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Fleisher v. Commonwealth

Court of Appeals of Virginia

January 29, 2019

BRENDA MARIE FLEISHER
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF FRANKLIN COUNTY Clyde H. Perdue, Jr., Judge

          George P. Hunt, III (Davis, Davis, Davis, & Davis, on brief), for appellant.

          Liam A. Curry, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, O'Brien and Russell Argued at Lexington, Virginia

          OPINION

          MARY GRACE O'BRIEN JUDGE.

         Brenda Marie Fleisher ("appellant") was convicted of felony unauthorized use of a motor vehicle, in violation of Code § 18.2-102. She contends that the court abused its discretion by imposing a sentence which included an amount of restitution that exceeded the loss "caused by the offense." Finding no error, we affirm.

         BACKGROUND

         On June 20, 2017, appellant and the victim became involved in an argument at a residence in Franklin County. Appellant took the keys to the victim's Hyundai Santa Fe and drove away in the vehicle. She did not have permission to take the car. The Hyundai was recovered several days later in Roanoke. However, the victim's purse, which was in the car when appellant took it, was missing. The victim reported that the purse contained $300 in cash and keys to her other vehicle, a Toyota RAV4.

         Appellant was charged with felony unauthorized use of a motor vehicle and entered a no contest plea, pursuant to a plea agreement.[1] The plea agreement provided that appellant would pay restitution "in an amount to be determined by the [c]ourt after hearing evidence on the matter." The court accepted the plea agreement. In the conviction order, the court sentenced appellant to a term of incarceration in the state penitentiary and suspended the sentence conditioned, in part, on a period of supervised probation and payment of restitution in an amount "[t]o be determined."

         At the subsequent restitution hearing, appellant testified that she left the keys in the unlocked vehicle when she abandoned it. The Commonwealth presented evidence that the victim never recovered her purse, its contents, or any keys. The victim explained that although she had spare keys to both the Hyundai and the Toyota, she wanted the door locks to both vehicles changed because she was "worried that whoever stole [her] purse and has [the] Toyota key is going to come [and] track it down . . . and drive off with [her] car." At the time of the hearing, the victim was securing her Toyota with a steering wheel lock.

         The Commonwealth presented an estimate from a Hyundai dealership that reflected the cost of replacing the keys and locks. The cost was $358 for the "key & cyli[nder]," $360 for labor, and $38 in sales tax, for a total cost of $756. Appellant conceded that she was responsible for $358 in restitution.[2]

         The Commonwealth also introduced an estimate from a Toyota dealership reflecting the cost of ordering new keys, replacing lock cylinders on the doors, and reprogramming the computer inside that vehicle. In an email, a Toyota representative explained that "they have to completely redo the computer" to accept new keys so that "old keys will then no longer work at all to open or start the vehicle." The total estimate for redoing the key-and-lock system was $2367. The cost merely to replace the lost key was $208 plus $122 for limited programming labor. Appellant argued that she should only be responsible for the cost of replacing the lost key, not the cost of changing the locks and completely reprogramming the computer.

         At the conclusion of the hearing, the court ordered appellant to pay $3423 in restitution. The total included the $300 cash that was taken, $756 in costs related to the Hyundai, and $2367 in costs related to the Toyota. The court explained "[t]hat's [for] the keys and for her to be able to redo the locks. The keys are out there, she doesn't ...


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