenses in a manner that allows him to pay
his required $100 per month.” This argument is unpersuasive. Not
only has Mooring failed to establish the three elements of
estoppel, he has not shown why it would be appropriate to
consider his claim under the narrow exception allowing a
government entity to be estopped.
¶28 First, the State’s decision to seek an adjustment to the
payment schedule was entirely consistent with the terms of
Mooring’s plea agreement. As discussed above, the adjustment to
the payment schedule did not change the terms of the plea
agreement. Under every court order issued in this case, Mooring
has consistently been required to pay $50,000 in court-ordered
restitution. And the only thing in the plea agreement itself about
the amount of the monthly restitution payments is that the
amount is “to be determined by the parties, or an amount
otherwise approved by the Court based upon the financial
resources of [Mooring] and the burden the payment of restitution
will impose with regard to [Mooring’s] other obligations.” Thus,
not only does the written plea agreement fail to set the monthly
payment at $100, it explicitly outlines a procedure by which the
payment amount may be determined by the parties or the court.
¶29 Moreover, Mooring misconstrues the language in the 2018
Order extending his court-supervised probation. In that order, the
court instructed that Mooring’s probation, “with all of its
conditions and restrictions, shall be extended for an indefinite
period [of] time, or until [Mooring] has paid his restitution in
full.” Mooring construes this language as the court ordering that
he be allowed “to remain on probation ‘indefinitely’ while he
made his $100 monthly payments.” But this is not what the court
did. Rather, “indefinitely” refers only to Mooring’s plea-inabeyance term and reinforces that Mooring will remain under the
supervision of the court and bound by the terms of his plea
agreement until he finishes paying his court-ordered restitution.
It does not, as Mooring contends, refer to the amount of the
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State v. Mooring
monthly payments, nor does it set the payments at $100
indefinitely. 3
¶30 Next, Mooring has not shown injury because of the
adjusted monthly payment. The district court adjusted the
monthly payment based on Mooring’s updated financial
declaration, which listed Mooring’s current voluntary and
discretionary expenses at $1,350 per month. The court’s order
adjusted Mooring’s monthly restitution payment to $1,100—a
level well within his means. Indeed, even with the increased
payment, Mooring still maintains an excess of $250 per month for
voluntary and discretionary expenses to be allocated as he sees fit.
¶31 Because Mooring has not proved the three general
elements required to succeed on an estoppel claim, we have no
need to consider the additional elements that would be required
to estop the State from seeking an upward adjustment to
Mooring’s monthly restitution payment.
CONCLUSION
¶32 The district court properly adjusted Mooring’s monthly
restitution payment amount. The adjustment was made to only
the payment schedule, not to the underlying restitution order, and
therefore it was not a modification of the plea agreement that
could be time-barred under Utah law. And because the
adjustment implicated only the payment schedule and not the
restitution order, the adjustment did not violate Mooring’s rights
against double jeopardy or to substantive due process. Finally, the
3. Mooring also fails to grapple with the fact that in the 2018
Order, the district court instructed Mooring to “continue to pay
restitution . . . at a monthly rate of no less than $100.00 per month.”
(Emphasis added.) Thus, it appears the court was specifically
leaving open the possibility that the amount of the monthly
payment could change at some point in the future.
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State v. Mooring
State was not estopped from seeking an adjustment to the
payment schedule because the State never agreed to allow
Mooring to pay $100 per month indefinitely and Mooring was not
harmed by the adjustment.
¶33 Affirmed.
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