Can restitution awards include victim time spent on criminal proceedings? State v. Jamieson Explained

In State v. Jamieson, the Utah Court of Appeals addressed two critical issues in criminal restitution: what types of victim time can be compensated and the standard for effective assistance of counsel at restitution hearings.

Background and Facts

Gary Jamieson, employed as chief engineer at a company, downloaded over 1,400 of his boss’s emails without authorization and disseminated them to federal agencies and media. After pleading guilty to computer crimes, the State sought $164,609.77 in restitution. The bulk of this request consisted of the CEO’s claimed 553 hours of time spent dealing with the aftermath, valued at $110,600. Company counsel indicated that approximately 75% of employee time was spent mitigating damages while 25% was spent “dealing with the criminal process in general,” including attending court hearings.

Key Legal Issues

The court addressed whether restitution awards can include compensation for victim time spent participating in criminal proceedings and whether defense counsel was constitutionally ineffective for failing to challenge the CEO’s unsupported 553-hour claim.

Court’s Analysis and Holding

Applying State v. Brown (2014 UT 48), the court held that the “longstanding, well-settled rule” forecloses recovery of costs incurred in maintenance of litigation. Under Utah’s Crime Victims Restitution Act, pecuniary damages are limited to those recoverable in a civil action arising from the defendant’s criminal activities. Since victims cannot recover litigation-related expenses in civil tort actions, such time cannot be included in restitution awards regardless of whether the victim appeared voluntarily or under subpoena.

Regarding ineffective assistance, the court applied the Strickland standard as clarified by recent Utah Supreme Court decisions in State v. Ray and State v. Scott. The court found no valid tactical reason for counsel’s failure to question the CEO about the unsupported 553-hour claim, which comprised the majority of the restitution request. Given the CEO’s admission that he “wished he would have kept better records” and his reliance on rough estimates, competent counsel would have conducted cross-examination.

Practice Implications

This decision reinforces that restitution calculations must carefully separate victim time spent mitigating actual crime-related damages from time spent participating in criminal proceedings. Defense counsel must reasonably challenge unsupported damage claims, particularly when they constitute the majority of the restitution request and lack documentation. The court’s analysis provides clear guidance on when failure to cross-examine constitutes deficient performance under Strickland.