STATE of Arizona, Appellee, v. Joseph Michael CONTRERAS, Appellant.
No. 1 CA-CR 92-1857.
Court of Appeals of Arizona, Division 1, Department C.
May 17, 1994.
Review Denied Dec. 20, 1994.
885 P.2d 138
[T]he Court of Appeals listed several factors which we agree are useful to assist the trial judge in determining whether attorney‘s fees should be granted under [
A.R.S. section 12-341.01(B) ]:1. The merits of the claim or defense presented by the unsuccessful party.
2. The litigation could have been avoided or settled and the successful party‘s efforts were completely superfluous in achieving the result.
3. Assessing fees against the unsuccessful party would cause an extreme hardship.
4. The successful party did not prevail with respect to all of the relief sought.
In addition to these factors, we would include: the novelty of the legal question presented, and whether such claim or defense had previously been adjudicated in this jurisdiction. We also believe that the trial court should consider whether the award in any particular case would discourage other parties with tenable claims or defenses from litigating or defending legitimate contract issues for fear of incurring liability for substantial amounts of attorney‘s fees.
Id. at 570, 694 P.2d at 1184 (citations omitted). We find these factors useful in interpreting
In this case, the Tenants’ position on the merits of the notice issue had significant support in logic. And, the record does not indicate that the Tenants obstructed or failed to cooperate with reasonable efforts to settle the case. Further, both the notice issue and the question of the hearing officer‘s jurisdiction are issues of first impression in Arizona. Finally, awarding fees against the Tenants would tend to discourage others in similar circumstances from resorting to available remedies before the Department to assert legitimate claims under the Act. We exercise our discretion under
III. CONCLUSION
For the foregoing reasons, the judgment of the superior court is reversed with directions to enter judgment for Wildwood. Additionally, we deny Wildwood‘s request for attorneys’ fees on appeal.
WEISBERG, P.J., and CONTRERAS, J., concur.
Dean W. Trebesch, Maricopa County Public Defender by Garrett W. Simpson, Deputy Public Defender, Phoenix, for appellant.
OPINION
EHRLICH, Judge.
Joseph Michael Contreras (“defendant“) pled guilty to first-degree criminal trespass, a class 6 undesignated offense, for which two years of probation were ordered. He has appealed from the trial court‘s later modification of the terms of probation to add a condition that he pay restitution to the victims of his crime. The sole issue presented is
FACTUAL AND PROCEDURAL HISTORY
On June 16, 1992, the defendant entered a written plea of guilty to first-degree criminal trespass. The charge arose from an incident occurring on March 22, 1991, when the defendant went in a window of a neighbor‘s home and several items of electronic equipment later were found to be missing. The plea agreement provided that “[r]estitution of economic loss to the victim [is] required” and stipulated that “[r]estitution, if any, [is] not to exceed $1000.00.” The defendant further stipulated that he fully understood that, if he were “granted probation by the court, the terms and conditions thereof are subject to modification at any time during the period of probation.” At the change-of-plea hearing, the following exchange also took place:
The Court: If there was any economic loss suffered by the victims, I will be requiring you to pay restitution. I see you are agreeing to pay up to $1,000 for that economic loss. Is that your understanding?
The defendant: Yes, sir.
The trial court found that the defendant‘s guilty plea was knowingly, intelligently and voluntarily made, that he understood the nature and range of sentences and other penalties, and that there was an appropriate factual basis for the plea.
The presentence report stated that one of the victims had told the police at the time of the incident that a VCR and cable box were missing and had to be replaced. This victim also had said that her son was missing an electronic mixer board and an 800-watt power amplifier. However, since the victim had not responded to inquiries concerning the value of the missing items, no probationary term regarding the payment of restitution was recommended to the court.
On July 15, 1992, the trial court suspended the defendant‘s sentence and imposed a two-year term of probation with certain terms and conditions. No restitution payments to the victims were ordered as a condition of probation at that time.
Two months later, the defendant‘s probation officer petitioned the trial court to modify the conditions of probation to add a term ordering the defendant to pay restitution.1 The defendant objected, arguing that the victims had waived any right to restitution by neglecting to answer a letter from the Maricopa County Attorney‘s Office requesting a list of expenses covering the missing items prior to his sentencing. The defendant also contended that the court lacked jurisdiction to modify the probationary terms absent some showing of grounds to revoke probation or other changed circumstances.
The trial court held restitution hearings on November 18 and December 1, 1992, during which one victim testified to economic losses of $220 for a VCR, $110 for a cable box and $200 for wages lost in attending court hearings. Her son reported that the value of his missing equipment totalled $1950. The mother acknowledged having received a letter dated June 22, 1992, from the County Attorney‘s Office informing her of the defendant‘s guilty plea and sentencing date, and stating that it would be “helpful” if she could provide a written list and substantiation for all of her losses, that she “probably” would be contacted by an investigator from the probation department, and that it was “very important” that the trial court receive this information prior to sentencing. She could not recall why she had not responded to the letter, but denied having received any subsequent calls from the probation department concerning her losses.
The trial court found that principles of fundamental fairness required the imposition of restitution and that the plea agreement itself demonstrated the parties’ intention that restitution be ordered. It modified the probationary terms to add a condition
DISCUSSION
The defendant argues that the trial court lacked jurisdiction to modify his terms of probation to add a condition that he pay restitution. He claims that the victims waived their right to restitution by not coming forward prior to sentencing and that the state‘s failure to appeal the lack of restitution in the original disposition barred the court from disturbing that final judgment. In the alternative, the defendant contends that the trial court abused its discretion in allowing the modification because it imposed a greater burden upon him than the original terms of probation without a reasonable basis. Finally, he claims that the trial court‘s restitution order was an illegal sentence that violated his right to procedural due process.
The defendant relies on Burton v. Superior Court, 27 Ariz.App. 797, 558 P.2d 992 (App.1977), in support of his claims. In Burton, the defendant pled guilty to theft of a cement mixer and received a two-year term of probation. The trial court did not impose any restitution as a condition of probation. Fifteen months later, a petition to modify the terms of probation was filed to add a condition that the victim be paid restitution. The trial court granted the modification and extended the defendant‘s term of probation so that he could make the restitution payments. This court reversed, finding no reasonable basis to justify the additional condition and held that, when additional burdens are imposed on probation, the record must demonstrate that the petitioner violated a term of probation or other changed circumstances. Id. at 800, 558 P.2d at 995.
Burton is distinguishable from the present case. Initially, Burton does not indicate whether the defendant had agreed as part of his plea agreement to pay restitution. Also, Burton‘s term of probation was extended whereas this defendant‘s term of probation remained unchanged. Finally, recent decisions of this court and a constitutional amendment on the subject of restitution have called the holding of Burton into question.
A trial court is required by
When the trial court suspends sentence and orders probation, the sentence is not final. The court retains jurisdiction over the probationary terms and the probationer until the term of probation is successfully completed or until it is revoked and a prison sentence ordered. Id.;
We next address whether a victim waives the right to mandatory restitution by failing to respond to a letter requesting a valuation of losses. In Arizona, victims of crime have a constitutional right “[t]o receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim‘s loss or injury.”
Further, this court has held that, even if a victim declines to request restitution, the trial court‘s obligation to order it is not excused. Steffy, 173 Ariz. at 93, 839 P.2d at 1138. The objectives of mandatory restitution include not only reparation to the victim, but also rehabilitation of the defendant. Foy, 176 Ariz. at 169, 859 P.2d at 793; State v. Freeman, 174 Ariz. 303, 306, 848 P.2d 882, 885 (App.1993); State v. Iniguez, 169 Ariz. 533, 536, 821 P.2d 194, 197 (App.1991). “Restitution is not a claim which belongs to the victim, but a remedial measure that the court is statutorily obligated to employ.” Iniguez, 169 Ariz. at 536, 821 P.2d at 197. Accordingly, the modification of the terms of probation to increase restitution does not constitute an increase in punishment “but rather an increase in a non-punitive aspect of probation directed towards a proper rehabilitative goal and to making the victim whole.” Foy, 176 Ariz. at 169, 859 P.2d at 792.
In this case, the defendant had notice of his obligation to pay restitution from both the written plea agreement and his discussion with the trial court at the change-of-plea hearing. Although the court did not order restitution in the original disposition, nothing in the record precluded it upon the court‘s subsequent receipt of a valuation of the victims’ economic losses. When the victims did come forward, the defendant was given notice and allowed to contest the information they presented at two restitution hearings, satisfying any due process concerns. The trial court found that, despite a “breakdown in communications” in the victims making the amount of their restitution claims known to the court, they were nonetheless entitled to restitution. Given the trial court‘s continuing jurisdiction over probationary terms until successful completion of probation, the mandatory nature of restitution, and the procedure and facts of this case, the trial court did not exceed its jurisdiction or abuse its discretion in granting the modification of the defendant‘s terms of probation. We therefore affirm the trial court‘s grant of the petition to modify the defendant‘s terms of probation to add a condition that the defendant make restitution payments to the victims of his crime.
TOCI, P.J., concurs.
NOYES, Judge, dissenting.
I respectfully dissent for two reasons: waiver of rights and lack of jurisdiction.
Waiver of Rights
These victims waived their restitution rights by failing to act despite having notice of the need for action. They received and ignored letters from both the county attorney and the probation office requesting them to contact the probation officer and give information about their losses and their sentencing recommendation. The victims admitted to the court that they received the notice, did
Lack of Jurisdiction
The majority distinguishes Burton on its facts and on grounds that its correctness has been called into question by State v. Foy, 176 Ariz. 166, 859 P.2d 789 (App.1993), State v. Holguin, 870 P.2d 407 (App.1993), and State v. Steffy, 173 Ariz. 90, 839 P.2d 1135 (App.1992). Although none of these cases discusses Burton, I respectfully suggest that two are distinguishable from Burton and the other is consistent with it. Steffy addresses an insurance reimbursement issue and does nothing to suggest that the court has jurisdiction to order a post-judgment increase in restitution. Foy reaches a different result than Burton, but Foy did not have to reach the jurisdictional issue; it struck a post-judgment increase in restitution on the facts.
Holguin is consistent with Burton. In Holguin, restitution was not ordered at sentencing because the victim was out of contact in Saudi Arabia. 870 P.2d at 409. By the time the defendant was back in court on a petition to revoke probation, the victim was in contact with the court. Id. At resentencing, the court imposed restitution and was affirmed on appeal. Id., 870 P.2d at 409. Holguin holds that “the assessment of restitution at a sentencing proceeding after the failure to complete a suspended sentence is appropriate.” 870 P.2d at 410. Burton holds that “[w]here additional burdens are imposed on the probationer, such as additional restitution, as in this case, the record must contain evidence that the probationer violated a condition of probation upon which to base the burden.” 27 Ariz.App. at 800, 558 P.2d at 995.
The majority also implies that Burton has been called into question by
NOYES, Judge, dissenting.